ISLAMIC LAW

Position of Islamic law in the early history

The coming of Islam into the Malay Peninsula

14th century. Islam was brought by Muslim traders.

Spread in Malacca during the reign of Parameswara who married a muslim princess from Pasai in 1414. He changed his name to Iskandar Shah.

Other sultans of Malacca (Sultan Mansur Shah and Sultan Mohammad) adhered strictly to Islam.

15th century. Malacca became the centre for Islamic missionary work in the region.

Laws that were codified in Malacca

1. Hukum Kanun Melaka(Laws or Malacca)

2. Undang-undang Laut Melaka(Maritime Laws of Malacca)

Hukum Kanun Melaka

Was prepared during the reign of Sultan Muzaffar Shah (1446-1459)

Contains 44 chapters, 18 of which had Islamic elements.

Contents of Hukum Kanun Melaka:

Chapters on marriage and divorce On wali, witnesses to marriage, rules on talad Were based on writings by Abu Shuja in “Al-

Taqrib”

Chapters on commercial transactions Weight and measure, prohibition of riba, sale of

land etc Based on writings by Abu Shuja (in Al-Taqrib), Ibn

Al-Qassim Al-Ghazzi (in Fath al-Qarib) and Ibrahim Al-Baijuri (in Hashiya ala al-Fath al-Qarib)

Chapters on evidence and procedure

Chapters on criminal offences Punishment for killing, zina, sodomy,

bestiality, slander, drinking liquor.

Pahang Legal Digest

Prepared during reign of Sultan Abdul Ghafur (1592-1614)

Was modelled on Hukum Kanun Melaka

Contained provisions on qisas, fines, zina, sodomy, theft, robbery, apostasy, omission of prayers, jihad, witness and oath.

Johor Digest

Also modelled on Hukum Kanun Melaka Johor Constitution 1895 -- during the

reign of Sultan Abu Bakar. The translation of Majallat al-Ahkam al-

Adliyyah (the Ottoman Civil Code 1876) into Malay, which was named as Majalah Ahkam Johore.

Hanafi Code of Qadri Pasha in Egypt was adopted and translated into Malay as the Ahkam Shariyyah Johore.

Impact of British colonization on Islamic Law

RJ Wilkinson, an English scholar, in his book “Papers on Malay Subjects”:

“There can be no doubt that Muslim law would have ended by becoming the law of the Malays had not British law stepped to check it”

Edmonds JC in Shaik Abdul Latif v Shaik Elias Bux

“Before the first treaty [the Pangkor Treaty 1874] the population of these

State [FMS] consisted almost solely of Mohammedan Malays with a large

industrial and mining Chinese community in their midst.

The only laws at that time applicable to Malays was Mohammedan modified

by local custom”

Thorne J in Ramah v Laton

“Muslim law is not foreign law, it is the law of the land and the local law is a matter of which the court must take

judicial notice.”

(Note: “judicial notice” means matters which are so notorious and well known.S 56 Evidence Act 1950: “No facts of which the court will take judicial notice need to be proved”).

British intervention into the Straits Settlements

Islamic law was not recognised by the courts in the following cases: In theGoods of Abdullah Fatimah v Logan

Courts recognised Islamic law in the following cases: Chulas v Kolson Sahrip v Mitchell

British intervention into the Malay States

Ainan v Syed Abu Bakar [1939] MLJ 209

PP v White [1940] MLJ 214 Attorney General of Ceylon v Reid

[1965] 2 MLJ 34 (PC) Martin v Umi Kelsom [1963] MLJ 1 Re Maria Hertogh [1950] MLJ 214

Ainan v Syed Abu Bakar[1939] MLJ 209

S 112 Evidence Enactment was enforced on Muslims.

Court held:  “The Evidence Enactment is a statute of

general application and that all the inhabitants of the Federated Malay States are subject to its provisions whatever may be their race or religion. In questions of legitimacy in the case of Muhammadans section 112 of the Evidence Enactment applies to the exclusion of the rule of Muhammadan Law.”

S 122 Evidence Enactment provides that the birth of a child during a valid marriage or within 280 days after its dissolution, is conclusive proof of legitimacy, unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten.

Islamic law: The shortest period of gestation in the

human species is six months. A child born before six months is

considered illegitimate.

In this case, the child was born 3 months after the marriage. The court applied the Evidence Enactment and held that the child is a legitimate child.

PP v White [1940] MLJ 214

The accused married a Christian lady at Taiping, Federated Malay States, in 1918 according to the rites and ceremonies of the Church of England. In 1936 while his wife was still alive, the accused married another Christian lady according to Mohammedan law after they had been converted to the Mohammedan religion. In a prosecution instituted at the instance of the first wife for bigamy.

Bigamy in an offence under S 494 of the Penal Code:"Whoever, having a husband or wife living, marries in any case in which

such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished

with imprisonment of either description for a term which may

extend to seven years, shall also be liable to fine.”

Court held that the first marriage being a monogamous one, the accused had committed the offence of bigamy.

A person who enters into a marriage relationship with a woman according to monogamous rites takes upon himself all the obligations springing from a monogamous relationship and acquires by law the status of "husband" in a monogamous marriage and he cannot, whatever his religion may be, during the subsistence of that monogamous marriage marry or go through a legally recognised form of marriage with another woman.

Attorney General of Ceylon v Reid [1965] 2 MLJ 34 (PC)

Issue: Whether the second marriage was void by reason of its taking place during the life of the respondent's first wife.

Held: Ceylon is a country of many races and creeds and has a number of Marriage Ordinances and Acts. In matrimonial matters there is no one law which applies to all locally domiciled persons; they are governed by their personal laws. A Christian monogamous marriage does not prohibit for all time during the subsistence of that marriage a change of faith and personal law on the part of a husband resident and domiciled there.

In such countries there is an inherent right in the inhabitants domiciled to change their religion and personal law and so to contract a valid polygamous marriage if recognised by the laws of the country notwithstanding an earlier marriage. If such inherent right is to be abrogated it must be done by statute; but there was none in the case of Ceylon and therefore the appeal must fail.

Martin v Umi Kelsom [1963] MLJ 1

Martin and Umi Kelsom got married under the Christian Marriage Enactment on February 25 1950. At that time, Martin was a Christian domiciled in England and Umi was a Malay Muslim domiciled in Selangor.

Issue: Whether the marriage was void on the ground that at the time of its solemnisation he was a Christian and she was a Muslim and therefore by reason of her personal law incapable of inter-marrying with him.

Court held that since the marriage was solemnised according to the law of the husband's domicile, it is therefore according to that law that the validity of that marriage must be judged by this Court.

So determined, the marriage was valid.

Re Maria Hertogh [1950] MLJ 214

Validity of marriage between Natra (who was 13 years old) and Mansur Adabi.

Marriage was declared void because Natra was below 16 following Dutch Law.

POSITION OF ISLAMIC LAW IN THE FEDERAL CONSTITUTION

Islam is the religion of the Federation

Article 3(1) “Islam is the religion of the

Federation; but other religions may be practiced in peace and harmony in any part of the Federation.”

The interpretation of that provision can be found in the official Report of the Legislative Council Debate, 1 May 1958.

Tengku Abdul Rahman , the first Prime Minister of Malaysia:

“I would like to make it clear that this country is not an Islamic state as it is

generally understood, we merely provide that Islam shall be the official religion of the state.”

Che Omar bin Che Soh v PP [1988] 2 MLJ 55

The interpretation was reaffirmed in this case.

Mandatory death penalty for drug trafficking offences and Firearms (Increased Penalties) Act 1974 were held valid despite not being compatible with Islamic law.

It was argued that the death penalty was unislamic and therefore contrary to Article 3 of the Constitution.

The Supreme Court rejected this argument. Held that Islamic law was to be confined to

the areas of personal law such as marriage, divorce and inheritance for Muslims.

“Was (Islam as the way of life) the meaning intended by the framers of the Constitution? For this purpose, it is necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the close of the last century”.

Article 3(1) according to the Supreme Court:

“It means only such acts as related to rituals and ceremonies. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void”.

Interpretation of law

Article 160: “law” includes written law, the

common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof;”

Freedom of religion

Article 11

(1) Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it

(4) State law and in respect of the Federal territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam

The Constitution – Supreme Law of the Federation

Article 4: This Constitution is the supreme law

of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Inconsistencies between federal and state laws

Article 75 If any State law is inconsistent with a

federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.

The three lists – NINTH SCHEDULE

List I – Federal list List II – State list List III – Concurrent list

Islamic law comes under the State list

1. Except with respect to the Federal territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State;

(cont’d)

Malay customs; Zakat, Fitrah and baitulmal or similar Islamic religious revenue; mosques or any Islamic public place of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph…”