ISLAMIC LAW

(a) Islamic law or Syariah was widely observed by the locals in the Malay States long
before these states were occupied by the European colonial powers. However, during the
British administration of these states, Islamic law was reduced in its application to personal
matters affecting the Muslims.

Discuss. (10 marks)

Before British intervention, the Malay States were adopting Islamic law in all matters
including criminal matters. For example, Hukum Kanun Melaka was established during the
reign of Sultan Muzaffar Shah (1446-1459), containing 44 chapters that covers various
matters including marriage and divorce, commercial transaction, criminal offence and
evidence and procedure. In Johor, apart from adopting laws from Malacca, they also codified
Islamic law model from Turkey which is Majallat Al-Ahkam, was translated as the Majallah
Ahkam Johor and the Hanafi Code of Qadri Pasha from Egypt was translate as the Ahkam
Syar'iyyah Johor.

Furthermore, it is undoubted that Islamic law was a lex loci of the land before the
British intervention into the Malays States. This can be seen in the case Shaik Abdul Latif v
Shaik Elias Bux, where Edmond JC stated that before the first treaties, the population of these
Shain Abdul Latif States consisted almost of Mohammedan Malays with a large industrial and mining Chinese
Sheikh Alias
~

Edmund
community in their midst. The only law at that time applicable to Malays was Mohammedan
Bux ,

JC stated that , laws modified by local customs. In other words, Islamic law has been used widely before the
trieties ,
Before the
Pangkor Treaty 1786 and the only law at that time is Islamic law that has been modified by
most of thepeople
Mohammedan
living was
local customs. In the case of Ramah v Laton, Thorne J stated that Muslim law was not a
and some
malays
Chinese people wowing foreign law but local law and the law of the land. The court must take judicial notice of it and
mining
in industry and .

The law applicable must propound the law. This means that the Islamic law is the lex loci and no evidence
at that time was

Mohammedan laws needed to prove that Islamic law was the law that governed the states.
local
modified by
custom .

During British intervention to the Strait Settlements, English law became the law of
the land by virtue of Charter of Justice 1807, 1826 and 1855. These Charter established a
court system and made English law applicable to local inhabitant and other residents as long
as it didn’t conflict with their different religions and customs. In the case of Chulas v Kolson,
the court recognized Islamic law in the sense that it allows a married woman to bind herself in
a contract. Maxwell R argued that when English law is inappropriate for the conditions of
these communities, their own laws and customs should be applied instead. They should be
regarded as having ‘foreign domiciles’, meaning that they should be governed by their own
laws while residing in British territories. In the Goods of Abdullah’s case, the Islamic law
was completely disregarded by the court. The judge ruled that the Mohammedan law did not
apply in the Strait Settlement as the law of England was introduced into the State Settlement
by virtue of Charter 1826. Therefore, during the British administration, the English law
 ISLAMIC LAW

became the law of the land and Islamic law only became relevant for personal matters of the
Muslim only.

In the Malay States, British residents were appointed in the states to advise the sultan
on the administrative rules excluding matters pertaining to Islamic administration and
customs. English common law and the rules of equity were introduced in the Federated
Malay States by virtue of Civil Law Enactment 1937. Later, several Indian legislation were
imported and enforced in FMS including the Penal Code, the Evidence Ordinance, the
Contract Ordinance and the Criminal Procedural Code. Islamic law was limited and
restrictions only matters pertaining to marriage, divorce, and inheritance. For example, in the
case of Ainan v Syed Abu Bakar, the court dealt with a situation regarding the legitimacy of a
child born to a woman less than six months after her marriage to Ainan. According to Section
112 of the Evidence Enactment, any child born during a valid marriage or within 280 days
(about nine months) after the marriage ends is automatically considered legitimate. This
presumption can only be challenged if it can be shown that the parents did not have access to
each other during the time when the child could have been conceived. However, islamic law
states that the minimum gestation period is six months, meaning that any child born before
this period would be considered illegitimate. In this case, although Islamic law would classify
the child as illegitimate due to being born before six months, the court decided that Section
112 applies to everyone in the Federated Malay States, including Muslims. Therefore, the
court ruled that the child was legitimate under Section 112 of the Evidence Enactment
because there was no evidence proving that Ainan and his wife had not been together during
the time of conception. As a result, Islamic law was set aside in favor of Section 112 of the
Evidence Enactment.

Moreover, in the case of Public Prosecutor v White, White firs married a Christian
woman in 1918 in Taiping,, following the Church of England’s marriage rites. This marriage
was monogamous, meaning he was only allowed to have one wife at a time. However, in
1936, while his first wife was still alive, White converted to Islam and married another
woman according to Islamic law, which allows a man to have up to four wives, known as
ploygamy. The court ruled that White had committed bigamy because he had entered into a
monogamous marriage with his first wife. According to Section 494 of the Penal Code, it is
illegal to marry someone while still having a living spouse. The court emphasized that by
marrying under monogamous rites, White accepted all the legal responsibilities that come
with such a marriage. This meant that despite his conversion to Islam and the allowance for
polygamous marriage under Islamic law, he could not legally marry another woman while his
first marriage was still valid. Therefore, the court disregarded Islamic law in this case and
held that White's second marriage was not legally recognized due to his existing marriage.

Not only that, in the Federated Malay States, several civil courts were est up,
including the Court of Judicial Commissioner, Court of Senior Magistrates, Court of
Magistrates of the First Class, Court of Magistrates of the Second Class, Courts of Kathis and
 ISLAMIC LAW

Assistant Kathis (Syariah Court) and the Penghulus Court. In 1948, the Courts Ordinance
1948 established a judicial system for the Federation, but it did not include the Kadhis Court
in the Federal Court System. This Ordinance expanded the civil courts’ authority and
removed restrictions that were previously tied to the Kathis Court’s jurisdiction. This meant
that civil courts could now handle a broader range of cases without being limited by the rules
that applied to the Kathis Court.

Therefore, during the British intervention, the English law has been accepted widely
in the Federation governing all matters of civil and criminal cases. Islamic law became
isolated and only limited to matrimonial matters only.

(b) with reference to relevant authorities, discuss the status of Islamic law in the Federal
Constitution. (5 marks)

In Malaysia, the Federal Constitution gives Islam a unique status. Each state’s Ruler
serves as the head of Islam in their respective state, while the Yang di-Pertuan Agong is the
head of Islam in the Federal Territories as well as in his own state and in Malacca, Penang,
Sabah, and Sarawak. If someone shows disrespect toward religious authority or refuses to
follow the orders of the state’s ruler or the Yang di-Pertuan Agong regarding Isam, they can
be charged with an offense. According to Section 9 of the Criminal Offense (Federal
Territories) Act 1997, a person found guilty of such contempt can face a fine up to RM3000,
imprisonment for up to two years, or both.

The word “law” includes written law, the common law that is currently in effect in
Malaysia or any part thereof, and any custom or usage that are recognized as law in Malaysia
or any part thereof. The interpretation of ‘law’ cannot include Islamic Law due to the fact that
written law made by the Parliament, while Islamic law is a divine law from Allah SWT.

Article 3 of the Federal Constitution provides that Islam is a religion of the Federation
and other religions may be practised in peace and harmony of any part of the Federation. The
word Islam here is only related to rituals and ceremonies as discussed in the case of Che
Omar bin Che Soh v Public Prosecutor. In this case, Che Omar, a Muslim, was convicted of
drug trafficking and sentenced to death under the Firearms (Increase Penalty) act. He
appealed his conviction, arguing that the mandatory death penalty was un-Islamic and
unconstitutional. Che Omar based his argument on Article 3(1) of the Federal Constitution,
suggesting that Islamic law should take precedence in matters affecting Muslims. The court
ruled that the term “Islam” in Article 3(1) mainly refers to rituals and ceremonies, not to
criminal or punishment. The judges pointed out that during British colonial rule, Islamic law
was mostly limited to personal matters such as marriage and inheritance, and did not cover
criminal issues. Therefore the court concluded that imposing a mandatory penalty for drug
 ISLAMIC LAW

trafficking did not violate Article 3(1) because this Article does not extend to criminal
penalties. As a result, Che Omar’s appeal was dismissed, and his death sentence was upheld.

In the case of Fatimah Sihi & Ors v Meor Atiqulrahmah bin Ishak & ors, the issue
revolved around whether Muslim students in school had the right to wear serban. Initially, the
High Court ruled in favor of the students, stating that Article 3 of the Federal Constitution
should be understood to mean that Islam encompasses more than just rituals and ceremonies.
The court emphasized that the government has a duty to protect and promote Islam. However,
this decision was later overturned by the Court of Appeal. The Court of Appeal referenced
Article 11(1) of the Federal Constitution, which grants every person the right to practice their
religion, but with certain restrictions. The court concluded that determining whether wearing
a serban is an essential part of Islam required evidence, and it was up to the respondents to
provide sufficient proof that wearing a serban is mandatory in Islam. Unfortunately for them,
they were unable to do so. The Court of Appeal’s ruling was subsequently upheld by the
Federal Court. Additionally, Article 11 of the Federal Constitution outlines individuals’ right
to profess and practice their religion, but it also allows state laws, and federal laws in Kuala
Lumpur, Labuan and Putrajaya, to control or restrict the spread of any religious beliefs among
Muslims. Specifically, Article 11(4) states that state law can manage or limit the promotion of
any religious doctrine among Muslims. This means that State Legislative Assembly have the
authority to enact laws that protect Islam from influences from other religions or even
differing interpretations within Islam itself.

Moreover, Islamic law is applied to some extent in Malaysia, particularly in areas

concerning Muslim personal law and minor offenses that go against the teachings of Islam.
Article 74(4) of the Federal Constitution states that the State Legislative Assembly can create
laws regarding matters listed in the State List (List II of the 9th Schedule). This means that
both the Parliament (for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya) and
the State Legislative Assembly can enact Islamic law only for specific matters outlined in the
Federal and State Lists. These matters include Islamic laws related to betrothal, marriage,
divorce, dowry and maintenance, and the structure and procedures of Syariah Courts, which
have jurisdiction only over Muslims. In the case of Yong Fuat Meng v Chin Yoon Kew,
Hamid Sultan Abu Backer CJ explained that Islam is recognized as the official religion of
Malaysia, and people are allowed to practice it freely. However, he pointed out that the state
legislature cannot enact laws that are not related to Islamic Law or personal matters for
Muslims. He emphasized that while Parliament can make civil and criminal laws including
those with capital punishment, these laws do not qualify as Islamic law. The founding fathers
of the Constitution understood that Parliament could enact laws from good governance, but
they did not gie state legislatures the power to create laws for Muslims beyond Islamic law
and personal family matters. He stressed that any attempt to go beyond these limits would be
unconstitutional and could disrupt public rights and the administration of justice. He noted
that Ninth Schedule of the Constitution is limited in scope, and violating its provisions would
lead to significant imbalances in justice. Overalls the distinction between Islamic law and
 ISLAMIC LAW

other laws must be maintained to ensure proper governance and respect for constitutional
boundaries.

Overall, Article 4(1) of the Federal Constitution establishes that the Constitution is the
supreme law in Malaysia. This means that the Constitution, not Syariah law, takes
precedence. Any law passed after Merdeka Day that is inconsistent with the Constitution will
be considered void to the extent of the inconsistency. Additionally, non-Muslims cannot be
forced to convert Islam; they have the right to practice their own religion, which is protected
under Article 11(1) of the Constitution.