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IN MALAYSIA TODAY AND ITS IMPACT
"The practice of Shariah Laws in Malaysia
ZAITOON DATO OTHMAN
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.
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
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:
(c) custody and guardianship
(d) maintenance of children
(e) matrimonial properties
(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
(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
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
(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
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
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
· 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.
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
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