By Mohamed Azam Mohamed Adil &
Mohammad Hashim Kamali
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.
PROFESOR Madya Dr. Mohamed Azam Mohamed Adil dilantik sebagai Timbalan Ketua Pegawai Eksekutif di International Institute of Advanced Islamic Studies (IAIS) Malaysia pada 1 April 2013. Bidang kepakaran beliau ialah Undang-undang Perlembagaan, Konflik Undang-undang Syariah-Sivil, Hak-Asasi Manusia, Undang-undang Jenayah Islam dan Undang-undang Transaksi Islam (Muamalah).
Memiliki Ijazah Sarjana Muda Syariah (Kepujian) dari Universiti Malaya pada tahun 1990, Sarjana Undang-undang (LLM) pada tahun 1992-1993 di School of Oriental and African Studies (SOAS), University of London dan PhD dalam undang-undang di universiti yang sama pada tahun 2001-2005.