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Researching Islamic Law: Malaysian Sources

 

By Shaikh Mohamed Noordin

 

 

Shaikh Mohamed Noordin has more than fifteen years of experience in law librarianship. He has been a librarian in several law firms in Kuala Lumpur.  He has contributed several articles to various law librarian journals, both locally and internationally.

 

Published March/April 2009
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Table of Contents

 

1. Introduction

2. Scope of Islamic Law

3. Sources of Islamic Law

4. Where to Find Islamic Law

4.1 Legislation

4.2 Law Reports

4.3 Case Law and Court Information

4.4 Introductory Works on Islamic Law

4.5 Books on Islamic Law

4.6 Periodical Articles on Islamic Law

4.7 Internet Resources on Islamic Law

4.8 Locating Islamic Law Materials in the Libraries

5. Islamic Law Study in Malaysia       

An Overview of Malaysian Legal System and Research

1. Introduction

Prior to 1887, it was not known that Islamic law had existed in Malaysia; in that year, a rectangle shaped stone was found in Kuala Berang, Terangganu, with an inscription which detailed a code of Islamic law. The stone was dated in the year 1303, hundred of years earlier then the Law of Malacca Code was first introduced.

 

Islamic law was established in Malaysia by the fourteenth century. During the colonial period, the British did not interfere with religion in the country. Islam was adopted as the religion of the state, with the Constitution providing that the leader in each state must be a Muslim.  Yet, the Constitution also guarantees full religious freedom to members of all faiths.

 

With the exception of Putrajaya, the new administrative capital of Malaysia, each state in Malaysia, including the Federal Territories (Kuala Lumpur and Labuan) has its own religious Council. The function of this Council is to advise the ruler, or the king in non-ruler states, on Muslim and Islamic matters. All of these Councils are established by state law. The Federal Constitution also provides that a State Legislature has power to enact laws relating to, inter alia, personal and family law for Muslims, Muslim Waqf, Zakat, Fitrah, Baitul Mal, Mosques, the creation and punishment of offences by Muslims against precepts of Islam, Muslim Courts, the control and propagation of doctrines and beliefs among Muslims, and the determination of matters of Muslim Law.

 

The Muslim courts established by State authorities have jurisdiction only over Muslims, and have no jurisdiction over criminal offences, unless specifically conferred by federal law. Most of the Islamic Law that has been enacted in the States of Malaysia has developed into an independent legal system, substantially different from the strict Islamic Law of the Shariah, except perhaps in family law.

 

Prior to independence, a constitutional amendment was passed which resolved any questions of power or jurisdiction which might arise between the Shariah Court and the Civil Court.  This amendment stated that no court has jurisdiction in any matters which are under the jurisdiction of the Shariah Court; in effect, the Civil court has no influence on the jurisdiction of Shariah Court.

 

Problems occasionally arise in the implementation of Islamic Criminal Law. The enactment of the Shariah Criminal Code in each State does not distinguish between the three types of crimes in Islamic law, which are Hudood, Qisas and Tazir; rather, they are all combined, which often produces confusion. In order to assure the confidence of the public, the Shariah Courts, their Judges and Officers have to show that Islamic Law is not only the best Law in theory, but also the best in practical application; hence the aforementioned confusion is a serious concern.

 

In Malaysia, many books on Islamic law are written in Malay language, but contain many Arabic terms to describe the law; therefore, many of the Islamic legal resources available herein may be written in Malay.

 

2. Scope of Islamic Law

Islamic law is not a legal system, but a legal tradition, much like the common or civil law tradition. A legal tradition is a set of related beliefs, attitudes, and practices regarding the necessary components of a legal system, including the scope and purposes of the law, the manner in which law is created or discovered, the identity and function of legal actors, and the manner in which law is learned, implemented, developed and adapted.

 

Islam has its own personal, civil, criminal, mercantile, evidentiary, constitutional, and international law. In Malaysia, Islamic law and customary law were the law of the land long before English law became prominent, as under the current system. According to the Federal Constitution, Islamic law is a matter falling within the State List, meaning that the State Legislatures are empowered to enact the law. Exceptions to this are the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, in which Islamic law is enacted by the Parliament. Malaysia maintains two parallel justice systems: the Syariah Court System in each of the thirteen states, and the Civil Court System for the whole Federation. Each state in Malaysia has its own Syariah court system, which deals with matters relating to Islamic law in which all parties are Muslim.

 

All matters pertaining to Islamic law and Muslims shall only be heard in the Syariah court; all other cases are heard in the civil courts. The Constitution has empowered State Legislatures to promulgate Islamic law and personal and family law for all persons professing the religion of Islam (except in regard to matters included in the Federal List) such as succession, betrothal, marriage, divorce, maintenance, adoption, guardianship, trusts, Islamic religious revenue and mosques. Civil and Criminal law are within the Federal Government’s jurisdiction, except on criminal offences which effect Muslims as listed in the State List. The rules of Syariah are set by various sultans, who serve as Head of the Islamic religion in their respective states. Because Islamic law is administered by the respective states, there is a lack of uniformity in the administration of Islamic law in Malaysia.   

 

3. Sources of Islamic Law

The Quran is the primary source of Islamic law, as it contains all the fundamental directives and instructions of God. The Sunnah is the second source of Islamic law. Sunnah is an Arabic word which means "Method," and it refers to the statements, actions, and agreements of the Prophet Muhammad. Its authority is derived from the text of the Quran. The Quran and the Sunnah are complimentary – the laws described in the Quran are general in nature, and the Sunnah makes them specific and particular. The Sunnah explains the instructions of the Quran. The Quranic injunction is sometimes implicit; the Sunnah makes it explicit by providing essential ingredients and details. Ijma (consensus of opinion of scholars) and Qiyas (laws derived through analogical deduction) are the secondary or dependent sources of Islamic law.  For more information, see the Resources of Islamic Law.

 

4. Where to Find Islamic Law

State legislation is not widely available on the internet, so it is not easy to find Islamic legislation of the individual states. However, Islamic law that effected Federal territories is available from several sources, some of the links to which are listed below.

 

4.1 Legislation

Since Islamic law is regulated by state legislative assemblies, the law is published within the respective state gazettes, except for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, in which the Islamic law is enacted by the Parliament and is published in the Federal Gazettes.  

 

Islamic Family Law:

 

Islamic Family Law (Federal Territories) Act 1984, Act 303

Enacts certain provisions of the Islamic Family Law regarding marriage, divorce, maintenance, guardianship and other matters connected with family life. Extension and modification in its application to Federal Territory Putrajaya – PU (A) 250/2002.      

 

Islamic Procedural Law

 

Administration of Islamic Law (Federal Territories) Act 1993, Act 505

Provides for the enforcement and administration of Islamic law, the constitution and organization of Syariah Courts and related matters in the Federal Territories. 

 

Syariah Criminal Procedure (Federal Territories) Act 1997, Act 560

An Act to make provision relating to Syariah criminal procedure for Syariah Courts. Extension and modification in its application to Federal Territory Putrajaya – PU(A) 248/2002.            

 

Syariah Court Civil Procedure (Federal Territories) Act 1999, Act 585

                  Makes provisions relating to civil procedure for the Syariah Court. Extension and

modification in its application to Federal Territory Putrajaya – PU (A) 252/2002.                 

 

Syariah Court Evidence (Federal Territories) Act 1997, Act 561

Defines the law of evidence for the Syariah Court. Extension and modification in its application to Federal Territory Putrajaya – PU (A) 259/2002.

                 

Islamic Criminal Law

 

Syariah Criminal Offences (Federal Territories) Act 1997, Act 559

Provides for Syariah criminal offences and matters relating thereto. Extension and modification in its application to Federal Territory Putrajaya – PU (A) 251/2002.       

 

Syariah Courts (Criminal Jurisdiction) Act 1965, Act 355

Confers jurisdiction upon Courts constituted under any State law for the purpose of dealing with offences under Islamic law. Originally enacted as Muslim Courts (Criminal Jurisdiction).

 

Islamic Financial Law

 

Islamic Baking Act, 1983, Act 276       

Provides for the licensing and regulation of the Islamic banking business.

 

Islamic Financial Services Board Act, 2002, Act 623

Enables Bank Negara Malaysia to become a member of the Islamic Financial Services Board by signing and accepting the Agreement establishing the Board, and confers certain powers, immunities, and privileges upon the Board and its constituent organs for matters to which it is connected.

 

Islamic Development Bank Act, 1975, Act 153

Gives effect to an international agreement for the establishment and operation of the Islamic Development Bank, and enables Malaysia to be a Member thereof.

                 

Takaful Act 1984 (Act 312)

Provides for the regulation of the takaful business in Malaysia.

 

 

4.2 Law Reports

 

Syariah Reports (Selected Cases) from 2004

Published by the Malaysian Current Law Journal (CLJ), this is a compilation of selected cases from the Syariah Courts. The compilation, which reports 56 Malay language judgments of the Syariah High Courts/Appeal Courts in Malaysia, and 3 judgments in English from the Syariah Appeal Board of Singapore, is published in collaboration with the Department of Syariah Judiciary, Malaysia.

 

Syariah Law Reports, 

From October 2004 to present; a quarterly journal on the Syariah published

by Malaysian Law Journal (MLJ)

 

E-Kes – Collection of Islamic law cases monitored by the Department of Syariah and Law, Academy of Islamic Study, University of Malaya

List of Islamic law cases available in full text.

 

 

4.3 Case Law and Court Information

 

 

Arahan Amalan Mahkamah Syariah – Practice Directions of Syariah Court

 

Syariah Court Procedures & Processes

 

Department of Syariah Malaysia - Portal E-Syariah

 

Jabatan Kemajuan Islam Malaysia

 

4.4 Introductory Works on Islamic Law

 

Halsbury’s Laws of Malaysia – Syariah Law (Vol. 14)

 

Syariah Law

This is the first work of its kind ever to be published in Malaysian, and is the result of the combined efforts, knowledge, expertise and practical experience of Syariah law experts and academics. It covers a wide range of topics such as conflict of laws between Syariah and civil courts; Islamic banking and its operations; Islamic family law, including bethrothal, marriage, divorce and its ancillary orders; arbitration by Hakam; legitimacy and maintenance of children, Islamic criminal law and procedure;  and Islamic law of evidence and Syariah civil procedure including contempt of court and appeals. It also contains provisions of the individual State Enactments, a wealth of Syariah cases which have been reported in the Malayan Law Journal and the Jurnal Hukum, relevant Quranic citations, as well as references to the Sunnah and Hadith. This title is the definitive and indispensable companion for all Syariah lawyers, academics, and students, as well as for the public.

4.5 Books on Islamic Law

Islamic Law Book Catalogues:

 

List of Textbook Titles and Statutes on Islamic Law in Malaysia

Published by International Law Book Services (ILBS)

 

A.S. Noordeen – Malaysian Publisher of Islamic Books – list of books on Islamic law

 

 

Selected Islamic Law Books:

 

Islamic Law in Malaysia: Issues and Developments by Mohammad Hashim Kamali, Kuala Lumpur, Ilmiah Publisher (2000).

 

Powers and Jurisdiction of Syariah Courts in Malaysia, 2nd Ed., By Farid Sufian Shuaib, Kuala Lumpur, LexisNexis Malaysia (2008).

 

The Administration of Islamic Law, by Ahmad Ibrahim, Abdul Monir Yaacob – Kuala Lumpur : Institute of Islamic Understanding Malaysia (IKIM), 1997.

An Introduction to Islamic Law of Evidence, by Mahmud Saedon A. Othman, translated by Raden Ahmad Shauki R. Hisam – Kuala Lumpur: The Open Press, 2000.

Undang-Undang Islam di Mahkamah-Mahkamah Syariah di Malaysia, by Ahmad Hidayat Buang, Kuala Lumpur, Jabatan Syariah dan Undang-Undang, Akademi Pengajian Islam, Universiti Malaya, 1998.

 

Perlaksanaan Undang-Undang Islam Dalam Mahkamah Syariah dan Mahkamah Sivil di Malaysia, by A. Monir Yaacob, Kuala Lumpur: Institut Kefahaman Islam Malayisa [i.e. Malaysia], [1995].

 

 

4.6 Periodical Articles on Islamic Law

 

Collections of Articles on Islamic Law:

 

1. Article Collections – International Islamic University Malaysia

 

2. Articles Written (in Malay) by Muslim Lawyers

 

3. Academy of Islamic Study, University of Malaya – Theses on Islamic Law

 

4. Sisters in Islam – The Law & You – Legal Column

 

 

Selected Islamic Law Articles:

 

1. Recent Developments in Shariah Law in Malaysia

 

2. Internet-Based Learning in Malaysia: Islamic Law by Noor Inayah Yaakub.

 

3. Persiapan Mahkamah Syariah Kerah Perlaksanaan Undang-Undang Jenayah Islam Di Malaysia by Nassir bin. Hj. Abdul Aziz.

 

 

Law Journals:

 

1. Jurnal Hukum, from 1980 to present.

 

2. The IIUM Law Journal, from 1989 to present.

 

3. Malaysian Journal of Syariah & Law

 

 

4.7 Internet Resources on Islamic Law

 

Islamic Legal Vocabulary

 

E-Syariah

 

Jabatan Kehakiman Syariah Malaysia - Department of Syariah Judiciary Malaysia

Pusat Pengurusan Undang-Undang Islam (PPUI) – Islamic Law Management Centre

 

Persatuan Peguam Syarie Malaysia (PGSM) – Syarie Lawyers Association of Malaysia

Panelist and expertise in Syariah Community in Attorney General's Chambers

 

Information of Syariah Lawyer

 

 

4.8 Locating Islamic Law Materials in the Libraries

 

Institute of Islamic Understanding Malaysia Library

 

Department of Syariah Judiciary Malaysia Library

 

International Islamic University Malaysia Library

 

 

5. Islamic Law Study in Malaysia

 

Islamic Legal Education in Public Law Schools in Malaysia – Charting the Direction by Muhammad Nizam Awang

 

Islamic Legal Education at International Islamic University Malaysia (IIUM): Some suggestions for Improvement

 

Bachelor of Laws (LL.B) & Bachelor of Laws (Shari'ah) (LL.B_S) from International Islamic University Malaysia

 

Fakulti Undang-Undang dan Hubungan Antarabangsa - Universiti Darul Iman Malaysia (UDM)

 

Bachelor of Syariah and Law with Honours– Universiti Sains Islam Malaysia

 

Diploma in Islamic Judicial and Advocacy Practice (DIJAP)Universiti Sains Islam Malaysia

 

Diploma Pengajian Islam Pengkhususan Syariah dan Undang-Undang Kolej Islam Pahang Sultan Ahmad Shah (KIPSAS)

 

 

Note: All links are good as of March 5, 2009.