History of Administration of Islamic Law in Malaysia PDF

History of Administration of Islamic Law in Malaysia 26 Dec 2024  Syariah law is the sacred law of Islam revealed RJ Wilkinson, Paper on Malay Subjects through the Prophet Muhammad p.b.u.h in Law, Part 1, 1922, 49 said....

History of Administration of Islamic Law in Malaysia 26 Dec 2024  Syariah law is the sacred law of Islam revealed RJ Wilkinson, Paper on Malay Subjects through the Prophet Muhammad p.b.u.h in Law, Part 1, 1922, 49 said. the Quran and Sunnah. It is the totality of “There can be no doubt that Moslem Law God’s commands that regulate the life of would have ended becoming the law of Muslims in all its aspects ; their duties Malaya had not British Law stepped in to towards Allah and their relationship w one check it. another and the environment. Shaik Abdul Latif and others v. Shaik Elias In WA & RB (133), Islamic law means the legal Bux, 1 FMSLR 204. rules that are part of the Syariah & enacted as legislation in accordance with the procedures prescribed in the Federal and State “Before the first treaties the population of Constitution. these states consisted almost solely of The Islamic law that applies in Malaysia is of Mohammadan Malays with large industrial the Shafii school of jurisprudence.[study deeper in 2nd semester course Islamic Legal and mining Chinese in their midst. The only System) Recorded established history of arrival of law at that time applicable to Malays was Islam to Malay States is via the Parameswara the Palembang Prince who founded Melaka, Mohammedan law modified by local married a Muslim Princess from Pasai, embraced Islam & adopted the name of customs”. Iskandar Shah. 9/1/2025 FUU/UM/LIA1002/ZAH 2 Sources of Islamic law applied in Malaysia Secondary sources (which are not sources, but are rather the means for discovering Primary sources the law) (c) Ijma: consensus of jurists of any particular era on a juridical (a) Quran: the Word of Allah rule; and (d) Qiyas: deductions from reasoning by ijtihad or analogy. (b) Sunnah: rules deduced from the traditions, ie. the sayings or conduct of Prophet Muhammad (peace be upon him). 9/1/2025 FUU/UM/LIA1002/ZAH 3 Islam replaced the Hindu system of devaraja or divine kingship w the Sultanate system. Sultan regarded as the khalifah or Pre-Islam, the Malays followed adat or vicegerent representative of Allah. Hindu influenced customary law. Govern according to Allah’s law or the Attempted to introduce Syariah & Syariah. modify the Malay adat to accord w In the Malay-Muslim Sultanate, Islam Islam. came under the supervision of the Earlier Risalat Hukum Kanun (Undang- Sultan. Undang Laut Melaka) set out Islam supported and strengthened the customary laws, but later versions position of the Sultan who, in turn, showed a mix of customary laws and insisted upon Islam being the principles of the Syariah. established religion. Versions of the UU Laut Melaka were adopted in the Malay States w Syariah influences. 9/1/2025 FUU/UM/LIA1002/ZAH 4  Johor Digest of 1789 was modelled Composite body of Malay on the UU Melaka. adat law w Hindu- Translations were made of Pahang Digest – Sultan Abdul al- codifications of the Syariah made in Ghafur M Shah 1592-1614 Buddhist elements Turkey and Egypt. Pahang was Dar al Islam (Islamic State) Majallat Al- Ahkam Turkey was Overlaid w principles of Syariah law translated as the Majallah Ahkam 42/68 articles were based on the was modified during British Johore. Syariah. administration when it was The Hanafi code of Qadri Pasha of incorporated within the Egypt was translated as the Ahkam framework of English law. Shariyyah Johore. Sultan Abu Bakar had a Johore Constitution drafted in 1895. Codification of Islamic law Influences from Turkey & fused w adat w as early as Egypt 1592 9/1/2025 FUU/UM/LIA1002/ZAH 5  (WA & RB) British administration separated religion from the state. The state dealt only with mundane matters. Islam was left entirely to the religious establishments. The British purportedly left the According to WA & RB religion untouched but, having introduced English law and made it the law of general application in place of (2002) at page 135. As the Malay-Muslim law, they reduced the latter to being merely the personal law of the Muslims. R.J. Wilkinson said: The principles of the Syariah which concerned personal obligation were incorporated within the framework of There can be no doubt English law ,subjected to the form and procedures of the latter. that Moslem law would This restriction & subjection respectively inhibited the have ended by becoming full development of Syariah law, and resulted in extensive modifications and distortions of the the law of Malaya had principles of the Syariah, primarily by reducing its principles to those which the common law was not British law stepped prepared to accept. The history and degree of this subjection varied from time to time and from place to in to check it. place, according to the status of the territories concerned. 9/1/2025 FUU/UM/LIA1002/ZAH 6  Sir Edward Stanley 1st Recorder in Penang thought the effect of Straits Settlements Charter 1807 was to guarantee the Penang free exercise of religion and custom. There was lack of evidence that Sir Ralph Rice 3rd Recorder thought Malay-Muslim law was the basic law that the Charter merely introduced of the land, or any system being English criminal law & that in civil administered when the British matters, justice was to be arrived. administered among the Asian races English - First Charter of Justice 1807 according to their respective laws & – as it stood in England on 25.3.1807 customs. into Penang View of Sir Benjamin Malkin in In the Modifications necessary because of the Goods of Abdullah and various races & religions of the local supported by Sir Benson Maxwell in R inhabitants, to prevent injustice & v Willans was that the Charter hardship if English law were to be did not sanction or recognise local imposed & unmodified. law, but merely admitted it as an exception to English law, the law of general application that prevailed. 9/1/2025 FUU/UM/LIA1002/ZAH 7 Provisions of the Charter [theoretical basis or justification for modifications to English law] And further, that the said Court of Judicature shall have and exercise Jurisdiction as an Ecclesiastical Court, so far as the several Religions, Manners and Customs of the inhabitants of the said Settlement and Places will admit… The Courts of Judicature interpreted that provision as allowing the application of personal laws, ie. laws primarily confined to personal matters which apply to specific groups which are defined according to race or religion or both. Thus, it was only as personal law that the Malay-Muslim law was administered among Muslims in the Straits Settlements. Despite acceptance of the policy adopted wherever possible by the English East India Company of non- interference with native law, custom and religion, modifications were made. 9/1/2025 FUU/UM/LIA1002/ZAH 8 Refer to these cases to illustrate the point. M.B. Hooker, Islamic Law in South-East Asia, Singapore: Oxford University Press, In the Goods of Abdullah 1984 84-9. Hawah v Daud Wood’s Oriental The English or English trained judiciary Cases, 26 encountered problems in applying the Kader Mydin, Administrator of Hosan principles of Islamic law for various Sah v Shatomah Wood’s reasons. Islamic law was but one of Oriental Cases, 42. several religio-legal systems in the Straits Settlements. In the Straits Settlements, Islamic law Unlike in the neighbouring Malay States, Islamic was developed before 1880 by the law was not associated with the state or or judiciary & subsequently supplemented by legislation. territorial power; nor was it the law of general application. 9/1/2025 FUU/UM/LIA1002/ZAH 9  Also, difficulties –extent of application of Islamic WA & RB (2002)136-7. law & the limits of of the civil court’s jurisdiction. Legislative intervention – Mahomedan Marriage (In the Straits Settlements) The rules of Islamic law then Ordinance 1880 (No V of 1880) – procedural or were local, non-literary & non-textual (later at the end of 18th century administrative in nature – voluntary registration of reference was seriously made to the classical legal literature of Islam). Muslim marriage & divorce, recognition of the kadi The substantive content of the rules was provable etc – It did not enact the substantive Islamic law, by evidence of local practice (Including adat or or prescribe authoritative texts to enable the customs) given by the kadi (Syariah judges), who courts to ascertain what the law was. – were prone to mistake adat for Islamic law – in amendments in 1908, 1923, 1934 – Mahomedans Tijah v Mat Alli 4 Ky.124 w concerned a Ordinance. Remained in force in Penang and claim by a wife for a share in joint earnings (harta Melaka until 1959, when it was repealed by the sepencarian). respective State Enactment on the Administration of Muslim law. 9/1/2025 FUU/UM/LIA1002/ZAH 10 Malay States (FMS, UFMS) either independent states of Siam dependencies w became British protectorates through a series of treaties of protection Predominantly Malay - Muslim subjects Islamic states with Muslim Rulers The Ruler had to accept a Basic applicable law was Malay- Resident/ Adviser (UFMS) Muslim law. After 1874 ‘whose advice must be asked onwards, Islam no longer and acted upon on all questions defined the state or sovereignty. other than those touching Malay religion and customs’. British turned the Malay States into secular states w secular institutions. Residential/Advisory system, the agency through which the British imposed indirect rule. 9/1/2025 FUU/UM/LIA1002/ZAH 11  Federal Council 1909 in FMS Ruler & his State Council High Commissioner (Pres (rubber stamping Fed Council) authority for legislation passed by the Fed Gov of Straits Settlements Council) were left based in Spore. Res responsible only for General FMS based in traditional Malay affairs. Kuala Lumpur. Rulers were ordinary members w no powers of veto. Interpreted by the British to mean Leg passed by Fed Council Islam and Malay custom. In this signed by the High Commissioner. restricted forum, Islam in its public State Councils aspect meant only matters that touch FMS – Resident presided on the Rulers’ prerogatives. Originally advisory then became sole legislative UFMS retained considerable measure bodies of autonomy. UFMS Rulers were wary of any suggestion of a union or federation which might impair their sovereignty. 9/1/2025 FUU/UM/LIA1002/ZAH 12 Changes (or the western phrase of their colonialist project is development) to the legal system Setting up of courts manned by English Introduced English law & English trained judges British advice led to the enactment of Civil courts acknowledged that Islamic law legislation on specific matters modelled on was local not foreign law. those in India based on principles of English The courts must take judicial notice of it & law. declare its principles. Penal Code, Evidence Ordinance 1902. Civil Procedure Code 1918, Contracts Enactment But the judges did not hesitate to apply passed in Negeri Sembilan, Perak and principles of the CL & equity to fill in the gaps Selangor in 1899, Pahang 1900, Johore 1931. in the local law. This judiciary practice was sanctioned by the Civil Law Enactment 1937 FMS, UMS by the !937 Enactment & sucessive legislation – Civil Law (Extension) Ordinance 1951. marked the omnibus Replaced by Civil Law Ordinance 1956 then introduction of English law. revised & extended to Sabah Sarawak as the Civil Law Act 1956 Act 67 (Revised 1972) 9/1/2025 FUU/UM/LIA1002/ZAH 13 Treaties ~ British advisers, establishment of courts & brought in English judges and faced existing local laws based on Mohamedan law. Shaik Abdul Latif & Ors v Shaik Elias Bux (1915) 1 FMSLR 204 Edmonds JC: The British treaties with W a large industrial & mining Chinese the Rulers of these States merely community in their midst. The only provided that the advice of the British law at that time applicable to Malays administrators should be followed & was Mohamedan modified local in accordance w such advice Courts customs. In Selangor, Perak and have been established by Enactment. Pahang amongst Mussalmans British judges appointed, & a British successions on death was regulated administration established. Before the by unmodified Mohamedan Laws: in first treaties the population of these parts of Negeri Sembilan there are States consisted almost solely of special local customs based on Mohamedan Malays matriarchy. 9/1/2025 LQX7002Fuu.UM/ZAH 14  Shaik Abdul Latif & Ors v Shaik Elias Bux (1915) 1 FMSLR 204 Ct considered wr the testator had retained his Which law governed the power of testamentary disposition of Shaik domicil of origin in Hong Baloo Bux, a Mahomedan Indian & a British subject having a Kong or had acquired by domicile of origin in Hong Kong, where he was born in 1865. After choice a domicile in this Basic leaving the colony in 1888 & residing in Singapore had come in 1805 to the Selangor where he remained until he died in 1914. He State. conservative executed his will in August 1913. He disposed the whole of his property both movable & immovable. proposition (British Sir T Bradddel CJC: … so far as the immovable property of the intervention testator is concerned the validity of the will with respect to the devise of this property would be governed by the law of this State in where the the domicile. Malay property is situate without regard to the question of his States). 9/1/2025 LQX7002Fuu.UM/ZAH 15 Anchom Binte Lampong v Public Prosecutor; Hussin bin Mandot v Public Prosecutor MLJ 22, CA. Gordon Smith, AG JA: …the Appellants had been convicted Act as the Ruler’s advisers and take a share in such duties and under ss 4 & 6 of the offences by Mohamedan Enactment , responsibilities … No 47 of having illicit intercourse. It follows, therefore that it is not competent for this Court to I think quite clear that this Constitution of 1895, w its say that the enactment No 47 is either ultra vires or invalid subsequent supplements, has the force of law. It is part of and it is for His Highness and the Council of the State to say the law of the State and is binding on the Sultan & the State to what extent Mohamedan law is one of the branches of and the Sultan himself is subject thereto (vide Wong Ah Fook ingredients of the law of the State of Johore. v State of Johore 6 MLJ 128). It might, however, be observed that there are many of the It is clear also that the Constitution can be amended or added local enactments which abrogate or appear to abrogate the to by the means provided therefor in the Constitution itself. It strict letter of Mohamedan law and in regard to the offence would appear therefore, that the Constitution was framed of adultery known as Zinnah, the penalty under Mohamedan not only to regulate and set on record certain essential law is death by stoning, whereas under the the Offences by matters of State, but also to relieve, to some extent, the Ruler Mohamedans Enactment No 47, ss 4 & 6 respectively, the of the increasingly heavy burden of onerous governmental maximum punishment is three months simple punishment, duties & responsibilities by creating & establishing a Council and 12 months imprisonment of either description and a fine of State & a body of Ministers who would, in proper & regular of $250. 9/1/2025 LQX7002Fuu.UM/ZAH 16 Judges turned to English law Government of Perak v. Adams, Mohamed Gunny v. Veeran Kutty, 2 FMSLR 44. 7 FMSLR 170 In dealing with cases of tort the Court has always turned But although no code of civil for guidance as to wrongs has ever been fundamental principles to passed, the courts in this English decisions. country have always followed the law of England. 9/1/2025 FUU/UM/LIA1002/ZAH 17 Clause in treaty of protection – Malay States Excepting matters relating to the Malay Legislation passed by the State Council religion & custom from the scope of advice upon the direction of the British Resident / of the British Adviser/ Resident Adviser Despite the clause the British Matters concerning Islam: 1. interfered in the administration of appointment & salaries of the kadi Islamic law [Ahmad Ibrahim, ‘Islamic 2.the regulation of zakat (compulsory Law in Malaysia’, 35-6] alms tax) and fitrah (tithe payable Syariah courts was placed at the during Ramadan) 3. the bottom of the court structure. administration of mosques 4. the registration of Muslim marriages & The Islamic Ct jurisdiction was divorce 5. punishment for offences restricted. The work of the Kadi was against Islamic religion.[Islam subject supervised. for regulation like contracts & crimes] The more serious cases were transferred to magistrates in the civil courts. 9/1/2025 FUU/UM/LIA1002/ZAH 18 Subordinate status situation of the Syariah Courts pre-1988 Constitutional Amendment In cases where the Syariah and civil In some matters where Islamic law courts had concurrent jurisdiction, should have been applied, if there is conflict in the judgement given by It had been displaced or ignored as a result of both, there could be a conflict in which the the decision of the civil courts. judgment by the civil court prevailed. S.45(6)Selangor Administration of Muslim Law Enactment 1952 (No.3 1952) to the Ainan v Syed Abu Bakar MLJ Rep. 163, effect that it was held that as the Evidence Enactment FMS (Cap10)was a statute of general nothing in the enactment shall affect the application,s.112 of the Ordinance applied in jurisdiction of any civil court and in the event questions of legitimacy, to the exclusion of of any difference or conflict between the the rule of Islamic law. decision of a kadi besar or a kadi and the decision of a civil court acting in its Syariah courts remained part of the judicial jurisdiction, the decision of the latter shall structure of each state until 1948, when the prevail. judicial system of the Federation of Malaya was established under the Courts Ordinance of 1948 (No 43 1948) 9/1/2025 FUU/UM/LIA1002/ZAH 19 Separation of Syariah Court & Civil Court Development of Islamic law in the Malay Courts Ordinance of 1948 (No 43 1948) States – Greater in UFMS than in the FMS. Excluded the Syariah courts from the Developed separately and at different federal judicial structure. pace. When Malaya gained independence in Kelantan & Terengganu, the influence 1957,the dichotomy of civil courts and of Islam continued unabated during Syariah courts was retained. Siamese suzerainty & British The existence of the dual or parallel administration, efforts to eliminate systems of courts remain till today. un-Islamic practices continued as a priority. Johor & Kedah, considerable efforts were made towards promoting Islamic law. 9/1/2025 FUU/UM/LIA1002/ZAH 20  Borneo States Sabah & Sarawak Islamic law Customary Law 1/9/2025 FUU/UM/LIA1002/ZAH 21 Borneo States – policy of Brookes & BNBC to give effect to native law & custom. Islamic law continued to be administered but was subsumed under the general cover of native law Sarawak came into being – transfer of North Borneo NBC (Sabah) – agreements areas from Brunei Sultanate to James between the Sultan of Sulu & Messrs Brooke 1841-1846 Overbeck & Dent 1877-8 Transfer of property & right to govern as a These grants were transferred to the company personal sovereign. Brookes White Rajah ruled incorporated by Royal Charter in 1881. British over a century. declared a protectorate over Sabah & Sarawak in 1888. Islamic law was a peculiar creation of private administration under British protection. Privately administered as British protectorates until 1946 when North Borneo was ceded to the British Islamic law in Sarawak developed from 3 sources: Crown & became Crown colonies. i)a basic written law (ii) Legislation (iii) Judicial decisions. Islamic law had applied to both Borneo territories Undang-Undang Mahkamah Melayu. Drafted in 1915. Originally enforced by administrative when they were part of the Sultanate of Brunei. officers. A code of Malay adat law. Since 1955 it has been Undang-Undang Brunei modelled on the Undang- classed as subsidiary legislation & enforced by the courts (on Muslim Malays) by authority of the Undang Melaka. = Malay adat law. Native Customary Laws Ordinance (Cap 51) 9/1/2025 FUU/UM/LIA1002/ZAH 22  Development of Islamic law in Sarawak Native Customary Law Order of 13 March 1893 on marriage (to restrict marriage between orang dagang (Islamic) (strangers) and Sarawak women. Order of 16 May 1898 registration of Muslim https://lawnet.sarawak.gov.my/lawnet_fil marriage & divorce. e/Ordinance/ORD_NATIVE%20LAWNET.pd Consolidated into Mohamedan Marriage f Ordinance of 1946 (Cap 75). Other matters Historically - Native Customary Law regulated by Orders were succession, Ordinance – comprises 65 sections on w the inheritance of a Muslim convert’s property, bulk on betrothal, marriage, divorce and adoption. sexual offences. List of fines. Majlis (Incorporation)Order of 1954 Islamic element in some provisions but established a Majlis Islam (Islamic Council) minimal. Sarawak that functions to give advice to the Code of local Malay laws designed to government on Islam and Malay custom, the preserve public order in a society whose issuing of fatwa (Legal ruling) on religious members share Islamic values. matters and Malay customary law. Sarawak legislation = ORDERS (1860s) In the courts –common litigated matter is succession and wills. lack of distinction Gave effect to local custom rather than between Islamic law and Malay adat laws. principles of Islamic law. Treated as complementary parts of one body of law applicable to the Sarawak Malays. 9/1/2025 FUU/UM/LIA1002/ZAH 23  Islamic law, administered as part of Malay adat law, was enforced by the Native Courts until the establishment of the Syariah Courts in 1978 under the Majlis Islam (Incorporation) (Amendment) Ordinance (No.8 of 1978). 1/9/2025 FUU/UM/LIA1002/ZAH 24  Early legislation Sabah Mohamedan Customs Proclamation 1902 (No.11 of https://sagc.sabah.gov.my/?q=ms/content 1902). Authorised the kadi or imam (prayer leader) of any district to make rules for the proper /native-courts-native-customary-laws- observance of public worship by muslims and for rules-1995 the levy of fines for any breach of the rules. Islamic law in Sabah is found in: Law text, Rules were not effective until approved by the Legislation, Judicial decisions. Governor & gazetted. Undang-Undang Mahkamah Adat Orang Islam – Provisions was made for the proper regulation of collection of Islamic law, customary rules codified Muslim marriages, divorce and annulment of & accepted by a Conference of Native Chiefs in divorces by the kadi or imam. 1936 amended in 1941. Intended as a guide for Proclamation replaced by the Mohamedan the native courts in cases concerning Muslims Customs Ordinance 1914 (No 9 of 1914). Replaced (marriage, divorce and related matters, inheritance by the Native Administration Ordinance 1937 & sexual offences). which re-enacted in substance the provision of the The Sabah law text adhered more closely to the Proclamation of 1902. Syariah. Authorised the Resident of each district to Native Administration Ordinance 1937 was establish Native Courts. The Imam of a district amended in 1950 & replaced by the Native Courts could be appointed a member of the Native Court. Ordinance 1953. The provision for Muslims were In a case arising from a breach of Islamic law in removed and re-enacted in a new ordinance, the which all the parties were Muslims, at least two Muslims Ordinance 1953 (Cap 83) which re- members of the court had to be Muslims. enacted the provisions of the Native Administration Ordinance 1937. 9/1/2025 FUU/UM/LIA1002/ZAH 25 Sabah Native Courts Ordinance 1953 was amended by the Native Courts (Amendment) Ordinance 1961 (No 13 of 1961) Pursuant to the conclusions of the native Native Courts Ordinance 1953 was chiefs at several conferences held to amended to remove from the Native discuss relating to Courts jurisdiction in cases arising the administration of native law & Islamic Solely from a breach of Islamic law, in which law. the parties were not natives. Conclusion = Native Courts should only The effect was to remove jurisdiction in exercise jurisdiction over Islamic law in so far Islamic from the Native Courts and to vest it as it was embodied in the native law in the district imam, with whom it remained applicable to natives. for the next 10 years. In the early days of British administration, There were not many judicial decisions on Islamic law was administered by the kadi or Islamic law in Sabah during British Imam, who were chiefs appointed under the administration. Village Adm9nistration Ordinance 1913 (No 5 of 1913). However, under the 1937 Native (When the jurisdiction was re-vested in the Administration Ordinance, the administration district imam) and from 1977 when, under a of Islamic law was vested in the Native revised Administration of Muslim Law Courts, where it remained except for the Enactment (No. 15 of 1977), Syariah Courts period from 1961 to 1971 were established. 9/1/2025 FUU/UM/LIA1002/ZAH 26  Administration of Islamic Law in Malaysia State Islamic Enactment Federal Territories of Kuala Lumpur, Labuan and Putrajaya Islamic Family Law (Federal Territories) Act 1984 Act 303 Administration of Islamic Law (Federal Territories) Act 1993 Act 505 1/9/2025 LQX7002Fuu.UM/ZAH 27 1. Syariah courts (Courts of Qadi) made subordinate to civil courts in the federal court system (during British intervention) Appeals from the decisions of the Syariah cts Islam & Islamic law are State matters. were heard by English judges or officers. – States have the legislative power to enact on during British rule Islamic law applicable to Muslims. Muftis continued to advise the State rulers. Administration of Islamic Law Enactments, The office of the mufti in Selangor, Perak & Islamic Family Law Enactments, Negeri Sembilan was established during the British intervention. Syariah Criminal Offences Enactment, Syariah Court Evidence Enactment, *** Syariah Court Civil Procedure Enactments, The supreme law of the Federation is the Syariah Criminal Procedure Enactments. Federal Constitution. Islam the official religion of the federation. General application legislations: Islamic Banking Act 1983, Takaful Act 1984. Except for Sarawak, the constitution of each state provides that Islam is the religion of the State. 9/1/2025 LQX7002Fuu.UM/ZAH 28  Authority of the States Power to determine any question of law of public interest which has arisen in the course of an appeal in Syariah the Syariah High Court. Has supervisory & revisionary Appeal Court jurisdiction over the Syariah subordinate courts. Refer to next For criminal jurisdiction try a Muslim under the Enactment or the Slide on civil Islamic Family Law (Federal Syariah High Jurisdiction. Territories) Act 1984 or any other Has supervisory written law prescribing offences Court & revisionary against precepts of Islam. jurisdiction over the Syariah subordinate courts. Civil jurisdiction Offences against the precepts of Syariah Amount of value of Islam committed by a Muslim under subject matter the Enactment or other written law. Subordinate < RM50,000 or is X exceed RM2,000 or 1 year prison. Court not capable of estimation of $. 9/1/2025 LQX7002Fuu.UM/ZAH 29 Example: Administration of Islamic Law (Federal Territories) Act 1993 Act 505 S.46(2b) In its civil jurisdiction the court may (iv) the division of, or claims to, harta hear & determine all actions & proceedings in sepencarian; which all parties are Muslims & which relate (v) Wills or death-bed gifts; to the following matters: (i) Betrothal marriage, ruju’, divorce, nullity of (vi) Gifts inter-vivos, and settlements made marriage (fasakh), nusyuz, or judicial without adequate consideration in money or separation (faraq) or other matters relating to money’s worth; the relationship between husband and wife; (vii) wakaf or nazr; (ii) any disposition of, or claim to, property (viii) division and inheritance of testate or arising out of any of the matters set out under intestate property; (i); (ix) the determination of the persons entitled (iii) the maintenance of dependants, to share in the estate of a deceased Muslim legitimacy, guardianship or custody of infants; or of the shares to which such persons are respectively entitled; and (x) other matters in respect of which jurisdiction is conferred by any written law. 9/1/2025 LQX7002Fuu.UM/ZAH 30 2. Constitutional Monarchy government ~ Islamic legal institutions The Rulers of 9 Malay States are heads of state. The Head of State of Malaysia is known at the Yang DiPertuan Agung (YDPA) and is a rotational States without a Malay ruler - Yang DiPertua position elected by the Conference of Rulers. Negeri (former Straits Settlements and Sabah Sarawak) as their nominal Head of State. A3 FC Malay Rulers are the Heads of the religion of Islam in their respective States. If the State has no The State Executive is headed by the Menteri Besar Malay Ruler, the YDPA will be the Head of the or the Chief Minister or Ketua Menteri. religion of Islam there. A3(2) FC. A3(4) no law affecting the privileges, position, honours or The State Legislative body is known as State dignities of the Rulers shall be passed w/o the Legislative Assembly. State laws are called State consent of the CoR. Enactments. Item 1(2d) 8th Schedule FC, the Ruler may act in Syariah courts are under the jurisdiction of each their discretion (not on the advice of the Executive) State government as Islam is a State matter under in the performance of their function as Heads of the 2nd List 9th Schedule Federal Constitution. the religion of Islam. A3(6) FC. Islamic institutions are under the authority of the The Rulers are aided & advised by the Council of Rulers. Islamic Religion in all matters related to the religion of Islam except matters related to Islamic law, in which the Rulers are aided and advised by the muftis. 9/1/2025 LQX7002Fuu.UM/ZAH 31 3. Conference of Rulers (Majlis Raja-Raja) CoR not actually vested w wide powers but has become the focus of attention of all Muslims. Members: 9 Malay Rulers, 4 Yang DiPertua Negeri of CoF set up national bodies relating to religious affairs Malacca, Penang, Sabah & Sarawak. (prior to establishing the Islamic Development Highest august body in the country to oversee Islamic Department of the PM‘s Department): National religious matters. Rulers being heads of the Islamic Council for Islamic Religious Affairs, Advisory Board religion of the State. Important role to coordinate for the Coordination of Islamic Religious Education, &harmonise religions. National Fatwa Committee. Based on individual consent of the rulers. Any ruler can A constitutional convention that final decision on depart from the majority to exercise his own power in his religious issues rests with the Conference of Rulers. State to or to follow his own decision for his State. 9/1/2025 LQX7002Fuu.UM/ZAH 32 4. Mufti – religious advisors to the Malay Rulers Possess the authority & qualification to issue 5. Council of Islamic Religion (Majlis Agama Islam) has been fatwas on contemporary issues. established for the Federal Territories. (s.4-31 of the Administration of Islamic Law (Federal Territories) Act National Fatwa Committee 1993.This council advises the YDPA. The Council also exists for the various States. The majlis The State Mufti leads the Department of Mufti (incorporated as a corporation) is given power to appoint whereby the department processes the requests committees to assist it. It is given the duty to involve itself in the economic, social development & well-being of the for fatwas, organises religious programs, publishes Muslim community. religious books & pamphlets. Given power to establish corporations and borrow money. Administer all the moneys and funds of the Baitul-Mal. 6. Department of Islamic Religion Is established under the State government. It 5.1 National Council of Islamic Religious Affairs Malaysia enforces the policies of the Council of Islamic (Majlis Kebangsaan Hal Ehwal Agama Islam Malaysia) Religion. The dept enforces Islamic law and takes Duty to discuss & give advice to the CoR., any State action against Muslims committing offences government of State Council of Islamic Religion on Islamic law matters, administration of Islamic religion and Islamic against Islamic law. education w an objective of standardising the administration of Islamic law between States. 6.2 Dept of Islamic Advancement of Malaysia The national council – technical & working committees to (JAKIM) prepare draft legislation on Islamic law for the CoR so that the draft legislation would be subsequently adopted by Federal agency managing Islamic matters & States. The national council is under the authority of the CoR. development of the Muslims. Under the authority of the PM’s dept & enforces policies of the National Council of Islamic Religious Affairs. 9/1/2025 LQX7002Fuu.UM/ZAH 33 7. State Department of Syariah Judiciary Administers the Syariah court in the State in 8. Department of Syariah Judiciary Malaysia the following matters: (Jabatan Kehakiman Malaysia JKSM) (1) Registration of mal, criminal & inheritance Established by the federal government in 1998 cases; under the authority of the PM’s Department. (2) The proceedings of mal, criminal & Role is to coordinate the administration of inheritance cases; Syariah courts at national level. Headed by the Chief Syariah Judge of Malaysia. (3) The orders of Syariah courts; (4) The process of appeal; Assists the State w a joint service for Islamic Affairs officers. (5) The issuance of inheritance certificate. Establishment of one panel of Syariah judges forming the bench of Syariah Appeal Court to hear appeals from lower Syariah Courts of different states. – its up to thr States to join the joint service. 9/1/2025 LQX7002Fuu.UM/ZAH 34