One could also argue that there was ‘no pure Islamic law’ in the sense that the application of Islamic law was largely influenced by the Malay customary laws, namely the Adat Perpatih and Adat Temenggong.
Historically, Islamic law was the law of the land before the arrival of the British.
But one could also argue that there was ‘no pure Islamic law’ in the sense that the application of Islamic law was largely influenced by the Malay customary laws, namely the Adat Perpatih and Adat Temenggong. Nevertheless, the British presence in Malaya had rapidly eroded the status and influence of Islamic law.
The Malay Rulers, who previously have sovereign power, were compelled to adhere to the advice of British residents in all matters except limited aspects of Islamic law and Malay customs.
The British not only managed to control and rule Malaya but in the process, had introduced their own laws in order to maintain power. The British intervention in Malaya has left behind a great deal of influence in the way laws are administrated.
The colonial legacy laws that are still applicable include the Penal Code, the Evidence Act, the Contract Act, the Civil Procedure Code, the Criminal Procedure Code and the Land Code. It must be noted that except the Land Code, the other laws are similar to the Indian ones.
When the British finally left, Islamic law was only confined to family matters that involved marriage, divorce and matters related to the precept of that religion of Islam. This dual legal system was preserved even after Malaya gained its independence in 1957.
The jurisdiction of Islamic law, as given to the Syariah Court, is limited to Schedule Nine, List 2, State List of the Federal Constitution. In effect, the Syariah courts are subordinate to the Civil Courts which have a wider and more superior status.
While some have argued that both courts could run in parallel, conflict of jurisdiction remains a complicated issue especially when two different parties, one a Muslim and the other a non-Muslim, seek their rights at two separate courts.
The recent amendment to Act 164, in regard to Marriage laws, is a welcomed development. It is hoped that this amendment will provide the required remedy for both parties to seek dissolution of marriage at the Civil Court.
Beyond personal and family laws, there have been calls by several Muslim quarters to adopt a comprehensive implementation of Islamic law that would even encompass the criminal law and the penal code.
It is argued that as long as the implementation of Islamic law does not infringe the Federal Constitution provisions and other federal laws, Islamic law can be implemented among the Muslims within its scope of jurisdiction. However, certain matters that involve aspects of Islamic law, like Islamic banking, finance, Islamic capital market and takaful are placed under the Civil Courts.
Problems often arise, for instance, when there is a dispute concerning a contract made under the Islamic banking system, which calls for knowledge, skills and expertise in shariah law. Likewise, in the case of Islamic inheritance, the Syariah Court holds the jurisdiction in determining its distribution but probate matters remain under the Civil Court. Hence, Muslims seeking their inheritance would have to go to the Civil Court instead of the Syariah Courts.
Addressing the issue of overlapping or conflicting jurisdictions between the Syariah Court and the Civil Court would certainly require a framework that can link the rich Islamic tradition with contemporary realities.
In this regard, the Islamic discipline of establishing priority, or fiqh al-awlawiyyat (fiqh of priorities), is seen as a highly potential framework towards harmonising the two laws. The more pragmatic and contemporary approach governed by fiqh al-awlawiyyat promises a more nuanced and balanced decision in the pursuit of implementing Islamic law in Malaysia.
Focusing on Malaysia, this book deals with contemporary issues, developments and challenges concerning Islamic laws covering hudud, apostasy, hijab, polygamy, child maintenance, custodial rights and the complexities arising from interfaith marriages. It also covers takaful, hibah, inheritance and Islamic banking and finance. Other matters touched upon are the Malaysian Syariah Courts as an institution, general discourse on Islamic criminal law, and the perspectives of Islam and human rights.
We must thank all 14 contributors for making this important book a reality. Likewise, a big thank to CLJ for its kindness to co-publish this book with IAIS Malaysia.
Dr Mohamed Azam Mohamed Adil is associate professor and deputy chief executive officer, International Institute of Advanced Islamic Studies (IAIS) Malaysia.
Published in: Bebas News, Friday 9 August 2019
Islam is again at the forefront of public scrutiny as a result of several issues among which are the LGBT cases, the caning of two women accused of lesbianism, the incarceration and caning of a prostitute and child marriages in Kelantan and Terengganu. And last year the so called Islamic political party, PAS, introduced a Private Member's Bill, RUU 355, to increase punishment for syariah-related offences. It gives the impression that Islam is mainly concerned with punitive issues, rituals and sermonising through religious lectures by celebrity preachers and that it is a restrictive and repressive religion. It displays its calcified stance in adherence to syariah regulatory injunctions in the case of child marriages without taking into account the social implications of such marriages.
But those propagating the Islamic way of life through the implementation of syariah laws and other formal and informal regulatory measures are bent on impressing the punitive rather than the compassionate aspects of Islam that emphasise harmony, forgiveness, sharing and caring.
Most of such people emphasise the afterlife rather than the current one and that this life is ephemeral, a brief existence in preparation for eternal life. As such these people place spiritual needs over materialistic ones and neglect economic viability and discount secular education and other elements such as shelter, health, connectivity that formulate the fabric of living. A good example is Kelantan under PAS rule, which has remained the poorest state in Malaysia because the state government is more concerned about the ritualistic and punitive aspects of Islam instead of seeing to the worldly needs of the people.
In actual fact, Islam requires us to attend to both the needs of the present life and the preparation for the afterlife. While we must fulfil the prescribed Islamic practices such as prayers, fasting, and payment of zakat the social deeds to fellow men and women in meeting their economic, marital and educational needs form a significant part of the ibadah for consideration in the hereafter. The giving of alms and mandatory payment of zakat testifies to the importance of the social and economic aspects in the well-being of the ummah. Thus, Islam requires its adherents to strive for prosperity so that they could share it with those who are less fortunate. It encourages people to seek knowledge from all sources to be intellectually and technologically proficient to uplift the image of Islam.
Above all, Islam espouses the quest for knowledge, justice and truth and to view all syariah transgressions through the prismatic light of mercy and compassion. It is far from meting out punishments for syariah transgressions to flaunt authoritarian and dictatorial political stance as was the case of the single mother who turned to prostitution to support her child as she did not receive financial support from either her ex-husband or the state. Likewise, such unyielding authoritarian stance was also displayed in the case of the two women who were accused of lesbianism.
Syariah laws are not so much individualised as it is communal for the administration of syariah laws involving the community, that is, the state. The state is responsible for the wellbeing of the ummah by way of ensuring the availability of physical comfort – food, shelter, health, security – and intellectual competence (education) through the various state and private sectors, economic initiatives as well as other support facilities to ensure a decent living that would prevent them from committing crimes to meet their physical needs. Thus, the state is culpable, in the case of the single mother who turned to prostitution to support herself and her child.
It is not that the state should provide everything but it must create opportunities for employment through sound education and economic planning and practice. Thus, each to his/her own ability to eke out a decent living and those mired in poverty because of circumstances beyond their control should be helped by the Baitulmal.
Other religious institutions, besides the Baitulmal, especially the mosques, are also required to augment the state efforts in helping their needy khariah (people living within the mosque's jurisdiction) through their collection and donation.
Instead of being a centre for monitoring and providing help to the people within its jurisdiction, the mosques have been downgraded to a place for prayers and religious lectures. Worse, the monies collected are not disbursed to the community but accumulates in the mosques' bank accounts. This social responsibility and public advocacy is seldom practised. But the current trend in Malaysia is that the Islamic authorities are more concerned about meting out punishment without doing much to alleviate the poor and destitute, and without any initiative to counter unnatural sexual orientations or counselling to prevent child marriages. They only act on the symptoms rather than the cause.
In this case the state is only concerned with the syariah enactment on child marriages, instead of dealing with the factors that prompted such marriages. It chooses to ignore the negative social and financial implications of such a marriage. Thus, such punitive actions meted out by the Terengganu religious authorities do not represent the true teachings of Islam. This is the problem when looking at Islam by piecemeal, disengaging it from its holistic perspectives, which also include the role of the Ulul Amri or leaders as role models of piety and selflessness in the service of the ummah. There is much more to be done to reflect the true teachings of Islam beyond the prescribed rituals and outward appearance and behaviour.
One needs to create a positive and enlightened image of Islam as a progressive religion that is economically and technologically resilient that combines the spiritual and material to serve humanity underlined by compassion, forgiveness and mercy.
Thus, submission to Allah is not only through spiritual enlightenment of the self but also through worldly engagement to serve humanity as ordained and enshrined in the Quran and the Sunnah.
Published in: The Sun Daily, 2 October 2018
Usaha untuk mengharmonikan undang-undang syariah dan sivil bukanlah sesuatu yang baharu. Cuma, usaha itu sering kali dibayangi konflik perundangan antara kedua-dua undang-undang berkenaan. Konflik tersebut menjadikan usaha berkenaan seolah-olah sesuatu yang sia-sia. Aspek perbezaan bidang kuasa dan amalan perundangan, antara hujah yang sering digunakan.......................Download the full article in pdf attachment (below)
Sebuah institusi pengajian Islam hari ini mencadangkan pertikaian hak penjagaan anak melibatkan pasangan Islam dan bukan Islam diselesaikan oleh tribunal khas dan bukan di mahkamah sama ada syariah atau sivil. Insitut Kajian Tinggi Islam Antarabangsa Malaysia (IAIS) berkata cara itu dapat memberikan keadilan kepada kedua-dua pihak serta merungkai polemik yang berlaku dalam kes seumpama itu, ekoran percanggahan antara mahkamah syariah dan sivil....................Download the full article in pdf attachment (below)
The permissibility in Islam of organ and tissue transplant and blood donation is supposed to be a settled issue here in Malaysia and elsewhere in the Muslim world, yet questions keep arising on whether this is also permissible between Muslims and non-Muslims.......................Download the full article in pdf attachment (below)
PADA 26 Mei lalu, Presiden Pas, Datuk Seri Abdul Hadi Awang membentangkan Rang Undang-undang Persendirian bagi meminda seksyen 2 Akta Mahkamah Syariah (Bidang Kuasa Jenayah) 1965 (Pindaan 1984). Tujuannya bagi meningkatkan bidang kuasa mahkamah syariah yang terhad iaitu denda RM5,000 sahaja, atau tiga tahun penjara atau/dan sebat enam kali kepada bidang kuasa yang lebih mengikut syariah kecuali hukuman bunuh....................Download the full article in pdf attachment (below)
The information on Shariah provided in this paper is organized in 52 pages and eight sections, all in question and answer format, and is reflective of the classical Shariah positions and how they are applied or feature in the present-day Muslim countries. Some of the areas where modern reforms and Islamic revivalism of the latter part of twentieth century might have introduced changes are also mentioned. Each section features a number of questions of general interest, some topical and others informative of the state of the art. The purpose is not to provide exhaustive details on any of the themes discussed but to introduce Shariah in a nutshell, as it were, to readers with various levels of familiarity with the subject, Muslims and non-Muslims alike.................Download the full article in pdf attachment (below)
More than a millennium before the codification of the Geneva Conventions, most of the fundamental categories of protection could be found in Islamic teachings.
With the majority of today’s conflicts taking place in Muslim countries or involving Muslim combatants, aid agencies are operating - arguably more than ever before - in situations where Islamic norms govern the terrain in which they work. Islamic law contains a rich but complex set of rules on the protection of civilians. But can that centuries-old canon be reconciled with modern international humanitarian norms?
This report explores the tension (and overlap) between Islamic jurisprudence and international humanitarian law: reporting on how jihadists are interpreting Islamic edicts, and how humanitarians are using those same principles to further access. Read full article at: https://www.middleeasteye.net/essays/islamic-law-and-rules-war-1006257473