(2) Position of Islam Islamic Law

7/30/2019 (2) Position of Islam Islamic Law

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TOPIC 2

PENTADBIRAN UNDANG-UNDANG ISLAM DI MALAYSIA

LAB2013

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Islam has been made the official religion of ourcountry since Merdeka in 1957 by virtue of theFederal Constitution of Malaysia.

The position of Islam and Islamic law as itsstands today is not a new constitutionaldevelopment- has its roots from the historicalexperiences.

Before Merdeka, Rulers of Malay States throughtheir respective written and unwritten StateConstitutions made Islam as their State officialreligion .

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Initial era - Islam perceived as religion and

personal practice changed altogether in the 15th

century with initiative undertaken by Malaccan

Sultanate. Continuation by Malay States after Malacca era.

Earliest written Constitution according Islam as

the state religion the Constitution of Johore(1895) and the Constitution of Terengganu

(1911) ( freedom of religion)

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Colonisation by British witness the downsize of

the importance and role of Islam in term of

administration and justice.

Downsize exercise though resulted indiminishing authority- did not result in total

elimination.

The Federation of Malaya was formed in 1948in replace of the Malayan Union formed in 1946.

The Federation undertook the First General

Election 1955. 4


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Economic requirements in British erawitnessed drastic increase in migration esp.Chinese and Indian work force to the country.

Towards independence, communal socialcontract was created.

The Reid Constitutional Commission

entrusted to provide a proposal for theconstitution of an independent Malaya by theConstitutional Conference in London in 1956.

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Majority of the Reid Commission did not makeany recommendation for specific religion to betaken as the religion for the Federation.

Dissenting note by Justice Abdul Hamidrecommending Islam as the religion of the statebut shall not impose any disability for any non-muslim citizen from professing and practicingtheir religions. Recommendation made on basis

of proposal by the Alliance Party representingthe major races was adopted by the WorkingCommittee.

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Highest source of law in the country.

Article 4 FC The Federal Constitution shall

shall be the Supreme Law of the Federation.

Any laws passed after Merdeka Day which is

inconsistent with The Federal Constitution

shall to the extend of its inconsistency, be

void. 4(1) FC.

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Under Article 3(1)- Islam is the religion of theFederation.

However, Article 3(1) FC does not restrictfreedom to practice other religion in any part ofthe federation in so far as it is practiced inpeace and harmony.

Freedom and non-prohibition in line with spirit ofIslam.

Literal interpretation - Islam accorded a dignifiedand special status as compared to otherreligions in Malaysia.

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Under 11(1) Every person has a right toprofess and practice his religion subject to

clause 11(4). State law and in respect of Federal Territories

of Kuala Lumpur, Labuan and Putrajaya,

federal law may control or restrict thepropagation of any religious doctrine or beliefamong persons professing the religion ofIslam.

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State laws against the propagation of other

religions among muslim

Eg: The Perak control and Restriction of

Propagation of Non-Islamic Religious

Enactment 1988.

The enctment also includes prohibiting the

usesage of words significant in Islam such asAllah by practices of other religion.

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Under Article 12 (2) every religious group hasthe right to establish and maintain institutions forthe education of children in its own religion andthere shall be no discrimination on the ground

only of religion. It shall be lawful for the Federation or a State to

establish or maintain or assist in establishing ormaintaining Islamic institutions or provide or

assist in providing instruction in the religion ofIslam and incur such expenditure as may benecessary for the purpose.

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No person shall be required to receive

instruction take part in any ceremony or act

of worship of a religion other than his own

Article 12(3).

For this purpose, the religion of a person

under the age of eighteen years shall be

decided by his parent or guardian Article12(4).

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Every Malay Ruler is the Head of the Islamic religionof their respective states- Article 3(2).

The effect of this provision allows the Rulerconcerned to act independently in religious matterswith the advise from the Majlis Agama Islam of thestates.

The YDPA is the Head of the religion of Islam for hisown state and the states of Malacca, Penang, Sabah,

Sarawak- Article 3(3). The YDPA is also th Head of Religion of Islam in the

Federal Territories of Kuala Lumpur, Labuan andPutrajaya -Article 3(4).

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YDPA in taking office is required under the

FC to undertake an oath to at all times

protect the religion of Islam and uphold the

rule of law and order in the country.

Similar with the Johore Constitution (1895) -

Wallahi, Wabillahi, Watallahi.

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Law- includes written law, the common law inso far as it is in operation in the Federation orany part thereof, and any6 custom or

usesage having the force of law in theFederation or any part thereof.

Malay -defined as a person who professesthe religion of Islam, habitually speak themalay language, coforms to Malay custom

Article 160 (2).

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When the conference of Rulers has agreed thatthey should extend to the Federation as a wholeeach of the other rulers shall in his capacity ofthe Head of the religion of Islam authorise theYDPA to represent him - Article 3(2).

The Conference of Rulers shall exercise itsfunctions of agreeing or disagreeing to the

extension of any religious acts, observances orceremonies to the Federation as a whole -Article 38(2).

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Since Islam made religion of the Federation,do we take Islamic law to be law of theFederation?

Was there an inferred intention by thedrafters of the FC to provide the same?

Can it be argued that the position of Islam

and Islamic Law carries similar importation? Should laws passed inconsistent with Islamic

Law be regarded as void?

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Che Omar Che Soh v PP [1988] 2 MLJ 55 theAppellant contended mandatory death sentencefor both drug trafficking and Firearms (IncreasedPenalties) Act since these offence is not

provided in hudud nor qisas,- contrary , void. Court took historical approach in dealing with

Article 3(1) and Article 4(1)- interventionreduced Islamic law to personal law (confining

to law of marriage, divorce and inheritance) andit was under this consideration did framers ofthe FC gave meaning of Islam in Article 3.

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Meor Atiqulrahman bin Ishak & Lain-lain vFatimah bte Sihi & Lain-lain [2000] MLJ375 legislative history was again considered

(despite arriving at a different conclusion) inthe interpretation of Article 3 (Islam goesbeyond rituals and ceremonies).Responsibility of govt to protect and promote

Islam. Regulations prohibiting pupils fromwearing serban resulting in school expulsionfor the same is contrary to article 3 and 11 ofthe FC.

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Sheridan & Groves The Constitution ofMalaysiapg27- Art 3 is intended only to impose

a requirement that certain ceremonies be

carried out in the Federation in accordance toIslam.

Hashim Yeop Sani Islam Dalam

Perlembagaanpg 186- propagated the literalapproach to Art 3 and contended that the

intention of the framers of the Constitution does

not go beyond the wording spelt out.

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The Alliance (Parti Perikatan) clarified to the MalayRulers that the actual intention to place Islam as theofficial religion is basically to accommodate formalceremonies such as the installation of the YDPA, the

celebration of Independence and others which isnecessary by the doa and Islamic practices.

. Tunku Abdul Rahman during a debate at theFederal Legislative Council in 1958 stressed that

Malaysia was not an Islamic State and that Islam wasonly intended as official religion of the Federation

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The Federal Constitution provides for Federal,State and Concurrent Legislative Lists.

Parliament may make laws for the whole or anypart of the Federation and the Legislature of a

State may make laws for the whole or any partof the state.

Parliament may make laws with respect to anymatters enumerated in the State List or

Concurrent List. Islamic law? A state matter except for the

Federal Territories.

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FEDERAL LIST

Ascertainment of Islamic Law and otherpersonal laws for purposes of federal law

[REFER List 1 FC item 4(k)]

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Islamic Law and personal and family law ofpersons professing the religion of Islam.

Wakaf

Malay Customs Zakat, Fitrah and Baitul Mal

Creation and punishment of offences bypersons professing the religion of Islam againstprecepts of Islam except in regard to mattersincluded in the Federal List

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The Constitution, organisation and procedure of

Syariah Courts which shall have jurisdiction only

over persons professing the religion of Islam

and in respect only of any matters in the StateList and in so far as conferred by the Federal

Law.

The control of propagating doctrines and beliefsamong the Muslim

Mosques or any similar public places of worship

[refer List 2 FC]26


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Restrictions existing in law making by the state?

If any law is inconsistent with the Federal law,

the Federal Law shall prevail and the State Law

shall to the extent of its inconsistency, be void. The Shariah Court (Criminal Jurisdiction) Act

1965 as amended in 1984 limits jurisdiction of

Shariah Court - imprisonment up to 3 yrs, or fineup to RM5,000 or whipping up to 6 strokes.

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Is Malaysia a secular or Islamic state ?

The question has been a topic debated from1957 till now, esp. among the political

parties. Though it is viewed by some quarters that

the FC is founded on a secular foundation,the FC itself does not specifically mentionwhether Malaysia is Islamic State or secularstate.

It only state that Islam is the religion of the

Federation. 28


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FUNDAMENTALS OF SECULARISM

A secular constitution separates State fromthe Church and law from religion.

Functions of state are confined to mundane

matters and religion is left entirely to religiousestablishments.

There is no state religion.

eg. India- Constitution specifically mentionsthat India is a sovereign socialist seculardemocratic republic.

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SITUATION IN MALAYSIA TODAY

Islam is the religion of the Federation

Head of states or Rulers - all Muslim

Majority in the state Muslim The Malay status person who professes the

religion of Islam

The Head of executive- the Prime Minister and

Deputy The civil service Chief Secretary, Majority

critical position in government

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Police, the army, judiciary and legislatures are

dominated and controlled by Muslims

The Federal Constitution and State constitutions

embedded withy Islamic features The Islamic economic and religious institutions

supported by the state and the Federal

government Muftis, Majlis Agama Islam in states, Fatwa

Council.

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Administration of justice-The improvement to

the Shariah Court in terms of jurisdiction,

officers, salary scheme of the judges,

Peguam syarie. Powers of states to legislate in Islamic

matters (state List).

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REBRANDING

Is rebranding necessary?

Considering all above it is submitted that

efforts to rebrand Malaysia as an Islamic

state is unnecessary.

Coupled with wide and ascending

acceptance to the practices of Islam, it can

be contended that Malaysia as it standstoday is already an Islamic State.

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The status accorded to Islam and Islamic law in

Malaysia as we have it today is the result of the

experience undergone in legislative history.

Islam unlike other religion in Malaysia has beenformally ascended by the Federal Constitution

with considerations however to the needs of

observing the social contract of the society.

END OF LECTURE. THANK YOU.

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(2) Position of Islam Islamic Law

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