ADMINISTRATION OF ISLAM II

Historical Development of Islamic Law in Malaysia

• The development of Islamic Law in Malaysia is categorized into three distinct phases:

  • Before the British colonial period.

  • During the British colonial period.

  • After the British colonial period.

• Influence of English Law Methods:

  • The influence entered primarily through the court system, where cases were decided by judges trained in England.

  • During this time, the Syariah court was made subordinate to the civil court.

  • Appeals from religious matters were directed to the civil court.

  • The jurisdiction of Islamic law eventually moved to state authority.

  • The scope of Islamic law was limited strictly to the personal and matrimonial laws of Muslims.

  • The office of the Mufti was preserved throughout this transition.

  • Legislative influence occurred via the Civil Law Enactment, which imported English common law and equity into the Malaysian legal system.

The Head of Islam in Malaysia

• Article 3 of the Federal Constitution: Provides that Islam is the religion of the Federation.

• The Yang di-Pertuan Agong (YDPA):

  • Acts as the Head of the religion of Islam in his own State.

  • Acts as the Head of Islam for States that do not have a Ruler: Malacca, Penang, Sabah, Sarawak, and the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya.

• Section 1(2)(d) of the Eighth Schedule in the Federal Constitution: Explicitly states that the Ruler is the Head of Islam in his State.

• Advisory Roles:

  • The YDPA is advised by a Council regarding matters of the Islamic religion.

  • Rulers are aided and advised by the Council of Islamic Religion (Majlis Agama Islam) for religious matters.

  • Rulers are specifically aided and advised by Muftis regarding matters of Islamic law.

The Conference of Rulers (COR)

• Composition: Consists of the nine Malay Rulers and the four Yang di-Pertua Negeri (Malacca, Penang, Sabah, and Sarawak).

• Article 38(2)(b) of the Federal Constitution: In matters of Islamic religion, the Conference of Rulers shall agree or disagree to the extension of any religious acts, observances, or ceremonies to the Federation as a whole.

• Example of Authority: Determining the date of fasting and the dates of Muslim festivals (Hari Raya).

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

The Institution of Mufti

• Appointment: Every state has a Mufti appointed by the Head of the religion of Islam (the Ruler or YDPA).

• Roles and Responsibilities:

  • Acting as religious advisers to the Malay Rulers.

  • Held to have the authority and the necessary qualifications to issue a fatwa.

  • A state Mufti leads the Department of Mufti.

• The Department of Mufti:

  • Processes requests for fatwas.

  • Organizes religious programs.

  • Publishes religious books and pamphlets.

Islamic Institutions at the Federal Level

• Article 12: Pertains to the establishment and maintenance of Islamic institutions by the Federation or the State.

• The National Council of Islamic Religious Affairs Malaysia (MKI):

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

  • Objective: To standardize the administration of Islamic law between different States.

• Department of Islamic Advancement of Malaysia (JAKIM):

  • A federal agency under the Prime Minister's Department focused on the management of Islamic matters and Muslim development.

  • Enforces the policies of the National Council (MKI).

  • Assists in the legislation, standardization, and enforcement mechanisms of Islamic law.

  • Three Main Functions of JAKIM:

    1. Drafting and Standardization of Islamic Law.

    2. Coordination of Islamic Administration.

    3. Coordination and Development of Islamic Education.

• Department of Syariah Judiciary Malaysia (JKSM):

  • Established in $1998$ under the Prime Minister's Department.

  • Coordinates Syariah courts at the national level.

  • Headed by a Chief Syariah Judge of Malaysia, assisting states with joint services for Islamic Affairs Officers.

Halal Certification and Standards

• JAKIM Halal Logo Specifications: A valid halal logo from JAKIM/JAIN/MAIN must contain:

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

  • The Arabic word "حلال" at the center of the star.

  • The word "HALAL" in Roman alphabets below the Arabic.

  • The word "Malaysia" in Roman alphabets and "ماليزيا" in Arabic within the circle.

  • Two small five-cusp stars separating the Roman alphabets from the Arabic word "Malaysia."

Islamic Institutions at the State Level

• Council of Islamic Religion (Majlis Agama Islam):

  • Operates under the Head of Islam.

  • Kelantan was the first state to establish this council in $1915$.

  • MAIS (Selangor Example): Major authority advising the Sultan on all matters except justice and Islamic law. Manages affairs of mualaf (converts) and baitulmal (treasury) property.

• Department of Islamic Religion (Jabatan Agama Islam):

  • Established under the State government.

  • Implements policies adopted by the Council (e.g., JAIS in Selangor).

  • Enforces Islamic law, takes action against offenses, and manages divorces, preaching, education, and mosques.

• State Department of Syariah Judiciary (JKSN):

  • Manages court registrations for mal (civil), criminal, and inheritance cases.

  • Oversees proceedings, court orders, appeal processes, and issuance of inheritance certificates.

The Fatwa Institution and Process

• History: Shifting from the Prophet's divine revelations to the Ijtihad (independent reasoning) of Companions and jurists after his demise.

• Definition: A fatwa is a legal opinion or ruling on Islamic law issued by an Islamic scholar (Mufti).

• Qualifications of a Mufti:

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

  • Knowledgeable in legal texts, sciences of Al-Quran and Hadith, usage of Ijma (consensus) and Qiyas (analogy), and proficient in Arabic.

  • Must be just, trustworthy, and pious.

• Scriptural Basis: Surah An-Nisa: $59$ outlines the obligation to obey Allah, the Prophet, and those in authority.

• National Fatwa Committee: Aims to unify/standardize contradicting fatwas and advise the YDPA.

• State Fatwa Committee Duties:

  • Referenced under Section $34(1)$ of the Administration of Islamic Law (Federal Territories) Act $1993$.

  • Discuss new issues not addressed by Al-Quran, As-Sunnah, or Ijma.

  • Amend, modify, or revoke previous fatwas (Section $36$).

  • Order research on specific issues (Section $37$).

Enforcement and Legal Effect of Fatwas

• Publication: A fatwa is not binding or enforceable unless published in the State Gazette (Section $34(2)$ of the $1993$ Act).

• Binding Nature:

  • Once gazetted, it is binding on every Muslim resident in the territory as a religious duty (Section $34(3)$).

  • Exceptions are made for matters of personal observance or opinion permitted by Islamic law.

  • Fatwas bind Muslims only and have no legal effect on non-Muslims.

• Jurisdictional Limits:

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

  • Recognized by Courts in Federal Territories as authoritative (Section $34(4)$).

  • States have discretion to accept or reject National Fatwa Committee rulings. Selangor (since $2003$) and Perlis (since $2006$) have agreed to fully adopt National Fatwa Committee rulings if agreed by the COR.

Constitutional Provisions and Key Case Law

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

• Article 11(1): Right to profess, practice, and propagate religion (subject to Clause $4$).

• Che Omar Che Soh v. Public Prosecutor [1988] 2 MLJ 55:

  • Issue: Whether mandatory death sentences for drug trafficking/firearms were void for being un-Islamic under Article $3(1)$.

  • Judgment: The court ruled the term "Islam" in Article $3$ refers only to rituals and ceremonies. Malaysia's law remains secular until changed by Parliament.

• Hjh Halimatussaadiah bte Hj Kamaruddin v. Public Services Commission [1994] 3 MLJ 61:

  • Issue: Prohibition of wearing purdah (face covering) during office hours.

  • Judgment: Article $11(1)$ is not absolute; Article $11(5)$ allows laws for public order/morality. The Mufti stated Islam does not obligate the face covering, thus the regulation was valid.

• Meor Atiqulrahman v. Fatimah bte Sihi [2000] 5 MLJ 375:

  • Issue: Expulsion of students for wearing a serban (turban).

  • High Court: Ruled the prohibition invalid as Article $3$ requires the government to protect Islam.

  • Federal Court (on appeal): Reversed the High Court; held there was no mandatory evidence that the serban is an integral, mandatory part of Islam, thus the school regulation did not violate Article $11(1)$.

Jurisdiction and Article 121(1A)

• Article 121(1A): Inserted in $1988$, stating that Civil High Courts shall have no jurisdiction in matters within the jurisdiction of the Syariah Courts.

• State List (Ninth Schedule, Item 1): Defines Syariah jurisdiction: personal and family law, succession, marriage, divorce, wakaf, zakat, and offenses against precepts of religion (limited by federal law).

• Conflicting Jurisdictional Principles:

  • Ng Wan Chan Case: Principle that jurisdiction must be expressly conferred by state legislature.

  • Soon Singh v. PERKIM [1999] 1 MLJ 489: Principle that Syariah Courts derive jurisdiction directly from Item $1$ of the State List by implication.

• Shahamin Faizal Kung v. Asma bte Haji Yunus (1991): The civil court initially refused to recognize Article $121(1A)$ as ousting its jurisdiction over child custody.

• Mohamed Habibullah v. Faridah Dato Talib [1992] 2 MLJ 793: The Supreme Court overruled the previous stance, confirming Article $121(1A)$ takes away High Court jurisdiction in matrimonial matters between Muslims.

Conflicts of Law and Judicial Precedents

• David John White Alias Abdul Rahman [1940] MLJ 214: Christian man converted to Islam and married a second wife. The court convicted him of bigamy because the first marriage was under monogamous rites and valid under civil law.

• Ainan bin Mahamud v. Syed Abubakar [1939] MLJ 209: Legitimacy of a child born within $6$ months of marriage. The Evidence Enactment (Civil Law) prevailed over Mohammedan Law; the child was deemed legitimate.

• Myriam v. Mohamed Ariff [1971] 1 MLJ 265: Custody dispute between a Swiss convert and her ex-husband. Civil court used the Guardianship of Infants Act $1961$ (welfare of the child) and ignored the Shafie school disqualifications regarding the mother's remarriage.

• Dalip Kaur v. Pegawai Polis Daerah Bukit Mertajam [1992]:

  • Issue: Status of a man who allegedly renounced Islam before death.

  • Judgment: The High Court referred the matter to the Fatwa Committee. The Supreme Court emphasized that Article $121(1A)$ leaves the determination of Muslim status to the Syariah Court.

Conversion and Custody Conflicts

• Apostasy (Conversion out of Islam):

  • Ng Wan Chan (1993): Lacking express provision, the High Court claimed it could determine Muslim status.

  • Soon Singh (1999): Federal Court ruled that jurisdiction over conversion into Islam implies jurisdiction over conversion out.

  • Lina Joy v. MAIWP [2007] 4 MLJ 585: Confirmed apostasy is within Syariah jurisdiction. NRD could require a Syariah certificate before changing religion on an IC.

• Subashini v. Saravanan (2008): Civil courts have jurisdiction over marriages registered under the Law Reform (LRA) $1976$. A spouse cannot escape civil obligations by converting to Islam. However, a single parent was deemed able to decide the religion of a child under the old interpretation of Article $12(4)$.

• Viran v. Deepa (2016): Reaffirmed that Syariah Courts cannot dissolve civil marriages. The Federal Court varied custody, giving the son to the father (based on the $8$-year-old boy's wish) and the daughter to the mother.

• Indira Gandhi v. Jabatan Agama Islam Perak (2018):

  • Judgment: Unilateral conversion of children by one parent is unconstitutional. Article $12(4)$'s "parent" means both mother and father (plural). Syariah certificates can be quashed by the High Court via judicial review if statutory requirements (like child presence during conversion) aren't met.

Overlapping Criminal Jurisdictions

• Sukma Darmawan [1999]: Involved an overlap between the Penal Code (liwat) and Syariah law. The court held that where an act is an offense under two laws, the offender may be prosecuted under either, provided there is no double punishment.

• Iki Putra Mubarrak v. Kerajaan Negeri Selangor (2021):

  • Issue: Challenge to Section $28$ of the Selangor Syariah Enactment (unnatural sex).

  • Judgment: The Federal Court ruled that since "criminal law" (Penal Code) is in the Federal List, the State is precluded from enacting laws on the same subject. State power over Islamic law is residual and subordinated to federal power.