The Administration of Islamic Law in Malaysia

Heads of the Religion of Islam in Malaysia

• Article 3 of the Federal Constitution: This article establishes the constitutional basis for the religion of Islam in the Federation.

• Yang di-Pertuan Agong (YDPA): The YDPA serves as the Head of the religion of Islam in:

  • His own home State.

  • States that do not have a Ruler: Malacca, Penang, Sabah, and Sarawak.

  • The Federal Territories of Kuala Lumpur, Labuan, and Putrajaya.

• The Ruler (Sultan/Raja): According to Section 1(2)(d) of the Eighth Schedule of the Federal Constitution, the Ruler is the Head of Islam in his respective State.

The Advisory Bodies to the Heads of Islam

• Advices to the YDPA: The Yang di-Pertuan Agong is advised by a Council in all matters relating to the religion of Islam.

• Advices to the State Rulers:

  • Rulers are aided and advised by the Council of Islamic Religion regarding matters relating to the religion of Islam.

  • Rulers are aided and advised by the Muftis specifically regarding matters relating to Islamic law.

The Conference of Rulers (Majlis Raja-raja)

• Composition: The Conference of Rulers (COR) consists of the nine Malay Rulers and the four Yang di-Pertua Negeri (Governors) of Malacca, Penang, Sabah, and Sarawak.

• Article 38(2)(b) of the Federal Constitution: This article outlines the powers of the COR in religious matters.

• Authority in Religious Matters: Regarding the religion of Islam, the COR has the authority to agree or disagree with the extension of any religious acts, observances, or ceremonies to the Federation as a whole.

  • Specific Examples: Determining the start date of fasting (Ramadan) and the dates for Muslim festivals (Eid).

• Advisory Body: The COR is advised by the National Council of Islamic Religious Affairs Malaysia (Majlis Kebangsaan Hal Ehwal Agama Islam Malaysia).

The Office of the Mufti

• Appointment: Every state in Malaysia has a Mufti who is appointed by the Head of the religion of Islam (the Ruler or the YDPA for relevant territories).

• Role and Authority:

  • Muftis serve as religious advisers to the Malay Rulers.

  • They possess the specific authority and qualification to issue fatwa (legal rulings).

• Department of Mufti: A state Mufti leads the Department of Mufti, which is responsible for:

  • Processing requests for fatwas.

  • Organizing religious programs.

  • Publishing religious literature, books, and pamphlets.

Islamic Institutions at the Federal Level

• National Council of Islamic Religious Affairs Malaysia (Majlis Kebangsaan Hal Ehwal Agama Islam Malaysia):

  • Duties: To discuss and provide advice to the COR, State governments, or State Councils of Islamic religion on matters of Islamic law, administration, and education.

  • Objective: To standardize the administration of Islamic law across the various States.

• Department of Islamic Advancement of Malaysia (Jabatan Kemajuan Islam Malaysia - JAKIM):

  • Status: A federal agency under the authority of the Prime Minister’s Department.

  • Mandate: Management of Islamic matters and development of Muslims; enforcing the policies of the National Council.

  • Functions:

    • Function $1$: Drafting and Standardization of Islamic Law.

    • Function $2$: Coordination of Islamic Administration.

    • Function $3$: Coordination and Development of Islamic Education.

  • Legislative Role: Assists in the legislation and standardization of Islamic law and enforcing mechanisms.

Halal Certification and Standardization

• Halal Logo Evolution: The transcript notes various historical logos, including the old Halal Baheis logo and old JAKIM logos that were later streamlined to prevent non-compliance with specifications.

• Standardized JAKIM Halal Logo Requirements: To identify the legitimate Halal logo issued by JAKIM/JAIN/MAIN, it must contain:

  • An eight-cusp star at the center of a circle.

  • The Arabic word for Halal (حلال) at the center of that star.

  • The word "HALAL" in Roman alphabets positioned below the star.

  • The word "Malaysia" written in both Roman alphabets and Arabic within the logo's circle.

  • Two small five-cusp stars positioned to separate the Roman alphabets from the Arabic text.

Department of Syariah Judiciary Malaysia (JKSM)

• Establishment: Established by the Federal Government in $1998$.

• Authority: Operates under the Prime Minister’s Department.

• Role: To coordinate the administration of Syariah courts at a national level.

• Joint Service: Assists States by providing a joint service for Islamic Affairs Officers, headed by the Chief Syariah Judge of Malaysia.

Council of Islamic Religion (Majlis Agama Islam)

• Structure: Operates under the Head of the religion of Islam in each state.

• Historical Context: Kelantan was the first state to establish a Council of Islamic Religion in $1915$.

• Legislative Reference: Powers are often detailed in acts such as sections $4$ to $31$ of the Administration of Islamic Law (Federal Territories) Act 1993.

• Majlis Agama Islam Selangor (MAIS):

  • Main religious authority in Selangor.

  • Advises the Selangor Sultan (DYMM) on all matters except those involving justice and Islamic law.

  • Responsible for the affairs of mualaf (converts), baitulmal property (public treasury), and Islamic policymaking.

Department of Islamic Religion (Jabatan Agama Islam)

• Status: Established under the State government as an implementing agency.

• Functions: Enforces the policies of the Council of Islamic religion and enforces Islamic law against Muslims committing offenses.

• Jabatan Agama Islam Selangor (JAIS):

  • The agency responsible for upholding Islamic teachings in Selangor.

  • Handles matters such as divorce, preaching (da’wah), Islamic education, and mosque management.

  • Anecdote - Faye Kusairi Case: The transcript illustrates enforcement actions with a news report involving a break-in/raid by JAIS officers on the home of actress Faye Kusairi based on a false khalwat (close proximity) report.

The Syariah Courts and State Judiciary

• State Authority: Syariah Courts fall under the authority of individual States.

• Jurisdiction: They hear disputes regarding Islamic law over which they have been granted power.

• State Department of Syariah Judiciary (Jabatan Kehakiman Syariah Negeri): Manages the administration of the court, including:

  1. Registration of mal (civil), criminal, and inheritance cases.

  2. Court proceedings for these cases.

  3. Issuance of Syariah court orders.

  4. The appeals process.

  5. Issuance of inheritance certificates.

The Institution of Fatwa in Malaysia

• Historical Background: During the life of Prophet Muhammad SAW, rulings relied on Quranic revelation or his inspired ijtihad (Sunnah). After his death, revelation ceased, necessitating ijtihad by Companions and jurists to find solutions for new, complex cases. Fatwa is a prominent form of this ijtihad.

• Nature of Fatwa:

  • Literally means "to describe" or "enlighten."

  • A formal legal opinion or ruling on Islamic law issued by a Mufti or authorized body.

  • Interpretations of Allah's laws regarding Shariah or legal matters.

• Requirements for a Mufti:

  • Must be a qualified mujtahid capable of deducing rulings from primary sources.

  • Must be knowledgeable in legal texts, Quranic/Hadith sciences, ijma (consensus), qiyas (analogy), and the Arabic language.

  • Must be just, trustworthy, and pious.

• Scriptural Obligation: Surah an-Nisa: 59 commands Muslims to obey Allah, the Prophet, and those in authority, and to refer disputes back to the Quran and Sunnah.

National and State Fatwa Committees

• National Fatwa Committee:

  • Discusses major issues at the national level and issues fatwas.

  • Aims to unify or standardize conflicting fatwas between states.

  • Advises the YDPA on all matters regarding hukum Shara’.

• State Fatwa Committee:

  • Discusses and issues rulings on new issues not addressed by the Quran, Sunnah, or Ijma’.

  • The Mufti acts as Chairman and has the power to publish rulings in the Gazette (Section 34(1) of the Administration of Islamic Law (Federal Territories) Act 1993).

  • Has the power to amend, modify, or revoke previous fatwas (Section 36 of the 1993 Act).

  • Can order studies and research on submitted issues (Section 37 of the 1993 Act).

Legal Enforcement and Effect of Fatwa

• Binding Nature: A fatwa is not legally binding or enforceable until it is published in the State Gazette. According to Section 34(2) of the 1993 Act, no statement by a Mufti is a fatwa unless it is gazetted.

• Jurisdiction Over Individuals: Fatwas bind Muslims only and have no legal effect on non-Muslims.

  • Section 34(3): Once gazetted, a fatwa is binding on every Muslim resident in the Federal Territory as a religious duty, unless Islamic law permits departure in personal observance or belief.

• Territorial Limit: A fatwa passed by a State Legislative Assembly has the force of law only within that state’s boundaries.

• Judicial Recognition: Under Section 34(4), a fatwa shall be recognized by all Courts in the Federal Territory as authoritative.

• State Discretion: Since Islamic Law is state-administered, states have the discretion to accept or reject fatwas issued by the National Islamic Consultative Committee.

  • Selangor: Since $2003$, has agreed to fully adopt National Fatwa Committee rulings (Section 52 Administration of Religion of Islam (State of Selangor) 2003).

  • Perlis: Followed Selangor's approach in $2006$ (Section 52 Administration of the Religion of Islam Enactment 2006).

Case Study: A Child & Ors v Jabatan Pendaftaran Negara & Ors [2020]

• Facts of the Case:

  • $24$ October $2009$: MEMK and NAW were married.

  • $17$ April $2010$: A child was born ($5$ months and $24$ days after the marriage).

  • Islamic Ruling: A child is considered illegitimate by Syarak if born less than $6$ qamariah months after marriage.

• Timeline of Dispute:

  • Early $2012$: Parents registered the birth under Section 12(2) of the BDRA (Births and Deaths Registration Act).

  • $6$ March $2012$: Registrar-General issued a birth certificate with the name "Child bin Abdullah" instead of "Child bin MEMK," including a notation "Section 13 Application."

  • $2$ February $2015$: MEMK applied to correct the name under Section 27(3) BDRA.

  • $8$ May $2015$: Application rejected on religious grounds, citing a fatwa that illegitimate Muslim children cannot take the biological father's name.

• Legal Proceedings:

  • Respondents applied for judicial review in the High Court; later appealed to the Court of Appeal, which allowed the appeal (holding that the Registrar's duty was purely to register births).

  • Appellants (JPN) appealed to the Federal Court ($7$-judge panel).

• Result: The Federal Court allowed the appeal (split decision $4:3$).

  • Held that Section 13A of Act 299 (BDRA) does not apply to the registration of Malay Muslim children.

  • The personal name of the father is not a "surname" under section 13A.

• Johor State Fatwa Context: The Johor Fatwa Committee (Gazetted $7.6.2018$) defines an illegitimate child as one born out of wedlock (zina/rape) or born less than $6$ months and $2$ lahzah after marriage. Such children must be named "bin" or "binti" Abdullah or other names of "Asma Al-Husna" prefixed by Abdul.

The Position of Islam Under the Federal Constitution

• Article 3(1): "Islam is the religion of the Federation; but other religions may be practiced in peace and harmony."

• Article 11(1): Every person has the right to profess and practice his religion.

• Article 11(5): Religious freedom is not absolute; it does not authorize acts contrary to general laws relating to public order, public health, or morality.

Case Study: Che Omar Che Soh v. Public Prosecutor [1988]

• Argument: The appellant argued that the mandatory death sentence for drug trafficking and firearms offenses was void because it was not hudud or qisas under Islamic law, and thus contrary to Article 3(1).

• Judgment:

  • The court reviewed colonial history, noting that British rule isolated Islamic law to marriage, divorce, and inheritance.

  • The court held that the term "Islam" in Article 3 refers only to issues of rituals and ceremonies.

  • The 1956 Civil Law Act established that the country's law is secular secular and morality not accepted by law does not enjoy the status of law.

Religious Practice and Freedom: Meor Atiqulrahman and Hjh Halimatussaadiah

• Hjh Halimatussaadiah bte Hj Kamaruddin v. Public Services Commission [1994]:

  • Issue: A public servant was prohibited from wearing the purdah (face veil) during office hours.

  • Held: Prohibiting the purdah did not affect the constitutional right to practice religion. The court accepted the Mufti's view that Islam does not obligate the wearing of purdah, thus the civil regulation did not contravene the constitution.

• Meor Atiqulrahman bin Ishak v. Fatimah bte Sihi [2000]:

  • Issue: Three pupils were expelled for wearing a serban (turban) to school.

  • Held: The High Court ruled that Article 3 requires the government to protect and promote Islam. Prohibiting the serban was contrary to Articles 3 and 11, as the prohibition was not relevant to public order, health, or morality under Article 11(5). The expulsions were void.

Jurisdiction of Syariah Courts

• Conflict on Source of Jurisdiction:

  • Case 1: Ng Wan Chan [1991]: High Court held that State legislature must expressly confer jurisdiction on Syariah Courts.

  • Case 2: Soon Singh [1999]: Federal Court held that the Syariah Court may derive jurisdiction directly from Item 1 of the State List (Federal Constitution) even without express conferment by the State Legislature.

Historical Conflict of Laws and Supremacy of Civil Law

• PP v. David John White alias Abdul Rahman [1940]:

  • A man in a Christian (monogamous) marriage converted to Islam and married a second wife.

  • Held: Heavily penalized for bigamy. A person in a monogamous marriage acquires a legal status as "husband" that prevents subsequent marriages under civil law, regardless of the validity of the second marriage under Mohammedan law.

• Ainan bin Mahamud v. Syed Abubakar [1939]:

  • Issue: Legitimacy of a child born within $6$ months of marriage.

  • Conflict: Islamic law says illegitimate; Section 112 of the Evidence Enactment says legitimate if born during a valid marriage.

  • Held: The Evidence Enactment is a statute of general application for all inhabitants regardless of race or religion.

• Myriam v. Mohamed Ariff [1971]:

  • Issue: Child custody between a Swiss convert and her ex-husband.

  • Jurisdiction: Civil court claimed jurisdiction over the Kathi's court based on Section 45(6) of the Selangor Enactment (civil court decisions prevail in conflicts).

  • Decision: The court applied the Guardianship of Infants Act 1961 (focusing on the "welfare of the children") and disregarded Shafie school rules that would have disqualified the mother for remarrying a man unrelated to the minor.

Authorities and Statutes to Remember

1. Federal Constitution of Malaysia

   • Article 3: Establishes Islam as the religion of the Federation.

   • Article 11: Guarantees the right to profess and practice religion.

   • Article 38(2)(b): Powers of the Conference of Rulers (COR) in religious matters.

   • Section 1(2)(d) of the Eighth Schedule: Explains the role of the Ruler as Head of Islam in respective states.

2. # F¸X˛˛¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸YXå´Ω†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††©˜å©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©©∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑∑˙åa∑§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§4 of Islamic Law (Federal Territories) Act 1993

   • Provides the legal framework for Islamic law governance and the role of fatwa.

3. Syariah Courts (Criminal Jurisdiction) Act 1965

   • Gives jurisdiction to Syariah courts over specific offenses and penalties.

4. Halal Certification Agencies:

   • JAKIM (Department of Islamic Advancement of Malaysia) and their statutory provisions for halal certification standards.

Significant Case Studies

1. Case Title: A Child & Ors v Jabatan Pendaftaran Negara & Ors [2020]

   • Facts Summary:

     • Marriage between MEMK and NAW on October 24, 2009.

     • Child born on April 17, 2010 (less than 6 months after marriage).

     • Registrar-General issued a birth certificate with a notation denying the father's name based on Islamic ruling.

   • Court Ruling:

     • The Federal Court allowed the appeal stating the Registrar's duty is to register births without moral or religious interference regarding name registration—an important precedent on the recognition of civil law over religious perception in personal circumstances.

2. Case Title: Che Omar Che Soh v. Public Prosecutor [1988]

   • Facts Summary:

     • Appellant argued that mandatory death sentence for drug trafficking was against Islamic law and unconstitutional.

   • Court Ruling:

     • The court determined that "Islam" in Article 3 refers solely to rituals and ceremonies, asserting that secular laws govern criminal matters rather than Islamic principles. This case reinforces the separation of religious rites from the enforcement of civil penalties.

3. Case Title: Meor Atiqulrahman bin Ishak v. Fatimah bte Sihi [2000]

   • Facts Summary:

     • Issue with students expelled for wearing turbans in school.

   • Court Ruling:

     • The High Court ruled the government's prohibition did not align with Articles 3 and 11, emphasizing constitutional rights to practice Islam, highlighting the need for public institutions to respect religious practices.

4. Case Title: Ng Wan Chan [1991]

   • Facts Summary:

     • Dispute regarding the jurisdiction of the Syariah Courts over civil matters where marriage conversions were involved.

   • Court Ruling:

     • The High Court held that the State legislature must expressly grant jurisdiction to Syariah Courts, establishing a clear boundary on the authority and limitations of Syariah jurisdiction concerning civil law provisions.

5. Case Title: Soon Singh [1999]

   • Facts Summary:

     • Concerns over jurisdiction regarding a Muslim's right to marry and its legal binding in civil law.

   • Court Ruling:

     • The Federal Court ruled that Syariah Courts could derive their jurisdiction directly from the Federal Constitution, even without explicit endorsement by State legislation, solidifying legal grounds for Syariah courts based on constitutional authority.