| back |

"The practice of Shariah Laws in Malaysia”


Before I talk on the practice of Islamic laws in Malaysia today, I would like to briefly mention on the background of Islam in Malaysia.

Contrary to the perception of many, Malaysia is not an Islamic country. The Federal Constitution of Malaysia provides that Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation. Ninety-nine per cent of Malays in Malaysia are Muslims. There are also born Muslims of other races such as Indians, Chinese, Pakistanis and others. When reference are made to Muslims, convert Muslims by virtue of marriage and voluntary conversions are included.

Islam had spread out in Asia since the 13th century and reached Malaysia a century later. Before the advent of Islam in Malaysia, the Malays followed customary law. Upon the Rulers and their subjects embracing Islam, attempts were made to adopt Islamic Law and to modify the Malay customs so as to make them conform to Islam. Before the coming of the Colonials powers, the law, which was applied in the Malay States was the Islamic Law.

In to-day’s practice of Islamic laws in Malaysia you may ask these questions:
(i) Who is affected by (Shariah) Islamic law in Malaysia?
(ii) When does Islamic law apply to Muslims?
(iii) Is there a conflict in the practice and the jurisdiction of Islamic law and the Civil law in Malaysia?
(iv) Does political ideology have an impact on the development of Islamic law?

1. With regard to question (¥), that is who are affected by Islamic law?
Muslims in Malaysia are governed by Islamic personal and family law which has been in existence in Malaysia since the 15th century. Islamic laws have been administered, not only by the Shariah Courts, but also the Civil Courts. However by Article 121 (1A) of the Constitution of Malaysia, today, exclusive jurisdiction has been given to the Shariah Courts in the administration of Islamic laws. The Shariah laws in Malaysia does not apply to non-Muslims.

2. The next question is when does Shariah laws apply to Muslims?
Shariah laws in Malaysia applies in the following areas:
(¥) Family laws in respect of:
(a) marriage
(b) divorce
(c) custody and guardianship
(d) maintenance of children
(e) matrimonial properties
(f) alimony
(ii) Laws of succession
(a) Probate and Administration – relating to distribution
(b) Trust Deed – in respect of gift inter-vivos
(iii) With regard to criminal laws the jurisdiction of the Shariah laws are limited and confined to offences in respect of:
(a) polygamous marriage
(b) close proximity
(c) indecent dressing and behavior
(d) violation of the "pillars of Islam” i.e.
- not fasting during Ramadham
- not attending Friday prayers
- desertion by either spouse
(e) apostasy

3. Often the question arises whether there is a conflict between the jurisdiction of the Shariah Courts and the Civil Courts e.g.
In certain fields of law there is a definite conflict of jurisdiction between the Shariah Courts and the Civil Courts e.g.
(i) Application for Grant for Letter of Administration of a Muslim can only be made in the Civil Courts despite Article 121 (1A).
(ii) Action against unnatural offences (e.g. sodomy) committed by a Muslim is brought in the Civil Court although such offences are provided in both Shariah Law and Civil Law.
(iii) A Court Order from the Shariah Court is not enforceable in the Civil Court and may not even be enforceable in a Shariah Court in another State in Malaysia.4. Lastly I would like to look at the Shariah laws and its impact on political ideology and vice-versa.

We cannot ignore the fact that sometimes the development of Shariah laws and its practice are influenced by political ideology. This is so in Malaysia.

For example, in Kelantan, a State in Malaysia governed by a separate political party, women particularly, if they are pretty are discouraged from working or having a career. Women are also sometimes segregated from men in their walk of life both literally and otherwise, e.g women must queue separately from men in the supermarket. In Terengganu, which is also a State governed by the same political party as Kelantan, have considered passing a law so as non-Muslims be taxed similar to the "Zakat” which income tax confined to Muslims only.

The influence of Islamic ideology is also reflected by the ruling Government. The Government in Malaysia has striven to enforce Islamic values in all aspects of our life in Malaysia. This is in line with the statement of our Prime Minister in his vision 2020 expressed in his working paper " Malaysia the Way Forward”. One of the challenges that will be faced in striving to achieve this vision, he said, is that of establishing a fully moral and ethical society, whose citizens are strong in religious and spiritual values and imbued with the highest of ethical standards. In Malaysia therefore various steps have been taken to introduce and apply Islamic values in the fields of economy and trade. We have now in Malaysia a well developed system of Islamic banking, takaful (Islamic insurance) Rahn and Amanah Saham (shares investment), which have shown how the teachings of Islam can be successfully applied in practice and this development in Malaysia has been followed by similar developments in these fields in the Indonesia, Brunei Darussalam and the Philippines. The system of commercial transactions following the teachings of Islam has also been accepted and applied by other banks and insurance companies in Malaysia. The Government and many other public and private bodies including the Universities have applied the principles of Islam in giving of loans including housing loans to their employees.

Recent Developments
On a national level, Malaysia is striving to improve the practice of Islamic laws by overcoming any existing inconsistencies in several areas e.g.:

· the powers and functions of Religious council
· appointment and powers of mufti
· appointment of needful prosecutors and enforcement officers
· conversion to the religion of Islam
· family laws – e.g. age of marriage
· other areas – e.g. procedures, etc.As a result six model laws were drafted into Bills with five (5) bills having obtained the Royal Assent in March 2001 and will be adopted by the States.

On the international level as recent as 3 days ago at the opening of the 20th Al Baraka Symposium for the Islamic Economies in Kuala Lumpur, our Prime Minister Datuk Seri Dr. Mahathir Mohamad said, (you will be happy to hear this!) I quote "While it was accepted that an Islamic economic community would be difficult to realize, he said plans to make the international Islamic dinar into a trade currency and national reserves was achievable. It could also be the beginning of a closer economic co-operation among Muslim countries. Effectively the use of Islamic dinar will create an Islamic trading bloc. Such a trading bloc will be a powerful voice in international trading regimes and the shaping of the new international financial architecture”.

In conclusion, it can be observed that Malaysia has done well despite the multiracial and multi-religious population and the Shariah law and Civil law has been practiced side by side successfully. What is also to be noted is that Shariah law does not affect non-Muslims with regard to offences under the Islamic law however non-Muslims are not prevented from taking advantage of any Muslim products or following Muslim principles whenever available.

| back |