Islamic Law in Malaysia: The Challenges of Implementation 9813361867, 9789813361867

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Adnan Trakic Hanifah Haydar Ali Tajuddin  Editors

Islamic Law in Malaysia The Challenges of Implementation

Islamic Law in Malaysia

Adnan Trakic • Hanifah Haydar Ali Tajuddin Editors

Islamic Law in Malaysia The Challenges of Implementation

Editors Adnan Trakic Senior Lecturer School of Business Monash University Malaysia Subang Jaya, Malaysia

Hanifah Haydar Ali Tajuddin Shari’ah Judiciary Department of Malaysia Putrajaya, Malaysia

ISBN 978-981-33-6186-7    ISBN 978-981-33-6187-4 (eBook) https://doi.org/10.1007/978-981-33-6187-4 © Springer Nature Singapore Pte Ltd. 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Foreword

I am greatly honored to write a foreword to this publication. This book features a well-thought collection of chapters by authors on different areas of Islamic law. As the director general/Shari’ah Chief Justice of the Shari’ah Judiciary Department of Malaysia, I have been trying my level best to convey, both nationally and internationally, how Malaysia practices Islamic law and to correct the misconceptions that exist in terms of its implementation. This effort, however, needs to be shared and wide-ranging, and here comes this book. I must commend the effort taken by the editors and contributors in deliberating the areas of Islamic law as practiced in Malaysia. It is an excellent mixture of contributors, consisting of practitioners and academics. This enables the readers to see and evaluate how Islamic law is practiced in a real sense and what are the challenges faced in its implementation. Moreover, there are only a few publications depicting the subject; nonetheless, they are mostly limited to readers in Malaysia, and some are written in the local language. Being published by a well-known international publisher using the English medium certainly enables the presentation of information of this book to a larger audience. I believe that this book will be an excellent source for both the international and national communities who want to get an in-depth understanding of the challenges faced in the implementation of Islamic law in Malaysia. I congratulate the editors who have come up with the idea and realized it with the publication of this book. May your hard work pay off. To dear readers, I bid you happy reading! The Honorable Dato’ Setia Dr. Hj. Mohd Na’im bin Hj. Mokhtar, Chief Director/Shari’ah Chief Justice, Shari’ah Judiciary Department of Malaysia

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Preface

There is no shortage of information when it comes to the challenges faced in the implementation of Islamic law in Malaysia. But, that information sometimes tends to be either biased or lacking in substance. Many activists and representatives of various organizations have been, on many occasions, critical of Islamic laws and Shari’ah institutions. There is nothing wrong with critiquing. On the contrary, we would submit that the constructive critique is necessary for the development of the law and institutions. However, the views which propose abolishing Islamic laws and Shari’ah institutions or describe them as archaic and barbaric are not constructive. The ultimate goal of this type of critique is, to say the least, questionable. As a result, these views are often perceived by many Muslims as an attack on Islam and its system of laws and values that are dearly revered by Muslims. This book seeks to be constructive in its analysis of the challenges faced in the implementation of Islamic law in Malaysia. To achieve this, a special emphasis has been placed on two fundamental principles. First, the analysis of Islamic law and suggested reforms should be compatible with Islamic jurisprudence if they were to be regarded as credible. In other words, they need to reflect the Islamic system of values. The views that do not find support in Islamic jurisprudence cannot be considered authoritative from the Islamic law point of view. This is not to say that they are not worth considering. They might be. But, it is wrong to impute them to Islam if they do not comply with Shari’ah. Second, all chapters are written by scholars and Shari’ah officers (judges and practitioners) who have the necessary knowledge and expertise to do so. Therefore, we believe that the book offers a credible and scholarly account of the issues and it proposes reforms that are consistent with Islamic jurisprudence. Subang Jaya, Malaysia Putrajaya, Malaysia August 2020

Adnan Trakic Hanifah Haydar Ali Tajuddin

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Contents

1 Challenges in the Implementation of Islamic Law in Malaysia����������    1 Adnan Trakic and Hanifah Haydar Ali Tajuddin 2 British Administration of Malay Peninsula and Its Impact on the Status of Islamic Law����������������������������������������    9 Ashgar Ali Ali Mohamed and Muhamad Hassan Ahmad 3 The Status of Islam and Islamic Law in the Malaysian Federal Constitution��������������������������������������������������   19 Ashgar Ali Ali Mohamed and Muhamad Hassan Ahmad 4 Islamic Criminal Law������������������������������������������������������������������������������   29 Hanifah Haydar Ali Tajuddin and Nasimah Hussin 5 Islamic Family Law����������������������������������������������������������������������������������   43 Jazilah Mohd Saad and Adnan Trakic 6 Islamic Inheritance Law��������������������������������������������������������������������������   63 Hanifah Haydar Ali Tajuddin and Salehan Yatim 7 Islamic Commercial Law������������������������������������������������������������������������   75 Noor Suhaida Kasri 8 Islamic Evidence Law������������������������������������������������������������������������������   97 Hanifah Haydar Ali Tajuddin and Mohd Nadzri Abd Rahman 9 Transforming and Globalising the Shari’ah Judiciary System of Malaysia����������������������������������������������������������������������������������  111 Hanifah Haydar Ali Tajuddin 10 Implementation of Islamic Law in Malaysia: The Way Forward������������������������������������������������������������������������������������  123 Adnan Trakic and Hanifah Haydar Ali Tajuddin

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Contents

List of Statutes and Regulations ��������������������������������������������������������������������  143 List of Cases������������������������������������������������������������������������������������������������������  145 Bibliography ����������������������������������������������������������������������������������������������������  147

Contributors

Muhamad Hassan Ahmad  is an assistant professor at the Civil Law Department, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia (IIUM). He graduated with a Bachelor of Law (LLB), Master of Comparative Laws (MCL) and Doctor of Philosophy (PhD). He has a special research interest in public international law, private international law, alternative dispute resolution, and comparative law and jurisprudence. He published a number of research articles in various local as well as international academic journals and presented several research papers at local as well as international conferences. Ashgar Ali Ali Mohamed  is a professor at Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia. He graduated with Bachelor of Laws (LLB (Hons)) and Master of Comparative Laws (MCL) from the International Islamic University Malaysia (IIUM) and received his Master of Laws (LLM (Hons)) from the University of Auckland, New Zealand, and Doctor of Philosophy in Business Law (PhD) from the Graduate School of Management, University Putra Malaysia. His area of interest includes employment law, civil litigation and alternative dispute resolution. Hanifah  Haydar  Ali  Tajuddin  is a senior assistant director at the Policy and Research Division of the Shari’ah Judiciary Department of Malaysia. Before that, she was a Shari’ah prosecutor at the Shari’ah Prosecution Department of the Federal Territories, Malaysia. She is actively involved in making policies for the implementation and administration of Islamic law in Malaysia. She has completed her PhD in law in 2020 from the International Islamic University Malaysia focusing on restorative justice in Islamic criminal law. She is also a part-time lecturer in the Faculty of Law and Shari’ah, Islamic Science University of Malaysia. She is an active researcher and has published articles and book chapters in the areas of Islamic law. Nasimah  Hussin  is an associate professor in the Department of Islamic Law, Ahmad Ibrahim Kulliyyah of Laws (AIKOL), International Islamic University Malaysia (IIUM). She obtained her Bachelor of Shari’ah (Hon) from the University xi

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of Malaya (1991), Master of Comparative Laws (MCL) from IIUM (1992) and PhD from University of Edinburgh (1997) in Islamic Criminal Law. Her research interests are in the areas of Islamic law, criminal law, victimology, Usul Fiqh, and women and children issues. She has published several articles, some of them being: ‘Sulh as a Method of Alternative Dispute Resolution in Criminal Cases: An Islamic Perspective’; ‘Factors which Influence the Degree of Punishment: The Practice in the Shari’ah Court of Malaysia’; and ‘Abortion and Causing Miscarriage: Islamic Medical Perspective’. In 2012, she was appointed as the head of the Islamic Law Department at AIKOL. She has been serving as a member of the Student Disciplinary Board IIUM since 2003. Noor Suhaida Kasri  is a senior researcher at the International Shari’ah Research Academy for Islamic Finance (ISRA). She is also the head of ISRA’s Islamic Capital Market Unit. Prior to joining ISRA, she had almost 12 years of experience as a Malaysian advocate and solicitor as well as a Shari’ah lawyer. During her legal practice, she was appointed as one of the members of Malaysia’s Investigating Tribunal Panel, Advocates & Solicitors Disciplinary Board and headed the Shari’ah Legal Clinic of Kuala Lumpur Bar Legal Aid Centre. Noor received her Doctor of Philosophy in Islamic Banking Finance and Management from the University of Gloucestershire (in collaboration with Markfield Institute of Higher Education), UK, under the sponsorship of ISRA. She obtained her Master of Laws from King’s College of London under the funding of the British Chevening Scholarship Award. She completed her Bachelor of Laws and Diploma in Shari’ah Legal Practice at the International Islamic University of Malaysia. She has written a number of research papers, textbook chapters and articles and presented in conferences locally and globally. Mohd Nadzri Abd Rahman  is a chief Shari’ah judge for the State of Malacca, Malaysia. He has been in the Shari’ah legal service for more than 20 years. He obtained his LLM from the International Islamic University Malaysia in 2009 and a Special Certificate from Muslim College in Ealing, London. Other than the Shari’ah Courts and the Shari’ah Judiciary Department of Malaysia, he also worked at the Attorney General Chamber and the Legal Aid Bureau. Throughout his service, he published several books related to Islamic law such as Contempt of the Court: Civil and Islamic Law, Shari’ah Court Civil Procedure Law: Principles and Practices, Interlocutory Proceedings and Interim Orders in the Shari’ah High Court, Syarie Lawyer and Mal Litigation in Shari’ah Courts, Application of Practice Directions in Shari’ah Courts and Procedures of Appeal and Review in Shari’ah Courts. His books have been frequently referred to by Shari’ah officers and practitioners in Malaysia. Jazilah Mohd Saad  is the director of the Family Support Division at the Shari’ah Judiciary Department of Malaysia. She has obtained her PhD in Islamic law from the International Islamic University Malaysia in 2017 focusing on the ‘Mechanisms of Enforcement and Execution of Maintenance Order in the Shari’ah Court in

Contributors

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Malaysia’. The Family Support Division operates at the federal level and monitors the operation of Family Support Units which are located in every Shari’ah court in Malaysia. The division primarily caters to women and children affected with non-­ performance of maintenance orders by providing them with legal advice and support. Besides that, the division also conducts studies and suggests strategies to execute court orders on maintenance effectively. Jazilah is active in conducting research and collaborating with the academics in the said area. Adnan  Trakic  is a senior lecturer and the head of Business Law and Taxation Discipline at the School of Business, Monash University, Malaysia. He graduated with a Bachelor of Laws (LLB (Hons)), Master of Comparative Laws (MCL) and Doctor of Philosophy (PhD) from the International Islamic University Malaysia (IIUM) and received his Graduate Certificate in Higher Education (GCHE) from Monash University. He has taught and researched in the fields of conventional and Islamic finance law, business law and dispute resolution. He has published several books and numerous articles and book chapters. Salehan  Yatim  is a senior Shari’ah High Court judge of the State of Selangor, Malaysia. He has over 20 years of experience in the Shari’ah legal service as a member of the Shari’ah legal and judiciary handling both Shari’ah civil and criminal cases. He has been invited, on a number of occasions, to share his knowledge and experience in formulating practice directions and court rules and regulations in establishing standardized implementation of Shari’ah law in the Shari’ah courts. He has also conducted many seminars and training on Islamic law for Shari’ah officers and practitioners.

Chapter 1

Challenges in the Implementation of Islamic Law in Malaysia Adnan Trakic and Hanifah Haydar Ali Tajuddin

Introduction Islam is a religion of about 1.8 billion Muslims who make up around 24% of the world population. While Islam is the world’s second-largest religion, it is the fastest-­ growing major religion (Lipka 2017). Islam requires Muslims to observe the religious precepts prescribed by Islamic law (Shari’ah).1 Islamic law is a set of normative principles, some of which are to be observed voluntarily, but some are prescribed as a set of legal precepts that ought to be implemented and enforced by the state. At the stage of implementation of these laws, tensions may arise as to their scope and manner of implementation. Some believe that Islamic law should remain purely within a religious realm and that it does not have a place in modern Muslim society. However, that does not seem to be the position taken by the majority of Muslims in Malaysia who believe that Islamic law should have a profound influence on the way their affairs are governed, especially personal matters, such as marriage, divorce, inheritance, and finance. A worldwide survey conducted by Pew Research Centre showed that 86% of Muslims in Malaysia said that Shari’ah should be the official law and many supporters of Shari’ah had said that it should only apply to their country’s Muslim population (Pew Research Centre 2013). But even those who support Islamic law’s greater influence on legal matters are sometimes surprised, to say the least, by the outcomes of the implementation of Islamic law or how the outcomes have been achieved.

 “Shari’ah” spelling has been used throughout the book when reference is made to Islamic law.

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A. Trakic (*) School of Business, Monash University Malaysia, Subang Jaya, Malaysia e-mail: [email protected] H. Haydar Ali Tajuddin Shari’ah Judiciary Department of Malaysia, Putrajaya, Malaysia © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4_1

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This book examines the challenges of the implementation of Islamic law in Malaysia. Malaysia is a pertinent jurisdiction to explore such challenges given its global focus, colonial history and institutions, and the intersection of the Shari’ah and secularism/multiculturalism. The resultant implementation challenges are underpinned by three factors that make Malaysia an important jurisdiction for those interested in understanding the place of Islamic law in the global context. First, Malaysia is often referred to as a model Islamic country (Mohamad 2011). Islamic law is a source of law in Malaysia. The Islamic law legal system in Malaysia operates in parallel with the common law legal system. The two systems of law generally are in harmony with one another. Nevertheless, occasional cross-­ jurisdictional issues do arise, and when they do, the Malaysian judiciary has been quite efficient in solving them. The Malaysian experience in maintaining the harmony between the two legal systems is certainly worth studying. Other countries practicing Islamic law on its own or in parallel with or within other secular legal systems could draw some useful lessons. Many other jurisdictions, especially the ones with large Muslim populations, consider Malaysia as a modern, moderate, and progressive Muslim country worth emulating. Second, Malaysia has a developed Shari’ah court system that interprets and applies Islamic law predominantly based on the Shafi’i school of thought. While, for the most part, the approach has been successful, there have been times when the implementation of the law has raised concerns as to the compatibility of Islamic law with modern principles of human rights and common law-based values. The Shari’ah court decisions are reported in the Journal Hukum. This open access to the court decisions allows this research to be carried out systematically and transparently. Malaysia has also developed a pool of competent Islamic law experts who have theoretical and practical knowledge in various Islamic law areas and good exposure to the common law principles and practice. This new breed of legal scholars trained in Islamic law and common law is well-positioned to help the public and government bridge the gap between the two systems of law and remove the challenges associated with the implementation of Islamic law. Third, there have been cases where Islamic law implementation in Malaysia has gained global attention due to the potential for wider international implications. For example, a convicted lesbian couple were fined and ordered by the court to be caned six times each (BBC News 2018), a single mother who turned to prostitution has been sentenced to jail and caning (Latiff 2018), and a case of unilateral conversion of children to Islam (Teoh and Rodzi 2018). In 2018, the Malaysian Government, headed by the then Prime Minister Tun Dr. Mahathir Mohamed, called on Muslims in Malaysia to embrace what he termed “compassionate Islam”, which should strive to forgive rather than punish offenders (The Star 2018). He said this in relation to the public caning of the lesbian couple, which he disagreed with. He explained that the caning of the two women did not reflect the quality and justice in Islam. To do justice to this complex area, the book calls on scholars and practitioners who have the necessary expertise in Islamic law and its implementation. The implementation stage shows the law in action. A fair and just law could produce unfair outcomes through poor implementation. When that happens, those

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entrusted with implementing the law should perhaps own the outcomes, be it good or bad. In many cases, however, the problem tends to be considered an Islamic law problem, with those directing the blame often having limited knowledge of Islamic law and its implementation. Of course, people have the right to speak freely on such matters. However, it is equally important that the comments are an accurate representation of Islamic law. This book attempts to rectify this situation and present a precise analysis of Islamic law and its challenges in Malaysia by scholars and practitioners who have the necessary expertise to do so. The book seeks to provide a useful guide and direction for other countries that operate a dual system of secular courts and Islamic law by undertaking such a task.

Key Objectives and Research Approach The book has five primary objectives that underpin the analysis of the implementation of Islamic law in Malaysia. First, to increase awareness of Islamic law and its status in the Malaysian Legal system. Second, to identify and discuss challenges faced in implementing implementation, such as Shari’ah judges and officers. Third, to enable Islamic law scholars and practitioners to present their views and suggestions in an appropriate manner. Forth, to enable the public and other interested parties to learn from the presented views. Fifth, to suggest to the relevant Federal and State Government Agencies reforms of the existing laws and policies, which is considered necessary. These objectives lead to the following questions: • Is Islamic law flexible enough to accommodate the needs of Muslims in the twenty-first century? • How can those involved in the implementation of Islamic law in Malaysia, such as Shari’ah judges and officers, address and alleviate the challenges faced in the implementation of Islamic law? • Can the Malaysia’s plan to promote a moderate, middle path, and compassionate interpretation of Islam remove some of the obstacles faced in the implementation of Islamic law? Additional questions that the book will address are provided in the respective chapters.

Structure and Framework The book is divided into several thematic chapters. Each of these chapters will expound on the extent of Islamic law’s application in Malaysia and the challenges that have arisen in its implementation. The monograph begins with an introductory chapter. This chapter is written by the editors. It provides the context and sets the

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objectives that the monograph is expected to achieve. This chapter is followed by two chapters that explain the position of Islam and Islamic law in Malaysia. Chapter 2 highlights the Islamic law’s influence on Malaysian legal history with a special reference to Kanun Malacca. But, this is not just a historical analysis. The chapter also considers the position of Islamic law as a source of law with reference to decided cases before and after Malaysia’s independence. It is interesting to note, however, that the Malaysian Federal Constitution, the supreme law of the land, does not include Islamic law in the definition of “law”. It only mentions “written law” and “common law”. Islam, on the other hand, is recognized in the Constitution as an official religion of the Federation. What does this mean? Is the word “Islam” inclusive of Islamic law? Even if it is, the Constitution does not say that Islamic law is the supreme law of the land. Instead, it reiterates that the Constitution is the supreme law. Furthermore, does an official status of Islam as a religion of the Federation render Malaysia an Islamic country? Or, is Islam to be understood in a manner as it provides certain religious rights to Muslims without changing the secular nature of the Federation? The answers to these questions are provided in Chapter 3. This chapter specifically examines the status of both Islam and Islamic law in the Malaysian Federal Constitution. The following five chapters concentrate on the challenges in the implementation of Islamic law in specific areas on which State Legislative Assemblies and Federal Parliament are allowed to enact laws. The first and perhaps most controversial area is Islamic criminal law. Chapter 4 deals with the challenges faced in the implementation of Islamic criminal law in Malaysia. It highlights that the application of Islamic criminal law in Malaysia is very limited in scope. Most of the offenses legislated are so-called “moral offenses” such as adultery, close proximity between unmarried couples, and the drinking of alcohol. There have been several cases where there was a public outcry over how some of these Islamic criminal offenses have been implemented. One of the recent such cases was on 12 August 2018, when the Shari’ah High Court of Terengganu fined two women RM3300 and ordered that they be caned six times each after pleading guilty to committing musahaqa (sexual relations between women). The caning sentence was carried out in public before the court and not in the prison department as per usual practice. This, and similar cases, have generated considerable discussion among Islamic law scholars as to how best to treat these types of cases. Is caning an appropriate punishment? Should it be carried out in public, whereby the reputation of the offenders would be destroyed? It seems that the Malaysian Government would prefer to have an implementation of Islamic law based on the concept of “compassionate Islam”. Disagreeing with the public caning of the two women, then Prime Minister Mahathir, reportedly said that women’s caning did not reflect the quality of justice and sympathy in Islam (The Star 2018). On 6 October 2018, The Minister of Islamic Affairs in the Prime Minister’s Department, Datuk Mujahid Yusof Rawa, also reportedly said that “the government will shun enforcement seen as moral policing for areas under its jurisdiction and will instead pursue a policy of ‘compassionate Islam’” (Dzulkifly 2018). On the other end of the spectrum is Islamic family law. This area of law is discussed in Chapter 5, and it is perhaps one of the most heavily regulated Islamic law

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areas in Malaysia. The Islamic family law covers a wide range of topics, such as betrothal, marriage, polygamy, dowry, maintenance of wife and children, various types of divorce, and custody of children. While the implementation of Islamic family law has been smooth for the most part, issues still do occasionally arise.For example, a case of unilateral conversion of children to Islam was declared unlawful by the Malaysian Federal Court in Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and Other Appeals [2018] 3 CLJ 145. A more recent issue that has been raised and debated in Malaysia concerns child marriages. About 15,000 child marriages have been recorded in the past 10 years (Jayne 2018). Some have called for the existing laws to be amended to criminalize child marriages (Ali Mohamed 2018). The Malaysian public was shocked when a 41-year old man was allowed to marry an 11-year old girl (Beech 2018), and in another case where a 15-year old girl married a 44-year old man (Abdullah 2018). Chapter 5 details Islamic law position on these issues and how they should be handled. Chapter 6 is on Islamic inheritance law, also known as faraid. This area of law provides fixed shares of inheritance for the legal heirs. The determination of shares of inheritance and the legal heirs who should inherit the allocated shares is done by the Shari’ah courts, which prepare the certificates of inheritance. The Shari’ah courts, however, do not have sole authority over the administration and distribution of inheritance. The Letter of Administration from the civil courts still has to be obtained before one is authorized to distribute the inheritance. Other issues pertaining to Islamic inheritance law, such as lack of uniformity between Islamic laws in various states, time, costs, and enforcement, are also discussed in this chapter. The implementation of Islamic commercial law, also known as muamalat, is analysed in Chapter 7. Islamic commercial law is a highly developed area of law in Malaysia. Islamic finance is perhaps the most notable branch of Islamic commercial law that has propelled Malaysia to be considered the most advanced Islamic finance jurisdiction globally. Islamic finance is said to be a Shari’ah-compliant alternative to conventional finance. The creativity and determination by finance industry practitioners and Islamic law scholars to create a halal (permissible) version of financial products and services for Muslim consumers resulted in the Islamization of the conventional financial structures. This was achieved through the usage of classical Islamic commercial contracts, such as bay’ (sale), ijarah (leasing), kafalah (guarantee), and musharakah and mudharabah (partnership) agreements. As a result, Muslims can now use financial products and services without fear of sinning by consuming interest, which is strongly prohibited in Islam. This raises the question of how different is Islamic finance from its conventional counterpart? Is the difference only cosmetic, or is it more substantial? Furthermore, in Malaysia,  Islamic finance is regulated by federal laws, and disputes are adjudicated by the civil courts. The Shari’ah courts have no jurisdiction over Islamic finance disputes. Is this good or bad? Several issues have arisen in the past from the arrangement mentioned above. In addition to Islamic finance, this chapter also examines other relevant aspects of Islamic commercial law in Malaysia, such as issues pertaining to zakat (religious tax) and waqf (endowment).

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The discussion about the implementation of Islamic law would be incomplete without the chapter on the law of evidence. Hence, Chapter 8 provides rules on evidence that can be used before the Shari’ah court. Interestingly, this particular law is a mix of law principles of evidence from Islamic law and common law. Thus, one can find merged concepts between documentary evidence and kitabah; circumstantial evidence and qarinah; confession and iqrar, and examination of witnesses and shahadah, to name a few. The emergence of new kinds of evidence that involve electronics, forensics, or science has led to a heated debate on whether such evidence should be admissible before the Shari’ah court. This is because research on Islamic law principles of evidence is conducted by referring to the sources of Islamic law and opinions of the traditional jurists, which explicitly do not contain such evidence. Nevertheless, current cases suggest that there is a dire need for the court to keep abreast with today’s technology of deducing evidence. Thus, this chapter looks into the law of evidence applicable in the Shari’ah court. It also explores various related issues and suggests how to harmonize better the existing principles of the law of evidence in Islamic law with the current needs. Chapter 9 has been added at the later stage of writing of this book, and it is a welcomed addition since it explains the role of perhaps the single most important Shari’ah institution for the effective implementation of Islamic law across the entire country and that is Jabatan Kehakiman Shari’ah Malaysia (JKSM) (Shari’ah Judiciary Department of Malaysia). JKSM is a federal agency established in 1998 to coordinate the standardization of Islamic law across all States and Federal Territories. It also plays a major role in managing the appellate review processes before the Shari’ah Appeal Courts of the respective States and Federal Territories. JKSM is led by the Director-General, who is also at the same time the Chief Shari’ah Judge. Having to wear two hats simultaneously is a challenge in that the head of the Shari’ah judiciary needs to be independent of the executive in the same way the head of the civil judiciary is. The chapter addresses these concerns and proposes reforms that should strengthen the Shari’ah judiciary system. Chapter 10 is a conclusion and is written by the editors. It summarizes each chapter’s key findings and reconsiders some of the points raised by the authors in their respective chapters. It is intended to help the readers recapitulate the main challenges and suggestions discussed by the respective authors in their chapters. The chapter also provides answers to the questions raised in the first chapter.

Conclusion We hope that this book will be a useful contribution to the literature on the implementation of Islamic law in Malaysia and offer viable suggestions on reforms in this area of law. As much as we wished to deal with all the challenges faced in the implementation of Islamic law in Malaysia, the extent of the discussion is limited to the challenges that we, the editors and the respective contributors, believed were the most deserving of coverage at the time of writing of this book. That, however, does

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not mean that the challenges and areas that have not been included in this book are not worth discussing. They may very well be. It is our hope that other researchers and scholars will fill in the gaps in the literature and deal with the matters that have not been considered in this book.

References Abdullah, S.  M. (2018, September 18). Yet another one: 15-year-old girl marries father of two in Tumpat. New Straits Times. https://www.nst.com.my/news/nation/2018/09/412355/ yet-­another-­one-­15-­year-­old-­girl-­marries-­father-­two-­tumpat Ali Mohamed, A.  A. (2018, September 24). Criminalise child marriages. New Straits Times. https://www.nst.com.my/opinion/letters/2018/09/414545/criminalise-­child-­marriages Beech, H. (2018, July 29). 11 and married: Malaysia spars over an age-old practice. The New York Times. https://www.nytimes.com/2018/07/29/world/asia/malaysia-­child-­marriage.html Dr M: Caning of 2 women doesn’t reflect Islamic justice or sympathy. (2018, September 6). The Star. https://www.thestar.com.my/news/nation/2018/09/06/ dr-­m-­caning-­of-­2-­women-­doesnt-­reflect-­islamic-­justice-­or-­sympathy/ Dzulkifly, D. (2018, October 6). Islamic affairs minister vows end to moral policing. Malay Mail. https://www.malaymail.com/news/malaysia/2018/10/06/ islamic-­affairs-­minister-­vows-­end-­to-­moral-­policing/1679871 Jayne, T. (2018, July 30). Hannah Yeoh: 15,000 child marriages took place in Malaysia within the past decade. Says. https://says.com/my/news/ there-­are-­15-­000-­child-­marriage-­cases-­within-­the-­past-­10-­years Latiff, R. (2018, September 27). Malaysian state to cane a third woman for infringing Islamic law. Reuters. https://af.reuters.com/article/worldNews/idAFKCN1M7141 LGBT rights: Malaysia women caned for attempting to have lesbian sex. (2018, September 3). BBC News. https://www.bbc.com/news/world-­asia-­45395086 Teoh, S., & Rodzi, N. H. (2018, January 29). Malaysia’s highest court rules unilateral conversion of children to Islam void in Indira case. The Straits Times. https://www.straitstimes.com/asia/ se-­asia/unilateral-­conversion-­of-­indira-­gandhis-­3-­children-­is-­null-­void-­federal-­court

Chapter 2

British Administration of Malay Peninsula and Its Impact on the Status of Islamic Law Ashgar Ali Ali Mohamed and Muhamad Hassan Ahmad

Introduction Islam is a complete way of life that encompasses legal, social, and moral order aimed at construing the entire fabric of human life and culture in the light of values and principles revealed by Allah (s.w.t.) as guidance for humankind. Islamic law is a system of law and ethics derived from the divine sources commonly known as ‘Shari’ah’, which comprises the will of Allah (s.w.t.) revealed to the Prophet Muhammad (s.a.w.) over a period of 23 years beginning 610 AD. Shari’ah deals with two broad aspects of regulations, i.e., a set of laws dealing with the individual’s duties towards Allah (s.w.t.) and laws governing human relations. In pursuance of the above, the Shari’ah contains explicit injunctions concerning prayers, moral values, beliefs and also instructions for maintaining an appropriate, balanced relationship between individuals of various institutions of society in matters such as science, social attitudes, worship, contracts, family matters, economics, politics, and war. The sources of Shari’ah are the Qur’an (containing the words of Allah (s.w.t.)), Sunnah (the sayings, practices, and traditions of Prophet Muhammad (s.a.w.)), Ijma (consensus among Muslim scholars of Shari’ah), Qiyas (judicial reasoning), Istihsan (derivation), Istislah (public interest), and sources as to customs and usage. The most striking characteristic of the Shari’ah is its comprehensiveness and everlasting features, where it is designed for all times, and it is universal in its application (Ramadan 1992). The fluctuation of time and the variations of space have no adverse effect on the integral character of the Islamic legal system (Ibrahim 1984). Presently, in Malaysia, the application of Islamic law derived from Shari’ah is only applicable to Muslims and confined only to personal matters such as betrothal,

A. A. Ali Mohamed (*) · M. H. Ahmad Civil Law Department, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia (IIUM), Kuala Lumpur, Malaysia e-mail: [email protected]; [email protected] © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4_2

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marriage, divorce, dowry and maintenance, and minor offences against the precepts of the religion of Islam as specified in List II (State List), 9th Schedule of the Federal Constitution. Article 74(2) of the Federal Constitution provides: “[W]ithout prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.” Having said the above, this chapter explores and critically analyses how the successive foreign occupation during (1511–1957), especially the British administration, subjugated, meddled and reduced the status or position of Islamic law in the Malay Peninsula.

 tatus of Islamic Law Before the Foreign Occupation S of Malay Peninsula Before its foreign occupation, Malacca was already an influential regional power and a thriving trade centre with a busy port city visited by numerous Asian and European traders (Noor and Azaham 2000). The Laws of Malacca (Hukum Kanun Melaka), which was compiled during the reign of Sultan Muzaffar Shah (1446–1459), covered varying degrees and areas ranging from criminal offences, commercial transactions, family matters, evidence and procedure, and the conditions of a ruler. The said law directly absorbed several fiqh (Islamic jurisprudence) rulings by referring to texts like Fath al-Qarib from Ibn Al-Qasim al-Ghazi, al-Taqrib from Imam Abu Syuja’ and Hasyiyah ‘ala Fath al-Qarib from Ibrahim al-Bajuri (Borham 2002). The following are the Islamic penal provisions under the Laws of Malacca: zina (unlawful sexual intercourse) – section 40:2, qadhf (slanderous accusation of zina) – section 12:3, sariqa (theft) – sections 7:2 and 11:1, hirabah (robbery) – section 43, riddah (apostasy) – section 36:1, shurb al-khamr (alcohol drinking) – section 42, and baghy (rebellion)  – sections 5 and 42. Qisas (retaliation) and diya (blood money) are legislated in sections 5:1-3; 8:2-3; 18:4, and 39, causing injury in section 8:2, and its various types in sections 16, 17, and 21. The punishments for the abovementioned crimes were a combination of customary law (Adat) and Islamic law. Crimes punishable with ta’zir (punishments administered at the discretion of the judge), i.e., where the crime lacks conditions for hadd (punishments mandated and fixed by God) – section 11:1, included kissing between a man and a woman – section 43:5, gambling – section 42, and giving false testimony – section 36 (Ali Mohamed 2014). Besides, Islamic family law is contained in section 25:2, which deals with the conditions for the marriage such as ijab (proposal) and qabul (acceptance) as well as rulings and conditions for witnesses to the marriage. Furthermore, sections 27 and 28:1 is related to dissolution rights or khiyar and talaq. This law also covered Islamic commercial transactions such as riba (usury) in section 30, the types of goods that are allowed to be traded, and also goods prohibited for trade, such as alcoholic drinks, dogs, and pigs (Borham 2002).

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The Laws of Malacca code was adopted in the codes of other states, such as the Pahang Laws of 1596, Kedah Laws of 1605, Johor Laws of 1789, Perak Code, and Ninety-Nine Laws of Perak 1765. The Pahang Laws, for example, which was prepared during the reign of Sultan ‘Abdul Al-Ghafar (1592–1614  A.D.) contained provisions on qisas (sections 46 and 47), fines (section 48), illegal intercourse (section 49), sodomy (section 50), theft (section 53), robbery (section 54), apostasy (section 62), omission of prayers (section 60), jihad (section 61), and provisions relating to witnesses and oaths (section 64). There were also provisions dealing with trade, sale, security, guarantee, investments, trusts, payment for labour, gifts, and wakaf (endowment) (Rau and Kumar 2005). Likewise, apart from adopting the Laws of Malacca, Johor had, in the early twentieth century, codified Islamic laws from Turkey and Egypt. The Majallah Al Ahkam of Egypt was translated as Majallah Ahkam Johor, and the Hanafite Code of Qadri Pasha was adapted and translated as the Ahkam Shariyyah Johor. Further, the Johor Constitution 1895 promulgated by Sultan Abu Bakar on 14 April 1895, contained rules regarding Islam as the official religion of Johor where in particular, article 57 provided: “What is called the ‘Religion of the State’ for this Territory and State of Johore is the Muslim Religion, and such being the case, the Muslim Religion shall continuously and forever be, and be acknowledged to be, and spoken of as, the ‘State Religion’; that is to say, on no account may another religion be made or spoken of as the religion of the country”. Further, in Terengganu, a Stone of Inscription dating to the twelfth century was found, and it, among other things, sets out the punishment for zina, namely, one hundred stripes for fornication and stoning to death for adultery. During the reign of Sultan Zainal Abidin III (1881–1918), Terengganu was administered under Islamic Law, and the punishments of hudud, qisas, diyat, and ta’zir were also provided therein (Ibrahim 1993). Besides the above, the constitution of Terengganu, promulgated by Sultan Zainal Abidin III in 1911, contained a law relating to the constitution of the courts, which appears to provide for the administration of Islamic law in Terengganu (Ibrahim 1993). It is, therefore, undisputed that the law applicable to the Malay States before the colonisation era was Islamic law with the mixture of Malay local customs that are in conformity with the Shari’ah legal principles. The above was reinforced by British judges in the Malay States, for example, in Shaik Abdul Latif & Ors v Shaik Elias Bux [1915] 1 FMSLR 204, where Edmonds JC stated: “Before the first treaties, the population of these States consisted almost solely of Mohammedan (Muslim) Malays with a large industrial and mining Chinese community in their midst. The only law at that time applicable to Malays was Mohammedan (Islamic) law modified by local customs” (p. 207). Again, in Ramah binti Ta’at v Laton binti Malim Sutan [1927] 6 FMSLR 128, the Court of Appeal of the Federated Malay States stated, inter alia, that: “Muslim (Islamic) law is not foreign law but local law and the law of the land. The court must take judicial notice of it and must propound that law” (p. 129). In this case, the main issue was whether the principle of Mohammedan Law, commonly called ‘Harta Sharikat’ applied in this case and, if so, whether in the circumstances the respondent was entitled to the declaration she sought.

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In 1908, Richard James Wilkinson, a scholar of Malay history, wrote on the status of Islamic law in the Malay States as: “There can no doubt that Moslem (Islamic) law would have ended up becoming the law of Malaya had not British law stepped in to check it” (Ibrahim and Joned 1987, pp. 56–57). This is further reiterated in Che Omar Che Soh v Public Prosecutor and Wan Jalil Bin Wan Abdul Rahman & Anor v Public Prosecutor [1988] 2 MLJ 55, in which Salleh Abas LP stated: “Before the British came to Malaya, which was then known as Tanah Melayu, the sultans in each of their respective States were the heads not only of the religion of Islam but also as the political leaders in their States, which were Islamic in the true sense of the word, because, not only were they themselves Muslims, their subjects were also Muslims and the law applicable in the States was Muslim (Islamic) law. Under such law, the sultan was regarded as God’s vicegerent (representative) on earth. He was entrusted with the power to run the country in accordance with the law ordained by Islam, i.e, Islamic law and to see that law was enforced” (p. 56). From the above discussion on the numerous laws promulgated by various Malay Kings in their respective Malay States and some relevant decided cases, it is noticeable even to a casual reader of the subject that Islamic law has been well integrated into the local legal system and thereby became the law of the land before any foreign occupation of Malay Peninsula.

 tatus of Islamic Law After the Foreign Occupation S of Malay Peninsula The foreign invasion into the Malay Peninsula began in 1511 from Malacca. From 1511 until 1640, the Portuguese occupied Malacca with the intention to dominate the trade in the Far East. Later, from 1641 until 1824, Malacca was occupied by the Dutch, and their main reason for the conquest was to ensure that their trade rivals, the Portuguese and the English, would not compete with them in Malayan waters (Sheppard 1959). During the Portuguese and Dutch administration of Malacca, the local Malays continued to practice Islamic laws and Malay customs as the governing law. The foreign powers had no interest in enforcing their laws in Malacca. In 1795, the Dutch surrendered Malacca to the British without resistance, mainly to prevent the State from falling into the hands of France when the latter captured the Netherlands during the French Revolution. Britain handed back Malacca to the Dutch under the Treaty of Vienna in 1818. In 1824, the Dutch gave permanent occupation of Malacca to Britain in exchange for Bencoolen on the West Coast of Sumatra. The British expanded their colonial rule into other States in the Malay peninsula. This began when Captain Francis Light, on behalf of East India Company, took the island of Penang in August 1786 and made it the first territory in the Malay Peninsula that came under British possession. In 1824, Singapore and Malacca had also been placed under British control. In 1826, the above three States were grouped together

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and referred to as the Straits Settlements. Accordingly, the Charters of Justice 1807 and 1826 were imposed into Penang as well as Straits Settlements, respectively, and these incidents marked, inter alia, the imposition of English law as the general law of the land. The above Charters set up the Courts of Judicature and made English law applicable to the native inhabitants and other residents in so far as their various religions and customs would permit. Further, pursuant to the Charter of Justice of 1855, the two Courts of Judicatures were established, one having jurisdiction covering the island of Penang and the other for Malacca and Singapore. Subsequently, vide the Ordinance No. 5 of 1868, the above courts were abolished and replaced by the Supreme Court of the Straits Settlements. Appeals against the decision of the said court could be brought to the Judicial Committee of the Privy Council. In addition, a Criminal Court known as the Court of Quarter Sessions was also established and was presided in Singapore by the Junior Puisne Judge (Ahmad et al. 2019). In 1878, the Courts Ordinance 1878 established a new hierarchy of courts in the Straits Settlements, which was as follows: (i) the Supreme Court of the Straits Settlement; (ii) Courts of Requests, at each of the Settlements; (iii) Courts of two Magistrates, at each of the Settlements; (iv) Magistrates’ Court, at each of the Settlements, (v) Coroners’ Courts, at each of the Settlements; and (iv) Justices of the Peace (Ahmad et al. 2019). The application of English law in Straits Settlements may be illustrated with reference to the following decided cases. In Kamoo v Thomas Turner Bassett (1808) 1 Ky 1, it was held that the 1807 Charter of Justice had introduced English laws as at 1807 into Penang so long as it is suitable to the conditions and circumstances of the local community. By analysing the above statement, it can be assumed that the newly imposed English law is applicable only when it is suitable to the conditions and circumstances of the local community, including the law of the land, which is the Islamic law with the mixture of Malay customs. Thus, English law can be disregarded if it is in conflict with Islamic law and customary law in place. However, in the Re Goods of Abdullah (1835) 2 Ky Ec 8, Benjamin Malkin R held that the transfer of property wholly by way of a will by the deceased, a Muslim, was valid under English law even though the same was inconsistent with Islamic law. The judge, by completely ignoring the fact that a Muslim is bound to follow the Islamic Law in inheritance matters which are explicitly motioned in the Qur’an, said that: “I refer to the case of Rodyk & Ors v. Williamson & Ors. (May 24, 1834) in which I expressed my opinion that I was bound by the uniform course of authority to hold that the introduction of the King’s Charter into these Settlements had introduced the existing Law of English also, except in some cases where it was modified by the express provision, and had abrogated any law previously existing. The law of England was introduced into Penang by the 1807 Charter and consequently a Muslim could, by will, dispose of his entire property even though such a will would be contrary to Muslim law” (p. 12).

This can be seen as a blatant attempt to subjugate the Malay local legal system and place it under the British newly imposed set of laws. As the precedent of the subjugation of the Malay local legal system has been set by a case law earlier in the case of Re Goods of Abdullah by a single unconcerned judge

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without any basis of legislation to that effect, Judge Hackett became even more aggressive and went on to say with his wild presumption to the extent that the 1807 Charter of Justice simultaneously made English law the lex loci of Penang in Fatimah and Ors v Logan and Ors. (1871) 1 Ky 255. In particular, he stated that: “When the British merchant based in a country occupied or somewhere with no civilised country, not only the English traders brought with them their laws from the mainland to the New Colonies, but English law is taken by those used on the population and residents of the new colony. …[T]he law of England was introduced into this settlement (Penang) immediately on possession taken in the name of the King of England by and for the use of the late East India Company; and law (if any) previously existing thereupon immediately ceased” (p. 257). Although this bias judgment is clearly against any kind of legal reasoning based on natural justice, it served well and fine to the imperial bureaucracy. Thus, it is not surprising to witness that the Privy Council reaffirmed the application of English law in Penang in Ong Cheng Neo v Yeap Cheah Neo and Ors (1872) 1 Ky 326. In particular, the Privy Council stated that: “[I]t is really immaterial to consider whether the Prince of Whales’ Island, or as it is called, Penang, should be regarded as ceded or newly settled territory, for there is no trace of any laws having been established there before it was acquired by the East India Company. In either view, the law of England must be taken to be the governing law so far as it is applicable to the circumstances of the place, and modified in its application by these circumstances” (p. 331).

In relation to the issue of whether the English Master and Servant Act 1823 was applicable to Penang vide the Charter of Justice 1826, Sir Benson Maxwell R. justified the application of English law in Regina v Willans (1858) 3 Ky 16, in the following words: “[A]gain, Penang being, at that time when it became a British possession, without inhabitants to claim the right of being governed by any existing law, and without tribunals to enforced any, it would be difficult to assert that the law of Quedah (Kedah) continued to be the territorial law after its cession” (p. 19). His justification is rather questionable as to whether the inhabitants were given rights to challenge the new colonial power’s imposition of English law and express their wills to be governed by the existing law. Nevertheless, the judge’s subconscious mind took cognisance of the fact that the law of Kedah was the applicable law in the territory and just that, due to the British occupation of the said territory, it is difficult to prove the continuation of the existing local law, i.e., the law of Kedah, at the time he formed his opinion in this case. The several cases discussed above clearly showed that English law had been imposed in the Straits Settlements and, in some cases, superseded the Islamic law. Concerning the Malay States, Perak and Selangor came under British protection in 1874, Negeri Sembilan in 1875, and finally Pahang in 1888. In July 1895, the above States formed themselves into a federation known as Federated Malay States (FMS) with the capital in Kuala Lumpur. British Residents were appointed in the above States, who wielded considerable political and administrative power, and the Sultan had to consult the Resident on all State matters, except those pertaining to Islamic

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administration and customs.1 It is noteworthy that the Malay States, unlike the Straits Settlements, were not British colonies but sovereign States with the proper legal system in place and this had been recognised in Mighell v Sultan of Johor (1894) 1 QB 147, Duff Development v Government of Kelantan (1924) AC 797, and Pahang Consolidated Co. Ltd. v The State of Pahang (1933) 2 MLJ 274. Despite the acknowledgment of independent sovereign States, the British managed to administer English law vide the informal imposition of these laws through the British appointed advisor known as Resident in each of these States. The British Resident was appointed as the advisor to the Sultan in all State matters except those pertaining to Malay religion and custom. Through the British Resident, a number of British Indian statutes were imported into the Federated Malay States. They include the Penal Code, the Contracts Ordinance, the Criminal Procedure Code, and the Civil Procedure Code. The existing religious courts of the FMS, namely, the Court of Kathi and Assistant Kathi were allowed to subsist along with the English court system with English trained judges such as Terrel CJ, Mill CJ, Woodward JC, Thorne J, and Edmonds JC. Many of the cases of these States were decided following the English law despite the fact that the parties may be locals. Islamic law was isolated and eventually confined only to matrimonial law, divorce, and inheritance. The formal introduction of English law into the Federated Malay States was done by virtue of the Civil Law Enactment 1937 (No. 3 of 1937), section 2(1). The section provided that: “Save so far as other provision has been made or may hereafter be made by any written law in force in the Federated Malay States, the common law of England, and the rules of equity, as administered in England at the commencement of this Enactment shall be in force in the Federated Malay States. Provided always that the said common law and rules of equity shall be in force in the Federated Malay States so far only as the circumstances of the Federated Malay States and its inhabitants permit and subject to such qualifications as local circumstances render necessary”.

The effect of this Enactment was that the English common law and rules of equity as administered in England at the commencement of this Enactment namely, 12 March 1937, became the governing law and thereby replacing the laws of the local inhabitants, namely, Islamic law and customary laws except on matters relating to personal matters such as family matters and inheritance. Furthermore, in 1909, Siam transferred to the British all rights of suzerainty, protection, administration, and control whatsoever which she possessed over Kedah, Perlis, Kelantan, and Terengganu by virtue of the Anglo-Siamese Treaty 1909. Johor came under British protection in 1914. The above States were grouped together and referred to as the Unfederated Malay States (UFMS). British advisors were appointed who only served in a consultative capacity to the Malay Sultans. The Civil Law Enactment 1937 of the FMS was extended in its

1  James Wheeler Woodford Birch, commonly known as J. W. W. Birch, the first British Resident in Perak was murdered on 2 November 1875 by followers of Dato’ Maharajalela, a local Malay chief, for his total disrespect to the local custom and tradition.

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application to the Unfederated Malay States by the Civil Law (Extension) Ordinance, 1951 (No. 49 of 1951). Apart from the above, the following civil courts were established in the Malay States: Court of the Judicial Commissioner, Courts of the Senior Magistrates; Courts of Magistrates of the First Class; and the Courts of Magistrates of the Second Class was established alongside the local courts namely, the Courts of Kathi and Assistant Kathi, and the Penghulus Court. An appeal to the Privy Council was allowed in 1906. In 1948, the Courts Ordinance 1948 (No. 43 of 1948) established a judicial system for the Federation wherein the Court of Kathi and Assistant Kathi was omitted from being part of the Federal Court system. The significant aspect of the Ordinance is that it made the civil court’s jurisdiction general and freed it from the limitations arising from Kathi court’s jurisdiction. The Ordinance continued to apply throughout the Federation until it was repealed by the Courts of Judicature Act 1964 (Act 91) and the Subordinate Courts Act 1948 (Act 55). As from the above, the British administrators applied English legal principle to solve the disputes through the civil court system as can be observed in the following cases: Government of Perak v Adam [1914] 2 FMSLR 144, Motor Emporium v Arumugam [1933] MLJ 276, Mohamed Gunny v Vadwang Kuti (1930) 7 FMSLR 170, Haji Abdul Rahman v Mohamed Hassan (1917) AC 209 (PC), and Leonard v Nachiappa Chetty (1923) 4 FMSLR 26. In several cases, the courts had clearly disregarded Islamic law, although the parties were Muslims. In Ainan v Syed Abu Bakar [1939] MLJ 209, the Evidence Enactment (FMS), section 112 which related to legitimacy, was enforced on the Muslims instead of Islamic law. The above section states that the birth of a child during a valid marriage or within 280 days after its dissolution shall be conclusive proof of the legitimacy of the child unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten. The court stated: “Our Evidence Enactment is a Statute of general application, and that all the inhabitants of the Federated Malay States are subject to its provisions, whatever may be their race or religion” (p.  215). Therefore, the court held that in questions of legitimacy in the case of Muhammadans, section 112 of the Evidence Enactment applies to the exclusion of the rule of Muhammadan Law. Again, in PP v White [1940] MLJ 214, the accused who resided in the Federated Malay States was initially married to a Christian lady in 1918 according to the rites and ceremonies of the Church of England. In 1936, while his first marriage was still legal, the accused contracted another marriage to a Christian lady according to Mohammedan (Islamic) law after they had been converted to the Mohammedan religion (Islam). The accused was charged and convicted for bigamy, an offence under the Penal Code enforced in the FMS.2 The court noted, inter alia, that a  The above section provides: “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, shall also be liable to fine”. 2

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person who enters into a marriage with a woman according to monogamous rites is subject to the obligations springing from a monogamous relationship. He cannot, whatever his religion may be, during the subsistence of the monogamous marriage, marry or contract marriage with another woman. The above decision is contrary to Islamic law, which allows a man to legally marry up to four wives. The other cases that had sidelined Islamic law even with regards to personal matters are Martin v Umi Kelsom [1963] MLJ 1 and Re Maria Huberdina Hertogh; Adrianus Petrus Hertogh & Anor v Amina Binte Mohamed & Ors [1950] 1 LNS 64. As a final remark, it would be worthwhile to reproduce the observation by Salleh Abas LP in Che Omar Che Soh v Public Prosecutor and Wan Jalil Bin Wan Abdul Rahman & Anor v Public Prosecutor (1988) 2MLJ 55: “Before the British came to Malaya, which was then known as Tanah Melayu, the Sultans in each of their respective States were the heads not only of the religion of Islam but also as the political leaders in their States, which were Islamic in the true sense of the word, because, not only were they themselves Muslims, their subjects were also Muslims and the law applicable in the States was Muslim law. Under such law, the Sultan was regarded as God’s vicegerent (representative) on earth. He was entrusted with the power to run the country in accordance with the law ordained by Islam, i.e, Islamic law and to see that law was enforced. When the British came, however, through a series of treaties with the Sultans beginning with the Treaty of Pangkor and through the so-called British advice, the religion of Islam became separated into two separate aspects, viz. the public aspect and the private aspect. The development of the public aspect of Islam had left the religion as a mere adjunct to the ruler’s power and sovereignty. The ruler ceased to be regarded as God’s vicegerent on earth but regarded as a sovereign within his territory. The concept of sovereignty ascribed to humans is alien to Islamic religion because in Islam, sovereignty belongs to God alone. By ascribing sovereignty to the ruler, i.e, to a human, the divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus, all laws including administration of Islamic laws had to receive this validity through a secular fiat. Although theoretically because the sovereignty of the ruler was absolute in the sense that he could do what he likes, and govern according to what he thought fit, the Anglo/Malay Treaties restricted this power. The effect of the restriction made it possible for the colonial regime under the guise of ‘advice’ to rule the country as it saw fit and rendered the position of the ruler one of continuous process of diminution. For example, the establishment of the Federated Malay States in 1895, with the subsequent establishment of the Council of States and other constitutional developments, further resulted in the weakening of the ruler’s plenary power to such an extent that Islam in its public aspect had become nothing more than a mere appendix to the ruler’s sovereignty. Because of this, only laws relating to family and inheritance were left to be administered and even this was not considered by the court to have territorial application binding all persons irrespective of religion and race living in the state. The law was only applicable to Muslims as their personal law” (p. 56).

Accordingly, it can be seen that during the British colonisation of the Straits Settlements and the Malay States, through the establishment of their imperial bureaucratic system and secular institutions, Islamic law was isolated and slowly had reduced its application only to spheres of personal matters and inheritance (Hooker 1984).

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Conclusion Today, the Malaysian Legal System is mainly based on the English law tradition, which was a direct result of the British occupation of the Straits Settlements and the Malay States for more than 150 years from 1786 right up to 1957, with just one short interruption during World War II. In the Strait Settlements, English law was imposed by the British through the Charters of Justice whilst in the Malay States through the appointment of British Residents and Advisors and enactments of the legislation. The laws applicable in the Malay Peninsula before the British intervention into these States were Islamic law and Malay customary laws (Adat) as acknowledged by Edmonds CJ in Shaik Abdul Latif v Shaik Elias Bux. The administration of Islamic principles in the legal system was also back reflected in the constitutions of Johor (1895) and Terengganu (1911). Despite the fact that the Malay States were independent sovereign States, the imposition of English law in the Malay Peninsula had left the local law being marginalised, and it was made applicable only in relation to personal matters such as marriage and inheritance. RJ Wilkinson, an English scholar, in his scholarly writing entitled ‘Papers on Malay Subjects’ aptly noted that “Muslim (Islamic) law would have ended by becoming the law of the Malays had not British law stepped to check it” (Roff 1998, p. 211). In a nutshell, it can be construed that had not the British come and meddle with the existing local legal system of the Malay Peninsula to change it exactly to be like theirs, the current Malaysian legal system would have been the Islamic legal system.

References Ahmad, A., Leong, F. Y., & Andrews, P. L. (2019). Legal system in Malaysia. The ASEAN Law Association. https://www.aseanlawassociation.org/legal-­system-­in-­malaysia/ Ali Mohamed, A.  A. (2014). Malaysian legal system: An introduction. In A.  A. Ali Mohamad (Ed.), Malaysia legal system (pp. 1–32). Ampang: CLJ Publication. Borham, A. J. (2002). Pengantar perundangan Islam. (trans: An introduction to Islamic legislature). Universiti Teknologi Malaysia Press Hooker, M. B. (1984). Islamic law in South-east Asia. Singapore: Oxford University Press. Ibrahim, A. (1984). Overview of Islamic law. Shari’ah Law Journal, 7, 12–13. Ibrahim, A., & Joned, A. (1987). The Malaysian legal system. Dewan Bahasa dan Pustaka: Kuala Lumpur. Ibrahim, A.  M. (1993). Suitability of the Islamic punishments in Malaysia. IIUM Law Journal, 1, 14. Noor, I., & Azaham, M. (2000). The Malays par excellence, warts and all: An introduction. Subang Jaya: Pelanduk Publications. Ramadan, S. (1992). Islamic law: Its scope and equity (2nd ed.). Kuala Lumpur: Muslim Youth Movement of Malaysia. Rau, K. V. P., & Kumar, P. J. (2005). General principles of the Malaysian legal system. Petaling Jaya: International Law Book Services. Roff, W. R. (1998). Patterns of Islamization in Malaysia, 1890s-1990s: Exemplars, institutions, and vectors. Journal of Islamic Studies, 9(2), 210–228. Sheppard, M.  C. (1959). Historic Malaya: An outline history. Singapore: Eastern Universities Press Ltd.

Chapter 3

The Status of Islam and Islamic Law in the Malaysian Federal Constitution Ashgar Ali Ali Mohamed and Muhamad Hassan Ahmad

Introduction The Malaysian Federal Constitution was drafted by ‘The Reid Commission’ headed by Lord William Reid, a distinguished Lord of Appeal in ordinary in the House of Lords, with other constitutional law experts, namely, Sir. Ivor Jennings (the United Kingdom), Sir. William McKell (Australia), Mr. Justice B. Malik (India), and Mr. Justice Abdul Hamid (Pakistan). The Federal Constitution is the supreme law of the federation (The Malaysian Federal Constitution (MFC), art. 4(1)). It is a lengthy document extending to 183 articles and 13 schedules, covering various matters, such as the federal and state governments’ structure and powers, individual fundamental rights, citizenship, emergency powers, and religion of the federation. Malaysia is a federation that consists of the following thirteen states, namely, Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor and Terengganu; and three Federal Territories, namely, Kuala Lumpur, Putrajaya and Labuan (MFC, art. 1). Each of the thirteen states mentioned earlier has its constitution, which also has to be in line with the auspice of the Federal Constitution (Ahmad and Ali Mohamed 2020). And, the Federal Constitution itself serves as the constitution for all the three Federal Territories (MFC, Item 27, Federal List, Ninth Schedule). Federal laws are promulgated by the Federal Parliament, which consists of the House of Representatives (‘Dewan Rakyat’) and the Senate (‘Dewan Negara’). The Federal Parliament has the power to make laws for the whole or any part of the federation and laws having effect outside as well as within the federation (MFC, art.

A. A. Ali Mohamed (*) · M. H. Ahmad Civil Law Department, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia (IIUM), Kuala Lumpur, Malaysia e-mail: [email protected]; [email protected] © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4_3

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73(a)). It may enact laws relating to any of the matters enumerated in the Federal List (MFC, The First List, Ninth Schedule) or the Concurrent List (MFC, The Third List, Ninth Schedule). Accordingly, laws passed at the federal level are also known as the Acts of Parliament. State laws are enacted by the assemblymen sitting in the State Legislative Assemblies (‘Dewan Undangan Negeri’) of each state and only applicable to the respective state (MFC, art. 74(1)). A Legislative Assembly has the power to make laws for the whole or any part of that particular state (MFC, art. 73(b)). It may make laws in relation to any of the matters enumerated in the State List (the Second List, Ninth Schedule, MFC) or the Concurrent List. Besides, the State Legislative Assemblies also have the power to pass laws with respect to any matter which is not enumerated in any of the Lists set out in the Ninth Schedule to be applicable to the respective state (MFC, art. 77). In relation to the status and position of Islam and Islamic law in the Federal Constitution, which forms the main focus of this chapter, the constitution places Islam in a special position (Mohamed Habibullah bin Mahmood v. Faridah bte Dato Talib [1993] 1 CLJ 264, SC). Each Ruler of the state is the Head of the religion of Islam in their respective states, and the Yang di-Pertuan Agong (the King)1 is the Head of the religion of Islam in his own state; the Federal Territories of Kuala Lumpur, Putrajaya, and Labuan; and the States of Malacca, Penang, Sabah as well as Sarawak.2 It is an offence to act in contempt of religious authority or defy, disobey or dispute the orders or directions of the Ruler of the States or Yang di-Pertuan Agong as the Head of the religion of Islam. Anyone who commits any of the above offences is liable to a fine not exceeding RM3000 or to imprisonment for a term not exceeding two years or to both upon conviction (Shari’ah Criminal Offences (Federal Territories) Act 1997 (Act 559), s. 9).

1  The Yang di-Pertuan Agong is elected by the Conference of Rulers for a term of five years: see art 32 of the Federal Constitution, but he may, at any time, resign his office by writing under his hand addressed to the Conference of Rulers or be removed from office by the Conference of Rulers. The Federal Constitution, art 41, provides that the Yang di-Pertuan Agong is the Supreme Head of the Federation and the Supreme Commander of the Armed Forces of the Federation and pursuant to art 40, he must act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided for by the Federal Constitution. The Cabinet is headed by the Prime Minister and is collectively responsible to Parliament. 2  Malaysia is a federation and is divided into thirteen states—Perlis, Kedah, Penang, Kelantan, Terengganu, Perak, Selangor, Negeri Sembilan, Malacca, Johor, Pahang, Sarawak and Sabah—and three Federal Territories—Kuala Lumpur, Labuan and Putrajaya. The Federal Territory of Kuala Lumpur was excluded from the boundaries of the State of Selangor vide the Constitution (Amendment) (No 2) Act 1973 (Act A206); the Federal Territory of Labuan was excluded from the boundaries of the State of Sabah vide the Constitution (Amendment) (No 2) Act 1984 (Act A585) and the Federal Territory of Putrajaya was excluded from the boundaries of the State of Selangor vide the Constitution (Amendment) Act 2001 (Act A1095).

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Islam in the Federal Constitution Article 3 of the Federal Constitution provides that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.” The status of Islam in the context of this article is related only to rituals and ceremonies as held by the Supreme Court (now known as the Federal Court) in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 and Meor Atiqulrahman Ishak and Ors v Fatimah Sihi & Ors [2006] 4 MLJ 605. It was further reiterated by the previous leadership of Malaysia, including Malaysia’s first Prime Minister, Tunku Abdul Rahman. In the Federal Legislative Council Debates, 1 May 1958, he stated: “I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provide that Islam shall be the official religion of the State” (Wan Teh 2001).3 In Fatimah Sihi’s case, the High Court decided in favour of the pupil who had been unlawfully expelled from school for disregarding the school directive of not to wear a turban, an Islamic dress, to school. The court held, inter alia, that article 3 of the constitution should be interpreted to mean that the religion of Islam exceeds rituals and ceremonies and that the government is given the responsibility to protect and promote Islam as best as it could. On appeal, the Court of Appeal reversed the said decision. It was held that whether or not wearing a turban formed an integral part of the religion of Islam involved a question of evidence for the respondents to adduce, which they had failed in this case. On a further appeal, this decision was affirmed by the Federal Court. Be that as it may, it is noteworthy that the term ‘Malay’, the largest ethnic group of Malaysia,4 is defined in article 160 of the Federal Constitution as “a person who professes the religion of Islam.” The phrase “a person who professes the religion of Islam” was defined in Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Anor [2004] 6 CLJ 242 as a person who is brought up as a Muslim or his/her upbringing was conducted on the basis that he/she was a Muslim, he/she lived as a Muslim with his/her family and is commonly reputed to be a Muslim. Further, the term ‘Muslim’ is defined in section 2 of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505) as: “(i) a person who professes the religion of Islam; (ii) a person either or both of whose parents were, at the time of the person’s birth, Muslims; (iii) a person whose upbringing was conducted on the basis that he was a Muslim; (iv) a person who has converted to Islam in accordance with the requirements of s. 85 of Act 505; (v) a person who is commonly reputed to be a Muslim; or (vi) a person 3  See Booklet entitled Malaysia adalah Sebuah Negara Islam (Malaysia Is an Islamic State/Nation) published by the Ministry of Information explaining why Malaysia is already an Islamic nation. 4  Malaysia is highly multi-ethnic with Malays, Chinese and Indians constituting the three biggest groups. The great bulk of Chinese and Indians are descendants of people who arrived in Malaysia during the British colonial rule. The Malays on the other hand are, together with some smaller minority groups, defined as native to the region and have been given the special status of “bumiputra”. This category, which constitutes slightly more than half the population, is assigned certain economic and other privileges in order to redress the economic imbalance between the ethnic groups of the country.

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who is shown to have stated, in circumstances in which he was bound by law to state the truth, that he was a Muslim, whether the statement be verbal or written.” Aside from article 3, article 11 of the constitution deals with the right of individuals to profess and practise his or her religion freely in the federation but with certain restrictions as mentioned in article 11(4) namely, that the state law, or in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, the federal law, may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. In other words, the propagation of any other religious doctrine or belief among persons professing the religion of Islam may be controlled or restricted by a law enacted by the State Legislative Assembly, and in respect of the Federal Territories, the Parliament. The purpose of this restriction is to protect the religion of Islam from being exposed to the influences of the tenets, precepts, and practices of other religions or even of certain schools of thoughts and opinion within the Islamic religion itself (Mamat Daud & Ors v. The Government of Malaysia [1988] 1 CLJ 11). The phrase “religion of Islam” was succinctly explained by Suriyadi Halim Omar J in Arab-Malaysian Merchant Bank Bhd v Silver Concept Sdn Bhd [2006] 8 CLJ 9: “It does not speak of a Malaysian oriented religion of Islam, Islam practised by a particular branch in the Muslim world or mazhab or words to that effect, but simply religion of Islam. That being so it must be in the original format as revealed through Prophet Muhammad ordained by Allah, before the birth of the sectarian groups. The Quran has clearly injuncted that the only source of guidance is what has been laid down in it, as revealed by Allah through Prophet Muhammad, and the authentic ahadith (traditions and actions of the prophet; Quran vol (5):49; vol (7):3; vol (59):7). The Quran as a source is not a problem, as it has remained unchanged since its revelation, and no Muslim of whatever sect will suggest otherwise. The problem is the al-sunnah. This collection of traditions, sayings and actions has had its fair share of controversy, in the like of their acceptance by branches of followers (sects), generally termed as mazhabs. The major ones are the Hanafi, Maliki, Shafie, and Hambali. To some, hereinafter referred to as purists or fundamentalists, a word made respectable by the former Malaysian Prime Minister, to even accede to the mazhab’s concept is per se blasphemous, as in the eyes of Islam they would have committed sin, for having divided the religion of Islam into different sects (Quran (6): 159). Without wanting to stir any hornet’s nest, during the life time of Prophet Muhammad, these mazhabs never existed and Islam as propagated by him was the solitary sect. As far as any purist is concerned only the mazhab of Muhammad existed then. The sects that came after him were never revealed through him by the Almighty, and surely if He had wanted it sanctioned He would have revealed it through the prophet. His prophecy of his followers splitting up into seventy-three sects, with only one acceptable group religiously adhering to his sublime teachings, has given further ammunition to these purists. With the procreation of these sects, came the predictable different interpretations of the abovementioned two sources. Certain sects, apart from giving different interpretations have created further discord, by challenging even the very existence and authenticity of some of the ahadiths. Surely all these differences do not augur well for the ordinary Muslim on the road, especially the non-Arabic speaking Muslim populace. These are only a few of the headaches faced by the legislators and propagators of the Islamic banking system.

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With Allah at vol (5):3 having said that He had perfected the Islamic religion as chosen by him (see also Bukhari and Muslim), and all Muslims must only refer to the Quran and the hadith, it takes a brave and perhaps suicidal government to codify and create another competitive source of reference for consideration. Perhaps that is the main reason why an Act in the like of the Contracts Act 1950, but catering to Islamic prerequisites has yet to see the daylight of a successful legislation” (pp. 17–18).

In Jamaluddin Othman v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1989] 1 CLJ 448, it was stated that if the Home Ministry acts to restrict the freedom of a person from professing and practising his religion, this act will be inconsistent with the provision of article 11 and therefore any order of detention in this respect would not be valid. A non-Muslims cannot be compelled to convert to Islam as this article guarantees freedom of religion. In other words, they are free to profess and practise their religion, which is constitutionally guaranteed in article 11(1). In the case of a minor, the Supreme Court had in Teoh Eng Huat v The Kadhi of Pasir Mas, Kelantan & Anor [1990] 2 CLJ 11, stated, inter alia, that their parent or guardian possesses the right to determine their religion until he or she attained the age of majority. And, in Sulaiman Takrib v. Kerajaan Negeri Terengganu; Kerajaan Malaysia (Intervener) & other cases [2009] 2 CLJ 54, Abdul Hamid Mohamad CJ (as he then was), stated that “any argument that any law that seeks to control the propagation of doctrines and beliefs among persons professing the religion of Islam is unconstitutional because it is inconsistent with art. 11 (freedom of religion) or any other provision is doomed to fail from the start” (p. 59).

Islamic Law in the Federal Consitution In article 160 of the constitution, the word ‘law’ is defined to mean “written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.” However, Islamic law, which is a system of law based on the divine will of Allah (s.w.t.) that was revealed to the Prophet Muhammad (s.a.w.) over a period of twenty-­ three years beginning in 610 A.D, had been omitted from the said definition. Be that as it may, article 74(2) the Federal Constitution grants the respective State Legislative Assembly to “make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.” The State List includes the following: “Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-­ charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public

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place of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Shari’ah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.” Islamic laws governing similar matters relating to Muslims in the Federal Territories are passed by the Federal Parliament. In Yong Fuat Meng v Chin Yoon Kew [2008] 5 CLJ 705, Hamid Sultan Abu Backer JC stated: “Schedule 9, is very limited in scope and condoning its breach will be unconstitutional and will create much imbalance to the rights of the public as well as administration of justice as a whole, as has been evidenced by case laws” (p. 731). In relation to the Shari’ah courts, it is noteworthy that these courts are an integral part of the Malaysian judicial system and are distinct from the civil courts as to their function and jurisdiction. The Shari’ah courts are designated as a specialist court with a three-tier court system, namely, the Shari’ah Subordinate Court, the Shari’ah High Court, and the Shari’ah Appeal Court. The judges of the Shari’ah courts are persons who are familiar with the knowledge of Islamic principles and law. The recognition of the Shari’ah courts was largely due to Article 121(1A) of the Federal Constitution, which excludes the jurisdiction of the civil courts in respect of any matter that comes within the jurisdiction of the Shari’ah courts. The historical origin of these courts can be traced way before the Straits Settlements. The Malay States came under the British administration where the law applicable in those states was Islamic law, which had absorbed to some extent the rules of the Malay custom. Justice was administered in Kathi’s court with an appeal to the Sultan. However, during the British administration of these states, English law became the general law of the land. Thus, the courts modeled on Britain’s were set up in the Straits Settlements by introducing the Charters of Justice in 1807 and 1826, and in the Malay States through the advice of the British resident and advisor. However, Kathi’s court was relegated to a subordinate position. For example, the Court Enactment of 1905 of the Federated Malay States included the Court of Kathi and Assistant Kathi within the British court system. Their jurisdiction was, however, limited to hear matters pertaining to marriage, divorce, and other matters stipulated in the ‘surat kuasa’ (letter of authority). An appeal against the decision of the Court of Kathi and Assistant Kathi lies with the Court of Magistrate and the Supreme Court. Further, the Courts Ordinance of 1948 made the civil court’s jurisdiction general, wherein Kathi’s Court was omitted from being part of the Federal court system. The Ordinance continued to apply throughout the federation until it was repealed and replaced by the Courts of Judicature Act 1964 and the Subordinate Courts Act 1948. When Malaya achieved independence in 1957, Kathi’s Court’s status was reduced to that of the state court. As noted earlier, the Federal Constitution divides legislative power between the federation and states, giving the federation the legislative power over civil and crim-

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inal law, including the jurisdiction of the courts other than Shari’ah courts. The states are given the legislative power over a wide range of personal matters affecting the Muslims, and the Shari’ah courts were mandated to have jurisdiction over these matters and only over persons professing the religion of Islam. In relation to its criminal jurisdiction, it is noteworthy that in 1965, the Parliament enacted the Muslim Courts (Criminal Jurisdiction) Act 1965, which provided that the jurisdiction of the Muslim courts shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding six months or with any fine exceeding one thousand dollars [dollar was initially used before RM was introduced in the 1990s] or with both. The act applied only to the ‘States of Malaya’. In 1984, the Muslim Courts (Criminal Jurisdiction) Act 1965 was amended where the courts’ criminal jurisdiction was increased to three years imprisonment, fine not exceeding five thousand ringgit or with whipping not exceeding six strokes or with any combination thereof. The 1965 Act was revised in 1988 and renamed the Shari’ah Courts (Criminal Jurisdiction) Act 1965 (Act 355), which was initially applied to the ‘States of West Malaysia’. However, vide the Shari’ah Courts (Criminal Jurisdiction) (Amendment and Extension) Act 1989, Act 355 was extended to ‘all the States of Malaysia’. In fact, the Shari’ah courts cannot exceed the power vested on it by the Shari’ah Courts (Criminal Jurisdiction) Act 1965, a federal law. Undoubtedly, the Shari’ah court’s criminal jurisdiction is a far cry compared to the court at the lowest tier of the civil jurisdiction, i.e., the First Class Magistrate. Pursuant to section 85 of the Subordinate Courts Act 1948, a First Class Magistrate is empowered to impose imprisonment up to five years, a fine up to ten thousand ringgit (RM10,000) and whipping up to twelve strokes. The jurisdiction and powers of the Shari’ah Courts are founded in the following acts which are implemented in the Federal Territories of Kuala Lumpur, Putrajaya, and Labuan: (i) Administration of Islamic law (Federal Territories) Act 1993 (Act 505); (ii) Islamic Family Law (Federal Territories) Act 1984 (Act 303); (iii) Shari’ah Criminal Offences (Federal Territories) Act 1997 (Act 559); (iv) Shari’ah Criminal Procedure (Federal Territories) Act 1997) (Act 560); (v) Shari’ah Court Evidence (Federal Territories) Act 1997 (Act 561); and Shari’ah Court Civil Procedure (Federal Territories) Act 1998 (Act 585). Similar statutes have been adopted and implemented in the various states in Malaysia. Muslims in Malaysia are subjected to the above special laws to the exclusion of other non-Muslim communities (Shamala a/p Sathiyaseelan v Dr Jeyaganesh a/l C Mogarajah [2004] 2 MLJ 241). It is interesting to note that clause (1A) was inserted into article 121 vide the Constitution (Amendment) Act 1988 (Act 704 of 1988), which came into force on 10 June 1988. The said insertion was primarily intended to confer exclusive jurisdiction on the Shari’ah Court to adjudicate on any matter which has been lawfully vested by law within the jurisdiction of the Shari’ah Court. It has thus, taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the Shari’ah Courts. In Ismail Mohamad v. Wan Khairani Wan Mahmood & Another Appeal [2009] 4 CLJ 653, a case dealing with a Muslim couple’s right to the distribution of the assets on divorce, Zaki Tun Azmi CJ (as he then was), delivering the judgment of the Federal Court, stated: “It is not denied that any jurisdiction that is

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lawfully vested in the Shari’ah Court is exclusively within the jurisdiction of the Shari’ah Court. It is also admitted that the civil court cannot overstep its jurisdiction to decide on matters which strictly fall within the Shari’ah Court jurisdiction” (p. 659). In Dato’ Kadar Shah bin Tun Sulaiman v Datin Fauziah binti Haron [2008] 7 MLJ 779, it was stated that “where there is an issue of competing jurisdiction between the civil court and the Shari’ah court, the proceedings before the High Court of Malaya or the High Court of Sabah and Sarawak must take precedence over the Shari’ah courts as the High Court of Malaya and the High Court of Sabah and Sarawak are superior civil courts, being High Courts duly constituted under the Federal Constitution. Shari’ah courts are mere State courts established by State law, and under the Federal Constitution these State courts do not enjoy the same status and powers as the High Courts established under the Courts of Judicature Act 1964 (Act 91). Indeed, the High Courts have supervisory powers over Shari’ah Courts just as the High Courts have supervisory powers over other inferior tribunals like, for instance, the Industrial Court” (p. 788). Again, in Mohd Hanif bin Farikullah v Bushra Chaudri [2001] 5 MLJ 533, it was stated: “Article 121(1A) of the Federal Constitution does not overrule the general jurisdiction of the civil courts. Civil Courts are courts of general jurisdiction and can hear cases commenced by Muslims as well as by Non-Muslims, and can try offences against Muslims and Non-Muslims that are created by the laws of the land. Moreover, the Civil High Courts are courts of inherent jurisdiction while the jurisdiction of the Shari’ah Courts are determined by the respective state laws and if the legislature does not confer on the Shari’ah Courts any jurisdiction to deal with any matter in the State List then the Shari’ah Court is precluded from dealing with that matter” (p. 541). The above authorities are a mere reiteration of the application of the basic structure doctrine, which has now been affirmed by the apex court in the following cases: Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 CLJ 507, Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 5 CLJ 526, Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545, and Alma Nudo Atenza v PP & Another Appeal [2019] 5 CLJ 780. In Semenyih Jaya’s case, Zainun Ali FCJ, delivering the unanimous decision of the Federal Court, stated: “the Judiciary is thus entrusted with keeping every organ and institution of the State within its legal boundary. Concomitantly the concept of the independence of the Judiciary is the foundation of the principles of the separation of powers” (p. 533). The Semenyih Jaya’s case was followed in Indira Gandhi’s case, where Zainun Ali FCJ who also penned the written judgment of the Federal Court, stated inter alia, that the vesting of the judicial power of the federation in the civil courts formed part of the basic structure of the constitution and could not be removed, even by constitutional amendment. In particular, her ladyship stated: “It would be instructive to now distill the principles as have been illustrated above: (a) under art. 121(1) [Constitution], judicial power is vested exclusively in the civil High Courts. The jurisdiction and powers of the courts cannot be confined to federal law. The courts will continually and inevitably be engaged in the

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interpretation and enforcement of all laws that operate in this country and any other source of law recognised by our legal system; (b) judicial power in particular the power of judicial review, is an essential feature of the basic structure of the Constitution; (c) features in the basic structure of the Constitution cannot be abrogated by Parliament by way of constitutional amendment; (d) judicial power may not be removed from the High Courts; and(e) judicial power may not be conferred upon bodies other than the High Courts, unless such bodies comply with the safeguards provided in Part IX of the Constitution to ensure their independence” (p. 536). In Indira Gandhi’s case, the Federal Court noted that it is inaccurate to state that Article 121(1A) of the Federal Constitution excludes or oust the civil court’s jurisdiction on matters within the jurisdiction of Shari’ah court. The court noted that the civil courts and Shari’ah courts operated on a different footing altogether, and “the perception that both courts should exercise a mutually reciprocal policy of non-­ interference may be somewhat misconceived and premised on an erroneous understanding of the constitutional framework in Malaysia” (p. 549). In particular, Zainun Ali FCJ stated: “The amendment inserting cl. (1A) in art. 121 does not oust the jurisdiction of the civil courts nor does it confer judicial power on the Shari’ah courts. More importantly, Parliament does not have the power to make any constitutional amendment to give such an effect; it would be invalid, if not downright repugnant, to the notion of judicial power inherent in the basic structure of the Constitution… Article 121(1A) does not constitute a blanket exclusion of the jurisdiction of civil courts whenever a matter relating to Islamic law arises. The inherent judicial power of civil courts in relation to judicial review and questions of constitutional or statutory interpretation is not and cannot be removed by the insertion of cl. (1A)” (p. 551).

In Indira Gandhi’s case, the Federal Court decreed that the civil courts had jurisdiction to hear cases when aggrieved parties questioned any conversion to Islam.5 Nevertheless, it is not disputed that, by virtue of article 121(1A), the Shari’ah courts across the nation have exclusive jurisdiction to try and hear cases involving the persons professing the religion of Islam in all matters that fall under its jurisdiction.

5  It is noteworthy that majority of conflict of jurisdiction cases revolved around family law matters and, in particular, divorce application and claim for custody in the event one of the spouses to civil marriage converts to Islam. This matter has not been resolved vide section 4 of the Law Reform (Marriage and Divorce) Amendment Act 2017 which came into effect on 15 December 2018. It provides that any application for divorce for marriage solemnised in a civil registry must be resolved in the civil court even if one of the spouses has converted to Islam. The newly inserted subsection (1) of section 51 the Law Reform (Marriage and Divorce) Act 1976 allow either party, or both parties, to a marriage to petition for a divorce where one of them has converted to Islam. Prior to this amendment, only the non-converting spouse could petition for a divorce. Further, a new section 51A to the Principal Act provides that where the converted spouse dies before the nonMuslim marriage is dissolved, the surviving spouse, the surviving children of a marriage and the parents of the deceased converted spouse will be entitled to participate in the distribution of the matrimonial assets of the deceased.

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Conclusion In a nutshell, the Malaysian Federal Constitution promulgates the religion of Islam as “the Religion of the Federation”, yet it allows all other religions to be practised in peace and harmony. As “the Religion of the Federation”, it is obvious that Islam has the highest status among all other religions, and Islamic religious matters are given priority in Malaysia. The Federal Constitution allows the State Legislative Assemblies for the respective state and the Federal Parliament for the federal territories to make Islamic laws relating to personal and family matters; charitable and religious trusts; Islamic religious revenue; Islamic public place of worship; creation and punishment of offences against precepts of Islam; the constitution, organisation and procedure of Shari’ah courts; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law. It should also be noted that these duly enacted Islamic laws are only applicable to the persons professing the religion of Islam and are not applicable to non-Muslims. In order to enforce some of these Islamic laws, a three-tier Shari’ah court system was established in all states and the federal territories. The respective Shari’ah court generally has the civil jurisdiction to hear and determine all actions and proceedings – especially in personal and family matters – in which all the parties are Muslims, and the criminal jurisdiction to try any offence committed by a Muslim and punishable under any relevant Islamic law.

References Ahmad, M.  H., & Ali Mohamed, A.  A. (2020). Legal theory and concept of law. In A.  A. Ali Mohamad (Ed.), Malaysia legal system (p. 47). Ampang: CLJ Publication. Wan Teh, W.  Z. (2001). Malaysia adalah Sebuah Negara Islam (Malaysia is an Islamic State/ Nation). Jabatan Hal Ehwal Khas, Kementerian Penerangan Malaysia (Ministry of Communications and Multimedia, Malaysia).

Chapter 4

Islamic Criminal Law Hanifah Haydar Ali Tajuddin and Nasimah Hussin

Introduction Islamic criminal law covers three categories of offences, i.e. hudud, qisas, and ta’zir, but the only category applicable in Malaysia is ta’zir which gives the authority to the ruler or the government in power to legislate offences and punishments. Islamic criminal law is perhaps the most controversial area of Islamic law enforced in Malaysia. Its implementation has been criticised by many internationally, but the Muslims in Malaysia have been overwhelmingly supportive of it. This is because, one serious issue the law  addresses, different from conventional criminal law, is morality, and the majority of the Muslim society opines that Islamic law adequately addresses this problem (Hussin 2007). Coinciding the objective of Islamic criminal law where it targets preventing crimes, conducts that are criminalised under the Islamic criminal offences legislations are generally those that oppose the Islamic morality set at preventing greater harms. The conduct, such as prohibiting Muslims who are unrelated from being in secluded places and behaving indecently in the public spaces, are seen to be preventive to more serious conducts such as sex out of wedlock. Nevertheless, with the changing of time, the perception also changes. Today,  some segments of society question the relevance of some of the criminalised conduct in the Islamic criminal offences legislations. Some contend that the law itself opposes the rights of a person to do what they want in their own private space. Some also questioned the validity of the law itself under the Federal Constitution. Besides that, its punishment of

H. Haydar Ali Tajuddin (*) Shari’ah Judiciary Department of Malaysia, Putrajaya, Malaysia N. Hussin Department of Islamic Law, Ahmad Ibrahim Kulliyyah of Laws (AIKOL), International Islamic University Malaysia (IIUM), Kuala Lumpur, Malaysia © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4_4

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caning has also been a subject of critics. Thus, the chapter seeks to highlight the aspects of implementing the Islamic criminal law in the country and its challenges.

Overview of the Implementation of Islamic Criminal Law Islamic Criminal Law in the Malay Sultanate Historically, the Malay Peninsula was recorded to have received Islam as early as the twelfth century (Mohd Noor 2011). The first physical evidence that proved the coming of Islam in the Malay Archipelago was the Batu Bersurat (the lettered rock) in Terengganu, which dated 22nd February 1303 (Mohd Noor 2011). The history also recorded that one of the critical events on Islam’s coming in the regions was when the first Sultan of Melaka embraced Islam. The Sultan, originally a Hindu prince from Majapahit (Indonesia), changed his name from Parameswara to Iskandar Shah. As one of the important trade centres in the regions, Melaka continued to receive visits from the Arab traders in 1409, and this has brought greater Islamic influence to the region (Tajuddin 2018). The Sultan did not only embrace Islam as a religion, but Islamic law was also made the law of the place, together with the existing local customs. Analysis on the Kanun Melaka, one of the earliest legal manuscripts, found that the majority of its provisions, if not all, were based on the principles of Islamic law, which include its criminal law principles; i.e. hudud, qisas, and ta’zir. For example, the application of qisas is observed in section 5.1 of the Kanun Melaka, which specified that one who killed shall be killed in retaliation. Section 5.2 further elaborated on the substitutability of the punishment whereby the victim’s family is given the authority to ask for compensation and grant pardon instead, had the case not reached the authorities (Tajuddin 2018). Being one of the earliest legal manuscripts, Kanun Melaka was then adopted by the other Malay States at that time, with some amendments to suit the locals. The states include Johor, Kedah, Pahang, Perak, Terengganu, and Kelantan (Jusoh 2007). Furthermore, some Malay states also adopted an established code of Islamic law such as the Turkish’ Majallatul Ahkam and Egypt’s Hanafite Code of Qadri Pasha (Shari’ah Judiciary Department of Penang n.d.).

British Colonisation and Independence of Malaysia The British colonisation of the peninsular caused some significant changes in its legal system. With regards to Islamic law that was in practice before the colonisation, the extent to which the law applied after the British occupation significantly reduced. Though some of the early decided cases recognised Islamic law as the law

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of the land, the acceptance of the English common law subsided the law’s function and reduced its jurisdiction (Jusoh 2007). Through the Treaty of Pangkor in 1874, the British established the English-style courts and English judges presided over the cases, making the Islamic law subsidiary law in the land. Islamic law was downgraded to cover Muslims’ personal matters, such as that involving family, inheritance, and some aspects of Islamic offences. Besides that, the decisions by the Shari’ah court at that time, made pursuant to Islamic law, were also reversible (Alkali and Daud 2015). Some local Malays criticised the subsided authority of the Islamic law at that time, and they demanded that Islamic law’s position prior to British occupation be restored. This continued until Malaysia was on the verge of independence. As a result, although the draft constitution by the Reid Commission was based on the Indian Constitution, the provision that secures the position of Islam as the federal religion of the country was included in the Malaysian Federal Constitution (Alkali and Daud 2015).

The Islamic Criminal Jurisdiction Phase I – After Independence From RM50 to RM5000 amount of fine, the jurisdiction over Islamic criminal offences in the country has undergone significant changes since independence until now. The changes took time because the jurisdiction is designated under the states and subject to each administration. The changes happened gradually, with one state started making efforts to repeal or amend certain provisions or enactments, and then others would follow after. The term used to refer to Islamic law during the British colonisation was ‘Muhammedan Law’ as Muslims were understood to be the followers of Prophet Muhammad (peace be upon him). The term was used in Shaik Abdul Latif et al. v Shaik Elias Bux (1915) where the court recognized the law to be the law of the locals. As far as the administration of Islamic law is concerned, Jusoh observed that one of the difficulties in administrating the law during the colonisation was due to the fact that the states were administered differently between the Federated Malay States, Unfederated Malay States, and the Strait States. For example, in Selangor, Pahang, and Negeri Sembilan, the Islamic criminal legislation in force was called the Muhammedan (Offences) Laws. Meanwhile, in Terengganu, the Islamic offences were enforced in separate regulations. Besides that, it is also observed that the type of Islamic criminal offences punishable in each state was also different. (Jusoh 2007). As mentioned above, the position of Islam as the federal religion is included in the Federal Constitution. Although article 3 secures the position of Islam in the country, could it as well secure the implementation of Islamic law in the country? It is noted that article 3 only mentions Islam as a religion, not as a law. The

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applicability of Islam as a law in the country is only understood from the State List, Ninth Schedule of the Federal Constitution. In relation to Islamic criminal law, the List provides: …creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List…

As a result of the certainty regarding the applicability of the law provided by the Federal Constitution, the efforts to compile and standardise the Islamic criminal offences legislations started after the independence. With the country no longer segregated under different administrations, it was easier for a state to adopt legislation that was in force in another. The provisions that relate to Islamic criminal offences were first compiled in the states’ Administration of Islamic Law legislation. The legislation adopted by the states was based on the Administration of Islamic Law legislation from Selangor, Terengganu, and Pahang (Jusoh 2007). Thus, standardisation was achieved in terms of the kinds of offences punishable. With regards to the sentencing jurisdiction of the Shari’ah court after independence, each state set a different limit of maximum punishment that could be passed by the court. Nevertheless, none set more than three months of imprisonment and RM500 of fine. Later in 1965, federal legislation was passed, establishing the maximum limit of sentencing jurisdiction given by the Shari’ah court. The legislation known as the Muslim Courts (Criminal Jurisdiction) Act 1965 set imprisonment of not more than six months and a fine of not more than RM1000. Even with the setting of a new sentencing limit, it still did not move the states to amend their sentencing (Jusoh 2007).

Phase II – After 1980 One of the first states to begin amending their provisions to accord to the new increased sentencing jurisdiction was Pahang. Other states then followed it. By the end of the 1980s, the states’ efforts to systematize the laws were to have each Islamic law compiled in separate legislations. In the case of Islamic criminal law, the related provisions were repealed from the administration of Islamic law legislation and compiled into one specific legislation. The new specific legislation on Islamic criminal law has as well led to the efforts on the part of the government to increase the sentencing jurisdiction of the Shari’ah courts. Thus, the Muslim Courts (Criminal Jurisdiction) Act 1965 was amended to increase the limit of jurisdiction to three years imprisonment, RM5000 amount of fine, and a new form of sentencing, caning of not more than six times and/or combination of the three. This sentencing jurisdiction remains until today. Later, the name of the Muslim Courts (Criminal Jurisdiction) Act 1965 was amended with the establishment of three tiers of Shari’ah court to the Shari’ah Courts (Criminal Jurisdiction) Act 1984 (Jusoh 2007).

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Another interesting development in the 1980s was the amendment of article 121 of the Federal Constitution by adding clause 1A. Article 121 (1A) states: (1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Shari’ah court

This amendment secured the exclusive jurisdiction of the Shari’ah court and, to a certain extent, resolved the interference of the civil court with its jurisdiction. That said, the amendment does not restrict the High Court (civil court) from exercising its revisionary jurisdiction over the enforced Islamic laws.

Current Practice The Islamic criminal law covers offences that are generally victimless, and the nature of such offences is non-serious. As discussed above, section 2 of the Shari’ah Court (Criminal Jurisdiction) Act 1984 limits the punishments for Shari’ah offences to imprisonment not exceeding three years, fine not exceeding RM5000 and/or caning not more than six strokes. It would not be entirely correct to say that Islamic criminal law in the country has significantly developed. Many provisions are yet to be amended to suit current needs. Some of the Islamic criminal offences legislations today are still the same since the 1990s. For example, the Islamic criminal offences in the Federal Territories and Selangor are still dated 1997 and 1995. This is mainly because the law is placed under state jurisdiction. Even with a coordinating federal body such as the Shari’ah Judiciary Department of Malaysia, the development of the law is still modest. Nevertheless, in terms of having standardised legislations throughout the country, the effort has so far been successful as most states have adopted a standardised content. The Islamic criminal law is mainly regulated in the Shari’ah Criminal Offences and Shari’ah Criminal Procedure legislations. Other related legislations include the Shari’ah Court Evidence, Islamic Family Law, and Administration of Islamic Law. The offences are detailed in the Shari’ah Criminal Offences legislations. Nevertheless, some of the offences are also found in the Islamic Family Law and Administration of Islamic Law legislations. For the purpose of discussion, the related legislations implemented in the Federal Territories are referred. Although the highlighted Shari’ah offences are those which belong to actions contrary to decency and moral values, there are also other categories, such as acts that contradict religious practices, acts that disturb others’ peaceful living, and offences relating to the administration of Islam (Jamal and Hashim 2016).

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Categories of offences Offences Relating to ‘aqidah (Islamic Belief)

Examples of offences Wrongful Worship (s.3), False Doctrine (s.4), Propagation of Religious Doctrine (s.5), False Claim (s.6) Shari’ah Criminal Offences (Federal Territories) Act 1997 Offences Relating to Sanctity Insulting or Bringing into Contempt, etc, the religion of Islam (s.7), Deriding, etc. Quranic Verses or Hadith (s.8), Religious of the Religions of Islam and Publication Contrary to Islamic law (s.13) Its Institution Shari’ah Criminal Offences (Federal Territories) Act 1997 Offences Relating to Decency Indecent acts in Public Space (S. 29), Close Proximity (khalwat) (s. 27), Sodomy, Sex out of Wedlock (S. 23) and Male Posing as Female in public places (S.28) Shari’ah Criminal Offences (Federal Territories) Act 1997 Enticing Married Woman (s.36), Instigating Husband or Wife Offences Relating to Disturbing Peaceful Living of to Divorce or Neglect Duties (s.38) of Shari’ah Criminal Offences (Federal Territories) Act 1997 Others Unauthorised Collection of Charities (s.84(4)), Giving False Offences Relating to Administration of Islam Information Regarding Registration of Conversion to Islam (s.93) of Administration of Islamic Law (Federal Territories) Act 1995 Collection of Zakat or Fitrah Without Authorities (s.33) of Shari’ah Criminal Offences (Federal Territories) Act 1997 Offences Relating to Failure to Offences Relating Solemnization of Marriage (s.40), Polygamy Comply with Legal Procedures Without Court’s Permission (s.123), Desertion of Wife (s.126) of Islamic Family Law (Federal Territories) Act 1997

Use of Islamic Criminal Law to Combat Moral Issues Much has been written on this subject. Those who wrote looking from a single perspective of human rights tend to disagree with using the law to combat moral issues and punish the doers. As discussed above, one of the categories of Islamic criminal offences promulgated in the Shari’ah Criminal Offences legislation and one of the most talked-about category is the offences against decency. The legislation that punishes Muslims who are suspiciously secluding themselves (khalwah) or act indecently in public places is considered to be breaching individuals’ rights to do whatever they want according to their will and desire. Furthermore, as the acts do not cause loss or injury to any third party, it does not qualify the doers to be punished before the law. Because of that, calls have been made nationally and internationally to outlaw the law. The negative side of the above argument is that it only looks at a single perspective, i.e. the perspective of human rights. It denies that in life, there are rules and regulations that every human being is obliged to obey, regardless of whether the rules are man-made or stipulated by the religion. As for morality, some might wonder why morality is so important in Islam that failing to observe it would entitle one to be punished?

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Morality or akhlaq is one of the main foundations of Islam, after ‘aqidah (Islamic belief) and syari’ah. Islam sets that morality is essential as the right attitude results in good outcomes, while a bad attitude results in bad consequences (Al-Bugha 1997). Morality cannot be separated from the Islamic belief and law. Prophet Muhammad (peace be upon him) was also sent to perfect the morality, as mentioned in his prominent Hadith: (Indeed I have been sent to perfect good manners) – Narrated by Bukhari & Ahmad

In another Hadith, the Prophet (peace be upon him) said: (The fear of Allah (taqwa) and good morals (akhlaq) are the two major characteristics which lead to the Paradise) – Narrated by At-Tirmidhi and Al-Hakim.

The Relevance of Punishing Islamic Criminal Offenders The next question is what is  the relevance of punishing the doers who break the morality? The Quran mentions specific conducts that are against the akhlaq and the consequences that await one if he or she commits it. For example, in the following verses, God has strictly prohibited Muslims from committing zina (adultery), drinking liquor, and gambling. The Quran states: And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way – Quran (17:32) O believers! Intoxicants, gambling, idols and drawing lots for decisions are all evils of Satan’s handiwork. So, shun them so you may be successful – Quran (9: 50)

Both of the verses show that Islam prohibits vices and that it is an obligation upon all Muslims to avoid any acts that can make them closer to the vices. For the purpose of educating the Muslims to avoid the vices, history depicts that the Prophet (peace be upon him) and the caliphs who came after him used to punish those who committed the vices. Nevertheless, as there are offences categorised as breaching the rights of the God and rights of humans, the punishment for those who committed acts that contradict the rights of God is harsher. This is because the actions that breach God’s rights carry more serious consequences that affect the public. These particular actons fall under the category of hudud. Among the offences that are categorised under hudud include theft (sariqah), highway robbery (hirabah), adultery (zina), slander (qazf) and drinking of liquor (syurbul khamr) (Okon 2014). Nevertheless, proving the offences requires a very high standard of evidence, and thus, even during the prophethood and the caliphs, very few were actually punished with hudud punishment. In most cases, the offender actually pleaded guilty as a salvation to the Creator, after being explained the consequence. Therefore, most of the past offenders ended up being punished according to the ta’zir, the category which evidentiary is less stringent than hudud. The ta’zir offences and punishments are determinable by the rulers, taking into account the public’s welfare in keeping the country safe and tranquil.

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Ta’zir or discretionary punishment refers to crimes and punishments that are not specified in the Quran and Sunnah (Shabbir 2002). The word ‘ta’zir’ comes from the Arabic word ‘azara’, which means to prevent, restrain, respect, and reform. El-Awa cited a rather detailed definition of ta’zir, “discretionary punishment to be delivered for transgression against God, or against an individual for which there is neither fixed punishment nor penance (kaffarah)” (El-Awa 1982). Some authors are divided in deciding the first aim of ta’zir; whether to prevent crimes or to reform the criminal. Shabbir explained that ta’zir aims at preventing a crime from being committed and reforming the criminal who is being punished with its punishment (Shabbir 2002). Oudah explained that the concept of ta’zir includes ‘disciplining of sins’ (Oudah 1998). Ibn Farhun illustrated the purpose of ta’zir as ‘disciplinary, reformative, and deterrent’ (Siddiqi 1979). Looking at the Islamic criminal offences as practiced in the country which adopts ta’zir, the offences in the legislations are mostly acts that contradict the morality. In that sense, it is opined that the ‘offences’ are not offences in its real sense (Ismail 2017). Considering that, the punishment should be more towards educating the doers and making sure that they become better Muslims. Thus, talks on encouraging alternative punishments that are rehabilitative in the Shari’ah court are now ongoing. It would be appropriate to say a few words about the rehabilitative aspect of Islamic criminal law at this stage.

Alternative Punishments under Islamic Criminal Law As mentioned above, the limits of sentencing that can be awarded by Shari’ah courts are imprisonment not exceeding three years, fine not exceeding RM5000 and/or six strokes. Nevertheless, analysis into the Shariah Criminal Procedure (Federal Territories) Act 1997 and the Shariah Criminal Offences (Federal Territories) Act 1997 found that there are a few alternative punishments that the court can grant based on its discretionary power. The alternative punishments include issuance of bond of good behaviour, rehabilitation at an approved welfare home and rehabilitation centres, and admonition.

Issuance of Bond of Good Behaviour Issuance of bond of good behaviour is an alternative punishment for youthful and first offenders. According to section 2 of the Shari’ah Criminal Procedure (Federal Territories) Act 1997, youthful offenders are offenders who are above the age of ten and under the age of 16. While first offenders include those who do not fall under the age of youthful offenders, the court has the discretion to look at the first offender’s character, antecedents, age, health, mental condition and the trivial nature of the

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offence committed, and may release him/her on bond of good behaviour (section 129 of the Shari’ah Criminal Procedure (Federal Territories) Act 1997). With regard to the execution of bond of good behaviour, the description is not detailed in specific sections. Rather,  the details regarding the length of period, amount of surety of such bond or conditions that can be included in the bond are scattered in sections 97, 128, 129, and 130 of the Shariah Criminal Procedure (Federal Territories) Act 1997. For example, section 97 mentions that the maximum length of such a bond is up to three years. While section 130 explains the other conditions that the court could include when issuing such a bond. From the details of the sections, it can be deduced that an offender can be released on bond of good behaviour, and the court can instruct his parent, guardian or an adult relative to pay a certain amount of sureties and that such person shall be responsible to make sure that the offender acts in good behaviour within a certain period of time. Upon releasing the offender on such a bond, the court shall remind him that he is bound to keep peace and to be of good behaviour (section 130). The court can also warn the offender that he is found to breach the conditions, the court can issue a warrant of apprehension against him (section 97(4)). 

Community Service Order (CSO) There is no direct or specific mention of community service order in the Shari’ah Criminal Procedure (Federal Territories) Act 1997 and the Shariah Criminal Offences (Federal Territories) Act 1997. Community service order is understood from scattered sections of 97, 128, 129, and 130 of the Shari’ah Criminal Procedure (Federal Territories) Act 1997. It can also be found in sections 54, 55, and 56 of the Shari’ah Criminal Offences (Federal Territories) Act 1997 that explain the offences where the court can order offender to undergo CSO.  The offences include those relating to Islamic belief, insult of the religion of Islam, and contempt or defiance of religious authority. The provisions merely mention that the court has the discretion to order the offender to be sent to welfare homes approved by Islamic Religious Council for a certain period. The term ‘welfare homes’, as some authors interpreted, can refer to any rehabilitative centre where the offender undergo counseling and/or rehabilitation programs as the court thinks fit, and thus, it is a type of community service (Ismail and Samuri 2016).

Power to Admonish Admonishing is one of the modes of ta’zir sentencing that aims at inflicting regret and remorse from within the offender (Jamal and Hashim 2017). With regard to the practice of Shari’ah court, sections 97 and 128 in the Shariah Criminal Procedure

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(Federal Territories) Act 1997 briefly mention that the court has the discretion to release the offender after due admonition. However, the provisions are silent on how the admonition should be carried out to inflict regret and remorse from within the offenders. Some also questioned as to how far a Syarie judge can go about admonishing an offender or making sure that his advice leaves some impact on the offender. The Practice Direction of the Shari’ah Court also does not provide any particular elaboration on the court’s power to admonish. Practically, admonishing is carried out by reminding the offender about repentance, his responsibilities as a child to his parents, basically anything that a Syarie judge could reflect based on the offender’s mitigating factors. A few judges go as far as telling the offender to go to his/her parents, who happen to be in the courtroom and apologise before the court and promise that he/she will not repeat the wrong. Some judges would also ask the offender to explain how the offender plans to reform himself/herself and become better Muslim.

Possible Rehabilitative Programs As the provisions on the programs under the community service order (CSO) are not detailed in the procedural laws on sentencing in both civil and Shari’ah criminal justice systems, the court’s function ends with issuing CSO. The executors of the order, such as the Welfare Department for juvenile offenders, the Prison Department for adult offenders, and the state religious departments for Shari’ah offenders, should ensure that the CSO is effectively implemented. As mentioned above, the criminal law provisions in Malaysia have had gradual amendments and these amendment have included alternative punishments such as the CSO, and because of that, alternative punishments are being developed in systematic manners. This attracts many research to see how effective the execution is and what more can be done to it; this is basically how the law develops. Unfortunately, this is not the case with the Islamic criminal law in the country. Though there is quite a few research conducted suggesting for a more effective implementation of CSO and that it is possible by interpreting the provisions as discussed above, the laws are not amended. The judges also tend to follow what the law says strictly, and as a result, alternative punishments are not well explored practically. Some might have heard programs where Islamic law offenders have to clean public areas such the masjids and cemeteries as part of carrying out rehabilitative programs. Other programs such as obligatory congregational prayers five times a day and to attend to daily sermons for a certain period of time. These programs are actually carried out with the aim of educating the offender (ta’deeb) religiously. Unfortunately, these programs are not well supervised, and probably due to lack of enforcement and supervision from the executors, they are not frequently carried out. As of now, the Shari’ah Judiciary Department of Malaysia started to look into establishing cooperation with other possible executing agencies, other than the religious offices, to further develop  alternative punishment. The ongoing discussion

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currently is to adopt existing legislation that regulates community service by the Prison Department as provisioned under the Offenders Compulsory Attendance Act 1954, and to develop related SOPs  and practice directions as guidelines for the Shari’ah courts and executors of CSO.

Contentious Issues in Implementing Islamic Criminal Law (i) The Punishment of Caning As explained above, the Shari’ah Court (Criminal Jurisdiction) Act 1984 has provided for the types and limits of punishments for the Islamic criminal offences. One of the punishments is caning. This particular type of punishment has received criticism from inside and outside Malaysia. In 2009, a model was found guilty of drinking liquor in a public place. The charge was read explaining the offence and possible punishment according to section 136 of the Administration of the Religion of Islam and the Malay Custom of Pahang Enactment 1982, which include a fine of not more than RM5000 and caning of six times. Understanding the consequence and possible punishment, the offender chose to plead guilty to the charge. The Shari’ah court of Pahang decided that her punishment was fine of RM5000 and six times of caning under the section (Syarie Prosecutor of Pahang v. Kartika Sari Dewi Shukarno (2010)). The case received roaring critics by mostly the NGOs and international spectators. Many viewed that caning is a torture and an inhuman form of punishment, and even more, if the person to be caned is a woman. Many came out with opinions on how the punishments contradict international conventions, such as the Convention Against Torture (CAT) and the rights of women under the Convention of Elimination of Discrimination Against Women (CEDAW). None, however, looked at the fact that the offender herself actually pleaded guilty after she understood the consequence of her plea. They also did not look at how the procedures of caning under Islamic criminal law are done. The procedures as explained in section 125 of the Shari’ah Criminal Procedure legislation include the size of cane which can only be of the size of a small branch of a tree, the offenders are to wear proper clothing so not to expose their skin and for female offenders, they are to be caned in sitting position. For this case, however, due to the uproar, the Sultan of Pahang reversed the punishment and she was then ordered to do community service. Another case that received the same criticism was the case of a lesbian couple who also pleaded guilty to the offence of committing the act of musahaqah (lesbianism). Both were sentenced to caning of six times and a fine of RM3300 each. The criticism against the case was not only about the fact that the ladies were being caned, but also that they were caned in the court itself, and recording of the caning was widespread. The caning that started and finished in approximately 6 minutes was being criticised by  the NGOs who saw it as a form of torture. The Muslim

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societies in Malaysia, however, viewed the caning as justified as such act is against the teaching of Islam and a social problem (BERNAMA 2018). (ii) Punishing Unnatural Sex Under the Islamic Criminal Law As is happening around the globe, the movement towards legalising LGBT is occuring in Malaysia too. The pro-LGBT groups are seeking for their sexual orientation belief to be recognised as part of their fundamental human right. However, the religious and customary teachings in many parts of the world, including Malaysia, do not recognize LGBT claim as legitimate. They view it as against their values and beliefs (Doebler 2015). The case mentioned above regarding the lesbian couple being arrested and thereafter punished has become the focus of LGBT groups in the country who argue that they have been subjected to various kinds of discrimination from the public. The case is not the only one where an act of unnatural sex orientation has been prosecuted before the Shari’ah court, not to mention the civil court. It is interesting to look into whether unnatural sex orientation is regarded as a universal morality. Zainol, in his piece, has done an excellent brief analysis on the position (Zainol 2018). He observed that in determining whether such orientation is in line with the universal morality, some of the United Nations conventions, which include the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Social and Cultural Rights (ICESCR) dan Convention Against Torture (CAT) should be looked into. He noticed that the universal morality when it comes to sexual orientation is nowhere mentioned in the UN Conventions. However, there are provisions that one should not be discriminated due to his or her sexual orientation. The conventions seem to be undecided about morality. This is probably due to the fact that what is an accepted morality is usually based on the local customs and religion of each country. What is an accepted morality in the West is not always accepted in the East. Applying this to the issue of unnatural sex orientation, Malaysia being a country in which the majority are Muslims, our values are expected to be aligned with the religion and local values. Analysing the law in Malaysia, provisions restricting and punishing the acts of unnatural sex are not only found in the Islamic criminal law, but similar provisions are also found in the common law passed Penal Code that applies to all Malaysians, including non-Muslims. It is unfortunate that every time such an issue emerges, Islamic criminal law is being targeted as the law against human rights.

Conclusion Other than the challenges of standardising the law and developing it, the challenges of implementing Islamic criminal law also come from the critics, mainly from the pro-human right NGOs in the country. Besides that, although its position and jurisdiction have been clearly provided by the Federal Constitution, some still argue on the validity of the law. Nevertheless, the critics do not stop the Shari’ah institutions

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from continuing enforcing the law. Talks for the members of the public and sharing sessions with the NGOs are held to increase their understanding of the law and its importance.

References Al-Bugha, M.  D. (1997). Nizam al-Islam fil ‘Aqidah wal Akhlaq wa at-Tashri’. Darul Fikr (Damascus), pp. 11 & 155. Alkali, A.  U., & Daud, K.  A. (2015). The effects of colonialism on Shariah: The Malacca and Sokoto experiences. Jurnal Shari’ah, 23(1), 167–188. BERNAMA. (2018, September 3). ‘Lesbian Menangis Ketika Jalani Hukum Sebat’ (Lesbian Cried during Execution of Caning’ accessed from https://www.bharian.com.my/berita/ kes/2018/09/469228/lesbian-­menangis-­ketika-­jalani-­hukum-­sebat Doebler, S. (2015). Relationships between religion and two forms of Homonegativity in Europe - a multilevel analysis of effects of believing, belonging and religious practice, https://journals. plos.org/plosone/article?id=10.1371/journal.pone.0133538 El-Awa, M. (1982). Punishment in Islamic law: A comparative study (pp. 96–97). Indianapolis: American Trust Publications. Hussin, N. (2007). Kesalahan Berkaitan Dengan Kesusilaan dan Moral dalam Undang-undang Kesalahan Jenayah Shari’ah di Malaysia: Satu Ulasan (Offences Relating to Decency and Morality in the Shari’ah Criminal Law in Malaysia: An Analysis). In Undang-undang Islam; Jenayah, Keterangan dan Prosedur (Islamic Laws; Criminal, Evidence and Procedure). Kuala Lumpur: Dewan Bahasa dan Pustaka. Ismail, S. Z. (2017). ‘Ke mana Halatuju Kesalahan Jenayah Shari’ah?’ (Where is the path of Shari’ah Criminal Offences?), accessed from https://www.bharian.com.my/kolumnis/2017/03/263914/ ke-­mana-­hala-­tuju-­kesalahan-­jenayah-­shari’ah Ismail, N., & Samuri, M. A. A. (2016). The prospect of community service order in the Shari’ah court. Islamiyyat, 38(1), 77–84. Jamal, J., & Hashim, H. (2016). Hukuman Alternatif di Mahkamah Shari’ah: Keperluan Penambahbaikan Peruntukan Perundangan Shari’ah Negeri-negeri (Alternative punishment in the Shari’ah Court: A need for States’ Shari’ah legal improvement). Malaysian Journal of Shari’ah and Law, 4, 1–16. Jamal, J., & Hashim, H. (2017). Transformation of the jurisdiction of the Shari’ah courts in Malaysia: Re-evaluation of Takzir sentences. Kanun, 1(26), 38–71. Jusoh, H. (2007). Perkembangan Undang-undang Jenayah Islam di Malaysia (The Development of Islamic Criminal Law in Malaysia). In Undang-undang Islam; Jenayah, Keterangan dan Prosedur (Islamic Laws; Criminal, Evidence and Procedure). Kuala Lumpur: Dewan Bahasa dan Pustaka. Mohd Noor, A. (2011). Perkembangan Pensejarahan Islam di Alam Melayu (Development of Islamic Historiography in Malay Archipelago). Jurnal al-Tamadun, 6, 29–50. Okon, E.  E. (2014). Hudud punishments in Islamic criminal law. European Scientific Journal, 10(14), 227–238. Oudah, A. Q. (1998). At-Tashri’ al-Jina’I al-Islami Muqarinan bil Qanun al-Wad’I. Muassasah al-Resalah, 112. Shabbir, M. (2002). Outlines of criminal law and justice in Islam. Petaling Jaya: International Law Book Services, at 314. Shaik Abdul Latif et al v Shaik Elias Bux (1915) 1 FSLR 204. Shari’ah Judiciary Department of Penang. (n.d.). Recent development on Shariah Law in Malaysia. http://jksnpp.penang.gov.my/index.php/18-­penerbitan-­mahkamah/91-­recent-­developments-­in-­ shariah-­law-­in-­malaysia. Accessed on 1 Oct 2020.

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Siddiqi, M. I. (1979). The penal law of Islam (pp. 158–159). Chicago: Kazi Publications. Sources of Hadith from www.sunnah.com. Syarie Prosecutor of Pahang v. Kartika Sari Dewi Shukarno (2010) 1 CLJ (SYA) 172. Tajuddin, H. H. A., Hussin, N., & Zawawi, M. (2018). Restorative justice in Islamic law: Application in Malaysian legal system and criminal justice system. In N. Hosen (Ed.), Research handbook on Islamic law and society (pp. 250–268). Cheltenham: Edward Elgar. Zainol, M. J. (2018, September 22). ‘Hukuman Seks Songsang Tak Bercanggah Moral Sejagat’ (Punishment on Unnatural Sex Does Not Contradict Universal Morality) https://www.bharian. com.my/kolumnis/2018/09/476686/hukuman-­seks-­songsang-­tak-­bercanggah-­moral-­sejagat

Chapter 5

Islamic Family Law Jazilah Mohd Saad and Adnan Trakic

Introduction Islamic family law has been in existence in Malaysia for a long time. Its execution has been, for the most part, smooth and progressive. That said, occasional issues do arise in the implementation of the law. Women still face problems such as those associated with a dissolution of marriage, abuse in polygamous marriages, delays in case management in Shari’ah courts, and abuse of their rights after a divorce. Similarly, issues surrounding a child marriage and maintenance neglect are also among those that require urgent remedial actions. For this reason, Islamic family law continually keeps changing and the changes are prompted by the developments in society. The principles of justice and equality, and unwavering protection of women’s and children’s rights, have always been on the agenda of Islamic family law reformation. There are several examples of major law reform efforts in other countries that have embraced these principles in their family laws, such as the Family Law (Mudawwana) 2002 in Morocco, the Family Courts Act 1964 in Pakistan, and Family Code (Code de la Famille) 1984 in Algeria. Even though Malaysia’s Islamic family law is frequently criticized, it is still among the best in the Islamic world. It covers a wide range of topics, such as betrothal, marriage, polygamy, dowry, maintenance of wife and children, various types of divorce, and custody of children. Furthermore, it gives women, as vulnerable persons, numerous rights and protections against mercilessness. For example, women are able to apply for the dissolution of marriage (fasakh) due to valid reasons. They are qualified for separation if their spouses fail to satisfy the terms in

J. M. Saad Shari’ah Judiciary Department of Malaysia, Putrajaya, Malaysia A. Trakic (*) School of Business, Monash University Malaysia, Subang Jaya, Malaysia e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4_5

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their marriage agreement (taklik). They are also entitled to request compensation (mutaah) if the divorce has occurred without their fault. Furthermore, both spouses are entitled to an equal share in the matrimonial property (harta sepencarian) regardless of whether the spouse made a budgetary commitment in the quest for the property. The endeavors and time spent as a mother, father, and spouse are altogether considered in Islamic family law. This chapter concentrates on the four most pressing issues that regularly emerge in the implementation of Islamic family law in Malaysia, namely: underage (child) marriage, neglect of maintenance, abuse in a polygamous marriage, and the problems associated with the dissolution of marriage. These issues need to be viewed in a proper societal and legal context. The solutions to these issues would require not only the enactment of strong family laws but also an understanding of the origin of these problems and how best to deal with them. One must also appreciate the Islamic law view of the issues at hand. Hence, this chapter offers a systematic analysis of each of these issues with reference to the relevant Islamic family law provisions.

Underage Marriage A more recent issue that has been raised and debated in Malaysia pertains to child marriages. About 15,000 child marriages have been recorded in the past 10 years (Jayne 2018). Some have called for the existing laws to be amended to criminalize child marriages (Ali Mohamed 2018). The Malaysian public was shocked when a 41-year old man was allowed to marry an 11-year old girl (Beech 2018). In another case, a 15-year old girl married a 44-year old man (Abdullah 2018). Underage marriage is seen as a form of abuse of children as it deprives them of their fundamental right to enjoy their childhood and the right to have access to good quality education. Health-related problems such as depression, sexual illness, cervical cancer infections, risks during pregnancy and childbirth, and risks to infants born by a child are all major concerns linked to child marriages (Nour 2009). Based on section 8 of the Islamic Family Law Act 1984 (IFLA), the minimum age for marriage is 18  years for men and 16  years for women. However, under certain circumstances, a minor may be allowed to marry with the consent of a Shari’ah judge. The specific details about the ‘certain circumstances’ have not been provided in the Act. Thus, the Shari’ah court judges have an important role in making sure that the consent is not given lightly. The grounds for giving the consent have to be very convincing and in the minor’s best interest. The judges should not hesitate to reject the application if the applicant does not comply with the stipulated rules. To make the decision that would be in the best interest of a minor, the assigned judges are able, during the proceedings, to obtain information on the family’s economic status, the health status of the bride and groom, and the marriage-related knowledge of the young couple involved.

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It is important to clarify that Islamic law does not specify the minimum marriage age in terms of numbers. Qur’an, the holy book of Islam and the primary source of Islamic law, only stipulates that a person must attain the age of maturity (baligh) (Qur’an 4: 59). The attainment of maturity may not be at the same age for two individuals. One may attain maturity earlier or later than the other. So, a minor could be baligh and, as such, be eligible to marry. But, this does not mean that such a minor should be automatically eligible to marry. There is no Hadith, authoritative sayings of the Prophet Mohammad (peace be upon him  – PBUH), in support of child marriages. Marriage in the time of Prophet PBUH and his companions was viewed as a way of safeguarding children’s welfare. The Malaysian National Fatwa Committee has also published an e-Fatwa on the government’s official website stating that child marriages are neither obligatory (wajib) nor encouraged (sunnah). Therefore, a minor who is baligh should not be encouraged to marry. Instead, they should be advised to continue their education and prepare themselves to become capable of looking after their own family. But, if they wish to apply to marry, nonetheless, then strict controls must be put in place to safeguard their interests. The recent amendments to Islamic family laws in the State of Selangor could provide a useful guide into the matter.

 pplication to Marry for Man or Woman Under the Age of 18 – A The Case of Selangor Like IFLA, the old section 8 of the Islamic Family Law (State of Selangor) Enactment 2003 (IFLS) used to provide: “No marriage may be solemnized under this Enactment where either the man is under the age of eighteen or the woman is under the age of sixteen except where the Shari’ah Judge has granted his permission in writing in certain circumstances.” Also, section 19 of the IFLS clarified that the permission of the Shari’ah Judge was required before the marriage with a minor could be solemnized. However, in September of 2019, the Selangor State Legislative Assembly unanimously approved the amendment to the Islamic Family Enactment (Selangor) and the Shari’ah Court Civil Procedure Enactment (Selangor) 2003 to increase the minimum age for Muslims from 16 to 18 years. The exception to marry under the age of 18 with the permission of the Shari’ah court judge has been retained with the addition of a new section 8A in the IFLS, which adds some additional requirements for the applicants before their application to the court could be considered. In the interest of clarity and convenience, the entire section 8A is reproduced below. “Section 8A. (1) Subject to section 18, every application to marry for the man or the woman under the age of eighteen to the Court shall be commenced by—

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(a) for the man, a notice of application through his mother or father or guardian together with the affidavit of his mother or father or guardian and also the affidavit of the woman to be wedded to the man; or (b) for the woman, a notice of application through her mother or father or guardian together with the affidavit of her mother or father or guardian and also the affidavit of the man to be wedded to the woman. (2) For purposes of subsection (1)— (a) the affidavit of the mother or father or guardian who makes an application on behalf of the man under the age of eighteen shall contain the following particulars: (i) the name, age and marital status of the man under the age of eighteen; (ii) the grounds for the proposed marriage; and (iii) the means of the man under the age of eighteen to provide maintenance to the woman to be wedded to him; (b) the affidavit of the mother or father or guardian who makes an application on behalf of the woman under the age of eighteen shall contain the following particulars: (i) the name, age and marital status of the woman under the age of eighteen; and (ii) the grounds for the proposed marriage; (c) the affidavit of the woman to be wedded to the man under the age of eighteen shall contain the following particulars: (i) her name, age and marital status at that time; (ii) the grounds for the proposed marriage; (iii) a statement in relation to her health stage; and (iv) a statement whether or not she has been convicted of any criminal offence; and (d) the affidavit of the man to be wedded to the woman under the age of eighteen shall contain the following particulars: (i) his name, age and marital status at that time; (ii) the grounds for the proposed marriage; (iii) his means to provide maintenance to the woman under the age of eighteen to be wedded to him; (iv) a statement in relation to his health stage; and (v) a statement whether or not he has been convicted of any criminal offence. (3) Upon receiving an application under subsection (1), the Court shall order— (a) the man or the woman under the age of eighteen and the woman to be wedded to him or the man to be wedded to her to undergo health examination in

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any Government hospital, Government health centre or other Government health institutions; ( b) any Government medical officer to issue a medical report for the purpose of the health examination stated under paragraph (a) -  (i) for the man, which states his mental, physical and psychological health stage; or (ii) for the woman, which states her mental, physical, psychological and reproductive health stage; (c) any Social Welfare Officer to issue a social report which states the socio-­ economic background of the man or the woman under the age of eighteen; and (d) the Royal Malaysia Police to issue a report on criminal records of the man or the woman under the age of eighteen and the woman to be wedded to him or the man to be wedded to her, if any. The Court shall, upon receiving the reports stated under subsection (3), order— (a) the man or the woman under the age of eighteen and the woman to be wedded to such man or the man to be wedded to such woman; and (b) the parents or guardian to the man or the woman under the age of eighteen, to attend before it in order to enable the Court to inquire on the readiness of the parties towards the proposed marriage including whether or not the man or the woman under the age of eighteen agrees towards such marriage. (4) Notwithstanding paragraph (4)(b), the Court may exempt any parent to the man or the woman under the age of eighteen from attending the inquiry under this section, if the Court thinks it is proper to do so. (5) The Court may, at any time before making a decision under this section, summon any other person to give evidence if the Court thinks it is proper to do so. (6) The Court, in considering the application under this section, shall— (a) give priority to the welfare of the man or the woman under the age of eighteen; and (b) be satisfied that the proposed marriage— (i) is proper and necessary; and (ii) shall not cause harm to the man or the woman under the age of eighteen. (7) The Court, on being satisfied with all the requirements in this section, shall— (a) give permission to marry to the man or the woman under the age of eighteen under section 18; and (b) order the man or the woman under the age of eighteen to attend consultation session on family as may be determined by the Chief Registrar before the marriage is solemnized. (8) Any Court which gives permission to marry under section 18 may— (a) order the payment of maintenance by the man to be wedded to the woman under the age of eighteen after the marriage; or (b) issue any other orders as it thinks proper to protect the welfare of the man or the woman under the age of eighteen. (9) All proceedings under this section shall be heard and decided in camera. (11) For the purpose of this section, “Social Welfare Officer” has the meaning assigned to it under the Child Act 2001 [Act 611].” Based on the amendment, before the application for a marriage under the minimum age is lodged in the Shari’ah court, parties should be able to procure the following things:

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i. A copy of the divorce letter from the Registrar of Divorce, if relevant; ii. Notice and affidavit; iii. Parents and minors as applicants; iv. Instructions for counseling sessions at the Department of Social Welfare; v. If the Judge suspects there is a criminal element, the PDRM (Royal Malaysia Police) report will be requested; vi. Medical Officer’s Report; if necessary vii. In-camera / Courtroom, parent and child information will be taken separately; viii. Reports from any relevant agencies; ix. Marital consent is given in the form of order; As can be seen, the new provision adds more controls to protect the welfare of the minor. Perhaps this additional provision would be seen by some as adding more bureaucracy into the process since it requires the involvement of many more agencies besides the court. Perhaps, that is the idea. To make the entire process so cumbersome on the applicants in the hope that they will change their mind and hold on with the marriage until the minor reaches the age of 18. Therefore, the Shari’ah Court Judge plays a vital role in ensuring that the institution of marriage, which has a special place and value in Islam, is solemnized only between the individuals who are capable of performing their marital responsibilities.

Muslim Child Marriage Applications by State From the statistic below, it can be seen that the highest number of Muslim child marriage cases are in Sarawak, followed by Kelantan and Sabah.

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Muslim Child Marriage Applications by State 2013–2018. (Source: The Department of Shari’ah Judiciary of Malaysia)

The authors also surveyed 14 case files in the Shari’ah Court of Kota Bharu. From the 14 case files, 6 cases were male and 8 female applicants. Among the reasons submitted during the application for underage marriage were: i. To avoid immoralities ii. Unexpected (pregnancy) iii. To follow prospective husbands to foreign countries iv. The female bride feels insecure to stay with the adoptive family v. The female bride wants to stay together and does not want to return to the parents home The survey also found that most of these child marriages occur due to feelings of love between couples who believed that, if they are not legally married, they would not able to abstain from an  extramarital sexual relationship (zina), which is a criminal offense in Islamic law. An unwanted pregnancy could be another undesirable outcome of extramarital sexual relationships. Be that as it may, it is submitted that the harm caused by child marriage is likely to outweigh any potential benefits  by far. Therefore, the relevant authorities should be aware of it when considering such marriage applications. Being aware of the seriousness of the situation, in 2018, the Department of Shari’ah Judiciary of Malaysia (Jabatan Kehakiman Shari’ah Malaysia – JKSM), produced the standard operating procedures (SOPs) to be used by the Shari’ah court judges when hearing the chid marriage applications (Bernama 2018). The SOP’s main objective is to ensure that the child’s welfare is given the utmost importance. The SOP covers the procedure for registration, hearing, investigation, and court orders. It also stipulates that poverty can not be used as an excuse to allow underage marriages. How effective the SOP has been will only be known after a considerable time has passed since its implementation. At this stage, suffice to say is that the JKSM remains vigilant and proactive in ensuring that its Shari'ah  court judges strictly follow adopted SOPs. The Federal Government has also been calling on the States and Federal Territories to amend their respective state laws to raise the marriage age limit to 18 years. As for now, the Federal Territories have heeded the call, and the amendment is in the process. The other five states that have agreed to amend the law are Penang, Sabah, Johor, Melaka, and Perak. The remaining seven states, namely, Sarawak, Pahang, Terengganu, Perlis, Negeri Sembilan, Kedah, and Kelantan, have not agreed to amend their relevant legislation. While the law is necessary to restrict underage marriage and prevent the social problems that may arise thereafter, the law by itself is not enough. Education and awareness among the community and parents are equally important. This is why access to good quality education for all children is critical. Education will not only offer children a better and more prosperous future, but it will also inculcate in them an understanding when they become parents how important it is for their children to pursue education.

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Poverty has also been identified as another major reason for child marriage. While education could be part of the solution again as it has the potential of uplifting families, communities, and the entire nation from poverty, it alone, however, may not be enough. Strong social welfare programs by the governments, both Federal and State, should have poverty reduction as one of their main objectives. Their efforts should be aided by other segments of the society, such as governmental and non-governmental agencies, religious authorities and communities, and charitable organizations. In fact, this is everyone’s responsibility. No child should ever be left behind.

Maintenance The maintenance of a child is a father’s responsibility. Section 73 (1) of the Islamic Family Law Act (Federal Territories) 1984 (IFLA) provides the following: “Unless an agreement or order of the Court provides otherwise, it shall be the duty of a man to provide for the maintenance of his child, whether that child is in his custody or in the custody of another, whether by providing them accommodation, clothing, food, medicine, and education as reasonably practiced by his ability and standard of living or by paying for his expenses.”

Maintenance Rate As stated in section 73 of IFLA, the amount and rate of maintenance will depend on the maintenance provider’s ability and standard of living. There are several Qur’anic verses to this effect. “But he (the father) shall bear the cost of their food and clothing on equitable terms” (Qur’an 2: 233). “Let the man of means spend according to his means; and the man whose resources are restricted; let him spend according to what Allah has given” (Qur’an 65: 7). Meanwhile, in a hadith of the Prophet Mohammad PBUH, it is narrated by Aishah that Hindun binti Utbah said: “O Rasulullah, Abu Sufyan is a stingy man. He did not give my children and me a sufficient amount of maintenance unless I took it out of his knowledge. Rasulullah (Prophet PBUP) said: Take what is sufficient for you and your family in a good manner” (Al-Sanani et al. 1998, pp. 217–218). In explaining the rate of child maintenance that must be borne by the party required to bear, Al-Zuhaily (1989) stated: “The jurists agreed that the amount of maintenance for children and grandchildren is set at a rate of sufficient to their needs, such as bread (basic food) or complementary materials of clothing, shelter and breastfeeding if she is still breastfeeding. It is based on the ability of financiers and look at a local custom that is best suited as it is required due to necessity. The Holy Prophet once said to Hind, which means, you can take the wealth of Abu Sufyan as maintenance for you and your child adequately and properly” (p. 828).

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The above authorities show that a child’s maintenance is measured by the basic needs of a child. While the maintenance provider should not be burdened with a maintenance rate in excess of his capacity, the maintenance amount, nonetheless, should be sufficient to cover four basic needs of a child, namely: accommodation, food and drinks (inclusive of bill payments, such as utility bills, and so on), clothing for daily use, and medical expenses. The child’s right to maintenance will not be affected by the divorce of the parents. This is different from the wife’s right to alimony, which would be affected by the divorce. In the case of a divorce, the husband is only responsible for providing maintenance for the duration of the waiting period (iddah).

Maintenance Order There have been many cases where fathers have neglected their maintenance duties. Hence, there is a need to have a robust mechanism in place, both legal and social, to ensure that fathers do not extricate themselves from this very important responsibility. The Shari’ah courts have a special role to play in the enforcement of the maintenance payments that are due. They issue the maintenance orders, without which the enforcement and execution of the due maintenance payments would not be possible. These court orders are also in line with the societal wishes to ensure that the vulnerable members of our communities, like children, are well taken care of (Case et al. 2003). The court orders are not issued by default. They have to be sought before or after the divorce. It is suggested that the wife applies for the maintenance order in advance before the divorce happens to ensure that her and her children’s rights to maintenance are secured. In situations where the divorce happens without the maintenance orders, there is always a possibility that the ex-husband will move to another place without any trace in anticipation of the subsequent court hearings on the maintenance matters. Therefore, the court should be cognizant of this fact and ensure that the maintenance rights of the divorcee and her children are secured before the divorce is confirmed. The process of obtaining the court order in any Shari’ah court in Malaysia will depend on the jurisdictional and legislative provisions in the respective states. In Federal Territories, for example, the provisions on maintenance order are stated in Part VI, from sections 59 to 80 of the IFLA. Section 59 empowers the court to order maintenance for the wife and explains the effect of misconduct (nusyuz) on the maintenance. Section 73 empowers the court to order a man, at any time, to pay maintenance for the benefit of his child if he has neglected to do so. These powers given to the court to issue a maintenance order include all relevant aspects required for the execution of the maintenance. The maintenance order issued by the court in one state is not automatically transferrable and applicable in other states. The court of the state in which the order is sought to be recognized will need to endorse it before it could be enforced in that state.

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Furthermore, the amount of maintenance determined by the court is different from the actual amount applied. The applicants may make claims based on their perceptions of their standard of living, which is one of the factors to be considered, but the final decision on that rests with the court. The court should also consider local factors, such as the applicants’ place of residence and their real-life needs. A careful analysis of the court cases has shown that the key limitation, in most cases, is the ability of a man to pay the amount claimed by the applicants based on their standard of living. In other words, there is a major dichotomy between the applicant’s claimed needs as per their standard of living and the man’s ability to pay the claimed amount. When making the assessment, even though the local circumstances and the standard of living are important factors to consider, the court will effectively make a decision based on the man’s ability to pay. It is also found that the court, in most of these cases, did not have specific guidelines to follow in determining sufficient rates. The amount was mostly decided based on the evidence presented to the court and also the court’s observations. Section 61 of IFLA provides: “In determining the amount of any maintenance to be paid, the Court shall base its judgment primarily on the discretion of the parties, taking into account the rate of maintenance as against the income of the person against whom the order was made.” This provision seems to be too general as there is no clear explanation of the parties’ ability and need for the judges to exercise their discretion in interpreting the provisions of assessment based on their method and understanding. This vagueness in the provision has led to situations where judges began to debate the scope and legitimacy of their discretionary powers instead of concentrating on the methodology used to assess the maintenance amount. For example, in Faridah David and another vs. Mohd Firdaus Abdullah @ Jettle Francis (2004) JH (1), the plaintiff requested child custody and child support of RM150. In the judge’s written judgment, only the rights of the court seem to have been debated in-depth. The court decided that the childcare rate was only RM100 per person without specifying the reason for the decision. Malaysia should perhaps learn from the Australian experience where the assessment of the maintenance is done by a special government agency called ‘Child Support’. This agency has been entrusted with the administration of the specifically designed child support scheme. The courts have been prevented from issuing child maintenance orders in cases that fall under the agency’s jurisdiction. The agency has administered the child support scheme under two Acts of Parliament, namely the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection Act) 1988. The former set out the calculation of child support based on a formula encompassing the income of the parent/s, care arrangements of the children, ages of the children, other dependents, and a number of other factors, while the latter detailed the arrangement for transfer and collection of the calculated payments, including the enforcement of unpaid amounts (Australia Government 2020). The Shari’ah Courts in Malaysia are also exploring how to establish a compulsory payment model during the divorce process. The Shari’ah Court in Penang was the first to introduce such model by issuing a Practice Direction of the Chief Shari’ah Judge of Penang Number 1/2016 – Order of Iddah and Reciprocal Child Maintenance

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in Divorce Cases. This Practice Direction was made pursuant to section 74(1) of the Islamic Family Law Enactment (Penang). The Practice Direction reads as follows: “Every Court which gives and records divorce or authorizes and records divorce or any other form of dissolution of marriage shall order a man to pay the maintenance for the benefit of any of his children and his ex-wife as follows: a) a maintenance order of RM300 per month for a period of iddah; b) child care order: i) RM200 per child; ii) RM150 each for two to five children iii) RM 100 each for six persons and above”. In 2019, JKSM also came up with a Practice Direction of its own to guide the Shari’ah courts across the country on the procedure for assessing the amount of child support. According to this Practice Direction, the assessment of the monthly maintenance is based on the number of children. With the increase in the number of children, the payment rate also increases. The amount of the increase will also depend on the amount of income of the father. The determination of the amount is subject to the children’s basic needs, including accommodation, clothing, food, education, age and total income (father’s gross income). An illustration of the assessment of the amount of maintenance is as follows: Number of children 1 2 3 4 and above

percentage (%) 23% 33% 40% 53%

(RM) 1000 230 330 400 530

(RM) 1500 345 495 600 795

(RM) 2000 460 660 800 1060

(RM) 2500 575 825 1000 1325

(RM) 3000 690 990 1200 1590

(RM) 3500 805 1155 1400 1855

(RM) 4000 920 1320 1600 2120

(RM) 4500 1035 1485 1800 2385

(RM) 5000 1150 1650 2000 2650

Responsibilities of Beneficiaries In the absence of a father or if a father is unable to provide, the responsibility will then fall on other individuals (beneficiaries) identified under the Islamic family law for such a purpose. For instance, section 73(2) of Islamic Family Law (State of Selangor) Enactment 2003 provides that: “…it shall be the duty of a person liable under Hukum Syarak (Islamic Law) to maintain or contribute to the maintenance of children if their father is dead or his whereabouts are unknown or if and so far as he is unable to maintain them.” A similar provision is also available in other states.

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The expression “a person liable under Islamic law” under subsection 73(2) is detailed out through the Shari’ah Court Practice Direction No. 14, 2007. Hence, if a father is unable to maintain the children, the maintenance obligations will then be transferred to the specifically identified father’s beneficiaries.

Enforcement and Execution of Maintenance Order The court order alone is not a guarantee that maintenance will be paid. There will undoubtedly be those who will defy the orders. According to JKSM’s statistics, there are many cases of non-compliance. For example, in 2015, there were 1359 non-compliance cases. The number increased to 1410 in 2016 and then increased even more to 1498 in 2017. To tackle this problem, the Malaysian Government established a Family Support Division under the JKSM.  This division’s primary functions are providing legal advice to the parties in their court proceedings, enforcement of maintenance orders across various States’ Shari’ah courts, and financial aid to the wives and children (JKSM 2018). In 2019, the government also set up a special committee chaired by the Director-­ General of JKSM (Rahim 2019). The committee has been in talks with several stakeholders, including the Central Bank of Malaysia (CBM) and Employees Provident Fund (EPF), on how best to carry out court decisions. The committee hopes to be able to make changes in the laws governing the CBM and EPF to allow them to freeze assets or property of the defaulters to pay maintenance.

Polygamy The subject of polygamy is perhaps one of the most controversial topics in Islamic family law. In Islam, men are allowed to take up to four wives. The Almighty God stated in the Qur’an: “And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice]” (Qur’an 4: 3). This Qur’anic verse needs to be properly understood. Polygamy is not made mandatory for men. Rather, it is a permissible option for those who can meet the conditions stated in the verse. It should also not be understood as a general ‘right of a man’ to marry only for pleasure or fancies. Instead, it as an exception intended to be used only out of necessity. Malaysian Islamic family law also provides explicit provisions that allow polygamous marriage. Section 23 of the IFLA is a good example. This section has been amended twice, first in 1994 and then in 2005. It consists of eight sub-sections that explain in detail the whole process of application for polygamous marriage

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including case management, registration, and general conditions of the proposed marriage that must be fulfilled before the court’s permission could be obtained. Section 23(1) requires the prior court’s permission before any polygamous marriage could be concluded. It says: “No man during the subsistence of a marriage shall, except with the prior permission in writing of the Court, contract another marriage with another woman.” Section 23(3) further explains: “An application for permission shall be submitted to the Court in the prescribed manner and shall be accompanied by an iqrar stating the grounds on which the proposed marriage is alleged to be just or necessary, the present income of the applicant, particulars of his commitments and his ascertainable financial obligations and liabilities, the number of his dependants, including persons who would be his dependants as a result of the proposed marriage, and whether the consent or views of the existing wife or wives on the proposed marriage have been obtained.” The original version of section 23(3) provided that the proposed polygamous marriage must be “just and necessary”. In other words, the applicant needed to prove to the court that the polygamous marriage is both just as well as necessary. In 2005, however, section 23 was amended, and the word “and” was replaced with “or”. So, the amendment gives an impression that, under the current law, the applicant needs only to prove that the polygamous marriage would be either just (i.e., that he will be able to treat wives in a fair and just manner in terms of the resources and the division of time) or necessary. At first glance, the amendment seems to have not only made it easier for husbands to marry more wives, but it has also made it easier for them to abuse their right to polygamy. It appears that they now do not need to prove to the court that polygamous marriage is necessary. As long as they can prove that they can support the polygamous marriage financially and that they would be able to treat wives fairly, the courts would be able to permit them to marry. The above interpretation of the amended section 23(3) is plausible when it is considered in isolation. However, section 23(3) must be considered together with section 23(4), which explains how the words “just or necessary” are to be understood. For that reason, section 23(4) is reproduced here in its entirety: “On receipt of the application, the Court shall summon the applicant and his existing wife or wives, the woman to be wedded, the wali of the woman to be wedded and any other person who, in the opinion of the Court, may provide information relating to the proposed marriage to be present at the hearing of the application, whichshallbeincamera,andtheCourtmaygrantthepermissionappliedforifsatisfied— (a) that the proposed marriage is just or necessary, having regard to such circumstances as, among others, the following, that is to say, sterility, physical infirmity, physical unfitness for conjugal relations, willful avoidance of an order for restitution of conjugal rights, or insanity on the part of the existing wife or wives; (b) that the applicant has such means as to enable him to support as required by Hukum Syarak all his wives and dependants, including persons who would be his dependants as a result of the proposed marriage;

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(c) that the applicant would be able to accord equal treatment to all his wives as required by Hukum Syarak; and (d) that the proposed marriage would not cause darar syarie (harm) to the existing wife or wives.” This section clearly shows that the words “just or necessary” must still be interpreted conjunctively. In other words, the applicant must prove that the polygamous marriage is necessary due to the circumstances, such as “sterility, physical infirmity, physical unfitness for conjugal relations, willful avoidance of an order for restitution of conjugal rights, or insanity on the part of the existing wife or wives”. The applicant would also need to prove to the court that he is financially able to support all his wives and dependents, treat them equally, and that the proposed marriage will not cause any harm to the existing wife or wives. When sub-sections 23(3) and (4) are considered together, it becomes clear that the law stipulates rigorous requirements for polygamous marriage. The requirements show that polygamy cannot be practiced for pleasure and that the applicant must produce convincing reasons to warrant the court’s permission for the marriage. The law wants the court to take a cautious approach to polygamy. It makes it mandatory on the court, upon receiving the application for polygamous marriage, to “summon the applicant and his existing wife or wives, the woman to be wedded, the wali of the woman to be wedded and any other person who, in the opinion of the Court, may provide information relating to the proposed marriage to be present at the hearing of the application”. All these parties would testify and explain their objections, if any, to the polygamous marriage. The existing wife’s testimony is particularly important. The testimony, however, is not to be confused with permission. The wife’s permission is not necessary under the law. Her testimony is to help the court understand whether the proposed marriage is necessary and whether the applicant fulfills all the conditions stipulated under sections 23(4). Furthermore, an existing wife can apply for fasakh divorce under section 52 if her husband marries more than one wife and does not treat her equitably as per the requirements under Islamic law. Even though section 23 seems to be a good law, there is a view that this section, and similar sections in the Enactments of other states in Malaysia, are not clear enough in conveying the legislative, divine purpose behind the permission of polygamy. The argument goes that IFLA should have mentioned, in the introduction to the section or elsewhere, the reasons for the revelation of the Qur’anic verse on polygamy so that the polygamous marriage could be understood in the proper context (Yasin and Jani 2014). This observation is perhaps justified as many applications for polygamous marriages nowadays may not be inspired by the higher divine objectives but rather by human desires and pleasures. A perhaps legislative note and explanation on the purpose of polygamy in Islam would serve to educate the public that polygamy is not a norm but rather a permissible option under the right circumstances.

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Dissolution of Marriage A marriage between a woman and a man can be dissolved in the circumstances permitted by Islamic law. The law gives both men and women an equal opportunity to dissolve their marriage by obtaining the court order (fasakh). Section 52 of IFLA provides a detailed list of grounds on which the marriage could be dissolved, including missing whereabouts, neglect, imprisonment for a period of three years or more, failure to perform marital obligations, impotence, incapacity which prevents sexual intercourse, insanity, venereal disease in a communicable form, non-­ consummation of marriage, cruelty, absence of consent to marry or invalidity of the consent, and any other ground that may be recognized under Islamic law as valid for the dissolution of marriage. Each of these grounds needs to be understood with reference to a full explanation in section 52. The cruel treatment has been a common ground based on which the courts have frequently been granting the dissolution of marriage (fasakh). Most of the time, fasakh is applied by wives as they are more prone to cruel treatment by their husbands than vice versa. Cruel treatment does not only include physical assault. Any form of mental/psychological assault is also considered a cruel treatment for the purpose of fasakh. In the case of Hasnah v. Zaaba (1995) 10 JH 59, the wife claimed that the husband had habitually assaulted her and made her life miserable. The Shari’ah High Court held that the husband’s habitual assaults on his wife by beating and cursing her amounted to cruelty. The court permitted the application of the wife to dissolve the marriage through fasakh. In Badrolhisyam bin Khalid vs Masriah Hj. Ismail (2015) 41 JH 1, the husband appealed the decision of the Shari’ah High Court of Johor, which delivered the decision in favour of the wife. The High Court judge mentioned in his judgment that the wife had succeeded in proving two fundamental matters. First, the husband habitually hurt the wife and made her suffer (cruel treatment). Second, the husband had two wives and did not treat his wife in a fair manner. On the point of cruel treatment, the court found that the wife was tortured mentally by the husband on a habitual basis since the beginning of the marriage. He was found to have used abusive words, such as ‘pig’, ‘useless wife’, and ‘go to hell’. He even caused her physical injury in one of the arguments for which she made a police report and sought medical treatment. The Shari’ah Court of Appeal maintained the decision of the High Court to dissolve the marriage through fasakh. There is also a case of Zarina bt Syaari vs. Mohd Yusof b. Omar (2005) ShLR 4173, in which the learned judge of the Shari’ah Subordinate Court (Federal Territories) decided that the refusal to communicate on the part of the husband, cheating the wife by marrying another without her knowledge, and refusal to sleep with the wife amounted to mental cruelty. The court also clarified that the term “habitual assault” was relevant in mental and emotional assault  cases. Since the term used in section 52(1)(h)(i) is “habitually assaults”, the plaintiff must prove to the court that the cursing and swearing were done continuously and frequently.

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Another common ground for the fasakh dissolution of marriage is a neglect of the Islamic way of life. Suppose a husband or wife neglect their prayers or decide to commit acts prohibited in Islam, such as lottery and immorality. In that case, the other spouse can apply for the fasakh under section 52(1)(l), which says: “any other ground that is recognized as valid for dissolution of marriages or fasakh under Hukum Syarak.” This provision widens the scope of fasakh beyond the grounds which are listed expressly in the provision.

Arbitration by Hakam One of the common misconceptions in Islam is that the dissolution of marriage becomes unduly difficult if one of the parties does not agree to divorce. This is not the case. If the court determines that the parties are not able to live together due to their irreconcilable differences, the court may order the dissolution of the marriage. But, before the marriage is dissolved, all parties should make efforts to preserve the marriage. This is in line with the hadith narrated by Muharib in which Prophet Mohamad PBUP said: “Allah did not make anything lawful more abominable to Him than divorce” (Sunan Abu Dawood, Book 6: 2172). In another hadith narrated by Abdullah ibn Omar, Prophet PBUH said: “Of all the lawful acts the most detestable to Allah is divorce” (Sunan Abu Dawood, Book 6: 2173). In line with the above hadiths, the court is expected to do everything it can to save the marriage if the marriage breakdown is due to reasons that could be overcome. When one party wants the divorce, and the other does not, there is hope for the marriage to be saved or, if it cannot be saved, then at least to be dissolved amicably and decently, and this is where the role of arbitrators (Hakam) becomes important. The concept of Hakam is based on the Qur’anic verse which says: “And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things]” (Qur’an 4: 35). Therefore, Hakam is an alternative dispute resolution mechanism in which two arbitrators are appointed, one by the husband and the other by the wife. The arbitrators are to work with the parties and try to dissolve their dispute amicably. Section 48 of IFLA provides for the appointment of Hakam. It says: “If satisfied that there are constant quarrels (shiqaq) between the parties to a marriage, the Court may appoint in accordance with Hukum Syarak two arbitrators or Hakam to act for the husband and wife respectively.” The identical provision is provided in the Islamic Family Law (State of Selangor) Enactment 2003 (IFLS). In addition to this provision, Selangor has also passed Hakam (State of Selangor) Rules 2014. The Hakam Rules provide clarity in the implementation of Hakam provision in IFLS. Some of the most salient features of the Rules are explained below.

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If either party to a marriage does not agree with the divorce petition, the court must investigate whether there has been a constant shiqaq in the marriage. Rule 3(4) lists the situations that would amount to constant shiqaq. These include continuous bullying, causing difficulties in carrying out their respective responsibilities, accusing each other of not performing the rights as husband and wife, accusing each other of having a relationship with another woman or man, constant quarrels resulting to beating, leaving the dwelling house and ceasing to cohabit, and accusing each other of their respective responsibilities towards the children. Rule 3(1) clarifies, “If the Court is satisfied that there are constant shiqaq between the parties to a marriage, the Court shall as soon as possible direct the husband and wife to appoint Hakam from amongst their respective close relatives.” Any close relative of husband and wife is qualified to be appointed as hakam if he is, a Muslim, male, sound mind and baigh (mukalaf), fair and honest, and has basic knowledge in family matters and Islamic law (Rule 8). Once appointed, the Hakam should endeavor to obtain full authority from their principles to pronounce talak or khuluk (divorce) before the court and accept the pronouncement of khuluk before the court respectively (Rule 11). Hakam will then conduct Majlis Tahkim (the arbitration session or the process to resolve quarrels (shiqaq) between husband and wife) and shall “terminate the shiqaq between husband and wife by way of reconciliation or by separating both of them by talak or khuluk” (Rule 9). After completing the Majlis Tahkim, “The Hakam shall prepare a report by using Form 8 of the First Schedule at the end of each Majlis Tahkim and the report shall be laid before the Court” (Rule 14). If the Hakam successfully reconciles the parties, they would proceed with their marriage. If the Hakam, on the other hand, “are of the opinion that the parties should be divorced but are unable to order a divorce due to the failure of Hakam to obtain full authority from the principals or due to other reasons...the Court may remove and revoke their appointment and appoint other Hakam from amongst members of the Panel Hakam” (Rule 11). Rule 15 concludes that “If both Hakam in Majlis Tahkim decide that the marriage is to be dissolved, the talak shall be pronounced by the Hakam for husband before and with the permission of the Court and if both Hakam in Majlis Tahkim decide that marriage is to be dissolved by khuluk and ‘iwadh has been made by the wife in Majlis Tahkim, the khuluk shall be pronounced before and with the permission of the Court.” Even though the marriage may still come to an end, the parties in Hakam proceedings would have at least tried their best to reconcile or see how best to bring their marriage to an end. This is undoubtedly better than the dissolution of marriage by mutual consent, which can be completed hastily within 24 hours. Hakam would allow for the parties to cool down and look at their problems objectively. They would also be able to think about the interest of their children. Every divorce will indeed have serious implications for the children. Therefore, the Selangor Hakam Rules 2014 is a good law, and other states in Malaysia should consider passing similar laws.

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Conclusion This chapter demonstrated that certain aspects of Islamic family law in Malaysia need to be improved. Improvements are required not only in the laws but also in their implementation. It is submitted that all the relevant stakeholders, including Shari’ah court judges, lawyers, academics, and the parties in the proceedings, need be proactive and approach the issues with a view of solving them for the betterment of the parties, their families, and the wider community. There is also a need for the wider community, especially non-governmental organizations, to better understand the issues at hand and how they are governed under Islamic law. It is unreasonable to expect the Muslims to accept and respect “solutions”, which are inconsistent with Islamic law values. It needs to be remembered that Islamic family law, after all, is the law that governs the family matters of Muslims, and every solution to any problem would have to be in line with Islamic teaching. Only then will it be considered a solution worth considering and adopting.

References Abdullah, S.  M. (2018, September 18). Yet another one: 15-year-old girl marries father of two in Tumpat. New Straits Times. https://www.nst.com.my/news/nation/2018/09/412355/ yet-­another-­one-­15-­year-­old-­girl-­marries-­father-­two-­tumpat Abu-Dawood. Sunan. Book 6 – Divorce (Kitab Al-Talaq). Numbers 2170 – 2304. http://www.iium. edu.my/deed/hadith/abudawood/006_sat.html. Ali Mohamed, A.  A. (2018, September 24). Chriminalise child marriages. New Straits Times. https://www.nst.com.my/opinion/letters/2018/09/414545/criminalise-­child-­marriages Al-Sanani, Ibn Ismail, M., Abd al-Rahṃan, K, Al-Asqalani, I.  H., & Ibn Ali, A. (1998). Subul Al-Salam. Bayrut: Dar Sadir. Al-Zuhaily, W. (1989). Al-Fiqh al-Islami wa Adillatuhu. Damsyik: Dar al-Fikr. Australian Government. (2020, March 20). Child support guide. https://guides.dss.gov.au/ child-­support-­guide Beech, H. (2018, July 29). 11 and married: Malaysia spars over an age-old practice. The New York Times. https://www.nytimes.com/2018/07/29/world/asia/malaysia-­child-­marriage.html Bernama. (2018, September 21). Follow SOP on child marriages, Mujahid tells Syariah court judges. New Straits Times.  https://www.nst.com.my/news/nation/2018/09/413510/ follow-sop-child-marriages-mujahid-tells-syariah-court-judges  Case, A. C., Lin, I.-F., & McLanahan, S. (2003). Explaining trends in child support: Economic, demographic, and policy effects. Demography, 40(1), 171–189. Department of Shari’ah Judiciary of Malaysia. (2018, November 26). Family support division. http:// www.jksm.gov.my/index.php/en/about-­us/background/division/439-­family-­support-­division Jayne, T. (2018, July 30). Hannah Yeoh: 15,000 child marriages took place in Malaysia within the past decade. SAYS. https://says.com/my/news/there-­are-­15-­000-­child-­marriage-­ cases-­within-­the-­past-­10-­years Nour, N. M. (2009). Child marriage: A silent health and human rights issue. Reviews in Obstetrics and Gynecology, 2(1), 51–56. http://www.khubmarriage18.org/sites/default/files/27.pdf. Rahim, R. N. R. (2019, September 26). Special committee in talks with BNM, EPF on child custody and maintenance. New Straits Times. https://www.nst.com.my/news/nation/2019/09/524814/ special-­committee-­talks-­bnm-­epf-­child-­custody-­and-­maintenance

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Yasin, R. F. F., & Jani, M. S. (2014, August). The efficiency of legal provision on polygamy in Malaysia, a critical analysis from Qur’anic perspective. Paper, presented at International Conference on Multidisciplinary Innovation for Sustainability and Growth (MISG 2014), Kuala Lumpur. Malaysia. http://irep.iium.edu.my/38000/1/Kanita_THE_EFFICENCY_ OF_LEGAL_PROVISION_ON_POLYGAMY_IN_MALAYSIA%2C_A_CRITICAL_ ANALYSIS_FROM_QUR%E2%80%99ANIC_PERSPECTIVE_1.pdf

Chapter 6

Islamic Inheritance Law Hanifah Haydar Ali Tajuddin and Salehan Yatim

Introduction Islamic law of inheritance or faraid plays a crucial role in Muslim society. The law caters to the division of property of the deceased among the family members. Using a specific calculation as provided in the Quran and the practice of Prophet Muhammad (peace be upon him), Muslims are bound by the calculation of portions entitled to each family member who survives the deceased. To make it easy for the Muslims to comply with the calculations, the Malaysian Government has made it into law. This enables Muslims to seek authorised experts in dividing their inheritance. Initially, the authorised experts in Islamic inheritance were only among the Shari’ah judges. Today, however, the expertise is widespread and available with other authorities, as will be discussed below. These authorities are not only authorised to calculate portions of inheritance; they are also authorised to administer the division of such property, subject to the limitation as provided in the related laws. Probate and inheritance are included under the Federal List of the Federal Constitution. As understood in previous chapters, matters listed under the Federal List are not under the jurisdiction of the Shari’ah courts. Thus, the civil court has the jurisdiction to issue a letter of administration of probate regardless of whether the matter relates to inheritance among the Muslims or non-Muslims. In inheritance matters, the Shari’ah courts are only authorised to calculate the division of the property and issue a faraid (inheritance) certificate. The placement of Islamic inheritance partly under the civil and partly under the Shari’ah’ jurisdiction has, to a certain extent, created confusion, and the society

H. Haydar Ali Tajuddin (*) Shari’ah Judiciary Department of Malaysia, Putrajaya, Malaysia S. Yatim Shari’ah High Court Judge of the State of Selangor, Shah Alam, Malaysia © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4_6

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regards it as a hassle of having to determine one matter before two courts. Calls have been made to remedy the situation by either expanding the jurisdiction of the Shari’ah courts administratively or through an amendment to the Federal Constitution. Neither of the two choices is simple to implement. However, this problem does not stop the Shari’ah courts and the Shari’ah Judiciary Department of Malaysia at the federal level from continuing to explore proactive steps in proposing practical solutions. This chapter attempts to describe the existing position regarding the jurisdiction of the Shari’ah courts in cases of inheritance among the Muslims. In doing that, it is essential to explain the rules and principles of Islamic inheritance briefly. Realising the importance of inheritance and its obligation on every Muslim, the legal position of the administration of inheritance by the courts and other authorities in the country will be analysed. The chapter will also provide a perspective from a sitting Shari’ah judge followed by a brief elaboration on the standardisation efforts undertaken by the Shari’ah courts and the Shari’ah Judiciary Department of Malaysia.

Principles of Islamic Inheritance In Islam, other than the term inheritance, the term succession is also used to refer to transfer of ownership, rights and/or liability from one person to another due to death. In the Arabic language, inheritance is translated as ‘faraid’, while succession is translated as ‘mirath’. While both terms are used interchangeably, their technical definitions are different. Technically, faraid refers to “a science under Islamic law which stipulates what to be inherited (as property), who to inherit (as heir or beneficiary) and whom to inherit from (the deceased)” (Muhammad 2020, p. 6). In comparison, mirath refers to “  a science of systematic jurisprudential reasoning and mathematical calculus involved in the determination of exact shares of each legal heir in the property left behind by one or more deceased” (Muhammad 2020, p. 6). Inheritance in Islam refers to devolving property left by a deceased Muslim fairly to his/her surviving legal heirs. It includes testate death, where the deceased leaves a will (wasiyyah) detailing on the division, and intestate death, where the deceased died without leaving a will (Halim 2015). The concept of inheritance in Islam originates from the Quran and the practices of Prophet Muhammad (peace be upon him). Before Islam, Arab society used to divide the shares of inheritance to members of the community based on their strength and capacity to defend and protect their tribes. Thus, only strong men could inherit. While women were regarded as inheritable property; they, together with the children and the weak ones, could not inherit (Muhammad 2020). Prophet Muhammad (peace be upon him) then came with the message of Islam and promoted equal treatment for women, children and the weak ones and changed the barbaric practice of the pre-Islamic Arab societies. There are several verses in the Quran that depict the rules of inheritance. One of the verses is in Chapter Four of the Quran:

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(The God instructs you concerning your children: for the male, what is equal to the share of two females. But if there are (only) daughters, two or more, for them is two thirds of one’s estate. And if there is only one, for her is half. And for one’s parents, to each one of them is a sixth of his estate if he left children. But if he had no children and the parents (alone) inherit from him, then for his mother is one third. And if he had brothers (or sisters), for his mother is a sixth, after any bequest he (may have) made or debt. Your parents or your children – you know not which of them are nearest to you in benefit. (These shares are) an obligation (imposed) by the God. Indeed, the God is ever Knowing and Wise.) (Qur’an 4: 11)

The above verse spells out the principles of inheritance in Islam. The verse also explains that Muslims are bound to follow these principles, which were then illustrated in the practice of Prophet Muhammad (peace be upon him). The principles of inheritance include (Halim 2015): (i) Inheritance through blood ties and marriage; (ii) Men and women can inherit and be inherited from; (iii) Guaranteed portions for parents and children; Generally, Islam outlines three pillars of Islamic inheritance which include (Muhammad 2020): (i) The legal heir or successor (warith) must be recognised as a beneficiary who has a valid affinity and relationship with the deceased; and is not an apostate or a murderer (of the deceased). (ii) The death of praepositus or the deceased (murith) must be ascertained, whether due to actual death or presumed death (in cases of missing). (iii) The property to be inherited (mawruth) or also called as tarkah and irth can include movable or immovable property The principles of inheritance are intended to ensure a fair division of inherited property among the legal heirs. The calculation set is harmonised with the legal responsibility of a person in Islam. For example, as a man is presumed to bear the responsibility of paying for his family, including the female members, his portion in inheritance is twice the portion of a woman.

Administration of Islamic Inheritance The administration of inheritance cases originated from the practice of local customs of the Malay Muslims, which later evolved to a system that was based on the common law as a result of British colonisation of the land (Drs Nasrul 2017). As the Shari’ah court began to develop, the religion and customs too started to gain more prominence again. Inheritance is considered as a personal matter of the Muslims. Therefore, Muslims are required to have the Shari’ah court calculate their inheritance before getting the final order from the civil court. From that point, the court system was the main legal means to settle inheritance cases until the government started diversifying the jurisdiction to include other authorities. Today, three

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authorities are responsible in the administration and distribution of inheritance in Malaysia: the High Court (civil court), the Small Estate Distribution Unit under the Land Office, and Amanah Raya Berhad, which is a government-owned public trustee. These authorities operate within their stipulated jurisdiction, which will be detailed below. The main legislations that regulate estate administration are the Probate and Administration Act 1959, the Small Estates Distribution Act 1955, and the Public Trust Corporation Act 1995. The practice of estate administration refers to a process of compiling and managing the deceased’s assets, settling any debts, and distributing the remaining assets to the rightful beneficiaries (Amanah Raya 2020). If the deceased died leaving a will, the administration is carried out after a Grant of Probate is issued by the High Court (civil court) to a named executor in the will. Meanwhile, if the deceased died without leaving a will, a Letter of Administration in the form of declaration or order is issued to an administrator of the deceased’s assets. Section 3(1) of the Probate and Administration Act 1959 and section 5 (1) of the Small Estate Distribution Act 1955 state: S. 3(1) of the Probate and Administration Act 1959 (1) Probate may be granted to an executor appointed by a will. S. 5 (1) of the Small Estate Distribution Act 1955 (1) Subject to this section, nothing in this Act shall affect the exclusive jurisdiction of the High Court to grant probate of any will or testamentary disposition or letters of administration in any case in which the deceased has left a valid will or other valid testamentary disposition in respect of a small estate or part thereof and the grant when made shall have effect in all respects as if the estate had not been a small estate.

In determining which case falls under which authority, four factors are looked into: (a) type of asset, (b) value of asset, (c) deceased’s estate, testate or intestate, (d) religion of the deceased at the time of death (Drs Nasrul 2017). Although the establishment of these authorities allows for a more effective process, it is also opined that the varieties of jurisdictions could also cause more confusion among the members of the society (Drs. Nasrul 2017).

The Civil High Court The High Court’s exclusive jurisdiction over inheritance and succession matters is provided explicitly in Article 74 and the Federal List of the Federal Constitution. This means that the civil court has jurisdiction over both Muslim and non-Muslim parties. The only difference is that the Muslim parties must get a faraid certificate from the Shari’ah court before getting the final order from the civil court to administer the inheritance. The civil court hears and decides two categories of inheritance cases: movable and immovable properties worth less than RM2 million and movable and immovable properties worth more than RM2 million (Probate & Administration (Large Estate) Application Procedure 2020). The court can also

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grant two types of letters of representation: Grant of Probate for testate cases and Letter of Administration for intestate cases (Drs. Nasrul 2017).

The Estate Distribution Unit The Estate Distribution Unit is a government agency established under the Department of Director-General of Lands and Mines or the Land Office. It manages immovable properties worth less than RM 2 million. The fact that it operates under the Land Office, and every district has its own land office; the parties can directly refer their cases to the particular district where the land or building is situated (Small Estate Application Procedure, 2020). Furthermore, as it is a government agency, the unit does not charge a high fee in managing the distribution and parties are not required to get a faraid certificate from the Shari’ah court as the land administrator is capable of devolving the properties according to the Islamic inheritance rules (Drs. Nasrul 2017). Section 8 (1) of the Small Estates (Distribution) Act 1955 specifies that it only manages the distribution of intestate property: (1) Where any person has died intestate leaving a small estate, any person claiming to be interested in the estate as a beneficiary, or a creditor, or a purchaser, or in the circumstances mentioned in subsection 18(1), the penghulu or a Settlement Officer of the district or of the locality in which any land of which the deceased was the proprietor is situated, or the *Corporation, may lodge with the Land Administrator at any district wherever the immovable property comprised in the estate is situated a petition, in the prescribed form, for the distribution of the estate.

Amanah Raya Berhad Amanah Raya Berhad is a government-owned company established under the Public Trust Corporation Act 1995. It manages movable or potable assets of the deceased, including savings in banks, shares, vehicles, and insurance worth less than RM600,000 (Amanah Raya 2020). Section 17 (1) (a) of the Public Trust Corporation Act 1955 states: (1) Whenever any person dies, whether testate or intestate, leaving movable property in Malaysia and the Corporation is satisfied after such investigation as it deems sufficient (a) that the total value of the property without deduction for debts, but not including the value of any property which the deceased possessed or was entitled to as trustee and not beneficially, does not exceed six hundred thousand ringgit; and

The Amanah Raya Berhad is authorized to issue two administrative orders; first, Letter of Administration for property less than RM600,000 (section 17(1) of the Public Trust Corporation Act 1955) and second, Letter of Direction for property less than RM50,000 (section 17(2) of the Public Trust Corporation Act 1955). The distribution accords to Islamic inheritance rules for distribution among Muslim parties

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and accords to the Distribution Act 1958 for the non-Muslim parties (Amanah Raya 2020). Even though the Estate Distribution Unit and Amanah Raya Berhad may, to a certain extent, simplify the process of administration of an estate, any disputes will still have to be referred to the High Court. The ordinary procedures will be followed, including getting a faraid certificate from the Shari’ah court.

Jurisdiction of Shari’ah Court in Inheritance Cases Every Muslim must make sure that aspects relating to the validity of the will, identification of heirs, and the calculation of each portion are ascertained according to the stipulated Islamic principles (Drs. Nasrul 2017). This is where the Shari’ah court plays its role. While the High Court grants probate or the letter of administration, the Shari’ah court issues the faraid certificate. As mentioned in previous chapters, the jurisdiction of the Shari’ah court is detailed in the State List of the Federal Constitution. With regards to inheritance, the State List, Ninth Schedule of the Federal Constitution provides: (…Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate…the determination of matters of Islamic law and doctrine and Malay custom)

The position is adopted into the administration of Islamic law legislations. Section 46 of the Administration of Islamic Law (Federal Territories) Act 1993 confers the jurisdiction of the Shari’ah High Court to include: (viii) division and inheritance of testate or intestate property (ix) the determination of the persons entitled to share in the estate of a deceased Muslim or of the shares to which such persons are respectively entitled

Section 50 further stipulates: (If in the course of any proceedings relating to the administration or distribution of the estate of a deceased Muslim, any court or authority, other than the Shari’ah High Court or a Shari’ah Subordinate Court, is under the duty to determine the persons entitled to share in the estate, or the shares to which such persons are respectively entitled, the Shari’ah Court may, on the request of such court or authority, or on the application of any person claiming to be a beneficiary or his representative and on payment by him of the prescribed fee, certify the facts found by it and its opinion as to the persons who are entitled to share in the estate and as to the shares to which they are respectively entitled.)

Section 50 gives the Shari’ah court the authority to issue faraid certificates if requested to do so by any court, including the civil courts or any person claiming to be a beneficiary of the deceased. Another vital legislation that elaborates on inheritance among the Muslims is the Muslim Wills Enactment. The legislation, however, is currently only enforceable in three states in Malaysia, namely Selangor (Muslim Wills (Selangor) Enactment 1999), Melaka (Muslim Wills (Melaka) Enactment 2005), and Negeri Sembilan

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(Muslim Wills (Negeri Sembilan) Enactment 2004). The legislation details on the execution, validation, revocation of wills, and issues relating to beneficiaries and heirs, and their portions. The legislation could have been a useful reference for significant problems in inheritance cases among the Muslims, and the states should have adopted the enactment. In the Federal Territories, an attempt to pass a bill based on the legislation was made in 2001, but it was unsuccessful (Mohd Noor 2018). A careful analysis of the above laws shows that the power of the Shari’ah court, in inheritance cases, is not only limited to the issuing of faraid certificates. Rather, the Shari’ah court can also determine the crucial questions in administering inheritance among the Muslims, i.e., the validity of the will, the validity of the property to be divided, the heirs who are entitled and their portions, and other related issues. While it is true that the High Court has the final say in inheritance cases, the Shari’ah court, nevertheless, has exclusive power to decide on religious-based issues, which are more vital in the inheritance disputes among the Muslims.

Analysis of Decided Cases Although the law is clear as to the jurisdiction of the Shari’ah court in inheritance cases, there have been several cases where the jurisdictional issues were raised. In most cases, the parties questioned the jurisdiction of the civil court to administer inheritance among Muslim parties as inheritance is a personal matter of the Muslims, and, thus, it falls under the jurisdiction of the Shari’ah court. In Jumaaton Awang & Anor v Raja Hizaruddin Nong Chik [2004] 1 CLJ (SYA) 100, the appellants sought from the Appeal Court to uphold the decision of the Shari’ah High Court on the administration of units of shares that belonged to the deceased. The Appeal Court held that even though the State List of the Federal Constitution provides that the Shari’ah Court shall have jurisdiction over “Islamic law relating succession, testate and intestate”, such jurisdiction does not include the administration of inheritance. The jurisdiction relating to the administration of inheritance includes the power to issue probate and letter of administration. This power is placed under the Federal List in the Federal Constitution and, hence, it falls under the jurisdiction of the civil court. The Appeal Court further observed that this particular jurisdiction specified for civil court includes administering inheritance matters among the Muslims and non-Muslims under the Probate and Administration Act 1959. In determining the extent of jurisdiction of the Shari’ah court, the decided cases show that when it is clear that the issue in a particular case relates to determining the validity of inheritance matters according to the Shari’ah, the power to decide such issue falls under the jurisdiction of the Shari’ah court. In Majlis Ugama Islam Pulau Pinang v Shaikh Zolkaffily Shaik Natar & Ors [2003] 3 CLJ 289, the Federal Court used the “Subject Matter” approach rather than the “Remedy Prayed For” approach in determining which court has the jurisdiction to decide the issue in question. In this case, since the issue related to the validity of wills and inheritance according to

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Islamic law, the Shari’ah court had jurisdiction over the matter. The same approach was used in Latifah Mat Zin v Rosmawati Sharibun & Anor [2006] 2 SYA 20, where the Appeal Court considered the subject matter of the case in determining which court has the jurisdiction to decide on the matter. In this particular case, as the subject matter in issue related to determining  whether an amount of money in the deceased’s bank account was a gift inter-vivos (hibah), the case should rightly fall under the jurisdiction of the Shari’ah court. The approach was later acknowledged and followed by the High Court in the case of Azim Tan Sri Abdul Aziz v Aziah Tan Sri Abdul Aziz [2009] 6 CLJ 272.

 hallenges Faced by the Shari’ah Courts when Deciding C Inheritance Matters The issue of unclaimed inheritance and land titles still belonging to the deceased even after years of their death is a serious problem (Noordin 2012). There has also been an increase in frozen assets due to unclaimed inheritance properties. Statistics from the Amanah Raya Berhad estimated the value of RM38 billion in unclaimed lands and properties, RM1.5 billion with the registrar of unclaimed monies, RM70 billion of unclaimed Employees Provident Fund (EPF), and about a million of land titles still registered under the names of the deceased (Shafie 2017). Although some of these issues are attributed to the inefficiency of the Shari’ah courts, it needs to be noted that the issues could be due to the inefficiency in the laws governing Islamic inheritance. This goes back to the issue of placing the jurisdiction of probate and administration of Muslim inheritance under the civil courts as described throughout the chapter. The fact that the jurisdiction of the Shari’ah court excludes the administration of inheritance matter has created limitations in the jurisdiction of the court. According to Noordin, the limited jurisdiction of the Shari’ah court made it difficult to establish a Shari’ah-compliant system that can enable a proper practice of faraid in the country (Noordin 2013). A proper practice should include the power to administer through issuance of orders that bind the banks, land offices, inter-state agencies, and foreign agencies. Nevertheless, the current jurisdiction of the Shari’ah court does not include this power. The constraints in the jurisdiction of the Shari’ah court further affect the execution of the law. Practically, in handling inheritance matters, one of the most challenging phases is the investigation phase. One of the authors’ personal experience as a Shari’ah Court judge finds that the issue is mainly observed in inheritance involving layers of heirs where the applicants are supposed to submit all relevant documents relating to not only the property and its history of transfers, but also the relatives who are associated with the deceased so the court could ascertain their status. There have been many cases where the family came to the Shari’ah court and explained about their family members and properties, but they failed to submit any relevant documents. As a result, the Shari’ah court is required to summon certain

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documents from other agencies, and with the current limitations in the law, the process can be quite problematic. The issue can be worse in cases involving heirs living in other countries and family members who refuse to cooperate. Another prevailing problem observed in handling inheritance matters is the confusion among the parties regarding which issue falls under the jurisdiction of which court. As analysed in the cases above, it is accepted that every issue that relates to determining the Shari’ah issues should fall under the purview of the Shari’ah court. Nevertheless, analysing the problem from the perspective of a sitting judge, the issue is not easily determined at the early stage of the case. This goes back to the inter-twinning jurisdiction between civil and Shari’ah courts. To better understand the point, it is best to illustrate it based on an actual situation of an unreported case. The original case involved an application before the civil court to liquidate certain property of which the applicant claimed to be the owner. While the original case was ongoing, another claimed that the property belonged to the deceased, who was the mother of the applicant and that the property should be subject to inheritance. Another claimed that the property is a gift inter-vivos (hibah), and yet another claimed that the property was a debt of the deceased. The case was after that referred to the Shari’ah court for a proper ruling on the status of the property itself. The original case before the civil court was put on hold pending the determination of the issue before the Shari’ah court. This case illustrates not only the perplexion in the law and procedure, but it also shows the confusion on the part of the public with regards to inheritance matters.

 tandardising the Handling of Inheritance Matters by S the Shari’ah Courts The challenges described do not go unnoticed by the Shari’ah court and the Shari’ah Judiciary Department of Malaysia that operates at the federal level. One of the efforts taken to counter the challenges is establishing an electronic system called e-faraid (Strategic Planning of the Shari’ah Judiciary Department of State of Selangor 2015–2020). The electronic system aims at standardising the handing of inheritance matters in all Shari’ah courts. Besides that, it is supposed to ease the burden of a Syarie judge in investigating and documenting the cases and calculating the portions. As discussed in the early part of the chapter, it is submitted that there is a dire need to have a standardised legislation on Muslim wills. Currently, such legislation is only available in three states. Other states should also adopt such legislation. The reason why other states have not yet adopted it appears to be the disagreement on a few provisions in it. One such provision is relating to the concept of compulsory inheritance (wasiah wajibah). Section 27 of the Muslim Wills (Selangor) Enactment 1999 guarantees the right of grandchildren to get an inheritance from their grandparents, together with the other  entitled legal heirs, mainly the children of the

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deceased, subject to certain conditions. This is based on a fatwa (ruling) by the Mufti of the Selangor State Government on 6 January 2011 (Selangor Government Gazette). The fatwa aims at protecting the rights of the grandchildren, especially those who live with their grandparents. However, the fatwa has been questioned by other states as the position is also arguable according to the rules of Islamic inheritance. The matter remains unresolved. To further standardise the handling of inheritance matters, practice directions are issued from the Shari’ah Judiciary Department of Malaysia and later distributed to the states’ Shari’ah courts. These practice directions seek to standardise procedures and documents required when filing applications (Practice Direction No. 7, 2011), the format of faraid orders and brief judgment of faraid cases (Practice Direction No. 9, 2016). Furthermore, in ensuring more effective handling of inheritance cases in the Shari’ah court, Shari’ah judges are encouraged to make use of the inquisitorial system (Practice Direction No. 7, 2019). This, however, is not limited to only inheritance cases. Instead, the Shari’ah courts are also encouraged to use it when handling other civil cases. Although some opine that the system goes against the trial system of the common law, it is in line with Islamic law. Apart from the above, one crucial ongoing attempt in inheritance matters is to expand the jurisdiction of the Shari’ah courts. In doing so, two approaches are seen as viable. One of them is through engagement with the relevant agencies that administer properties. This is particularly learning from the experience of the State of Sabah. Arinen, who is a Sabah High Shari’ah Court judge, wrote that the Shari’ah court in Sabah currently is not limited to the jurisdiction relating to Shari’ah issues alone, but it has as well taken the role of administrating the matters. This is done through agreement between the Sabah Shari'ah court and the local agencies involved in administrating properties, including the land offices (Arinen 2015). Another approach is by amending the laws, a solution which, though viable, can be challenging. The matter is currently under discussion at the federal level.

Conclusion Based on the above discussion, the issue with the administration of Islamic inheritance warrants an immediate resolution. The ongoing discussion about the subject should be further encouraged, mainly by the Federal Government. The Shari’ah institutions in the country, including the Shari’ah courts and the Shari’ah Judiciary Department of Malaysia, should be assisted in carrying out such efforts. Nevertheless, another important party that plays a big role in inheritance cases is  the society. Many innovations that have been introduced are the result of peoples’ demands that improvements be made to make the processes more accessible and effective. Electronic applications such as e-faraid calculator introduced by the states’ Islamic councils are good examples. No matter what the options are, society should be well-­ informed of their choice and need to be aware of their duty to their dependants and be prepared.

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References Amanah Raya. (2020). Estate administration. https://www.amanahraya.my/estate-­administration/ Arinen, A. (2015). Pentadbiran Undang-undang Harta Pusaka di Mahkamah Shari’ah Negeri Sabah. Paper presented at a meeting of federal government agencies on 19 March 2015. Drs Nasrul, M.  A., Mohd Salim, W.  N., Md Said, M.  H., & Abdul Manap, S.  N. (2017). Administration of estates in Malaysia: Jurisdiction and misconception. Universiti Utara Malaysia Journal of Legal Study, 8, 183–196. Halim, A. H. (2015). Islamic law of succession, teaching materials, Ahmad Ibrahim Kulliyyah of Laws. International Islamic University Malaysia (IIUM) (not published) Mohd Noor, N. A., Ismail, C. Z., Mohd Noor, N. A., & Mahamood, S. M. (2018). Harta Wasiat Orang Islam: Satu Ulasan Ringkas Dari Perspektif Perundangan. E-Academia Special Issue TeMIC 39–46. Muhammad, B.  J. (2020). The Islamic law of inheritance: Introduction and theories, teaching materials for online class. Universiti Brunei Darussalam. (not published) Noordin, N., Shuib, A., Zainol, M.  S., & Mohamed Adil, M.  A. (2012). Review on issues and challenges in Islamic inheritance distribution in Malaysia. OIDA International Journal of Sustainable Development, 3(12), 27–38. Noordin, N., Shuib, A., Zainol, M. S., & Mohamed Adil, M. A. (2013). Delay in Islamic inheritance claim – An ignorance issue. Procedia – Social and Behavioral Sciences, 90, 504–512. Practice Direction No. 7 Year 2011. http://www.esyariah.gov.my/images/esyariah/Document/ ArahanAmalan/2011/ArahanAmalan072011.pdf Practice Direction No. 7 Year 2019. https://www.mahsyariahmelaka.gov.my/msnmfiles/arahan_ amalan/2019/072019.pdf Practice Direction No. 9 Year 2016. https://www.mahsyariahmelaka.gov.my/msnmfiles/arahan_ amalan/2016/092016.pdf Probate & Administration (Large Estate) Application Procedure. (2020). https://www.malaysia. gov.my/portal/content/30337 Selangor Government Gazette. https://www.muftiselangor.gov.my/images/pdf/koleksi_ fatwa/2011/PewartaanFatwa20115.pdf Shafie, F., Wan Yusoff, W. Z., & Al-Edrus, S. M. D. (2017). A framework study of Islamic real estate management for property inheritance in Malaysia. Journal of Engineering and Applied Sciences, 12(7), 1710–1714. Strategic Planning of the Shari’ah Judiciary Department of State of Selangor 2015-2020(2020), http://www.jakess.gov.my/pdffile/pelan%20strategik/PELAN%20STRATEGIK%20 JABATAN%20KEHAKIMAN%20SYARIAH%20NEGERI%20SELANGOR%20 2015-­2020%20V.4.pdf

Chapter 7

Islamic Commercial Law Noor Suhaida Kasri

Introduction In almost four decades, Malaysia has gone through a remarkable journey in developing key institutional, legal, and Shari’ah systems to accommodate and facilitate the growth of Islamic banking, which is one of its key economic sectors. As it is ‘Islamic’ banking, its operations and activities must be in line with the principles of Islamic commercial law (muamalat). Adherence to Islamic principles is what distinguishes it from conventional banking. It means that all of its transactions, contracts, and related activities must be free from the elements of usury (riba), gambling (maysir), and excessive uncertainty (gharar). The dealings must also be fair and just to the contractual parties. They must not bear any detrimental impact on society and the  environment in line with the objectives of Islamic law (maqasid Shari’ah). Meanwhile, endowment (wakaf) and tithe (zakat) are two other significant social sectors that have also played an important role in aiding the government in scaling down poverty in Malaysia. They, too, have gone through institutional and legal reformation, though not at a scale as experienced by the Islamic banking sector. In the banking sector, Malaysia recognizes a dual banking system where conventional banking and Islamic banking operate side by side under the supervision of the central bank, Bank Negara Malaysia (BNM). Being the regulator of the banking industry, BNM ensures that the financial stability of the dual banking system is effectively maintained and efficiently managed (Bank Negara Malaysia 2020). The strength and stability of Islamic finance were proven during the 2008/2009 global financial crisis. This has instilled more confidence in its financial institutions and markets, thus attracting conventional financial regulators to engage and adopt the Islamic financial system. N. S. Kasri (*) Head, Islamic Capital Market Unit, ISRA, ISRA@INCEIF, Lorong Universiti A, Kuala Lumpur, Malaysia e-mail: [email protected] © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4_7

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In the journey of developing Islamic banking in Malaysia, the government, regulators, and market have undergone a tremendous and rigorous learning process. Through this process, key building blocks have been developed. For example, the position of the Malaysian Central Bank Shari’ah Advisory Council (SAC) as the apex Shari’ah advisory body has been elevated, and their Shari’ah resolutions have been empowered through the Central Bank of Malaysia Act 2009 (CBMA). Also, the Islamic Financial Services Act 2013 (IFSA) was passed. The act regulates and governs the Islamic financial market with a robust statutory requirement of Shari’ah governance and compliance. Notwithstanding these building blocks, the Islamic banking industry is still faced with issues and challenges in its implementation, such as continuous litigation on the Shari’ah-compliance of its financing contracts and products. The resemblance of Islamic banking products, particularly its economic effect, with its conventional counterpart, has been a classic contention in the debate against its Shari’ah compliance. The statutory recognition of the SAC under the CBMA has not prevented legal challenges over its legitimacy, particularly on the binding nature of its Shari’ah resolutions on the court and arbitrators. While Shari’ah issues arising from Islamic banking disputes are to be ascertained by the SAC, the judiciary’s inconsistent approach creates ambiance for uncertainties in the Islamic banking industry. Unlike Islamic banking that falls under the federal jurisdiction, wakaf and zakat are under state administration. Thirteen states in Malaysia regulate wakaf and zakat under each state’s independent legal framework monitored by the respective State’s Religious Council (SRC). The exceptions are three federal territories that are governed by federal laws. Due to this melange of administration, the development of wakaf and zakat, thus, hinges upon the capability and efficiency of its supervisor and manager. The sluggish development of wakaf and inefficient management of zakat in some states has adversely affected the socio-economic potential that these two institutions could deliver, particularly aiding the government to meet its Shared Prosperity Vision 2030.1 This chapter examines issues and challenges in the implementation of Islamic commercial law in Malaysia, focussing on three distinct areas, namely Islamic banking, wakaf, and zakat. The chapter is segmented into five sections. Section “Introduction”  initiates and sets the context of the discussion. Section “Shari’ah Governance and Compliance of Islamic Banks” illuminates the development of the legal infrastructure governing Shari’ah governance and compliance of Islamic banks. Sections “Implementation Issues and Challenges” and “Wakaf and Zakat: Implementation Issues and Challenges” examine the implementation issues and challenges affecting Islamic banks, waqf, and zakat. Section “Conclusion” brings to an end the discussion on the chapter.

1  Shared Prosperity Vision 2030 is a commitment to making Malaysia a nation that achieves sustainable growth and fair and equitable distribution across income groups, ethnicities, regions, and supply chains. Its primary aim is to provide a decent standard of living to all Malaysians by 2030 (Ministry of Economic Affairs 2019).

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Shari’ah Governance and Compliance of Islamic Banks Malaysia founded its first Islamic bank in 1983 with the establishment of Bank Islam Malaysia Berhad (BIMB) under the Islamic Banking Act 1983. A year later, with the enactment of the Takaful Act 1984, the first takaful operator, Syarikat Takaful Malaysia Berhad, was set up. As of January 2020, Malaysia had 16 Islamic banks and 15 Takaful operators attending to their local and international customers. To operate, these establishments must comply with Shari’ah (Islamic law). The importance and requirement for Shari’ah compliance are made crystal clear in section 28(1) of IFSA. It stipulates that an Islamic bank is obliged to ensure its aims, operations, business, affairs, and activities comply with Shari’ah at all times. In as far as IFSA is concerned, a bank shall be deemed Shari’ah compliant if the rulings of the SAC are complied with. Because of its importance, BNM has developed Shari’ah governance structures that promote and strengthen Shari’ah compliance at both industry and institutional levels. The SAC governs Shari’ah compliance at the industry level, while the Shari’ah Committee (SC) of the respective Islamic bank governs Shari’ah compliance at the bank level. The following describes the mandate and the role of these two important Shari’ah governance structures.

Shari’ah Advisory Council of Bank Negara Malaysia The SAC was established in May 1997 as the highest Shariah authority on Islamic banking and takaful in Malaysia. The roles and functions of the SAC were further reinforced in sections 56 and 57 of the CBMA, both of which will be discussed in the later part of the chapter. The SAC acts as the authority for the ascertainment of Islamic law for Islamic banking and takaful activities that fall under the supervision and regulation of BNM. The Shari’ah rulings by the SAC serve as the main reference for Islamic banks and takaful operators to ensure end-to-end Shari’ah compliance in the structure and implementation of their products and services. This best practice enables the orderly development of Islamic banking and the takaful system. It mitigates variations, conflicting Shari’ah interpretations, and gaps in the market practice that may undermine public confidence. The CBMA also requires a court or arbitrator to refer to the SAC any questions on Shari’ah whose opinion shall thereafter be binding (Bank Negara Malaysia 2018).

Shari’ah Committee The BIMB’s SC was the first SC established in Malaysia. The SC of BIMB played a pivotal role before the setting up of the centralised SAC. During this period, the SC of BIMB became the reference point for the BNM. With the establishment of

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Islamic windows in 1993, SCs started to proliferate where each Islamic window began to establish its own SC.  The same practice was then followed by Islamic banking subsidiaries from 2005 onwards. The governance of SCs is subjected to policies introduced by BNM.  Recently, BNM introduced its 2019 Shariah Governance Policy (SGP), replacing the 2010 Shariah Governance Framework (Bank Negara Malaysia 2019). The SGP emphasizes the duty of the SC in advising the management and the board on matters of Shari’ah that may affect the business, affairs, practices, and activities of the Islamic bank. While the SAC typically deliberates on industry-wide implications of applying a particular Shari’ah principle, the SC focuses on Shari’ah issues specific to the Islamic bank. These include those relating to the development of bespoke products and services, as well as business operations. In the event of conflicting rulings between the SAC and the SC, the rulings of the SAC prevail.2 Besides establishing SCs, the SGP requires Islamic banks to set up designated control functions like Shari’ah risk management, Shari’ah review, and Shari’ah audit to minimize any occurrence of Shari’ah non-compliance (SNC) events. These functions are independent of the business lines and responsible for providing an objective assessment and assurance of the Islamic bank’s effectiveness in meeting Shari’ah requirements and managing SNC risk. This whole Shari’ah governance framework has set the required ambiance for Shari’ah compliance risk culture within Islamic banks (Bank Negara Malaysia 2018a). Diagram 7.1 describes the Shari’ah governance structure that has strengthened and promoted Shari’ah compliance in the Islamic banking environment. Besides the SGP, BNM has also issued Shariah Standards and Operational Requirements. As of 2019, fourteen Shariah Standards and Operational Requirements have been issued. The issuance of these policy documents guides Islamic banks in enhancing the appropriate and effective internal policies and processes required in

Diagram 7.1  Shari’ah governance and compliance structure and framework in Malaysia Source: Bank Negara Malaysia (2018b)  Section 58 of the CBMA.

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managing SNC risks in their business undertakings. They also helped reduce legal and operational risks associated with people and systems in the operationalisation and innovation of Islamic banking products and services (Bank Negara Malaysia 2018a).

Implementation Issues and Challenges As described earlier, Shari’ah is raison d’etre of Islamic banking. Ironically, in Islamic banking legal disputes, Shari’ah courts do not have the jurisdiction to hear and adjudicate Islamic banking matters. They are heard by the civil courts. The jurisdiction of the civil and Shari’ah court is laid out in the Malaysian Federal Constitution. The Federal List of the Federal Constitution listed out matters that fall under the jurisdiction of the civil court. The list includes matters pertaining to contract, property, and mercantile law (under item 4(e)); finance (item 7), banking (item 7(e)) as well as ascertainment of Islamic law and other personal laws for the purposes of federal law (item 4(k)). Though the list is ambiguous on matters pertaining to Islamic banking and Islamic finance, the ambiguity has been removed by the civil court decisions in several cases. For instance, in the case of Latifah Mat Zin v Rosmawati Sharibun & Anor [2007] 5 CLJ 253, the Federal Court expounded item 4(k) of the Federal Constitution as follows: “Item 4(k) provides: “Ascertainment of Islamic Law and other personal laws for purposes of federal law” is a federal matter. A good example is in the area of Islamic banking, Islamic finance and takaful. Banking, finance and insurance are matters enumerated in the federal list, items 7 and 8 respectively. The ascertainment whether a particular product of banking, finance and insurance (or takaful) is Shariah-compliant or not falls within item 4(k) and is a federal matter. For this purpose, the Parliament has established the Shari’ah Advisory Council – see s. 16B of the Central Bank of Malaysia Act 1958 (Act 519)” (p. 272).

On the other hand, the civil court judges are educated and trained in common law and not in Shari’ah. Their ability to decipher Shari’ah issues that emerged from the legal proceedings would inevitably be hampered by their qualification and capability. The issue of the competency of civil court judges in determining Shari’ah issues in Islamic banking was addressed in a landmark Court of Appeal case of Bank Islamic Malaysia Berhad v Lim Kok Hoe & Anor and other appeals [2009] 6 MLJ 839. Raus Sharif CJA, delivered the judgment of the court and said: “In this respect, it is our view that judges in civil court should not take upon themselves to declare whether a matter is in accordance to the religion of Islam or otherwise…that in the civil court not every presiding judge is a Muslim, and even if so, may not be sufficiently equipped to deal with matters, which ulama’ take years to comprehend. Thus whether the bank business is in accordance with the religion of Islam, it needs consideration by eminent jurists who are properly qualified in the field of Islamic jurisprudence. …The court, will have to assume that the Shari’ah advisory body of the individual bank and now the Shari’ah Advisory Council under the aegis of Bank Negara Malaysia, would have discharged their statutory duty to ensure that the operation of Islamic banks are within the ambit of the religion of Islam” (p. 853).

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This position was further reinforced in the later High Court case of Bank Kerjasama Rakyat Malaysia Bhd v Brampton Holdings Sdn Bhd [2015] 4 CLJ 636, where Wong Kian Kheong JC said: “Based on Lim Kok Hoe as well as the above provisions in CBMA (Central Bank Malaysia Act), a court cannot simply decide that an Islamic financing facility is not Shariah compliant. The court shall be guided by the advice and ruling of the SAC. Accordingly, the defendant cannot merely allege that the Islamic Financing Facility is illegal and unenforceable in this case. The defendant shall have obtained advice or ruling from the SAC as to whether the Islamic Financing Facility in this case has complied with Shariah or otherwise” (p. 637).

Despite the recognition of the status and mandate of the SAC by the judiciary as shown in the judgments above, the legitimacy of the SAC kept being challenged on numerous occasions, particularly after the 2009 CBMA amendment, which accorded the ruling of the SAC to be binding on the courts and arbitrators.

The Legitimacy of the Shari’ah Advisory Council The legitimacy of the SAC and its rulings is based on two important sections in the CBMA. Section 56 of the CBMA states: “(1) Where in any proceedings relating to Islamic financial business before any court or arbitrator any question arises concerning a Shariah matter, the court or the arbitrator, as the case may be, shall:

(a) take into consideration any published rulings of the Shariah Advisory Council; or (b) refer such question to the Shariah Advisory Council for its ruling.”

While Section 57 of the CBMA provides: “Any ruling made by the Shariah Advisory Council pursuant to a reference made under this Part shall be binding on the Islamic financial institutions under section 55 and court or arbitrator making a reference under section 56.”

The word ‘shall’ in the above sections affirmed the position of the SAC as the reference point for the court and arbitrator when dealing with Shari’ah issues in Islamic banking proceedings. They also affirmed the legal status of the Shari’ah rulings issued by the SAC as binding upon both the courts and arbitrators (Mohamad and Trakic 2012). The constitutionality of sections 56 and 57 and, thereby the SAC, has been upheld by the Court of Appeal in Bank Islam Malaysia Berhad v Lim Kok Hoe & Anor and other appeals [2009] 6 MLJ 839 and Tan Sri Abdul Khalid Ibrahim v Bank Islam (M) Bhd [2013] 3 MLJ 269. Despite their judgments upholding the constitutionality of these sections, the challenge continued. In 2019, the constitutionality of sections 56 and 57 was questioned again, but this time before the Federal Court in the case of JRI Resources Sdn Bhd vs Kuwait Finance House (Malaysia) Berhad [2019] 3 MLJ 561. Four issues were raised before the court. The first issue relates to the context of ‘ascertainment of Islamic law’ as prescribed by item 4(k) of the Federal List of the Federal Constitution as this forms the basis for the issuance of the SAC rulings for matters on Islamic financial

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business. On this issue, the Federal Court accepted the argument of the BNM (one of the interveners in this case) where the word ‘ruling’ that is mentioned in section 57 of the CBMA, i.e., “Any ruling made by the Shariah Advisory Council” is not for ‘determination’ of the dispute between the parties. Rather, the SAC’s ‘ruling’ only ‘ascertains’ the applicable Islamic law for Islamic financial business. It does not conclude or settle the dispute between the parties, nor does it determine the liability of the parties. The determination of the customer’s liability under any banking facilities lies with the presiding judge and not the SAC. The second issue relates to the judicial function of the SAC. The court held that the SAC does not have any of the judiciary characteristics, nor sections 56 and 57 of the CBMA confer judicial power onto the SAC. Therefore, the SAC cannot be said to be usurping the judicial power of the court. Instead, the ruling made by the SAC is solely confined to the Shari’ah issues. This is because the presiding judge, who referred the matter to the SAC, would still have to exercise his/her judicial power and decide the case based on the evidence submitted before the court. The third issue relates to the binding effect of the SAC ruling. The court held that the SAC’s ruling was not an outcome of the exercise of judicial power. Instead, the SAC merely ascertained the Islamic law for Islamic banking, and it is for the court to apply the ascertained Islamic law to the facts of the case. The ascertained Islamic law does not settle the dispute between the parties before the court. The SAC did not determine or pronounce an  authoritative decision as to the parties’  rights and/or liabilities before the court. It did not convert the court into a mere rubber stamp. Finally, the fourth issue is regarding the use of expert opinion. The court found that the civil courts are not in a position to appreciate and determine the divergence of opinions among Islamic law experts and to decide based on Shari’ah principles. It further envisaged that if the parties were to be allowed to lead expert evidence, it would fall upon the civil courts to ascertain the applicable Islamic law for Islamic banking and apply the ascertained Islamic laws to the facts of the case. This can be further complicated with each expert giving his/her opinion based on different schools of jurisprudence. Being the apex court in Malaysia, the decision of the Federal Court, in this case, has confirmed the constitutionality of the SAC and its rulings. In fact, the SAC incorporated and contextualized its mandate in its 2012 Manual for Reference by the Court and Arbitrator to the SAC. This manual demonstrates the process to be applied by the judiciary and arbitrators when referring Shari’ah issues to the SAC as required by sections 56 and 57 of the CBMA. It explicitly highlights that only questions concerning Shari’ah matters arising from the court proceeding may be referred to the SAC. The term “question concerning Shariah matters” is defined in paragraph 6 of the manual as: “A Shariah question on a matter relating to Islamic finance involving matters that have not been determined by the SAC. Such questions include, but are not limited to, aspects of the Islamic finance business such as the structure of the business, products or services, implementation or operation, terms and conditions or documentation.”

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The manual also emphasized that the SAC is only to ascertain Shari’ah rulings regarding the Shari’ah issue forwarded. It has no jurisdiction to make findings on facts or apply a particular ruling on the facts of the case and decide as those are within the jurisdiction of the court and arbitrator (Mohamad and Trakic 2012).

The Causes and Implications of Shari’ah Non-compliance Mohd Zawawi Saleh FCJ, delivering the decision of the majority in JRI Resources Sdn Bhd vs Kuwait Finance House (Malaysia) Berhad [2019] 3 MLJ 561, has succinctly elaborated on the implication of breaching Shari’ah compliance. He said: “Failing to fulfil Shariah compliance requirements would generate a risk called ‘the Shariah non-compliance risk’. This risk is unique to the Islamic banking and finance industry, and is particularly significant to it for the following reasons: (a) it generally impacts the industry’s reputation as well as the reputation of the financial institutions and thus, it may deteriorate reliance by depositors, investors, customers and stakeholders in the long term; (b) contracts containing Shariah repugnant elements which had already been executed are liable to be deemed null and void, which would in turn render the profits derived thereof non-halal. As a result the tainted income arising from such transactions must be channelled to charity and cannot be kept by the bank; and (c) it may involve some legal costs as potential suits may lead to payment of damages. Therefore, the existence of non-shariah compliant element would not only affect the confidence of the public in Islamic banking and finance industry, but it might also expose an Islamic bank to losses and fiduciary and reputational risks...However, compliance with Shariah will be confidently achieved only by having a proper Shariah governance framework. This is because Shariah governance is meant to ensure compliance by Islamic banking and finance industry with the rules of Shariah.” (pp. 588)

The impact of SNC is indeed adverse and massive. One may ask: what causes SNC in Islamic banks? BNM, in its Financial Stability and Payment System Report 2018, revealed four key factors that contribute to SNC: (i) Lack of adequate system in place or technological limitations. For example, having ownership of the asset by the seller before selling it to the buyer as well as real execution of the transfer of asset ownership from the seller to the buyer is vital in Shari’ah. Hence, the system must be able to identify the ownership and transfer of assets prior and post-transaction. However, some of the systems employed by Islamic banks are structurally designed for conventional banking and, hence, they are not equipped to cater for intricate requirements. (ii) Lack of competency, knowledge and/or training among Islamic bankers on matters pertaining to Shariah vis-à-vis Islamic banking. For example, concluding an Islamic financing contract without any evidence of acceptance by the customer.

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(iii) Mismatch between internal policies and execution process which led to inconsistency in the implementation as prescribed in the guidelines or manual or the agreed contractual terms. For example, the execution of the tripartite sale transactions (tawarruq) not in accordance with the required sequence. (iv) External events which are outside the control of Islamic banks. For example, changes in the classification of Shari’ah compliant equity that was used as the underlying asset of a transaction or underlying investment. The following Diagram B simplifies the key factors that contribute to the SNC risk in Islamic banking operations (Diagram 7.2). It is submitted that the SNC could also be contributed by the highly complex and sophisticated nature of Islamic banking products and services. This can be further aggravated by the lack of competency and ability of the respective Islamic bank’s SC members in understanding the products and services before issuing their Shari’ah rulings. Besides embedding robust Shari’ah governance structure within Islamic banks as deliberated earlier, in-depth and tailor-made training by Islamic banks to their SC members is vital to mitigate the SNC risk.

Litigating Shar’iah Non-Compliance SNC of Islamic banking products and services has been raised before the civil courts in Malaysia in several reported cases. These cases expose a number of issues ranging from the approach of the judiciary in dealing with SNC to the peculiarity of some Islamic financing arrangements.

Diagram 7.2  Factors contributing to Shari’ah non-compliance Source: Bank Negara Malaysia (2018b)

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Judicial Mindset Towards SNC Claims Before the enactment of the CBMA, the mindset of the judiciary towards Islamic banking matters can be seen from the decision of the Court of Appeal in the case of Bank Islamic Malaysia Berhad v Lim Kok Hoe & Anor and other appeals [2009] 6 MLJ 839, where Raus Sharif JCA observed: “The law applicable to BBA (Bai Bithaman Ajil) contract is no different from the law applicable to a loan given under the conventional banking. The law is the law of contract and the same principle should be applied in deciding these cases. Thus if the contract is not vitiated by any vitiating factor recognised (by) law such as fraud, coercion, undue influence, etc the court has a duty to defend, protect and uphold the sanctity of the contract entered into between the parties” (p. 852).

However, with the promulgation of the CBMA, the position has slightly changed. The Court of Appeal in the case of Maybank Islamic Bhd v M-10 Builders Sdn Bhd (M) & Anor [2015] 4 CLJ 526 stated that the court’s policy is to declare valid Islamic financing facility that has been approved by the SAC. This position is backed by the conviction that the defendant or defaulting customer who only raises the SNC at the recovery stage is only doing so to escape the contractual liability. The court further added that if it were to declare such an Islamic banking facility as invalid, this would have an adverse impact on the Islamic banking industry and may disrupt the economy. While this judicial mindset is logical and acceptable, the court in the case of Maybank Islamic did expound on matters that may warrant the attention of the court when it said: “The court’s decision would have been different if the customer after having entered into an Islamic facility agreement on the representation of the Bank that it is Shari’ah compliant, subsequently realises that it is more of a ‘riba’ based transaction, files an application under the Specific Relief Act 1950 to set aside the facility agreement and also repay all the facility sum advanced by the Bank. In such instance, it is likely that the court may set aside the facility agreement if it so warrants. There are so far no cases by the apex court where a genuine customer has made an application to set aside the facility agreement with the readiness and ability to return all the facilities’ sum received by the customer to the Bank” (p. 531).

Ta’widh (Compensation) Amount In Maybank Islamic Bhd v M-10 Builders Sdn Bhd (M) & Anor [2015] 4 CLJ 526, Maybank claimed against the customers a sum of RM4,599,016.37 pursuant to a Murabahah Overdraft Facility (cost-plus financing). On top of this, Maybank also claimed late payment charges by way of ta'widh (compensation) based on Interbank Islamic Money Market Rate on the principal sum of RM3,857,201.38. The customers refuted Maybank’s claim and argued that ta'widh was misconceived, unreasonable, and contrary to the principle of financing premised on Shari’ah. The Court of Appeal agreed to the excessiveness of the ta’widh sum as demanded by the bank and observed that not only was it unjust and inequitable but also unconscionable and

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oppressive. The court vehemently urged BNM to investigate the mater and, if necessary, impose severe penalties. The court also cautioned other banks not to abuse the process. Furthermore, the court reminded the BNM and other relevant regulatory agencies to protect customers from being abused by bankers and place an appropriate complaint mechanism to initiate investigations. It urged BNM to monitor the Islamic finance industry together with the assistance of the SAC. Despite such a view, the court did not dismiss or reduce the late payment charges because it found that the customer failed to introduce evidence to dispute the quantum and/or proffered arguments to say that the bank had not properly exercised its discretion in claiming the compensation/damages. The court’s rationale is also backed by the BNM’s Guidelines on Late Payment Charges for Islamic Banking Institutions issued in 2012. Under these guidelines, Islamic banks are allowed to be compensated by way of ta’widh for actual losses suffered due to the default of their customers. In determining the compensation rate, Islamic banks are required to observe the reference rate prescribed by the BNM. Based on the guidelines, in the case where the default payment exceeded the financing maturity date, the rate shall not be more than the prevailing daily overnight Islamic Interbank rate (IIMM)3 on the outstanding balance of the Islamic financing product (subject to the rebate (ibra’) if applicable). This case highlights an important issue concerning the quantum of late payment charges. Though the guideline prescribed the rate that Islamic banks can charge for late payment charges, the excessiveness of the quantum of late payment charges could potentially be challenged as a ruse for interest. Therefore, Islamic banks must be careful in their calculation. The amount claimed must be in line with the requirement of the guideline that says ‘ta’widh refers to the amount that may be compensated to the Islamic banks based on the actual loss incurred due to default’. Hence, ta’widh amount that is not based on actual loss can be considered as SNC. Bona Fide Customer In the case of Pripih Permata Sdn Bhd v Bank Mualamat Malaysia Bhd [2015] 6 CLJ 135, the customer entered into a financing facility based on the principle of bai bithaman ajil (deferred payment sale) (BBA) with Bank Muamalat Malaysia to finance the purchase of three units of shop lot/office (“the property”) from a developer. Later the property was left abandoned, and the developer went insolvent. The customer told the bank that it wanted to stop paying for the BBA facility until the property resumed its construction. However, the bank ordered the customer to continue paying the monthly instalments as usual and warned that legal action would be taken if the customer failed to comply with the bank’s instructions. Though 3  The IIMM rate, defined as the daily weighted average for the overnight rate of the Mudharabah interbank investment at the Islamic Interbank Money Market, has been agreed by the Shari’ah Advisory Council to be the reference rate for actual loss, post maturity. The IIMM rate can be sourced from the IIMM website http://iimm.bnm.gov.my/index.php (BNM 2012).

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the customer paid the entire outstanding amount, it did not obtain vacant possession of the property. The customer then sued the bank and argued that, among others, all instruments relevant to the BBA facility were void because of the existence of gharar all-fahish (excessive uncertainty). The High Court judge, Abdul Karim Jalil, held that the failure to transfer the vacant possession of the property as agreed in the Property Purchase Agreement (PPA) has made the contract void. The court relied on the principle of gharar al-fahish, which existed in this case as the subject matter of the contract was non-existent from the beginning until the end of the contract. Though the same has been informed to the bank, the bank chose to ignore it. Therefore, the contract was invalid as it affected the consent of the customer, which is an important element of a contract. The court also ordered the bank to refund the instalments paid by the customer and to pay damages to cover the customer’s cost of the rental and renovation. The bank’s  lackadaisical attitude seems to have caused the court to decide in favour of the customer and find that there was indeed an SNC in the Islamic financing product. This case is among the few cases where the courts have awarded judgment in favour of customers based on SNC. Having said that, it is observed that the court did not refer the matter to SAC on the Shari’ah issues raised. The peculiarity of Islamic Financing Arrangement The Court of Appeal and the High Court decisions in Low Chin Meng v. CIMB Islamic Bank Berhad [2015] 5 CLJ 324 and CIMB Islamic Bank Berhad v LCL Corporation Berhad & Anor [2014] MLJU 561 respectively are good examples of how peculiar Islamic financing arrangements can be at times. The brief facts of the case are as follows. The company, LCL Corporation Berhad, was granted a BBA financing facility by CIMB Islamic Bank. The BBA facility was guaranteed by Low Chin Meng who was the company’s major shareholder, managing director, and executive chairman. The company and the bank signed the Asset Purchase Agreement (APA) and the Asset Sale Agreement (ASA) as security for the BBA facility. A series of transactions were undertaken by the company, the bank, and the guarantor beginning with a letter of hibah (gift) executed by the guarantor purportedly conveying to the company by way of gift 16,000,000 shares. This is followed by APA where the bank purchased the said shares from the company. Thereafter, the bank sold the said shares back to the company. Finally, the company executed a letter of hibah, giving the shares back to the guarantor by way of gift. The shares were deposited with the bank as security by way of a memorandum of deposit. To increase the value of the shares from its actual value of RM9,440,000, the parties entered into three rounds of sale and purchase transactions involving the same shares. At the end of these recycled transactions, the price of the shares stood at RM64,350,000. The company, however, defaulted, and the bank exercised its rights under the memorandum of deposit to sell off the shares. The company and the guarantor resisted the

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suits and raised several issues. One of the issues was regarding the manner in which these transactions were carried out. They claimed that three-time recycling of the shares that made the price of the shares went up from RM9,440,000 to RM64,350,000 was a sham and, therefore, the APAs and the ASAs were invalid and unenforceable. The High Court judge, Dato Asmabi Bt Mohamad JC, was puzzled and concerned with the Shari’ah acceptability of these recycled transactions. This led her to refer the matter to the SAC for its ruling. The SAC was then asked on: (i) the validity of an asset being used repeatedly through hibah, APA, and ASA; (ii) whether a gift could be returned to the original owner by way of hibah and subsequently used as a security to secure the repayment of the facility worth four times the original value of the asset. The SAC answered in the affirmative to the first question by saying that the asset can be used repeatedly as long as the prerequisites of Shari’ah contracts are fulfilled, including the real transfer of the said asset from one party to the other party. Similarly, for the second question, the SAC ruled that it does not matter if the total value of the transactions exceeded the actual value of the asset used so long as the APA and the ASA are transacted on a price that is mutually agreed to by the contracting parties. The SAC also ruled that hibah was valid and that the asset of the third party, the guarantor’s shares, can be used to guarantee the indebtedness. Referring to the ruling of the SAC as well as the submissions and evidence tendered by the litigating parties, the High Court approved the validity of the BBA facility. This decision was further substantiated by the Court of Appeal [2015] 5 CLJ 324, which said: “We would observe that the contemporaneous execution of these agreements completed only in one day ending with the return of the shares to the appellant by the company by way of a voluntary gift were indeed genuine and bona fide transactions entered into in good faith for the purpose of securing corporate financing for the company…The transactions involving purported sale and purchase of the shares are genuine commercial transactions which could be justified on purely commercial grounds…The point of the transaction after examining the commercial context of the transactions was in substance and in essence an exercise in the Islamic financing procedure…” (p. 356).

The literal approach taken by the SAC in approving the above arrangement raises questions on the substance vis a vis the form of the Islamic finance arrangements. It is submitted that consideration must not only be given to the form and fulfilment of the ostensible principles of Shari’ah. Rather, the substance and essence or objective of the contract (muqtada aqad) are equally important. For example, whether entering into such sale and purchase contracts have any direct connection with the real economic value of the underlying asset, is a question worth considering to avoid unfavourable or negative perceptions towards Islamic banking.

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Inefficient Internal Processes As identified earlier, there are four factors that contributed to the SNC, and among them are inadequacy or limitation in the internal control system and processes. The following two cases showcase the inefficient handling of data and tracking of the transactions’ sequence by the respective Islamic banks. They also exposed the approach or the mindset of the judiciary in dealing with the SNC matters. The first case is Kuwait Finance House (Malaysia) Berhad v AC Property Development Sdn Bhd & Anor [2013] 1 LNS 1253. The customer, AC Property Development, was granted a murabahah tawarruq (to buy on credit and sell at spot value) (MTQ) facility by the bank, Kuwait Finance House. Under this facility, the bank would purchase the commodities on behalf of the customer on a deferred payment basis. If the customer does not wish to take delivery of the commodities, it can authorise the bank to sell the commodities to a party other than the original seller for cash. The money is then credited into the account of the customer. In this case, the bank purchased the commodities from Ableace Raakin Sdn Bhd. The bank thereafter sold the commodities to a third party, ASJ Capital, and the sale proceeds were then credited by the bank into the customer’s account. In this case, the customer argued that the commodities that were ‘allegedly’ purchased by the bank on behalf of the customer were never delivered, and the customer had no use for it either. This contradicted paragraph 52 of BNM’s Shariah Parameter Reference 1 – Murabahah, which states that the asset to be sold must be legally or beneficially owned by the Islamic bank before it can sell it to the customer. The customer also argued that it doubted that Ableace Raakin actually owned the commodities before their sale to the bank. This is seen in the reply given by the bank in cross-examination: “You state…that Ableace was the owner of the commodities before they were sold to KF (the bank). Do you have evidence that Ableace was the owner of these commodities? NO” (p. 1264).

Additionally, the customer argued that there is no evidence of payment from ASJ Capital to the bank that it would be credited to the customer’s account. This is evidenced in the response of the bank in cross-examination: “If so do you have evidence of KF’s payments to Ableace for the commodities purchased? NO I DON’T HAVE THEM AS EXHIBIT. See Bundle G and confirm about ASJ Capital payments to Kuwait Finance? PAGE 1433 OF BUNDLE G, AN EXAMPLE.  IT SAYS CREDIT ADVICE.  PAGE 1480 CREDIT ADVICE TO PLAINTIFF FROM 1ST DEFENDANT, THESE ARE EXAMPLES. Question repeated. NONE IN THE BUNDLE” (p. 1265).

The customer also raised the point that the same commodities have been used in all the 24 drawdowns (in response to 24 ‘roll-over’ requests by the customer). This collides with paragraph 59 of the Shariah Parameter Reference 1  – Murabahah, which states that a murabahah sale shall not take effect between the same contracting parties on the same asset, and that the revolving facility under murabahah contract may involve separate contracts on different assets. The cross-examination

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showed that the bank could only produce 2 roll-over requests. Since the remaining 22 were not supported by any evidence, the bank failed to support its contention that each drawdown request involved different commodities. “Earlier you said there were 24 roll over request over 24 months, does your answer to Q58 address all these? THE LAST 2 REQUESTS ONLY So only the last 2 requests addressed in Q and A 58? YES. So no evidence in your answer or your seven bundles in respect of the remaining 22 roll over requests and the type of the commodities that were transacted? WE DID NOT TENDER THE EVIDENCE” (p. 1267).

Despite all of the above, the High Court held that the MTQ facility was valid, enforceable, and Shari’ah compliant. The court was of the view that “no borrower may take advantage of the presence of an element that is not approved by the Religion of Islam to escape from his contractual liabilities that are rightfully due” (p. 1275). Be that as it may, the second case to be discussed is Malaysian Debt Ventures Berhad v FLH ICT Services Sdn Bhd & Anor [2013] 1 LNS 1345. This was a claim by the creditor, Malaysian Debt Ventures, against the customer, FLH Services, for the breach of the financing facility granted under the Shari’ah principle of bay inah (sale with immediate repurchase). The customer claimed that the Shari’ah contract based on the bay inah principle of financing was not Shari’ah compliant. In examining the documents filed by the bank, the High Court found that the claim by the customer was valid. Under the financing concept of bay inah, the ASA and APA must be independent of each other. There should not be any express provision or condition in the ASA to repurchase the asset. Both the ASA and the APA must be concluded at different times, which means that the ASA must be signed before signing the APA. There must also be a real transfer of ownership and a valid possession of the asset. Upon perusal of the relevant documents, the court found that the ASA and APA did not stipulate or specify the asset transacted by the parties for the contract. The ASA described “Asset” as “set out in Letter(s) of Offer (if any)”. A similar description was found in the APA. The court also found that the letter of offer made no mention of the Asset to be transacted for the ASA and APA. Equal description is found in section 2.01 of the Facility Agreement where “Asset” is defined as “Shariah-­ compliant asset more particularly described in the Schedule 1A herein and Asset shall be construed accordingly.” A cross-reference to Schedule 1A of the Facility Agreement found a similar expression that “Description of Asset as [As referred to in section 2.01] as set out in the Letter(s) of Offer (if any)”. This uncertainty led the High Court to remark: “The Plaintiff invited the Court to move from one document to the other and/or move in circle with no certainty as to what was the “Asset” that both parties had in mind at the time of execution of the relevant financing documents” (p. 1363).

As a result, the court concluded that the financing is not Shari’ah compliant as it violated the entrenched principles of bai al inah contract. The judgment of the High Court was later upheld by the Court of Appeal.

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It is observed that these two judgments oppose one another due to the corresponding level of the inadequacy of disputed subject matter. If the inadequacy pertains only to improper recording of the transaction, Islamic banks may still be able to escape the unfavourable judgment. However, if the inadequacy relates to the absence of essential facts like the underlying asset, the Islamic banks then may have to face grave consequences for these mistakes. The lesson to be learned from these cases is that a blatant internal inefficiency must be adequately addressed and rigorously monitored.

Wakaf and Zakat: Implementation Issues and Challenges Wakaf and zakat are two important social sectors that have assisted the Government of Malaysia in alleviating poverty and empowering the economy of the Muslim community. Despite their noble agenda, they faced sedate development relative to the advanced development of the Islamic banking sector. Unlike Islamic financial institutions regulated by one centralized federal supervisor, BNM, wakaf and zakat are supervised independently by the State Religious Council (SRC) of each state in Malaysia. Therefore, to coordinate the development of wakaf and zakat in these states, in 2004, the Malaysian Government established the Department of Awqaf, Zakat and Hajj (JAWHAR). Among the roles and responsibilities of JAWHAR are: to recommend standard practices for wakaf and zakat to be adopted by the SRCs; to monitor wakaf and zakat development projects throughout Malaysia; and to act as a bridge between the SRCs and the federal government (Alias and Alina 2011).

Jurisdiction and Dispute Resolution Wakaf and zakat are among the subject matters listed in the State List of the Ninth Schedule under the Federal Constitution of Malaysia. As wakaf and zakat are state matters, it is within the exclusive power of the State Legislative Assemblies to legislate laws on the administration of wakaf and zakat. Every state in Malaysia has enacted laws on wakaf and zakat in the form of Administration of Muslim Law Enactments or specific rules or regulations, separately for wakaf and zakat administration and management (Kader 2014). States like Johore, Selangor, Negeri Sembilan, Terengganu, and Malacca have specific laws for wakaf, while states like Kedah, Pahang, Selangor, and Sabah have specific laws for zakat. These state laws play a significant role as they illuminate the mandate and responsibility of the SRCs, which are charged with the administration and management of zakat and wakaf properties. The presence of such state laws prevents the long, arduous battle of the jurisdictions which the wakaf properties faced ever since the 1887 case of Ashabee & Ors v. Mahomed Hashim & Anor [1887] 4 Ky 213 in which the court decided that wakaf is a type of trust. Hence, under the Trustee Act 1949, only the High Courts of

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Malaya and Borneo had the jurisdiction to try and decide trust matters (Kader and Dahlan 2011). In 2003, however, the Federal Court in the case of Majlis Agama Islam Pulau Pinang v Shaik Zolkafly Shaik Natar [2003] 3 MLJ 705, decided that Shari’ah court has the jurisdiction to determine wakaf matters. The following expounds  on the approach of the court in justifying such a breakthrough finding. The issue that was brought before the Federal Court was which court, the civil or Shari’ah, has the jurisdiction over wakaf? And, in determining this jurisdiction, should the court look at the subject matter of the action or the remedies prayed for? In deciding this issue, the court referred to Abdul Hamid Mohamad J’s decision in Abdul Shaik Md Ibrahim & Anor v. Hussein Ibrahim & Ors [1999] 3 CLJ 539, where he adopted the ‘subject matter’ instead of ‘remedy prayed for’ approach. Abdul Hamid Mohamad J said: “The other point is in determining whether the matter before the court falls under the jurisdiction of which court, the Shari’ah or this court, should the court look at the subject matter of the action or the remedies prayed for… It appears to me that the Federal Court has now adopted the ‘subject matter’ approach rather than the ‘remedy prayed for’ approach.. that when there is a challenge to jurisdiction the correct approach is to look at the State Enactments to see whether or not the Shari’ah courts have been expressly conferred jurisdiction on a given matter…It is also important to note that in Soon Singh‘s case itself the remedy sought was for a declaration. Yet, the Federal Court considered the question of jurisdiction purely on the ‘subject matter’ approach” (pp. 546 and 547).

The Federal Court further deliberated on what if there is no express provision at all in the State Enactment giving jurisdiction to the Shari’ah court on any particular subject matter, but the subject matter is within the competence of the State Legislature to enact namely the State List’? Addressing this question, the court referred and adopted the view of Abdul Kadir Sulaiman J in Md Hakim Lee v. Majlis Agama Islam Wilayah Persekutuan, Kuala Lumpur [1997] 4 CLJ Supp 419 where he said: “Therefore, with respect, it cannot be true to say that in order to ascertain the question of jurisdiction of the Shari’ah court, reference be made only to the respective laws enacted by the state legislature to see whether jurisdiction over the particular matter is given to the Shari’ah courts or the civil courts provided in art 121(1) of the Constitution. To see the jurisdiction of the Shari’ah court, List II of the Ninth Schedule to the Federal Constitution should not be interpreted so narrowly in the light of the overall jurisdiction given by the Constitution in List II that the Shari’ah court shall have jurisdiction over persons professing the religion of Islam in respect of matters stated therein” (p. 425).

The Federal Court also referred to the view of Harun Hashim SCJ, in the Supreme Court case of Mohamed Habibullah Mahmood v. Faridah Dato Talib [1993] 1 CLJ 264, where he said: “It is obvious that the intention of Parliament by art 121(1A) is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Shari’ah court: Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor[1992] 1 MLJ 1. I am therefore of the opinion that when there is a challenge to jurisdiction, as here, the correct approach is to firstly see whether the Shari’ah court has jurisdiction and not whether the state legislature has power to enact the law conferring jurisdiction on the Shari’ah court…By virtue of para 1  in List II of the Ninth Schedule to the Federal

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N. S. Kasri Constitution, the jurisdiction lies with the Shari’ah court on its wider jurisdiction over person professing the religion of Islam even if no express provisions are provided in the Act because under art 74 of the Constitution, it is within the competency of the legislature to legislate on the matter. Its absence from the express provision in the Act would not confer the jurisdiction in the civil court. The fact that the plaintiff may not have his remedy in the Shari’ah court would not make the jurisdiction exercisable by the civil court” (p. 265).

Being the apex court in Malaysia, the decision of the Federal Court, in this case, has conclusively determined the jurisdiction of the Shari’ah courts on matters of wakaf. The Federal Court judgment was later followed in Ajar bt Taib dan lain-lain lwn Majlis Agama Islam dan Adat Istiadat Melayu Perlis [2014] 9 MLJ 321. The High Court in Kangar (Perlis) was faced with the question of whether the civil court has jurisdiction to hear matters on wakaf and fatwa (legal opinion) of the Shari’ah Committee of the State of Perlis. Adopting the subject matter approach as laid down by the Federal Court in Majlis Ugama Islam Pulau Pinang v Shaik Zolkafly Shaik Natar, the High Court held that it has no jurisdiction to hear matters pertaining to wakaf and fatwa. The issue of which party should manage the wakaf land involved questions on the religion of Islam and, thus, was governed by Islamic law. Hence, when Shari’ah law is involved, only Shari’ah court is qualified to decide on such matters. The states that were involved in the case of Shaik Zolkafly Shaik Natar and Ajar bt Taib are the states of Penang and Perlis, respectively. These two states have, in their Islamic Religious Affairs Enactments, clear provisions stipulating the jurisdiction of their respective Shari’ah High Courts to hear and determine matters on wakaf. For example, in Penang, the jurisdiction for the Shari’ah High Court to hear and determine wakaf is provided in section 61(3)(b)(vii) of the Administration of the Religion of Islam (State of Penang) Enactment 2004. It states: “(3) A Shari’ah High Court shall(b) in its civil jurisdiction, hear and determine all actions and proceedings in which all the parties are Muslims and which relate to(vii) wakaf or nazar;”

Meanwhile, the Administration of the Religion of Islam (State of Perlis) Enactment 2006 incorporated a similar provision. Other states did the same. Promulgating clear provisions in the respective state enactments is essential. It caveats any litigation on the issue of jurisdiction as under Article 121(1A) of the Federal Constitution, civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Shari’ah courts.”

Development and Management of Wakaf and Zakat Wakaf and zakat institutions are administered and managed by respective SRCs. Their mandate and powers are prescribed in their respective state laws. However, the effectiveness and efficiency of wakaf and zakat management have been making headlines. With regards to the inchoate development of wakaf properties, in

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statistics compiled by JAWHAR, out of the 30,000 hectares of wakaf land throughout the country, only 13 percent has been developed so far. The remaining 26,000 hectares are either idle or are not fully utilised (Kamaruddin 2019). Such a predicament can be due to many factors. According to a 2016 study by the Malaysian Wakaf Foundation, one of the issues found was the lack of uniformity in the state wakaf laws. Under the State List in the Ninth Schedule of the Federal Constitution, land and land-related matters fall under the jurisdiction of the respective state governments. Only five states, namely Negeri Sembilan, Melaka, Perak, Selangor, and Terengganu, were found to have exclusive laws governing their wakaf land. The Federal Territories will soon have similar laws as its SRC is in the process of tabling the Federal Territory Wakaf Bill in Parliament to improve the administration of wakaf land in federal territories. Other states have wakaf laws included in their respective Islamic Religious Administration Enactments (Kamaruddin 2019). Despite these regulatory initiatives, Ismail Omar, a wakaf expert at JAWHAR, argued that uniformity in the laws was still an issue and should be addressed by drafting a National Wakaf Act. The needed provisions to develop and revitalise wakaf land can be incorporated into this Act. He said: “In other words, wakaf laws should not be entirely about the administration (of wakaf properties). The laws should also cover efforts to vitalise wakaf land, including its development and maintenance and ensuring steady returns on investments” (as quoted in Kamaruddin 2019).

Having said the above, the process of developing wakaf properties is not a straight forward case. In reality, the SRCs are required to abide by a series of statutes and by-laws and deal with various agencies. At the same time, SRCs lack economic development exposure and competent technical staff to carry out large development projects on wakaf properties. They lack funds or have limited access to development funding, which has contributed to the slow growth of wakaf development. The decentralised nature of wakaf legal framework exacerbates the polarisation of the wakaf development in every state. To address these challenges, SRCs need greater capability and competency in handling the interaction between the structure (set up/ legislation) and agency (development actor) (Azmi et al. 2017).

Collection and Distribution of Zakat The effectiveness of zakat collection and distribution relies heavily on the efficiency of zakat management programs of the zakat institutions. Its importance cannot be underrated as the zakat fund is raised from the public, and its efficiency has a direct impact on the well-being of the nation, particularly in reducing poverty and economic development (Taha et al. 2017). From the angle of zakat collection, the obligation to pay zakat is on every Muslim that meets the required conditions and it is enforced by the SRC through the state Administration of Muslim Law Enactments or specific rules or regulations. In Selangor, the obligation to pay zakat is also

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imposed on corporations. For example, Regulation 15 (2) of the Zakat and Fitrah (State of Selangor) Regulation 2012 provides that: “The obligation on the part of a company or partnership shall be upon— (a) the Muslim shareholder; (b) the Muslim director; (c) the manager or any other Muslim principal head officer; (d) the Muslim secretary; or (e) any other Muslim performing any of the functions of those mentioned in paragraph (2)(a) until (c)”.

Such provision enables further enhancement in the zakat collection, especially for Selangor and Federal Territories being two main business centers in Malaysia that have remained at the forefront in zakat collection. Employers are also required to pay zakat on behalf of their employees. Regulation 22 of the Zakat and Fitrah (State of Selangor) Regulation 2012 states: “(1) Each employer who employs any Muslim employees shall register with the Lembaga. (2) Each employer shall, before the end of the tenth day of each month in which the employer is paying wages to his employees, make payment of zakat by way of deduction of salary deduction of his employees in the manner, rate and duration determined by the Lembaga.”

The use of advanced technology by the SRCs has facilitated the more efficient payment of zakat through zakat Apps and so forth. However, enforcement remains an issue. Though zakat is tax-deductible, not all Muslims pay. In Selangor, for example, Regulation 45 of the Zakat and Fitrah (State of Selangor) Regulation 2012 provides that any defaulting zakat payor shall, upon conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both. Despite this, the default is still abundant. Among the reasons for evading zakat payment, from the payor perspective, could be that the payor does not care about Islamic teachings or does not understand how the calculation works (Migdad 2019). From the payee perspective, it could be due to deficiency in the enforcement and lack of data on Muslim payors who generate income from the shadow economic activities. Distribution of zakat proceeds to beneficiaries is another concern. Some research has revealed that there were instances where zakat collected remain undistributed. The cause could be attributed to the complex and strict distribution process. This issue of the undistributed fund is aggravated further with the lack of adequate disclosure in the SRC zakat report on the management of this undistributed amount, whether it was carried forward to the next year or being used for other purposes. The effect is trust deficiency among zakat payors that led them to pay zakat directly to zakat beneficiaries instead of SRCs (Taha et al. 2017; Migdad 2019). While on the distributed fund, the concern is on how zakat is distributed. Zakat is typically distributed in the form of a monthly allowance at the subsistence level. A better way to distribute zakat is by spending on the training of the beneficiaries so

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that they could become productive. This will ensure the sustainability of the fund and that the economic well-being of the beneficiaries is sustainable. Another concern is a non-coordinated distribution of zakat funds to the beneficiaries as some beneficiaries tend to receive other funds from other government or charitable organizations or NGOs besides receiving zakat payout. To address this, a nationwide database that includes data of beneficiaries from all states is needed. The goal of this initiative is to coordinate the distribution and avoid duplicity in the distribution. This allows more people to benefit and enables cooperation between states and the federal government (Migdad 2019).

Conclusion This chapter examined critical issues and challenges in the implementation of Islamic commercial law in Malaysia in three key areas, namely Islamic banking, wakaf and zakat. While Malaysia claims to be the leader in Islamic banking, its industry still faces significant legal battles on the constitutionality of the SAC and its Shari’ah rulings as well as disputes on Shari’ah compliance of Islamic banking products. The court jurisdiction over Islamic banking issues has been settled. The civil court has exclusive jurisdiction over Islamic banking matters. Hence, the reference to the SAC rulings becomes essential. The selected case laws on the SNC revealed factors like the mindset of the court when deliberating Islamic banking matters as well as peculiarity and inefficiency in executing Shari’ah contracts by Islamic banks. Factors triggering SNC in Islamic banks highlighted the importance of having a robust and rigorous Shari’ah governance structure and internal systems and processes. The court jurisdiction on matters pertaining to wakaf and zakat has recently been settled to be with Shari’ah court. However, issues about the development and management of wakaf and zakat remain unresolved. The efficiency of wakaf and zakat administrators, state SRCs, is a pressing concern. The decentralised style of administration of wakaf and zakat has been claimed to be among the factors that led to their inchoate development. Hence, the call for one unified law governing waqf and zakat sectors. Other concern relates to the fundraising, distribution, and utilisation of wakaf and zakat funds. A more coordinated approach between the public and private institutions is required. In sum, all the issues and challenges deliberated in this chapter could be reduced to the question of integrity or akhlak. The players of these three sectors must be responsible and accountable and fully prepared to embrace their institutions’ noble objectives both in their words and deeds.

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References Alias, R. M., & Alina, T. (2011). Unleashing the potential of the Waqf as an economic institution in Malaysia: Policy, legal and economic reforms. Kuala Lumpur: INCEIF. Azmi, A. S. M., Hanif, N. R., & Mahamood, S. M. (2017). Revitalising the development of Waqf properties: A way forward. International Journal of Real Estate Studies, 11(3), 1–11. Retrived from https://umexpert.um.edu.my/public_view.php?type=publication&row=NzM1NTk%3D Bank Negara Malaysia. (2018a). Annual report 2018. Available at http://www.bnm.gov.my/files/ publication/ar/en/2018/ar2018_book.pdf Bank Negara Malaysia. (2018b). Financial stability and payment system report 2018. Available at http://www.bnm.gov.my/files/publication/fsps/en/2018/fs2018_book.pdf Bank Negara Malaysia. (2019). Shariah governance. Retrieved from https://www.bnm.gov.my/ index.php?ch=57&pg=140&ac=835&bb=file Bank Negara Malaysia. (2020). Financial stability. Available at https://www.bnm.gov.my/index. php?ch=fs&pg=fs_ovr_what&ac=112 Kader, S. Z. S. A. (2014). Legal framework for management of Waqf land in Malaysia. Shariah Law Reports, 4, 1–23. Kader, S.  Z. S.  A., & Dahlan, N.  H. M. (2011, October 20–22). Current legal issues concerning Awqaf in Malaysia. International Conference on “Waqf Laws & Management: Reality and Prospects”, Cultural Activity Centre (CAC), International Islamic University Malaysia, Malaysia. Available at http://repo.uum.edu.my/4525/ Kamarudin, K. (2019). Unlocking the potential of Wakaf land. Retreived from http://www.bernama.com/en/news.php?id=1738848 Migdad, A. (2019). Managing Zakat through institutions: Case of Malaysia. International Journal of Islamic Economics and Finance Studies, 2019/3, 28–44. Available at https://dergipark.org. tr/en/download/article-­file/868357. Ministry of Economic Affairs. (2019). Shared prosperity vision 2030. Available at https://www. pmo.gov.my/wp-­content/uploads/2019/10/SPV2030-­summary-­en.pdf Mohamad, A. H., & Trakic, A. (2012). The Shariah Advisory Council’s role in resolving Islamic banking disputes in Malaysia: A model to follow? (Research paper no. 47). Kuala Lumpur: International Shariah Research Academy for Islamic Finance. Talha, R., Mohd Nor, M. N., Embong, M. R., & Zulkifli, M. F. (2017 June). Zakat fund in Malaysia: Where does it all go? Management and Accounting Review, 16(1), 137–166. Available at http:// arionline.uitm.edu.my/ojs/index.php/MAR/article/view/493

Chapter 8

Islamic Evidence Law Hanifah Haydar Ali Tajuddin and Mohd Nadzri Abd Rahman

Introduction In proving a case before the court, the evidentiary aspect is very important. The laws relating to evidence give both parties the right to prove their cases before the courts procedurally and justly. As there are procedures to which the parties have to abide by in proving their cases, failure to abide by the procedures would render the evidence as inadmissible before the court. Being a country that practices dual legal systems, Malaysia has two sets of evidence law; first, is the evidence law applicable in the civil court based on the common law, and second, is the Islamic evidence law applicable in the Shari’ah court. In tracing the development of Islamic evidence law in Malaysia, one may find such law intriguing. This is because, the law has gone through a process of evolution ever since the period of the Malay Sultanate, the British occupation, the independence of Malaysia until today (Hassan 2012). In formulating Islamic evidence law in Malaysia, the efforts done were not only to adopt Islamic evidence principles. In fact, the law has amalgamated the common law principles, the local customs and culture (Hassan 2012). This resulted in a harmonised evidence laws founded on the Islamic principles (Suhaizad 2019). Although the Islamic evidence law was used extensively before the British occupation, the scope of the law during the occupation was compressed to cover only the personal matters of the Muslims, such as matters relating to family and inheritance. However, after the country’s independence, Islamic law regained its attention  and together

H. Haydar Ali Tajuddin (*) Shari’ah Judiciary Department of Malaysia, Putrajaya, Malaysia M. N. Abd Rahman Chief Shari’ah Judge for the State of Malacca, Malaysia, Malacca, Malaysia © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4_8

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with the development of the Shari’ah courts, efforts were done to compile such a law (Hassan 2012). The Islamic evidence law did not develop as rapidly as its counterpart. Advanced forms of evidence such as electronics and science-based evidence are yet to be properly provisioned and detailed in the Islamic evidence legislation. This is unfortunate considering that advanced forms of evidence are  undoubtedly useful as they can simplify the evidentiary process in certain types of cases. Thus, it is important that the Shari’ah courts consider its usage. The chapter intends to investigate the interesting development of the Islamic evidence law applicable in the Shari’ah court. The discussion will trace the effort to formulate and legislate the Islamic law of evidence in Malaysia which has somewhat harmonised the Islamic principles of evidence with that of the common law. Furthermore, considering the development of advanced forms of evidence today, the chapter also examines the extent of application of such evidence in the Shari’ah court in deciding cases that necessitate such evidence.

 verview of the Development of Islamic Evidence Law O for Shari’ah Courts As was established that Islam is the law of the land of the Malay Peninsula (Ramah vs Laton 1927), Islamic law was the legal source for every legislation since the days of the Malay Sultanate. In 1444, Kanun Melaka was directly founded on the law where the principles were used to resolve civil and criminal disputes. The usage of Islamic terms and expressions such as ‘Bismillah’ are direct Islamic features in the Kanun. The Kanun was also used in other Malay states. Although the term ‘evidence’ was not explicitly mentioned in the Kanun, it contained 12 chapters that detailed about the forms and aspects of evidence in proving cases. The forms and aspects included oral, documentary, confession, the burden of proof, the examination of a witness, taking of an oath, and specific evidence applicable for hudud offences (Noor 2015). Although the Portuguese, Dutch and Japanese occupied the Malay Peninsula, it was the British occupation that impacted its legal system. The British successfully separated the civil and Islamic laws that limited Islamic laws to only personal matters of the Muslims, such as family and inheritance matters. In comparison, civil law deals with commercial, general civil and criminal disputes (Hassan 2012). With regards to evidence law, the first legislation brought in by the British was the Evidence Ordinance 1893. Later, the Evidence Act 1950 was legislated in the Malay Peninsula, modelled on the Indian Evidence Act 1872. The Evidence  Act 1950 was an effort by the British to compile evidence law based on the common law principles and apply it in the Malay Peninsula (Hassan 2012). As for the Islamic evidence law, initially, it was not properly compiled into one specific law. Instead, the law contained in brief provisions that were available in a

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few States’ Administration of Islamic Law Enactments. For example, the Administration of Muslim Law (State of Selangor) Enactment of 1952 only had one provision regarding Islamic evidence law. That provision specified that the hokum syarak (Islamic law) would apply in matters of testimony by a witness (Noor 2015). Furthermore, it also provided that the Shari’ah court shall refer and consider the provisions in, the Evidence Act 1950 that did not contradict the hokum syarak, without being bound by it (Suhaizad 2019). However, the reference to the Evidence Act 1950 was on the general application, whereas for technical evidentiary requirements, such as conditions of a witness testifying or oath-taking, Islamic principles of evidence were followed (Noor 2015). As before the 1980s, there was no proper delineation of the jurisdictions between the civil and Shari’ah courts, evidentiary issues in the Muslims’ personal affairs cases were decided according to the common law principles of evidence. For example, in the early case of Ainan bin Mahmud v Syed Abu Bakar [1939] MLJ 209, there was a dispute between Muslim parties relating to the legitimacy of a child born after four months of marriage. Islamic law sets that in proving the legitimacy of a child, he/she must be born not less than six months after a valid marriage. Nevertheless, in this case, the child  was held legitimate as the civil court applied section 112 of the Evidence Act1950 which was based on the common law principle that birth during the marriage is a conclusive proof of legitimacy. The civil court could have called an Islamic law expert to ascertain the Islamic law position on the presumption of legitimacy. But, it chose to apply the common law instead. This is presumably because the civil court was not obliged to refer or follow the Islamic principles of evidence even though the parties, in that case, were Muslims. The issue of not having a specific legislation on Islamic evidence for Shari’ah court was gradually resolved after  the independence. Together with the development of the Shari’ah courts in the country, the States started to compile and legislate specific Shari’ah laws, including the Islamic evidence law for Shari’ah courts. Kedah was the first state to enact Islamic evidence legislation in 1989, followed by Pahang, Kelantan, and Sarawak (Suhaizad 2019). The Federal Territories followed the effort soon after that and passed its Shari’ah Court Evidence (Federal Territories) Act in 1997. The passing of these legislations meant that the reference to the Evidence Act 1950 by the Shari’ah courts was no longer necessary. Section 131 of the Shari’ah Court Evidence (Federal Territories) Act 1997 states: “With the coming into operation of this Act, the Evidence Act 1950 shall not be applicable to the Court.” The effort to legislate Islamic evidence law for Shari’ah courts in Malaysia has to a certain extent harmonised the Islamic law and the common law principles of evidence (Suhaizad 2019). The following discussion analyses the Islamic evidence law for the Shari’ah court. For such discussion, the provisions in the Shari’ah Court Evidence (Federal Territories) Act 1997are referred to.

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The Shari’ah Court Evidence Law In formulating Islamic evidence law for Shari’ah courts, reference made was to evidence law based on Islamic law and the common law. The formulation used mainly four methods (Hassan 2012). The four methods include: (i) Abrogation of provisions in the Evidence Act 1950 that are inconsistent with Islamic law. For example, abrogation of section 112 of the Evidence Act 1950 on the legitimacy of a child; (ii) Retain of non-conflicting provisions in the Evidence Act 1950. Most of the provisions in the Evidence Act 1950 are not in conflict with Islamic law and, thus, retained in the Islamic evidence legislation. (iii) Reference and application of opinions by the schools of thought (mazhab) and jurists using the methods of talfeeq (a combination of opinions of the jurists and mazhab) and takhayyur (selection of opinions of the jurists and mazhab) (Oxford Islamic Studies Online & Noor 2015). These methods have led to the inclusion of Islamic evidence principles such as bayyinah, qarinah, syahadah, and yamin. Besides that, through takhayyur, effective implementation of these principles is determined after considering the opinions of the mazhab and the jurists.

The Framework of the Shari’ah Court Evidence Law As the Evidence Act was passed since 1950, the Islamic evidence law, which came later, was formulated based on its framework. Thus,  the first three parts of the Islamic evidence law are structured to be similar to the Evidence Act 1950. The fourth part was added to clarify the status of reference to the Evidence  Act 1950 by the Shari’ah courts. The Evidence Act 1950 Part I – Relevancy Part II – Proof Part III – Production and Effect of Evidence

The Shari’ah Court Evidence Law 1997 Part I – Relevancy Part II – Proof Part III – Production and Effect of Evidence Part IV – General

It is also observed that synchronisation is possible due to almost similar forms of evidence between the two laws; the only difference is in terms of the terminologies. The adoption from other laws is acceptable in Islam as long as it does not contradict Islamic law principles and is done in the interest of justice (Mohamad 2009). This is termed as harmonisation between the laws and it is practiced in countries with plural legal systems like Malaysia. By harmonising the laws, best practices from each can be used to serve the disputing parties better. For example, procedural laws

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that are applicable in the Shari’ah courts in Malaysia are based on the Criminal Procedure Code and the Civil Procedure laws that were initially only applicable in the civil courts (Mohamad 2009).

Legal Maxims in Islamic Evidence Law The legal maxim or qawaidul fiqhiyyah are general rules of fiqh (Islamic jurisprudence) (Saiti 2016). The maxims are a statement of principles derived from the main sources of Islamic law, the Quran and Sunnah, and detailed reading of the rules of fiqh (Saiti 2016). Practically, the legal maxims are referred to by the judges in the Shari’ah courts when deciding cases and are embedded in the Shari’ah court evidence legislations. The maxims function as guiding principles that guide the judges in deciding issues that arise in proving cases before the court. The analysis below shows that some of these maxims are similar to those available in the common law.

Burden of Proof (The Mejelle, Article 76) One of the legal maxims that underpins the general rule of the onus of proving claims or cases in Islamic evidence law is extracted from a hadith of Prophet Muhammad (peace be upon him) which stipulates: (Were people to be given everything that they claimed, men  (humans) would (unjustly) claim the wealth and lives of (other) people. But, the onus of proof is upon the claimant, and the taking of an oath is upon him who denies.) Narrated by al-Bayhaqi and Ahmad (Hadith No. 33 in 40 Hadith Nawawi)

The hadith sets that the burden of proof is on the party who claims, and the oath is by the party who denies. It is cited in article 76 of the The Mejjele that states ‘evidence is for him who affirms and the oath for him who denies’ (Majallatul Ahkam Adliyyah – The Ottoman Courts Manual). To a certain extent, this maxim is equivalent in meaning and practice to the legal maxim of ‘ei incumbit probatio qui dicit, non qui negat,’ which means the burden of proof lies upon him who affirms not he who denies. The following provisions in the Shari’ah Court Evidence (Federal Territories) Act 1997 adopt the legal maxim: Section 72. Burden to produce evidence in civil case. The burden to produce evidence in a civil case lies on the person who alleges or asserts a fact (Mudda'ii) and the person who takes the oath to deny or disputes a fact (Mudda'a 'alaih). Section 75. Burden of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence.

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 atters Are Determined According to Intentions (The Mejelle, M Article 2) This maxim is observed in the Hadith of Prophet Muhammad (peace be upon him), which says: (Verily actions are by intentions, and for every person is what he intended.) (Sunan al-­ Bukhari and Muslim)

The maxim is used in determining cases where the element of intention plays a role in determining the outcome of the case, both for civil and criminal cases. For example, in the case of divorce, where the husband does not pronounce the word ‘divorce’, instead, he uses the term like ‘you can go back to your family.’ In such a case, the intention of the husband will be the determinant in whether divorce happens. The similar legal maxim is applicable in the common law. The legal maxim of actus non facit reum nisi mens sit rea, though  it only applies in criminal cases, requires the court to determine the element of mens rea or intention of a criminal, other than the actus reus or action before arriving at its decision.

The Concept of Bayyinah in Islamic Evidence Law The term ‘bayyinah’ is mentioned in the Quran in the following verse: (We have already sent Our messengers with clear evidences) (Qur’an 57:25)

In defining the term, some of the early jurists of the schools of thought consisting of the Shafi’i, Hanafi and Hanbali equated bayyinah to testimony by witnesses or syahadah. Ibn Hazm added knowledge of the judge (qadhi) as bayyinah. Nevertheless, the later jurists of the seventh hijri (Islamic calendar) year consisting of Ibn Taimiyyah, Ibn Qayyim, Ibn Farhun, Abi Hassan Tarabulsi, and Ibn Gharas defined bayyinah as everything that clarifies and demonstrates the truth (Baharuddin 2015). This means that bayyinah is more than just testimony of the witnesses and knowledge of the judge. It envelopes other forms of evidence, such as syahadah, iqrar, yamin, and qarinah. The same context of bayyinah is accepted in the Shari’ah Court Evidence Act (Federal Territories) Act 1997 where section 3 of the 1997 Act defined the term as ‘evidence which proves a right or interest and includes qarinah’.  In order to understand bayyinah, analysis of other forms of evidence is important.

Iqrar Iqrar is defined as a confession in civil cases and admission in criminal cases. It is considered as the ‘strongest’ form of evidence whereby one’s admission or confession can be accepted without being subjected to other forms of evidence (Suhaizad

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2019). This form of evidence was used to convict the accused during the Prophethood and the early Caliphs of Islam. The cases are reported through the Hadith of the Prophet (peace be upon him): “Narrated by Ibn `Abbas: When Ma’iz bin Malik came to the Prophet (to confess), the Prophet said to him, “Probably you have only kissed (the lady), or winked, or looked at her?” He said, “No, O Allah’s Messenger!” The Prophet said, using no euphemism, “Did you have sexual intercourse with her?” The narrator added: At that, (i.e. after his confession) the Prophet ordered that he be stoned (to death).” (Sahih Bukhari, Hadith No. 53). The above hadith showed that the Prophet sentenced Ma’iz with hudud sentencing based on his confession. It is interesting to note that in the same hadith, the Prophet also detailed important conditions before a confession can be accepted. The conditions include that the confessor must reach the age of baligh (adolescence), the confessor needs to fully understand what he is confessing, the confession is made with the full will, and it must be communicated (Suhaizad 2019). Sections 17–19 of the Shari’ah Court Evidence (Federal Territories) Act 1997 explain iqrar. Section 17 defines iqrar as “an admission made by a person, in writing or orally or by gesture, stating that he is under an obligation or liability to another person in respect of some right.” Nevertheless, it is noted that the English translation of section 17 of the Shari’ah Court Evidence (Federal Territories) Act 1997 only translates iqrar to mean admission as applicable in civil cases. Comparing the same section in the Evidence Act 1950; the section includes both admission and confession. Section 17 (1) and (2) of the Evidence Act 1950 writes: “(1) An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned. (2) A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence.”

That said, the fact that iqrar (confession) in Islamic criminal cases is not mentioned in section 17 of the Shari’ah Court Evidence (Federal Territories) Act 1997, does not mean that iqrar is inapplicable in these cases. The provision regarding iqrar in Islamic criminal cases is elaborated in the Shari’ah Criminal Procedure (Federal Territories) Act 1997. Section 96 (a) and (b) of the Shari’ah Criminal Procedure (Federal Territories) Act 1997 explains: (a) when the accused appears or is brought before the Court, a charge containing the particulars of the offence of which he is accused shall be framed, read and explained to him, and he shall be asked whether he is guilty of the offence charged or claims to be tried; (b) if the accused pleads guilty to a charge, whether as originally framed or as amended, the plea shall be recorded and he may be convicted thereon: Provided that before a plea of guilty is recorded, the Court shall ascertain that the accused understands the nature and consequences of his plea and intends to admit, without qualification, the offence alleged against him.

Furthermore, section 18 of the Shari’ah Court Evidence (Federal Territories) Act 1997 lists down the conditions where iqrar is inadmissible. It is noticeable that these conditions are similar to that applicable to confession/admission in the Evidence Act 1950. The conditions include involuntariness, minority of age, and

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incapacity of the person making the iqrar. Nevertheless, the terms used in section 18 are based on the principles of the Islamic evidence law. The terms are ‘aqil baligh (person of sound mind and has reached the age of adolescence), ma’tuh (retarded person), mahjur ‘alaih (a person restrained from administering his property due to his incapacity) and mumayyiz (a minor who reach the age of discernment).

Shahaadah The term means to convey or to narrate exact occurrence based on what one has witnessed. The principles of shahaadah are traceable in the Quran: “O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves or parents and relatives. Whether one is rich or poor, Allah is more worthy of both. So, follow not (personal) inclination, lest you not be just. And if you distort (your testimony) or refuse (to give it), then indeed Allah is ever, with what you do, Acquainted.)” (Qur’an 4: 135) “…and bring to witness two just men from among you and establish the testimony for (the acceptance of) Allah…” (Qur’an 65:2)

Principally, it is a statement by a witness regarding the state of matters. The statement commences with ‘asyhadu’ which connotes the meaning ‘I hereby testify’ (s.3 of the Shari’ah Court Evidence (Federal Territories) Act 1997). Based on the above Qur’anic verses, there are certain conditions before one’s witnessing can be accepted. The conditions are such as the witness must be a just and truthful person. Thus, testimony by a liar (faasiq) is not accepted (Jusoh 2007). The characters of witness, as explained in the above verses are adopted in the Shari’ah evidence legislation. Section 83(1) of the Shari’ah Court Evidence (Federal Territories) Act 1997 provides: “Subject to the provision of this section, all Muslims shall be competent to give syahadah or bayyinah as witnesses provided that they are of sound mind and has reached the age of adolescence (‘aqil, baligh), just (‘adil), have a good memory and are not prejudiced.” It is understood that shahaadah includes bayyinah as is apparent in the definition of evidence in section 3 of the Shari’ah Court Evidence (Federal Territories) Act 1997. If both are used interchangeably, a witness does not only give shahaadah (witnessing), but he also presents bayyinah (evidence) which is defined as anything that clarifies disputed rights or interests. Subsections 83 (3), (4) and (5), however, stipulate different conditions applicable to a witness who witnesses (shahaadah) and a witness who gives evidence (bayyinah). The subsections explain that a witness who gives bayyinah is not subjected to the requirements of being just (‘adil) , reached the age of puberty (baligh), and having a good memory, as opposed to a witness who gives shahaadah. Therefore, it is clear that although a witness can give shahaadah and bayyinah, the former requires one to be more credible with the requirements of characters as explained in the provision.

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Yamin Literally, yamin means the right hand for the strength and authority attributed to it. It refers to an act of taking oath by raising the right hand. The purpose of yamin is to strengthen words or statements that are unsupported or weak by uttering God’s name or one of His attributes (Irsyad al-Fatwa 2017). Unlike the common law, an oath in Islamic evidence law carries weight in proving or denying certain claims. Looking back at the maxim of “evidence is for him who affirms and the oath for him who denies” (The Mejelle, Article 76); it gives the defendant the right to take an oath to deny claims against him by the plaintiff. Nevertheless, when the defendant refuses to take an oath, such right is transferred to the plaintiff. Section 87 of the Shari’ah Court Evidence (Federal Territories) Act 1997 states: (1) In a civil case, evidence shall be given by the plaintiff and the defendant, and if the defendant denies the claim made against him he shall be required to take an oath according to Hukum Syarak. (2) (a) Where the defendant takes the oath under subsection (1), the claim made by the plaintiff shall be dismissed. (b) If the defendant refuses to take such oath, the Court may ask the plaintiff to take the oath upon which his claim shall be accepted.

This is illustrated in the case of Mat Husain Daud vs Zawiah Mamat (1992) 8 JH 1, where the evidence presented of jointly acquired property by the plaintiff was insufficient and the defendant denied the claim. The defendant was then ordered by the court to take oath under section 87(2)(a) and the plaintiff’s claim was dismissed. A plaintiff also uses oath to prove certain claims before the court where the evidence available is insufficient or only comes from a single witness from his side. Section 88 of the Shari’ah Court Evidence (Federal Territories) Act 1997 states: “Where in a civil suit, there is only one witness produced by the plaintiff, the evidence of such witness shall only be admissible if his evidence is given together with the oath of the plaintiff.” The usage of section 88 is illustrated in cases of proving that a divorce happened between the plaintiff/wife and defendant/husband. In the case of Hasnah vs Borhan al-Din (1998) 6 JH 1, the plaintiff applied for confirmation of divorce by the defendant on the reason that he has left the plaintiff and did not give her maintenance. The plaintiff was able to bring two witnesses to testify for her in the court and the judge ordered her to take oath under section 88.

Qarinah Qarinah in the Islamic evidence law means facts, clear signs that point at hidden matters (al-Zuhaili 1985). One of the notable Muslim legal scholars, Dr. Abdul Karim Zaydan, defined qarinah as evidence that can prove the existence or inexistence of any issue (Zaydan 1989). Another legal scholar, Ahmad Fathi Bahnasi

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described it as the relation between facts or assumptions made based on circumstances or other facts (Bahnasi 1964). The way of proving matters by deducing evidence (qarinah) is traceable in the Qur’an narrating the story of Prophet Yusuf who was falsely accused of attempting to do an inappropriate act to the wife of the pharaoh. The Qur’an states: (And they both raced to the door, and she tore his shirt from the back, and they found her husband at the door. She said: “What is the recompense of one who intended evil for your wife but that he be imprisoned or a painful punishment?”. Yusuf said: “it was she who sought to seduce me.” And a witness from her family testified. “If his shirt is torn from the front, then she has told the truth, and he is of the liars. But if his shirt is torn from the back, then she has lied, and he is of the truthful.” So when her husband saw his shirt torn from the back, he said, “Indeed, it is of the women’s plan. Indeed, your plan is great.”) (Qur’an 12: 25–28)

The verses pointed out circumstantial evidence where Muslim legal scholars categorised it as qarinah. Qarinah in the Shari’ah Court Evidence (Federal Territories) Act 1997 is defined in section 3 as “fact connected with the other fact in any of the ways referred to in this Act.” The same section also interprets bayyinah to include qarinah. This is seen to be in line with the Qur’anic description and the definition provided by the Muslim legal scholars as explained above. This extends the scope of qarinah under the Shari’ah evidence legislation to not only include facts, but it also covers any evidence. Ruzman Md Noor observes that as qarinah covers both, it can be understood that qarinah as facts would be as relevant facts, while qarinah as evidence would be as circumstantial evidence (Noor 2008). He also observed that the position of qarinah in the Shari'ah evidence legislation is not clear as linguistically the term is used to replace relevant facts as used in the Evidence Act 1950. But practically, it can also include circumstantial evidence as it is included in the interpretation of bayyinah as stipulated in section 3 of the Shari'ah Court Evidence (Federal Territories) 1997 (Noor 2008). The discussion on Qarinah in the Shari’ah Court Evidence (Federal Territories) Act 1997 is covered in Chapter Two of Part One of the legislation and it includes relevant facts in proving cases before the court. This is similar to the Evidence Act 1950, where the discussion also appears in Chapter Two, ‘Relevancy of Facts.’

Kitabah Kitabah, literally, means handwriting. There was no exact translation of kitabah by the early Muslim legal scholars. Instead, the term was indirectly translated as a written piece or notes used as written proof. Today, the term can refer to documentary or documented evidence (Suhaizad 2019). This would include any matter expressed, described, or howsoever represented, upon any substance, material, thing or article (Shari’ah Court Evidence (Federal Territories) Act 1997, s. 3). Documentary evidence is explained in Chapter 3 of the Shari’ah Court Evidence (Federal Territories) Act 1997.

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As of now, the challenge of using documentary evidence relates to proving the genuineness of electronic documents. Unfortunately, the Shari’ah evidence legislation has yet to incorporate laws relating to such documents. This is unlike the Evidence  Act which has, in 1993, included subsections 90A, 90B and 90C to accommodate procedures relating to proving computer-generated  documents (Radhakrishna 2016).

Ra’y al-Khabir Ibn Qayyim defined ra’y al-khabir as testimony by an expert (al-Jauziyah 1977). The term ‘Khabir’ itself means a person with expertise in certain areas of knowledge. It is accepted as one of the categories of Islamic evidence law as mentioned in the Qur’an where God has ordered the Muslims to refer to ‘ahl az-zikr’ which is translated as those who know: “Ask the people of knowledge if you do not know.” (Qur’an 16:43). The usage of expert opinion is elaborated in section 33 of the Shari’ah Court Evidence (Federal Territories) Act 1997. The provision details the procedure when the court needs to refer to experts before deciding a case, and such opinion forms a qarinah or relevant fact. Section 33 states: “When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions or relating to determination of nasab, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions or relating to determination of nasab, are qarinah.” With regard to Islamic criminal cases, section 194 of the Shari’ah Criminal Procedure (Federal Territories) Act 1997 lists down persons from whom the prosecutor can get a report regarding specific issues relating to medical, chemical, documents, weight and measures.

Usage of Advanced Forms of Evidence in Shari’ah Court Today’s development of technology has brought some challenges to the application of law, including the Islamic evidence law. The complex nature of today’s society has introduced different kinds and methods of transacting matters.

Electronic and Digital Document As discussed above, kitabah or documentary evidence is one of the forms of evidence under the Islamic evidence law. The advancement of technology has expanded what can be termed as a document. The pronouncement of divorce through short

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message service (SMS) is a good example. When this happened, many were skeptical as to the validity of such a divorce. However, as divorce is a sensitive matter in Islamic family law, the judges were very careful not to invalidate intention to divorce and caused hardship on the women whose husbands have divorced them. In one of the earliest cases of divorce through SMS (unreported) in 2007, the judge ruled that divorce took effect when the wife read the message although it was sent hours earlier (Ismail 2016). This is different from the past where the pronouncement of divorce was done face-to-face before family members or judges. Unlike the civil court, the Shari’ah court has yet to incorporate specific legislation regulating electronic and digital documents. Although section 3 of the Shari’ah Court Evidence (Federal Territories) Act 1997 includes electronic documents under the definition of ‘document’, it is mentioned generally without specifying what kind of electronic documents would fall under the interpretation. On the other hand, the civil court has passed the Digital Signature Act 1997 and Electronic Commerce Act 2006 for such purposes. This is besides the amendment to the Evidence  Act, in 1993, which has inserted specific provisions on computer-generated documents (Ss. 90A, 90B, and 90C). It is rather unfortunate that the Shari’ah evidence legislations have yet to incorporate such specific laws on electronic and digital documents. Though as described in the unreported case, the court did accept the validity of divorce pronounced electronically, it was done based on general interpretation of documents. Questions remain as to whether the Shari’ah court is ready for any possible advanced forms of electronic and digital documents that it might come across in deciding cases.

 vidence Using DNA (Deoxyribonucleic Acid) E and Fiqh Forensic Proving the case using DNA and forensic evidence in the Shari’ah court was once questioned as to its validity. At that time, the Shari’ah court was not ready to accept such evidence. There have been several cases where the applications have been brought to the Shari’ah courts to accept the use of DNA and forensic evidence. Those early cases involved the lineage of children born to a marriage. For instance, in an unreported case of E v R (2012), in the Shari’ah High Court of Negeri Sembilan, the appellant contended that the second child of the family was not his and the court in deciding the case, at first, considered DNA evidence. But, in the end, the DNA evidence was rejected as the maker of the DNA report was not called to testify as required under section 33 of the Shari’ah Court Evidence (Negeri Sembilan) Enactment 2003. The situation is different in Islamic criminal cases where the Shari’ah courts have shown tendencies to accept these advanced forms of evidence. For example, in

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Syarie Prosecutor v Rosli bin Japar (2001) (Unreported), the Shari’ah High Court of Sabah accepted the DNA evidence in proving the offence of sexual relation out of wedlock between a couple where the female accused has given birth to a baby. It can be observed that the Shari’ah courts are still in the early stage of accepting scientific evidence. Nevertheless, recognising the importance of such evidence, the Shari’ah Judiciary Department of Malaysia has encouraged the Shari’ah judges and officers to learn more about what is termed as fiqh forensic (Baharuddin 2019). The purpose is to call the judges especially into discovering other possible evidence, other than confession (iqrar) and oral evidence (shahaadah). The term fiqh forensic is a combination of fiqh which originated from Islam and Latin word forensis. Linguistically, fiqh means an understanding of a certain matter based on proper analysis of theory and practice. While forensis originally means a process of debating in a trial. Forensic itself is defined as an application of scientific or technical practice to identify, collect, analyse, and interpret evidence used in civil and criminal laws. Currently, the universities have  been developing modules in these areas of law to train judges and officers. (Baharuddin et al. 2019).

Conclusion This chapter shows how similar Islamic evidence law is with the conventional, common law-based evidence law. It also demonstrates that any conventional law that does not contradict Islamic law principles and values can be adopted and, as such, applicable before the Shari’ah courts. Most of the provisions in the Shari’ah evidence legislations in Malaysia are structurally similar to those in the conventional EA. This similarity does not make the Islamic legislations any less Islamic nor does it render the conventional EA any less conventional. This only proves that a greater harmonization between Islamic law and the common law, particularly in the area of evidence law, is not only possible but rather desirable. The challenge now is for Islamic evidence law to keep up with the evidence law applicable before the civil courts. To a certain extent, the Evidence Act 1950 is more up-to-date than the Shari’ah evidence legislation. It is also noticed that some States are more receptive to advanced forms of evidence compared to the other and that there is no uniformity in terms of its application. Nevertheless, it is hopeful that the ongoing endeavours at the Federal and State Government levels, and the proactive efforts on the part of Shari’ah judges and officers would accelerate the needed improvements in the Islamic evidence law and help the harmonization and standardization of the Islamic evidence law.

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References 40 Hadith Nawawi. https://sunnah.com/nawawi40/33 Al-Jauziyah, I. Q. (1977). al-Turuq al-Hukmiyyah fi al-Siyasah as-Syar’iyyah. Cairo: Matba’ah al-Adab. Al-Majallatul Ahkam Al-Adliyyah  – The Ottoman courts manual. Retrieved http://legal.pipa.ps/ files/server/ENG%20Ottoman%20Majalle%20(Civil%20Law).pdf Al-Zuhaili, W. (1985). Al-Fiqhul Islami wa Adillatuhu. Damascus: Darul Fikr. Baharuddin, A. S., Ruskam, A., & Yacob, A. R. (2015). The role of forensic biology in Realising Maqasid al-Shariah (The objectives of Islamic law). Sains Humanika, 4(1), 9–15 Baharuddin, A. S., Ismail, W. A. F. W., Mutalib, L. A., Ahmad, M. H., Nasir, B. M., & Harun, M. A. W. (2019). A preliminary review on Fiqh forensics fundamental modules for the use of Shariah Officers in Malaysia. International Journal of Islamic and Civilisational Studies 6(2) 195–209. Bahnasi, A. F. (1964). al-Qisas fil Fiqhi Islami. Cairo: Al-Syirkah al-‘Arabiyya. Evidence Law Act 1950. Hasnah vs Borhan al-Din (Jurnal Hukum, Vol. VI/1,1998) Hassan, Z. (2012). The development of Islamic law of evidence in Malaysia. https://zulkiflihasan. wordpress.com/2012/09/06/the-­development-­of-­islamic-­law-­of-­evidence-­in-­malaysia/ Irsyad al-Fatwa: The ruling of making oath using al-Quran. (2017). https://muftiwp.gov.my/en/ artikel/irsyad-­fatwa/irsyad-­fatwa-­umum-­cat/1031-­irsyad-­al-­fatwa-­series-­171-­the-­ruling-­of-­ making-­oaths-­using-­al-­quran Ismail, W. A. F. W. (2016). Acceptance and strength of electronic documents as proof in Malaysian Shari’ah Courts. Journal of Kanun, 28(2) 338–355 Jusoh, H. (2007). Tazkiyah al-Shuhud. In Undang-undang Islam: Jenayah, Keterangan dan Prosedur (Islamic laws: Criminal, evidence and procedural laws). Kuala Lumpur: Dewan Bahasa dan Pustaka. Mat Husain Daud vs Zawiah Mamat (Jurnal Hukum, Vol. VIII/I, 1992) Mohamad, A.  H. (2009). Harmonisation of common law and the Shariah law in Malaysia: A practical approach. Lecture presented at the Harvard Law School. https://tunabdulhamid. me/2008/11/harmonization-­of-­common-­law-­and-­the-­shariah-­in-­malaysia-­harvard/ Noor, R. M. (2008). Kedudukan Bayyinah, Syahadah dan Qarinah Dalam Dalam Penggubalan Undang-undang Keterangan Islam di Malaysia (Position of Bayyinah, Syahadah and Qarinah in the drafting of the Islamic evidence law in Malaysia). Jurnal Hukum, 16(2) 1–23 Noor, R. M. (2015). Shari’ah Court Evidence (Federal Territories) Act 1997 (Act 561). Journal of KANUN, 37(1) 195–200 Oxford Islamic Studies Online. (2017). Talfiq/Takhayyur. www.oxfordislamicstudies.com Radhakrishna, G. (2016). Section 90A Evidence Act 1950 of Malaysia: A time for review. Proceeding Paper at the 5th Annual International Conference on Law Regulation and Public Policy. Ramah binti Ta’at v Laton binti Malim Sutan 6 FMSLR (1927) Sahih al-Bukhari. Chapter one on how the divine revelation started being revealed to the messenger. https://sunnah.com/bukhari/1/1 Sahih al-Bukhari. Hadith No. 53, Book 86 on limits and punishments set by Allah (Hudood). https://sunnah.com/bukhari/86 Saiti, B., & Abdullah, A. (2016 July). The legal maxims of Islamic law (Excluding five leading legal maxims) and their applications in Islamic finance. Journal of King Abdul Aziz University (JKAU): Islamic Economics, 2(29), 139–151. Suhaizad, S., Ruzian, M., & Mohd, M. M. (2019). Methods of proving according to law of evidence in Malaysian Shariah and Civil Courts: A comparative study. Journal of KANUN, 31(1), 1–34 Sunan Abu Dawud. Chapter on struggling for an opinion when passing judgments. https://sunnah. com/abudawud/25 Zaydan, A. K. (1989). Nizamul Qadha’. Oman: Muassasah al-Risalah.

Chapter 9

Transforming and Globalising the Shari’ah Judiciary System of Malaysia Hanifah Haydar Ali Tajuddin

Introduction Malaysia has a unique pluralistic legal system that consists of both civil and Shari’ah laws and courts. The origins of this legal system can be traced back to years before Malaysia’s independence when the Malay culture and Islamic law used to be considered the law of the land. English common law was introduced later as a result of the British occupation of Tanah Melayu (Malay Peninsula). The position of Islamic law in Malaysia is interesting as it is sourced from Islam being the religion of the federation. Article 3 of the Federal Constitution clearly spells that out. Islam is also the religion of the majority in the country. Approximately 61.3% of the population are Muslims (Department of Statistics of Malaysia 2011). However, over the years, Islamic law has been a subject of criticism by many. There were times when this criticism was warranted. But, there were also times when the criticism was fuelled by Islamophobia and prejudice towards anything “Islamic”. As a result, the development and progress of Islamic law became stifled. Instead of concentrating on introducing new laws and developing the existing ones, Islamic law practitioners became preoccupied with explaining to the community, media, and non-governmental organizations that the Muslims in Malaysia have the right to be governed by Islamic law to the extent specified under the Federal Constitution. Labelling Islamic law as unsuitable for the Malaysians would not only offend the Muslims’ feelings, but it would also deprive them of their basic constitutional right. Be that as it may, the strength manifested by the states led by their Sultans has ensured that Islamic law survives until today. This is also due to the Muslim population in Malaysia, who overwhelmingly supports the application of Islamic law. A worldwide survey conducted by Pew Research Centre showed that 86% of Muslims in Malaysia said that Shari’ah should be the official law, and many supporters of H. Haydar Ali Tajuddin (*) Shari’ah Judiciary Department of Malaysia, Putrajaya, Malaysia © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4_9

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Shari’ah had said that it should only apply to their country’s Muslim population (Pew Research Centre 2013). Keeping Islamic law only alive, however, is not enough in today’s context. Islamic law needs to be transformed to meet challenging ends inside and outside Malaysia. Even though Malaysia has been widely acknowledged as having very progressive and developed legal and judicial practices, including the Islamic law-­ related ones, there is still room for improvement. Some areas could be explored further, especially those that highlight the concept/philosophy of rahmatan lil alamin (Qur’anic phrase referencing that Prophet Mohammad  (peace be upon him) was sent by God as a mercy to all) (Qur’an 21:107).

Islamic Law in the Federal Constitution The Malaysian Federal Constitution, as drafted by the Reid Commission before the independence, has specified matters that fall under the jurisdiction of the federation and those that are placed under the jurisdiction of the respective states. This was achieved by creating three legislative lists in the Ninth Schedule of the constitution, namely List I – Federal List, List II – State List, and List III – Concurrent List (Lee 2017). Matters under the Federal List fall under the Federal Parliament’s purview, while matters under the State List are under the jurisdiction of the State Legislative Assemblies. The Concurrent List contains matters on which both the Federal Parliament and State Legislative Assemblies may legislate. Matters relating to the administration of Islam and its laws (hukum syarak) are specifically placed under the jurisdiction of the states, which may enact both substantive and procedural laws on Islamic law matters contained in the State List. This includes the establishment of Shari’ah courts, their procedures, evidence, and appointment of judges. The matters are then legislated into the Administration of Islamic Law Enactments in each state. Nevertheless, as there are 14 states in total, these laws vary in their form and application as each state has its own needs and expectations. The lack of harmonization between Islamic laws and procedures across different states has caused many issues in the cross-state implementation of the Islamic laws to the extent that a court decision in one state would not automatically be enforced in other states without prior registration and endorsement of the same by the latter. Many efforts have been made over the years to solve this problem. The leading force behind these efforts has been the Shari’ah Judiciary Department of Malaysia (Jabatan Kehakiman Shari’ah Malaysia) – (JKSM).

Shari’ah Judiciary Department of Malaysia (JKSM) JKSM was established on 1st March 1998 as a federal government agency responsible for coordinating the implementation of the Islamic law throughout the country and management of appeal cases in the Shari’ah Appeal Courts of the respective

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states and federal territories (Latar Belakang JKSM). JKSM has also been tasked with other functions, such as the conduct of research relating to Islamic law and Shari’ah judiciary, particularly on matters that reflect on current developments in the country. The conducted research would normally lead to the formulation of guidelines/practice directions and other rules and regulations relevant to the Shari’ah officers and institutions in the states and other related agencies. JKSM also employs and trains Shari’ah officers, and these officers are deployed to Shari’ah institutions in the federal territories and the states that accepted Gunasama Service Scheme (JKSM Profile). The service scheme was introduced due to JKSM’s effort to push coordination in the administration of Islamic laws between the states, despite the possible issues that may arise due to the territorial jurisdiction of the law. Through the scheme, JKSM can also provide human resources to the states that consist of officers and staff who are picked based on their specific qualifications and training. Until today, seven states have accepted the service scheme, and JKSM strives to convince the remaining states to do the same. Strong partnerships with other federal government agencies like the Department of Islamic Development of Malaysia (JAKIM) and states’ religious agencies have enabled JKSM to continue strengthening and improving the administration of Islamic laws throughout the country. JKSM recognizes that the improvement is only possible through constant reflection on the Islamic laws and policies, and their implementation. The laws that do not work need to be changed and adapted to the needs of the Muslim community to whom these laws apply. But it is not only the laws that may need to be changed. The attitudes of those entrusted with the administration of Islamic law would also need to be in tune with the necessary changes. If that is not done, then there is a possibility of having good laws badly implemented. This is why JKSM has taken upon itself the duty to reflect on the work it does and lead the necessary transformation of the Shari’ah judiciary system to make it more agile and responsive to current needs and challenges.

Transforming the Shari’ah Judicial System Significant efforts to transform the Shari’ah judicial system have been made. The transformation can be observed in the following fields:

Coordination of Appellate Process in the Shari’ah Courts The efforts to strengthen the appellate review process in the Shari’ah institutions have been carried out since the 1980s until today. The efforts began with the replacement of Mahkamah Qadhi (Qadhi Court) with Mahkamah Shari’ah (Shari’ah Court). Besides that, the Qadhi Court, which consisted of only two tiers (Qadhi Court and Main Qadhi Court) and a Jawatankuasa Ulangbicara (Retrial Committee)

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that heard appeal cases, was then upgraded to three tiers consisting of Shari’ah Subordinate Court, Shari’ah High Court, and Shari’ah Appeal Court (Sejarah Penubuhan 2017). The three-tier arrangement remains until today. To coordinate the appeal cases throughout the country, seven Appeal Shari’ah Court judges are appointed at the federal level and placed at JKSM. They are led by the Shari’ah Chief Justice of JKSM.  These judges are appointed by the Yang di-­Pertuan Agong after consultation with the Shari’ah Chief Justice based on long experience sitting as Shari’ah court judges or as practicing legal and judicial experts (Administration of Islamic Law (Federal Territories) Act 1993, s. 42). These judges function as circuit judges where they will travel to each state and hear appeal cases. Nevertheless, as Shari’ah jurisdiction belongs to each state, the judges only sit in the states that accept their appointment through the gunasama scheme. The states that accepted the scheme basically agreed to coordinate their Shari’ah courts’ administration and operation with JKSM, which operates at the federal level. Having the appeal cases heard by this panel of judges enables uniformity in respect of the application of laws and reporting of cases. (Program Kehakiman, 2018).

Protection of Women and Children Women and children are considered as the most affected parties in family disputes cases. This is because the men  (fathers/husbands), who have been designated in Islamic law as the main bread-winners in their families, evaded their obligations in many cases. Hence, the dissolution of marriage also means the dissolution of the family support structure. As for Shari’ah courts, the constant critique of being ‘unfriendly’ courts for women and children has motivated the Shari’ah officials to double the efforts in serving women and children best. In devising such efforts, the new approach would have to depart from litigating such cases, as courts are basically functus officio after cases are decided and are not responsible for enforcing its orders/judgments unless an application to enforce such orders is submitted to the courts. Therefore, in 2008, JKSM established the Family Support Division (FSD), a body that enforces and executes maintenance orders and accelerates and guarantees the portion entitled by the women and children (Bahagian Sokongan Keluarga, 2018). The division aims to achieve multiple objectives, including providing legal advice to the parties involved in the claim of maintenance, enforcement procedures, and execution of judgment or order of the Shari’ah court. Furthermore, it provides temporary financial assistance in the form of advance payment of maintenance to the women and children to support their living expenses immediately after the divorce. The advance payment will be obtained from the defaulted ex-husbands/fathers who are now judgment debtors, and effective measures are used to make sure that they continue to carry out their responsibilities (Bahagian Sokongan Keluarga, 2018). The work that the FSD does could undoubtedly be improved with the help of the states’ Shari’ah courts. Thus, FSD and JKSM are persistent in having continuous

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engagement and discussion with the Shari’ah courts to develop better strategies to effectively enforce court orders and reduce procedural burden (Bahagian Sokongan Keluarga, 2018). FSD offices are  currently placed in every Shari’ah court in the states and parties who have just obtained their orders/judgments will immediately be referred to the offices. As FSD operates outside the litigation restriction, enforcement of the orders/judgments is monitored through the E-Nafkah system that triggers hints for monitoring execution monthly (Family Support Division Help Services). This way, parties do not have to come to the courts to apply for their orders/judgments to be enforced after finding out the other party has evaded the payments. Besides that, as the officers are government officers, parties are not required to pay for the service. (Kajian ke Atas Keberkesan Perlaksanaan Perintah oleh Bahagian Sokongan Keluarga, JKSM 2012). As will be detailed in the discussion below, there are other efforts undertaken by the JKSM to serve  better the vulnerable members of the community, including women and children.

Improvement of Physical Infrastructures JKSM is making continuous efforts to ensure that the infrastructures and facilities available at the Shari’ah institutions, especially the Shari’ah courts are well-suited and functional. This includes well-equipped courtrooms, mediation (sulh) rooms, and counters. The Federal Government has allocated substantial funds channeled to the states that accepted the gunasama service scheme. Most of the states have used the allocated funds and built new Shari’ah court complexes. These new Shari’ah courts complexes come with equipped trial rooms, waiting rooms, and special exits for witnesses, electronic facilities that can support videoconferencing and recording of trials, and range of disabled-friendly facilities (Kompleks Mahkamah Shari’ah Sabah siap Mei 2020, 2020). Having new court complexes means that Shari’ah courts no longer need to operate under the extension of states or religious departments’ offices. This also resolves issues relating to old facilities of courtrooms.

Innovations and Improvements of Electronic Infrastructures In keeping pace with the IT development and transformation, JKSM realises that it needs to invest more in its electronic infrastructures. This ‘investment’ is important in ensuring faster delivery of service and a more accurate public presentation of its service. For this purpose, an ICT division is established at JKSM and all Shari’ah courts to accommodate such efforts. The first of such efforts began with developing the E-Syariah System that established E-Syariah Portal back in 2003 (Sejarah Penubuhan  E-Syariah 2008). The portal digitalises court processes and is accessible by all court clients, including

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lawyers and disputants. One of the essential improvements that the system aims for is developing a central electronic communication channel between the JKSM and Shari’ah courts in the states (Pengenalan E-Syariah). The portal, among others, enables checking of the status of cases, download of e-forms, publication of information, registration of Shari’ah counsels, searching for information of Shari’ah counsel, and online calculator for a portion of the inheritance (Brochure of Portal E-Syariah). The challenges of operating an online system are, nevertheless, inevitable. Thus, from time to time, the ICT division is reviewing the system to upgrade its server and deliver more online services to the public. Currently, E-Syariah 2.0 is in operation with certain update features that expedite online registration of cases, summonses, orders, etc. Over the years, the states’ Shari’ah courts have introduced electronic innovations that aim to have a well-equipped system to store and analyse data so that a service, which is faster, more accurate, and of better quality, can be delivered to the court clients. Some of the innovations are detailed below. E-Tray and I-Post The Shari’ah Judiciary Department of Terengganu has introduced ‘e-Tray’ and ‘i-Post’. E-Tray is an innovation designed to hasten the delivery of summons, notices, and affidavits online from district to district through an in-house system. On the other hand, I-Post is an online smart order submission, a channel used by the Shari’ah court of Terengganu and the Islamic Religious Office (JAIT). It is a jointly developed system between JAIT and Shari’ah Judiciary Department of Terengganu (JKSTR) that expedites the submission of an order of dissolution of a marriage between the two agencies which manage and record matters relating to the status of marriages of the Muslims. (Saingan Akhir Anugerah Inovasi Islam 2016). E-Siap Penang Shari’ah Judiciary Department (JKSNPP) has also made some improvements in its digitalisation. For example, it introduced e-Syariah Instant Access Procedure (e-Siap) which has been built and integrated within the main E-Syariah system. It is designed to expedite the process of getting a court order within one day for cases where the dissolution is mutually agreed upon by parties. The system is accessible by the public at the counter of every Shari’ah court in the districts of Penang. Computers are prepared for the clients to draft their statements of claim and upload them to the system. The main aim of E-Siap is reflected through its motto ‘Hari Ini Setuju Hari Ini Siap’ (Agreed Today Resolved Today). As of now, there are 12 categories of cases where E-Siap can be used, and the cases include divorce, claim of the jointly acquired property, claim of the monetary gift (mutaah), and maintenance of waiting period (nafqah iddah). (Projek E-Siap Raih Anugerah Emas di Mini Konvensyen Team Excellence Wilayah Utara 2015).

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MySolve System The MySolve System is introduced by the Shari’ah Judiciary Department of Perak. It enables the registration of cases of mutual divorce for parties without having to attend the court (for registering their cases). After registration is completed online, a mention date will be set, and parties only have to attend the court on the designated date for resolution of their marriage. (System MySolve) Two-Easy The Shari’ah Court of Melaka introduced ‘Two Easy’ where summons are immediately served after the process of sulh if the parties fail to dissolve their disputes amicably. This certainly saves the court’s time from being postponed for delivery of summons. Moreover, mention of the case can immediately be done on the same day before a Deputy Registrar. Another innovation introduced by the Shari’ah Court of Melaka is E-Perintah. It enables disputants to check the status of completion of the court orders and when they are ready to be collected. The disputants only attend the court for collection when their order is ready (E-Perintah). E-Fos The Shari’ah Court of Federal Territories has introduced the ‘Electronic-Fast Order Sulh’ (e-Fos) system to improve the issuance of the order of sulh. The system prepares templates for 19 categories of cases to assist and accelerate the preparation of Final Order after the endorsement of agreement of dissolution of disputes before a Shari’ah judge. The innovation, which started as a Key Focus Activity, later became a project for Innovation and Creativity Circle (ICC) under the Prime Minister Office. E-Fos aims to reduce the period of issuance of the order of sulh to one hour after endorsement, compared to 14 days before that. The project is perceived as one of the efforts to revive the handling of Majlis Sulh, which has before that been the innovative icon of the Shari’ah court. Besides, e-Fos has also provided better service for the Shari’ah courts’ clients (Sulh Unit, JKSM). The above innovations have received gold medal and acknowledgments both at national and international levels during the Majlis Persada Inovasi Kebangsaan INTAN, the Annual Productivity & Innovation Conference and Exposition (APIC) organized by the Malaysian Productivity Corporation (MPC), and the International Convention on Quality Control Circles (ICQCC) in 2014–2019 respectively. All the recognitions are evidence that states’ Shari’ah judiciary departments and states’ Shari’ah courts are making substantial and constant efforts to deliver better, faster, and accurate services. These have made the Shari’ah institutions as Rahmah institutions and ummah-friendly. JKSM, together with the states’ Shari’ah courts are also not far behind from exploring quality systems that aim at better management and conducive

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surrounding in offices through MS ISO 9000, Public Sector Conducive Ecosystem (EKSA), and System Star Rating (SSR).

The Islamic Law and Jurisdiction The development of Islamic laws and the judiciary has been happening since before independence until today. It started with single legislation on the administration of Islamic law, which congregated other laws on procedural, evidence, and substantive laws on family matters and crimes. Later, in the 90s, the laws were separated into different legislations. Until now, the legislations applicable in the Shari’ah court are comprised of Administration of Islamic Law, Islamic Family Law, Shari’ah Civil (Mal) Procedure, Shari’ah Criminal Offences, Shari’ah Criminal Procedure, and Shari’ah Court Evidence. Expanding of Jurisdiction of the Shari’ah Court The operation of the Shari’ah courts has not always been smooth. Many issues arose, and many have also been resolved. Particularly, issues relating to the courts’ jurisdiction have been continuous, and JKSM has been involved in resolving such issues. The continuous effort to review and improve the laws has not only aimed to update the existing laws, but the effort has also clarified other related areas of Islamic laws, such as laws on inheritance (faraidh) and endowment (waqf). A lot of work is currently being done to compile and enforce the laws on gift inter vivos (hibah) and inheritance (faraidh). Apart from the laws, there are also various guidelines and practice directions introduced by the JKSM for more standardised court flows and procedures in handling cases, and these are referred to by the states’ Shari’ah courts. In transforming and diversifying the jurisdiction of the Shari’ah court, the effort to expand the jurisdiction should be ongoing. Through such effort, new ideas and perspectives can be considered in coming out with a more relevant approach, whether in finding better ways to resolve family disputes or in punishing offenders. For example, in imposing a punishment on an offender, the Shari’ah courts are now considering alternatives to the ‘usual’ punishments, such as fine, imprisonment and whipping, and replacing them with the ones that are rehabilitative and reformative. This is because the main goal of punishment in Islam is to induce regret and repentance from within the offenders. Alternative punishments such as attending congregational prayers, daily sermons, cleaning mosques, and public places are found to be able to achieve the desired goals better than the usual punishments. Thus, JKSM is currently conducting research on how to execute alternative punishments more effectively through collaboration with other agencies, such as the religious offices, Islamic religious councils, the Prison Department of Malaysia, the Social Welfare

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Department, and mosque committees in  localities (Policy and Research Division JKSM). This can be done through amendment to the existing laws, issuance of practice directions, standard operating procedures, and guidelines to standardise the execution. JKSM and the Shari’ah courts are committed to finding effective ways to make sure that courts are open and operational. The ongoing pandemic and restriction of the movement have compelled the government agencies that mainly serve the public to remain not only functional but also safe for the public and the staff. The Shari’ah courts experience the same challenge. Disputants and lawyers continuously demand their cases to be heard as many of these cases involve the rights and liabilities of individuals and dependants. As a result, JKSM began having electronic or online court sessions. In trying to find the best method for conducting such court sessions, JKSM leaves the options open by learning from their counterpart, the civil courts, and also from other countries. Webinars are conducted in order to learn from the best practice. One of the successful ones includes a webinar with the judges of the Family Court of Australia on ‘Keeping Courts Open and Operational During COVID-19’. Other webinars conducted were with the Shari’ah Court of Singapore, Indonesia, and Brunei. As a result of these online discussions and proactive engagement by the Director General of JKSM, efforts are currently concentrated on amending the laws to include electronic or online court sessions and devising court rules and regulations pertaining to that matter. (Policy and Research Division, 2020). This is not to say that there are no successful electronic or online sessions conducted by the Shari’ah courts in the states. The States of Selangor and Negeri Sembilan, for example, are among the first Shari’ah courts that conducted such court sessions where disputants were in other countries (JAKESS 2020). The aim is certainly to make electronic or online court sessions the new norm of conducting case mentions and trials.

Globalising the Shari’ah Judiciary System The world now witnesses many changes as globalisation takes over. Globalisation does not only affect corporations and businesses but also private and familial relations. When these relationships go to trial, the Shari’ah judiciary must be prepared to face possible cross-border challenges.

Enforcement of Shari’ah Court Order Across Borders Enforcement of court orders beyond borders seems to be an issue that may give rise to multiple other issues involving enforcement of orders relating to maintenance, custody, property claim, marriage registration, divorce, and verification. Due to the inability of Shari’ah courts to enforce orders beyond the borders of Malaysia, this

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leads to cases such as parental abduction and non-performing of stipulated obligations by non-Malaysian or non-resident parties. In view of this, Malaysia is currently in the process of ratifying a few related international conventions like the Hague Conventions on Private International Law that relate to family law and child protection matters (Hague Conference on International Private Law [HCCL] 2020). These conventions are deemed to be a suitable tool to resolve the issues. Thus, issues that arise from the conflict in a marriage of dual citizens governed by two or more laws could be resolved. However, it is observed that the main impediment in conforming to the conventions is the fact that the Shari’ah court is territorial in nature, and the application of Islamic laws differs from one state to another. Nevertheless, JKSM, as a federal body that coordinates the Islamic laws and their application in the states, might play its role in making adjustments to comply with the conventions. One specific convention that Malaysia is considering and perhaps ratifying is the Hague Convention on the Civil Aspects of International Child Abduction. The convention aims to protect the welfare and safety of children, as well as the right of the parent with custody. This convention can ensure the enforcement of Shari’ah court orders concerning child custody and other rights beyond Malaysia. Upon ratifying the convention, amendments to the existing laws, such as establishing the central authority and competent authorities in the states, temporary residence, and support system for the children, are required. These amendments would be for the betterment of children and their custodians and, hence, should be made.

International Training of Shari’ah Judges and Officers Over the years, JKSM, through its collaboration with institutes and agencies from other countries, has managed to provide training for the Shari’ah judges and officers in the United Kingdom, Saudi Arabia, Egypt, Indonesia, and Singapore. In 2019, 33 Shari’ah judges and officers completed their training at the Imam Muhammad Ibn Saud Islamic University of Riyadh, Saudi Arabia. During the 30-days training, the participants completed five modules on the Shari’ah judiciary in three weeks and, the last week, the participants were brought to visit Madinah and Makkah (Training Division JKSM, 2019). JKSM is hopeful that such training will continue to be offered in the coming years. A few Shari’ah judges and officers have also participated in training at the Muslim College London and Clifford University of Clifford. The present Director General of JKSM, Dato’  Setia Dr. Hj Mohd Na’im was appointed as a visiting fellow by both the Oxford Centre for Islamic Studies of the University of Oxford and Harvard Law School of Harvard University. Such exposure and training are hoped to bring in diversification, especially in the administration of the Shari’ah judiciary. Besides attending training outside Malaysia, internationally renowned experts are also invited to train Shari’ah judges and officers in Malaysia. Current  online webinars where legal and judicial experts are invited as guest speakers are

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considered as exposure and informal training of the Shari’ah judges and officers. Besides that, international consultant such as the Accord Group based in Australia has been invited from time-to-time to train and expose sulh officers on mediation and alternative dispute resolution (ADR) methods. The training helps the sulh officers to communicate and handle sulh sessions effectively (Sulh Unit JKSM). Apart from learning from others, JKSM has received visits from practitioners and students from other countries who wish to learn from JKSM.

The Way Forward The transformation and globalisation of the Shari’ah judiciary and laws in Malaysia is an ongoing process to which JKSM and the Shari’ah courts are very committed. The transformation includes the upskilling of the personnel that drives the services and refurbishment and degitalisation of the facilities. Though the process is continuous and not easy, it takes perseverance and insistence in realising the dreams. To achieve the intended goals, JKSM will need support and cooperation from the states and their Shari’ah institutions. What is clear is that the transformation discussed above shows that JKSM is capable of being an independent Shari’ah judicial agency in the future.

References Administration of Islamic Law (Federal Territories) Act 1993 Bahagian Sokongan Keluarga. http://www.jksm.gov.my/index.php/ms/profil-­jabatan/pengenalan/bahagian/49-­bahagian-­ sokongan-­keluarga Brochure of Portal E Syariah. Retrieved 12th July 2020. http://www.esyariah.gov.my/images/esyariah/Document/RisalahJKSM/BI/E-­Syariah%20Portal.pdf Department of Statistics of Malaysia. (2011). Population distribution and basic demographic characteristic report 2010 (Updated: 2020). https://www.dosm.gov.my/v1/index.php?r=column/ ctheme&menu_id=L0pheU43NWJwRWVSZklWdzQ4TlhUUT09&bul_id=MDMxdHZjWTk 1SjFzTzNkRXYzcVZjdz09 E-Perintah. Retrieved 12th July 2020. https://www.mahsyariahmelaka.gov.my/index.php/ms/ perkhidmatan/perkhidmatan-­atas-­talian/e-­perintah Family Support Division Help Services, Retrieved 12th July 2020. https://www.malaysia.gov.my/ portal/content/28866 Hague Conference on International Private Law. (2020). More about HCCH. https://www.hcch. net/en/about/more-­about-­hcch JKSM Profile http://www.esyariah.gov.my/portal/page/portal/Portal%20ESyariah%20BI/ Portal%20E-­Syariah%20Profil%20JKSM Kajian ke Atas Keberkesan Bahagian Sokongan Keluarga dalam Membantu Menyelesaikan Kes Ketidakpatuhan Terhadap Perintah Nafkah Mahkamah Shari’ah 2011–2015 (Analysis on the Effectiveness of Family Support Division in Resolving Non-compliance of Maintenance Order Issued by the Shari’ah Court 2011–2015) by Policy and Research Division, JKSM 2017.

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Kompleks Mahkamah Syariah Sabah siap Mei 2020, BH Online (28 May 2020). https://www. bharian.com.my/berita/wilayah/2019/05/568937/kompleks-­m ahkamah-­s yariah-­s abah-­ siap-­mei-­2020 Latar Belakang JKSM http://www.jksm.gov.my/index.php/ms/profil-­jabatan/pengenalan/ latarbelakang-­jksm Lee, H. P. (2017). Constitutional conflicts in contemporary Malaysia (2nd ed.). Oxford: Oxford University Press. Normal Baharu Mahkamah Shari’ah Negeri Selangor: Bicara Secara Dalam Talian (The New Norm of Shari’ah Court of Selangor: Online Court Trials) Shari’ah Judiciary Department of Selangor (JAKESS) (June 2020). http://www.jakess.gov.my/v5/index.php/en/ news/759-­normal-­baharu-­mahkamah-­syariah-­negeri-­selangor-­bicara-­secara-­dalam-­talian Official Website of Department of Shari’ah Judiciary Malaysia www.jksm.gov.my Sejarah Penubuhan (2017) (history of establishment) http://pahang.jksm.gov.my/index.php/korporat/ sejarah-­penubuhan Pengenalan E Syari’ah (Introduction to E Syariah). Retrieved 12th July 2020. http://www.esyari’ah. gov.my/images/esyariah/Document/RisalahJKSM/BI/E-­Syariah%20Portal.pdf Pew Research Centre. (2013, April 30). The world’ Muslims: Religion, politics and society. https:// www.pewforum.org/2013/04/30/the-­worlds-­muslims-­religion-­politics-­society-­overview/ Program Kehakiman (Program of Judiciary) http://www.jksm.gov.my/index.php/ms/profil-­jabatan/ pengenalan/bahagian/56-­program-­kehakiman Projek E-Siap Raih Anugerah Emas di Mini Konvensyen Team Excellence Wilayah Utara, 2015 (E-Siap Project Received Gold Award at the Ream Excellence Mini Convention of the Northern District, 2015) http://jksnpp.penang.gov.my/index.php/en/20-­berita/221-­projek-­e-­siap-­raih-­ anugerah-­emas-­di-­mini-­konvensyen-­team-­excellence-­wilayah-­utara Saingan Akhir Anugerah Inovasi Islam, 2016. http://www.islam.gov.my/ berita-­semasa/15-­bahagian-­dakwah/663-­saingan-­akhir-­anugerah-­inovasi-­islam Sejarah Penubuhan E Shari’ah (2008), Retrieved 12th July 2020 http://jksnpp.penang.gov.my/ index.php/2015-­04-­24-­07-­46-­02/e-­shari’ah/47-­pengenalan-­e-­shari’ah System MySolve. Retrieved 12th July 2020. http://shari’ah.perak.gov.my/index.php/ maklumat-­tetap/sistem-­mysolve-­pendaftaran-­cerai

Chapter 10

Implementation of Islamic Law in Malaysia: The Way Forward Adnan Trakic and Hanifah Haydar Ali Tajuddin

Introduction This book seeks to identify and discuss challenges faced in the implementation of Islamic law in Malaysia. It encourages a constructive critique with a view of finding suitable solutions to many, if not most, of the challenges raised. The book aims to increase awareness about Islamic law and enable Islamic law scholars and practitioners to present their views and suggestions on a variety of issues. A concerted effort has been made to ensure that the areas discussed are within the expertise or practical domain of the discussants. We do not pretend to have all or indeed many of the answers, although we believe that the analysis and views we presented in this book provide a solid basis for a healthy discussion and debate on this subject. This chapter begins with a brief recapitulation of the key points that have been discussed by the respective authors in their chapters. But, it is not only a mere summary of what has been earlier said. We have taken the liberty of offering our commentaries wherever we considered necessary. The chapter then attempts to answer the questions that were posed in the first chapter. For ease of reference, these questions are reproduced here again: • Is Islamic law flexible enough to accommodate the needs of Muslims in the twenty-first century? • How can those involved in the implementation of Islamic law in Malaysia, such as Shari’ah judges and officers, address and alleviate the challenges faced in the implementation of Islamic law?

A. Trakic (*) School of Business, Monash University Malaysia, Subang Jaya, Malaysia e-mail: [email protected] H. Haydar Ali Tajuddin Shari’ah Judiciary Department of Malaysia, Putrajaya, Malaysia © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4_10

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• Can Malaysia’s plan to promote a moderate, middle path, and compassionate interpretation of Islam remove some of the obstacles faced in the implementation of Islamic law? These and, indeed, many other relevant questions have also been addressed, to a variable extent, by the respective authors in the thematic chapters. The answers to these questions should shed some light on the current state of Islamic law and its implementation in Malaysia and, more importantly, future developments. The chapter ends with concluding thoughts and some suggestions which the authors believe are worth considering.

 he Position of Islamic Law Under the Malaysian T Legal System The position of Islamic law before and after the foreign occupation of the Malay Peninsula, particularly by the British, has not been the same. In Chap. 2, Ashgar Ali Ali Mohamed and Muhamad Hassan Ahmad drew our attention to the Hukum Kanun Melaka (The Laws of Malacca) and other similar legal codes inspired by it to show that Islamic law was the law of the land in the Malay Peninsula for long before the foreign powers occupied it. Hukum Kanun Melaka was a legal code of Malacca Sultanate compiled during the reign of Sultan Muzaffar Shah (1446–1459). It contained provisions on a wide range of areas, such as criminal offences, commercial transactions, family matters, evidence and procedure, and state matters. The provisions of the code, as the authors explained, absorbed directly several Islamic law rulings by referring to some classical Islamic law texts. Islamic law was also practiced in other states, apart from Malacca. The authors mentioned the Pahang Laws of 1596, which contained provisions on qisas (retaliation), zina (illicit sexual intercourse), sariqa (theft), hirabah (robbery), bay’ (sale), and kafalah (guarantee), to name a few. In Johor, the Majallah Al Ahkam of Egypt was translated as Majallah Ahkam Johor, and the Hanafite Code of Qadri Pasha was adapted and translated as the Ahkam Shariyyah Johor. In Terengganu, the authors pointed to the discovery of the Stone of Inscription dating to the twelfth century, which contained the proclamation of a ruler of Terengganu urging his subjects to uphold Islam and follow Islamic laws. The court decisions by British judges in Shaik Abdul Latif & Ors v Shaik Elias Bux [1915] 1 FMSLR 204 and Ramah binti Ta’at v Laton binti Malim Sutan [1927] 6 FMSLR 128 confirmed that Islamic law, modified to a certain degree by local customs, used to be the law of the land in the Malay Peninsula. Ashgar Ali and Mohamad Hassan then explained that the position of Islamic law drastically deteriorated after the British occupation. When the British invaded the island of Penang in 1786, and later Malacca and Singapore in 1824, they quickly subjugated the Islamic law and Malay customs and imposed English law as the governing law first in Penang through the Charter of Justice of 1807 and then in

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Malacca and Singapore through the Charter of Justice of 1824. Even though the Charters of Justice provided that English law shall apply to the local population and other residents only in so far as their religions and customs would permit, in reality, it was applied as the lex loci of the occupied territories, completely disregarding the law that was applicable before the invasion. The authors illustrated the point by citing several court cases decided at the time. While English law became the governing law in Penang, Malacca, and Singapore (known as Straits Settlements), Islamic law and Malay customs remained the governing law in the Malay States of Perak, Selangor, Negeri Sembilan, and Pahang, which in 1895 came to be known as Federated Malay States (FMS). These states were never British colonies. However, that did not stop the British from imposing English law on these states when they came under British protection. The imposition of English law to FMS was formalised through the introduction of Civil Law Enactment 1937. The Enactment was later on extended by the Civil Law (Extension) Ordinance 1951 to the Unfederated Malay States (UFMS), which included Kedah, Perlis, Kelantan, Terengganu, and Johor. Apart from the newly established common law courts in the Malay State, the Courts of Kathi and Assistant Kathi, and the Penghulu Court were initially recognized under the official court structure. In 1948, however, the Court of Kathi and Assistant Kathi was omitted from being part of the Federal Court system established by the Courts Ordinance 1948. The Ordinance was later on replaced with the current laws, namely the Courts of Judicature Act 1964 and the Subordinate Courts Act 1948. The position of Islamic law at present, as provided for under the Malaysian Federal Constitution, the supreme law of the land, was also discussed by Ashgar Ali and Muhamad Hassan in Chap. 3. The first part of the chapter explored the position of Islam in the Constitution, while the second part ascertained the status of Islamic law and Shari’ah courts. The authors explained that Islam has been designated as an official religion of Malaysia by virtue of article 3(1). But, this does not mean that Malaysia is an Islamic state or that Islamic law is the supreme law of the land. The article is mainly for ritual and ceremonial purposes so that Islamic prayers can be observed during, for example, the installation or birthday of the Yang di-Pertuan Agong (the Supreme Ruler [King]), Independence Day, and similar occasions. In support of this conclusion, the authors cited the Supreme Court decisions in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 and Meor Atiqulrahman Ishak & Ors v Fatimah Sihi & Ors. [2006] 4 MLJ 605. That said, it cannot be denied that the article positions Islam in a privileged position compared to other religions. What is the exact scope of the privileges remains arguable. For example, it may be argued that the substantial Federal Government budgetary allocation for Islamic institutions and programs administered under the Ministry of Islamic Affairs (the Office of the Prime Minister) is justifiable under article 3. The privileged position, however, does not mean that other religions may not be practiced freely and peacefully. Quite the contrary, articles 3 and 11 guarantee every individual the right to profess and practice his or her religion in any part of Malaysia. But this right comes with certain restrictions. Clause 4 of article 11 empowers the State Legislative Assemblies and Federal Parliament to enact laws to

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control or restrict the propagation of any religious doctrine or belief to Muslims. Furthermore, ‘Malay’, the largest ethnic group of Malaysia, is defined in article 160 as “a person who professes the religion of Islam…”. Thus, propagation of other religions or beliefs to Malays and other Muslims who are not Malays may be prohibited under article 11(4). The position of Islamic law in the Federal Constitution is less accentuated. The definition of ‘law’ in article 160 does not include Islamic law. It only mentions written law and the common law. That said, article 74(2) of the Constitution empowers State Legislative Assemblies and Federal Parliament to enact laws with respect to any matters enumerated in the State List and the Concurrent List in the Ninth Schedule of the Constitution. The State List, Ashgar Ali and Muhamad Hassan explain, includes Islamic laws relating to personal and family matters; charitable and religious trusts; Islamic religious revenue; Islamic public place of worship; creation and punishment of offences against precepts of Islam; the constitution, organisation and procedure of Shari’ah courts; the control of propagating doctrines and beliefs among persons professing the religion of Islam; and the determination of matters of Islamic law. Furthermore, Islamic laws are enforced through Shari’ah courts, which have jurisdiction only over Muslims. Thus, the above-mentioned Islamic laws do not apply to non-Muslims. The position of Shari’ah courts is not explained in the Constitution. It is only mentioned in the context of article 121(1A), which provides that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Shari’ah courts”. While Shari’ah courts are part of the Malaysian judicial system, they are distinct from the civil courts in terms of their function and jurisdiction. Ashgar Ali and Muhamad Hassan observed that the jurisdiction of the Shari’ah courts is very limited, particularly in criminal law matters. The Shari’ah Courts (Criminal Jurisdiction) Act 1965 limits the jurisdiction only to offences punishable with imprisonment for a term not exceeding three years or fine not exceeding five thousand ringgit or whipping not exceeding six strokes or with any combination thereof. This, they argue, positions the Shari’ah courts even lower in terms of jurisdiction than the First Class Magistrate, which is the lowest tier subordinate court in the civil court structure. It is submitted that the jurisdiction of the Shari’ah courts needs to be expanded. But, even with the expansion, the jurisdiction should be limited only over Muslims. The status of Islamic law also needs to be improved. Islamic law is not foreign to Malaysia. The Malaysian Constitution provides enough space for the development of both the civil and Islamic legal systems. But neither system should be considered less important than the other. They should operate in parallel with each other. It needs to be remembered that Malaya was essentially an Islamic state before the British colonized it and imposed on its Muslim majority population foreign laws. Therefore, Muslims should be allowed and supported to improve the existing Islamic laws and expand the jurisdiction and powers of the Shari’ah courts. It is believed that this can be done within the existing constitutional framework. But, even if there is a need for the constitutional amendments to facilitate greater recognition of Islamic law and Shari’ah institutions, those amendments should be supported.

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Key Findings from the Thematic Chapters Chapters 4, 5, 6, 7, and 8 are what we call thematic chapters as they cover the specific areas of Islamic law that have been practiced in Malaysia.

Islamic Criminal Law In Chap. 4, Hanifah Haydar Ali Tajuddin and Nasimah Bt Hussin examined the extent of Islamic criminal law’s application in Malaysia with special reference to the challenges faced in its implementation. The emphasis is on “Islamic criminal law” and not “criminal law”. The two terms have different meanings in the Malaysian constitutional context. The former is referred to in the Constitution as “offences against the precepts of the religion of Islam”. It falls under the exclusive legislative power of the States. In contrast, the latter refers to offences mentioned under the Penal Code (an Act relating to criminal offences) and is under the exclusive legislative jurisdiction of the Federal Parliament. Therefore, the State Legislative Assemblies can only enact offences that have not been included in the Penal Code. Given the Penal Code’s comprehensive inclusion of the mainstream criminal offences, States are left to legislate only offences against the Islamic precepts. Those offences can be found in Shari’ah Criminal Offences Enactments of the States. For example, Shari’ah Criminal Offences (Selangor) Enactment 1995 includes offences relating to: ‘aqidah (creed) (ss. 5–8), the sanctity of the religion of Islam and its institution (ss. 9–21), decency (ss. 22–31), and miscellaneous offences like enticing a married woman and abuse of halal sign (ss. 32–38). The major problem with the Islamic criminal law implementation in Malaysia, Hanifah and Nasimah argued, has not been with the limited number of offences that the States are allowed to legislate but rather with the limited jurisdiction of the Shari’ah courts in passing the punishments for the offences mentioned above. While the States are free to enact any Islamic law offences not included in the Penal Code, their power to enact laws prescribing punishments is limited by the federal law called Shari’ah Courts (Criminal Jurisdiction) Act 1965. The Act states that the Shari’ah courts in all States will have jurisdiction only over offences punishable with imprisonment not exceeding three years or fine not exceeding RM5000 or whipping not exceeding six strokes or with any combination thereof. As mentioned earlier, this limit places Shari’ah courts even lower than the First Class Magistrate, which is the lowest rank civil court. That said, Hanifah and Nasimah argued that the emphasis should not be on the punishments per se. They have called on the alternatives to imprisonment or whipping, which has proven to be not very effective in rehabilitating the offenders. In fact, the Shari’ah judiciary and institutions have received a fair share of critique from local and international media, mostly because of the punishments and the way in which they have been implemented. The authors argued that the concept of

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restorative justice, which has been widely practiced in many western democracies, is not only compatible  with but rather encouraged in Islamic law. The emphasis should not only be on the restoration of justice to the victim but also the offender’s  rehabilitation so that he/she does  not repeat the offence. The offender, they opined, should be actively involved in providing an appropriate remedy to the victim and the victim’s family by offering an apology and having the offender realize the consequences of his/her actions. Sometimes, instead of imprisonment, other types of punishment would be more appropriate such as community work, attending the congregational prayers and sermons, cleaning public spaces like mosques, graveyards and public parks, and attending rehabilitative courses.

Islamic Family Law Islamic family law was discussed by Jazilah Mohd Saad and Adnan Trakic in Chap. 5. They covered a wide range of topics such as betrothal, dowry, marriage, polygamy, maintenance of wife and children, various types of divorce, and custody of children. While Islamic family law in Malaysia is considered to be among the most advanced in the Islamic world, it is still far from perfect. The authors singled out four, arguably, most pressing issues requiring urgent remedial actions: underage (child) marriage, neglect of wife and children in terms of maintenance, abuse in a polygamous marriage, and problems related to the dissolution of marriage. When it comes to underage marriage, Islamic law does not specifically state the minimum marriage age in terms of numbers. Instead, it provides a concept of baligh (maturity) that a marrying person must attain. Some states have, however, in line with the objectives of Islamic law, enacted provisions in their Islamic Family Law Enactments stating that the minimum age for marriage is 18  years for men and 16 years for women. In certain very limited circumstances, minors (boys below 18 and girls below 16) who are baligh have been allowed to marry with the consent of a Shari’ah court judge. Even though a baligh minor may be permitted to marry with the approval of the court, such a practice, the authors argued, should be discouraged. The minors should instead be asked to pursue their education to become capable of looking after their own family. This is why a baligh minor’s application to marry has to be carefully scrutinized by the Shari’ah court with strict controls. Jazilah and Adnan submitted that the amendment of the law to increase the minimum age for marriage to 18 years for both men and women is necessary. But, that alone, they argued, will not solve the problem. Child marriage, they opined, is a social problem that can only be solved through education and proper social welfare programs aimed at curbing poverty. Thus, the priority of the Federal and State Governments must be tackling poverty which has been identified as one of the major causes of child marriage. Other segments of the society like religious authorities and communities should also take a proactive role in ensuring that no child is left behind.

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Failure to provide maintenance to wives and children by errant husbands has been, according to the authors, another major challenge. The assessment of the amount of maintenance is done by a judge by reference to the applicants’ standard of living and real-life needs, and also, perhaps, more importantly, the man’s ability to pay. Initially, there was no specific child care scheme that a judge could refer to in determining the appropriate maintenance amount. This used to be a major problem as judges were using their discretion in assessing the proper amount of maintenance. Chief Shari’ah judge of Penang was the first to introduce the child care scheme through a specific Practice Direction, which stated the precise amounts that the applicants were entitled to. In 2019, JKSM also came up with the Practice Direction of its own to specify the rates of payment with reference to the number of children as well as the father’s income and ability to pay. Another problem with the maintenance order is enforcement and compliance. There have been many cases where those orders have been defied. Therefore, to ensure compliance with the maintenance orders, the Malaysian Government, in 2019, established a special committee under JKSM to explore how to improve the compliance rate. The committee has been in talks with several stakeholders, including the Central Bank of Malaysia (CBM) and Employees Provident Fund (EPF), to see if the assets and property could be frozen in cases when the maintenance orders are not complied with. Some changes to the laws governing the CBM and EPF may have to be made before the assets of the defaulter could be frozen. The third problem identified by Jazilah and Adnan pertains to polygamous marriage. Islam allows men to marry up to four wives. However, the right to practice polygamy, the authors argued, must be understood in the proper legislative and divine context of the Qur’an. The authors explained that polygamy is not meant to be used by men to fulfill their desires. Rather, it is permissible only when the applicant can prove that the proposed marriage is “just and necessary”. These words have been explained in Islamic Family Law Enactments of the states to mean that the applicant must prove to the court that the proposed polygamous marriage is necessary due to legitimate circumstances such as sterility, physical infirmity, physical unfitness for conjugal relations, wilful avoidance of an order for restitution of conjugal rights, and insanity on the part of the existing wife or wives. Besides having to prove that the marriage is necessary, the applicant will also have to prove that he is financially able to support all his wives and dependants, that he will be able to treat them equally, and that the proposed marriage will not cause any harm to the existing wife or wives. The authors submitted that polygamy must be treated as an exception and not as a norm. The Shari’ah courts have been entrusted with the task of ensuring that polygamy is not abused. If there is abuse, and probably there is, it is most likely due to the poor application of the law by the courts rather than the weaknesses of the law. The last issue raised by the authors in Chap. 5 is regarding the dissolution of marriage. Both husband and wife can apply for the dissolution of marriage through the court order (fasakh). The authors explained that divorce is permissible in Islam but not encouraged. The parties should first put considerable efforts to reconcile their differences and, if that is not possible, they are permitted to dissolve their

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marriage amicably. The authors explained that the court and formal litigation is not best suited for reconciliation, which often requires a more informal approach to the dispute. This is where Hakam (arbitration) by arbitrators appointed by the parties would have an advantage over litigation. If the arbitration is successful, then the reconciled parties will get back together, and there will be no need to proceed with the dissolution of marriage. On the other hand, if the reconciliation is unsuccessful, then the marriage will be dissolved before and with the permission of the court. Selangor is the only state at the moment that has introduced Hakam Rules. The authors suggested that other states in Malaysia should follow Selangor’s example and promote Hakam as an alternative to the current, often-rushed dissolution of marriage by mutual consent.

Islamic Inheritance Law Islamic inheritance law is another substantive area of Islamic law that has been practiced in Malaysia since before independence until today. The challenges, in this area of law, have mostly been in relation to the Shari’ah court’s lack of jurisdiction to administer the inheritance without the involvement of the civil courts. The implementation of Islamic inheritance law in Malaysia was discussed by Hanifah Haydar Ali Tajuddin and Salehan Bin Yatim in Chap. 6. The authors pointed out that the current practice where the Shari’ah courts of the states determine the distribution of inheritance to the beneficiaries by issuing Faraid certificates while the civil courts administer the distribution by issuing Letters of Administration is problematic and confusing. This is because the disputants, according to the law, would have to go to separate courts for their inheritance related cases. In elaborating on the issue, the authors explained the position of Islamic inheritance law under the Federal Constitution. According to them, the State List of the Federal Constitution includes Islamic law relating to inheritance, testate and intestate, thereby effectively giving the Shari’ah courts exclusive jurisdiction over the matter. On the other hand, probate and letters of administration are under the Federal List, thereby giving the civil courts exclusive jurisdiction over the administration of inheritance, including Islamic inheritance. The result of this, the authors argued, is that the civil court judges who are not familiar with the Islamic inheritance law face difficulties in administering the law. In fact, many Muslim estates are left un-­ administered due to these difficulties and delays caused by having to deal with the same matter before two courts. The authors explained that Shari’ah institutions also see the problems and, thus, efforts have been made to resolve these problems. The solution includes establishing administrative ties with the land office and banks that administer lands and properties. The aim is to place the sole jurisdiction with the Shari’ah court as the deciding court in matters relating to inheritance among the Muslims. Nevertheless, the authors argued that such an administrative tie does not offer a long-term solution as interested parties might object to it.

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In exploring other options of distributing inheritance, the authors also examined the effectiveness of a Land Office unit called ‘Distribution of Small Estates’. This unit administers land worth not more than RM2 Million. It enables parties to calculate the portion, administer and transfer such property without going to court. Though it can be regarded as a remedy to the Shari’ah court’s limitation of jurisdiction, particularly in the distribution of small estates, parties will still have to go to the court for the property, the value of which exceeds RM2 million.

Islamic Commercial Law Apart from Islamic inheritance law, another cross-jurisdictional area of law, which falls under both Federal and State jurisdictions, is Islamic commercial law. This can be best demonstrated with reference to Islamic finance, which is a commercial activity and, as such, falls under the Federal List. But, unlike Islamic inheritance law, the jurisdiction over Islamic finance lies exclusively with the civil courts. This, however, does not change the fact that Islamic finance is an Islamic commercial activity that requires strict compliance with Shari’ah. The adjudication and enforceability of Shari’ah compliance by the civil courts is where the problems begin to appear. Is the civil court a suitable forum for the settlement of Shari’ah issues in Islamic finance disputes? In Chap. 7, Noor Suhaida Kasri talked about the legal and regulatory framework put in place by the Malaysian Government and Bank Negara Malaysia (BNM) to ensure Shari’ah compliance and governance of Islamic financial institutions (IFIs). The Islamic Financial Services Act 2013 requires strict Shari’ah compliance from all IFIs. The non-compliance with Shari’ah is an offense punishable with imprisonment for a term not exceeding eight years or with a fine not exceeding RM25 million or with both. The Shari’ah compliance, as Noor explained, is ensured through a two-layered Shari’ah governance structure. At the national level, the Shari’ah Advisory Council (SAC) of the BNM is the apex Shari’ah arbiter of Islamic finance matters. The SAC also has another major role assigned to it by the Central Bank of Malaysia Act 2009 (CBMA). Sections 56 and 57 of the Act have designated the SAC as a statutory expert on Shari’ah matters in Islamic finance disputes whose expert opinion (ruling) becomes binding on the court or arbitrator deciding the dispute. The idea behind these sections, according to the author, was to avoid the situations where the civil court judges, who may not have sufficient knowledge and competence in Shari’ah, would have to be making Shari’ah pronouncements. Noor Suhaida’s concern is understandable, but the solution for one problem should not create another complication. The enactment of sections 56 and 57 of the CBMA seems to have done just that. They appear to have divested the court of its judicial power and transferred it to the SAC. For this reason, the constitutionality of these sections has been questioned in several cases, the most prominent being the recent Federal Court case of JRI Resources Sdn Bhd vs Kuwait Finance House (Malaysia) Berhad [2019] 3 MLJ 561. By a split decision of five to four, the court

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upheld the constitutionality of the impugned sections. The majority characterized the SAC as a statutory expert witness whose rulings bring much-needed certainty to the overall Islamic finance industry. They opined that the SAC does not usurp the court’s judicial power as the final decision on an issue can only be made by a judge. The minority, however, disagreed. They argued that the impugned sections have reduced the role of the court to that of a ‘rubber-stamping’ as the court has no choice but to apply the ruling made by the SAC. They suggested that the SAC’s role should be limited to that of a statutory expert witness whose views, like the views of expert witnesses in all other areas, would not be binding on the court. Be that as it may, the decision of the majority stands as the law of the country at present but, the fact that four out of nine judges hearing the case dissented shows that there is considerable disagreement on the current extended role of the SAC in the resolution of Islamic finance disputes. While much attention has been given to the SAC, most of the day-to-day Shari’ah governance and compliance issues are handled by the internal Shari’ah departments of IFIs and their respective SCs. In 2019, BNM introduced its Shari’ah Governance Policy (SGP), which contains provisions on the composition and functions of the SCs. The SGP reiterates that the primary role of the SCs is to advise the management and board of directors on Shari’ah matters concerning products, services, documentation, and all activities that require the seal of Shari’ah compliance. But, more specifically, the SGP, as Noor explained, requires Islamic banks to set up designated control functions like Shari’ah risk management, Shari’ah review, and Shari’ah audit. These functions, the author claimed, are independent of the business lines and responsible for providing an objective assessment and assurance of the effectiveness of an IFI in meeting Shari’ah requirements and managing Shari’ah non-compliance risk. The author also emphasized that the struggle to ensure Shari’ah compliance must begin at the institutional level. Some of the most common causes of Shari’ah non-­ compliance, according to Noor Suhaida, have been linked to inefficient institutional oversite and lack of Shari’ah knowledge by the staff. Other factors such as technological limitations (for example, transfer of ownership not genuinely recorded in the computer system due to glitches and limitations), non-compliance with the BNM policies, standards, and guidelines (for example, proper tawarruq sequencing not being followed), and complex nature of some Islamic finance facilities have also contributed to Shari’ah non-compliance. Noor Suhaida cautioned that this could cause consumers to doubt the ‘Islamicity’ of Islamic finance products and services. If that happens, the entire industry’s future could be adversely affected as it is the Shari’ah compliance element that sets an IFI apart from its conventional counterpart. Besides Islamic finance, wakaf (endowment) and zakat (tilth) are two other important Islamic commercial law areas discussed by Noor Suhaida in Chap. 7. Both wakaf and zakat have faced many challenges in the past. Wakaf, for instance, used to be considered as ‘trust’ and was governed by the Trustees Act 1949. As a result, the civil court used to hear disputes involving wakaf matters. This, however, changed in 2003 when the Federal Court in Majlis Agama Islam Pulau Pinang v

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Shaik Zolkafly Shaik Natar (2003) 3 MLJ 705 clarified that wakaf is an Islamic concept and, as such, is under the exclusive jurisdiction of the Shari’ah court. The management of wakaf also needs to be improved. The wakaf funds have not been efficiently managed. The author cited the statistics reported by the Malaysian Department of Awqaf, Zakat and Hajj (JAWHAR), which showed that out of 30,000 hectares of wakaf land, only 13 percent has been developed. Why is that number so low? Noor Suhaida opined that the lack of uniformity in the state wakaf laws is one of the main reasons for the sluggish economic development of wakaf land. She pointed out that only five states have introduced exclusive laws governing wakaf land. In 2019, there was also an effort by the Malaysian Government to introduce a Federal Territories Waqaf Bill, which was supposed to be considered as a model for state wakaf laws. With the change of government in early 2020, the future of the Bill became uncertain. Some have suggested that nothing short of a National Wakaf Act would solve this problem. Noor Suhaida also talked about the challenges faced in the collection and distribution of zakat. The collection of zakat by the relevant state agencies has been inefficient. Most of the States have strong laws making the payment of zakat mandatory for all eligible payors. For example, section 45 of the Zakat and Fitrah (State of Selangor) Regulation 2012 provides that a defaulting zakat payor shall, upon conviction, be liable to a fine not exceeding RM5000 or imprisonment not exceeding three years or both. However, having these laws alone is not enough to ensure efficient collection and distribution of zakat funds. Compliance with these laws remains an issue. One of the possible reasons for non-compliance could be a lack of transparency on the part of zakat collectors on how and to whom exactly zakat funds are distributed. This is why, the author urged, the relevant zakat collectors need to improve their management of zakat processes. The author also highlighted that zakat funds should be spent to upskill the beneficiaries to become productive. There is also a problem with the non-coordinated distribution of zakat where some beneficiaries could be receiving funds from several sources. The duplicity of the distribution of zakat funds could be avoided, the author argued, by having a nation-wide database that would include the details of the beneficiaries that have received the funds.

Islamic Evidence Law Islamic evidence law is another important substantive law discussed by Hanifah Haydar Ali Tajuddin and Mohd Nadzri Abd Rahman in Chap. 8 of this book. The authors briefly elaborated on the history of the development of Islamic evidence law and how the British limited its application to only Muslims’ personal matters. Even cases involving personal matters of Muslim parties were often decided by the civil court, which applied the common law-based evidence law that at the time appeared to have been more properly compiled and legislated than the Islamic evidence law.

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The effort of compiling the Islamic evidence law into legislations started together with the development of the Shari’ah courts. Some of the States’ Shari’ah evidence legislations (such as Shari’ah Court Evidence (Federal Territories) Act 1997 and Shari’ah Court Evidence (State of Selangor) Enactment 2003) specified the discontinuance of application of the Evidence Act 1950 (EA) before the Shari’ah courts. That said, structurally, these legislations resemble the EA, especially when it comes to the forms of evidence. For example, the authors found remarkable similarities between iqrar and confession/admission, shahaadah and witness testimony, qarinah and the relevant fact, kitabah and documentary evidence, and ra’y al-khabir and expert evidence.With regards to yamin or taking the oath, it is found that although Islamic evidence law accepted it as a form of corroborating evidence, the common law regards it as a relevant fact. The similarity between the Islamic and the common law-based forms of evidence led the authors to believe that the two could be harmonized. When it comes to the current development of evidence law, it is noticed that Shari’ah evidence legislations lack behind the EA. Some provisions of the EA that were inserted in the 1990s are yet to be incorporated into the Shari’ah legislations. For example, provisions relating to computer-generated documents were incorporated into the EA in 1993, but those provisions have yet to be inserted into the Shari’ah legislations. The authors also observed that more complex forms of evidence involving science-based evidence are also yet to be provisioned. Thus, the acceptability of such evidence is still not clear. This is observed through some of the unreported cases cited in the chapter. The authors suggested that these new forms of evidence need to be studied and provisioned in the Shari’ah legislations.

The Department of Shari’ah Judiciary of Malaysia (JKSM) The discussion about the substantive Islamic law areas and challenges faced in the implementation of the law would not be complete without mentioning the institution responsible for the coordination and smooth implementation of Islamic law across all the states in Malaysia, namely, Jabatan Kehakiman Shari’ah Malaysia (JKSM) (Shari’ah Judiciary Department of Malaysia) (JKSM). In Chap. 9, Hanifah Haydar Ali Tajuddin talked about JKSM’s ongoing efforts and transformation. JKSM is a federal agency established in 1998. It is headed by the Director-General, who reports to the Religious Affairs Minister under the Office of the Prime Minister of Malaysia. The Director-General is also at the same time the Chief Shari’ah Judge. This is quite unusual as one would think that the Shari’ah judiciary would be independent of the government’s  executive branch, just like the civil judiciary is. Unfortunately, this is not the case. There have been multiple calls from the JKSM and others to grant Shari’ah judiciary the same rights and privileges awarded to the civil counterpart. After all, Malaysia’s judicial system consists of both civil and Syari’ah judiciary, and the two should operate harmoniously with each other. They should not be discriminated against.

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Be that as it may, the author emphasized that one of the main reasons behind the establishment of the JKSM was the desire to standardize the implementation of Islamic law throughout the country. Constitutionally, Islamic law is a state matter. This means that all states, including Federal Territories, will have their own Syari’ah legislations. The laws may differ from one state to another. Even in situations where the laws are similar, their implementation may be different. Therefore, the decisions and orders of a Shari’ah court based in one state will not automatically be enforceable in other states. Before that, they will need to be recognized and registered in the states where they are sought to be enforced. JKSM has been trying to standardize Islamic laws across different states so that their cross-state enforcement would be easier. The standardization is also aided by JKSMs’ effective management of the appeal cases of the Shari’ah Appeal Courts of the respective States and Federal Territories. JKSM also conducts research in Islamic law areas and frequently issues rules and regulations, guidelines, and practice directions. These are then disseminated among the Shari’ah institutions across the country, and Syari’ah judges and officers are encouraged to apply them in their practice. In recent times JKSM has introduced several initiatives to transform and globalize the Shari’ah judiciary system of Malaysia. For example, there has been a push towards expanding the current three-tier Shari’ah court structure (i.e. Shari’ah Subordinate Court, Shari’ah High Court and Shari’ah Appeal Court) to the four-tier structure in which Shari’ah Supreme Court would be added. Another initiative was establishing the Family Support Division to mitigate the problems faced by women and children in cases where errant husbands and fathers disregard court maintenance orders. This division offers various services to the affected parties, including legal advice on divorce, maintenance, and enforcement procedure. JKSM has also improved its physical and digital infrastructures. For example, a significant sum of money was invested in building new court complexes in almost all states with well-­ equipped courtrooms, sulh rooms, and counters. Digital infrastructure has also been upgraded with several innovations such as e-Tray (online delivery of summonses, notices, and affidavits) and e-Post (online delivery of orders and reports) introduced by the Shari’ah Judiciary Department of Terengganu, and e-Siap (Shari’ah instant access procedure) and e-Fos (electronic fast order sulh) introduced by the Penang Shari’ah Judiciary Department. Another major challenge that the JKSM has been trying to address is the negative perception towards the Shari’ah criminal system and punishments. A lot has been said about this area in chapter four but, suffice to say that there is a strong push among the senior members of the Shari’ah judiciary to consider rehabilitative and reformative types of punishment for many criminal offenses where those punishments could be effectively implemented. Therefore, in place of whipping and imprisonment, the Shari’ah judges have been encouraged to consider the sentences which would make the offender repent, such as attending congregational prayers, sermons, and cleaning mosques and public places. However, to have these types of reforms embraced by the Shari’ah judges across the country is not easy. There would always be some resistance to the change. This is why the education and training of staff are of utmost importance. JKSM has been sending Shari’ah judges to

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attend training and seminars abroad, hoping that the knowledge acquired would help them implement the necessary changes. JKSM has also recognized the need to have a more global approach as there have been cases where the enforcement of the court orders pertaining to maintenance, custody, the claim of property, and registration of marriage was unsuccessful because the party in question was a non-­Malaysian or non-resident. The author concluded that all of these challenges need prompt responses and innovative solutions if the Shari’ah judiciary is to remain relevant and effective in delivering justice to the affected parties.

Analysis and Future Developments The information and analysis presented in this book allow us to provide some answers to the key questions raised in the first chapter. These answers are not exhaustive, and we concede that other perspectives may have credence and merits. We hope these answers will, at least, increase the awareness of the challenges faced in the implementation of Islamic law in Malaysia and modestly contribute to the debate and discussion on how these challenges could be best resolved.

Key Questions 1. Is Islamic law flexible enough to accommodate the needs of Muslims in the twenty-first century? Some may be under the impression that Islamic law is not flexible enough to respond to the needs of the community in terms of effective governance and regulation. This is often attributed to the immutable nature of the primary sources of Islamic law, the Qur’an and Sunnah of Prophet Mohammad (PBUH), and believe that they could not possibly provide the answers to the increasingly complex challenges that today’s societies are facing. Muslims believe that Qur’an, in its entirety, is the divine revelation from God, through his Prophet Mohammad (PBUH), to the humanity, and that everything the Prophet did, said or approved is also divine in a sense that Prophet could not make a mistake in matters of religion as he was guided by God. Therefore, unlike man-made law, these primary sources of Islamic law are divine and, as such, remain relevant for all times and all people. This, however, is an argument of faith, and Muslims who are believers would have no difficulty believing in the divinity of the Qur’an and Sunnah. The people of other faiths or people of no faith may have difficulties understanding how laws and values that have been applicable some 1500 years ago could effectively apply today to regulate our current affairs. The answer to this question could be found in the Qur’an, which predominantly provides general guidance and ethical norms rather than specific legal stipulations. In fact, Qur’an has more poetry in it than legislation. It sets a general normative

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framework that is predicated on the divine call to always enjoy what is right and forbid what is wrong. Much of the needed details have been explained by the Sunnah of the Prophet. But, surely Qur’an and Sunnah may not have provided specific legislative answers, at least not in the way that the current legislative branch of government may do, to every possible situation and problem that the society may encounter. This is where the Muslim scholars’ ingenuity and scholarship are required. Muslim scholars are expected to provide specific solutions to the challenges faced by the community at a particular time and place. They must be a bridge between a legal tradition and the contemporary world we live in, past and future, and theoretical and practical. What is important, however, is that their solutions are in line with the Qur’anic and Sunnah principles. That is why the person making Islamic law rulings must have an in-depth knowledge of the Qur’an and Sunnah. Equally important is an understanding of the problems that the community is facing. The balance between the two is critical in achieving optimal solutions that would be Islamic but, at the same time, relevant and adaptable to the needs of the community. Emphasis on Islamic law alone, devoid of the reality in which the community lives, would result in extreme, conservative views. Likewise, considering only reality without reflecting on Islamic law principles and values would result in liberal views. Both are extremes and, as such, should be rejected. Islam promotes the middle path, the balanced approach. Malaysia is a very good example of a country where this balanced approach has been achieved in many areas of Islamic law. For example, the need to have an alternative to interest-based banking and finance led to the development of Islamic banking and finance. If the Muslim scholars had not listened to the needs of the Muslim community who were in dire need of banking and finance services and yet who did not wish to compromise on their core religious belief, the Shari’ah-compliant version of banking and finance would not have been developed. Malaysia is now said to be the world leader in Islamic banking and finance. Another area is Islamic evidence law, where the states in Malaysia did not hesitate to adopt the common law-­ based legislation (Evidence Act 1950) in formulating their own Shari’ah Court Evidence legislations. The same adaptation has occurred with regard to many other common law based legislations in the areas of criminal and civil law and procedures. We subscribe to the idea that any law that is not inconsistent with Islamic law is acceptable and, as such, could also  be called Islamic. This is called the Shari’ah compliance process, which has been used in Malaysia for the introduction of several laws. For example, Islamic Financial Services Act 2013 (IFSA), legislation regulating Islamic financial institutions, has retained most of the Financial Services Act 2013 (FSA)  provisions, legislation that applies to conventional financial institutions. Only the provisions pertaining to interest and other elements not approved in Islam have been excluded. IFSA also included some additional provisions on Shari’ah governance and compliance. This shows that a law does not need to strictly originate in Islam for it to be acceptable in Islam. In other words, it does not need to be Shari’ah-based. Shari’ah compliance alone is sufficient for the law to be considered Islamic. That said, the matters pertaining to faith (aqidah) and worship (ibadah) must have an exclusive basis in Islam for them to be considered permissible.

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All in all, Malaysia’s diverse legal history basedon Islamic, customary, and common law traditions is its strength in terms of governance and formulation of new laws. While Islamic law in Malaysia has been receptive to ideas from other legal traditions, the same unfortunately cannot be said for other legal systems. Perhaps it is time for other legal traditions, particularly the common law, which is the most predominant source of the current Malaysian law, to reciprocate and show its flexibility. Good law or policy should never be rejected simply because it is called Islamic. 2. How can those involved in the implementation of Islamic law in Malaysia, such as Shari’ah judges and officers, address and alleviate the challenges faced in implementing Islamic law? Without a doubt, the most significant burden and responsibility lie on the shoulders of those directly involved in the implementation of Islamic law, and those are primarily Shari’ah judges and officers. They are seen as ambassadors of Islamic law in the eyes of the public. The work they do becomes imputed to Islamic law. Hence, if they do a great job in implementing Islamic law, people are likely to view Islamic law favorably. Likewise, their failures and mistakes also tend to be attributed to Islamic law. This surely should not be the case. Islam should not be judged through Muslims and those in charge of its implementation. Many Muslims do not live by Islamic teachings. Even those in charge of the implementation of Islamic law may occasionally make decisions that are inconsistent with Islamic values and principles. Unfortunately, their actions get imputed to Islam in the eyes of the public, and this perception is hard to change. Therefore, those in charge of the implementation of Islamic law, particularly Shari’ah judges and officers, must be aware that in addition to their regular duties as judges and officers, they are also seen as ambassadors of Islamic law. There are several areas where, we believe, Shari’ah judges and officers could make significant contributions that would improve  Islamic law implementation. First, all judgments issued by the Shari’ah courts should be in written form. We are aware that many Shari’ah judges have already been delivering written grounds of judgments. That is a commendable practice, and all judges, especially those sitting in the higher courts, should follow suit. The written judgments would enable greater scrutiny over the decisions that have been delivered and promote knowledge sharing among the Shari’ah judges and officers. Members of the public and academicians would also be able to contribute their views and offer a constructive critique that, we believe, is crucial in the development of the law. Currently, the written judgments of the Shari’ah courts are mostly published in the Malay language in Journal Hukum, a journal established under the JKSM. It is suggested that Journal Hukum considers translating the judgments into the English language so that the wider English speaking audience, both in Malaysia and internationally, would be able to appreciate the quality of the judgments and complexities of the issues that have been dealt with by the Shari’ah judges and officers. Second, the Shari’ah judges should endeavor to deliver fair and equitable justice and, in doing so, should not feel constrained by the parties’ submissions. This is due

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to the inquisitorial nature of the Islamic legal system, where judges are expected to be proactively involved in investigating the facts of the case. This is very different from the common law system, which is adversarial. The judges in the civil courts are not allowed to be involved in the investigation and must only act as impartial referees. Their decisions must be based solely on the submissions by the parties. Therefore, the outcomes of cases in civil courts depend, to a large extent, on the quality of legal representation. If a party is wealthy and can afford good legal representation, then he/she is more likely to get better outcomes than the one who cannot afford it. This should never be the case in the Shari’ah courts. The role of a Shari’ah judge is to deliver justice even if the party is not represented by a legal counsel. That is why the judge must take an interest in the investigation process and surrounding circumstances beyond what is expected of a civil court judge. Third, there needs to be greater emphasis on the importance of the procedural laws in the Shari’ah courts. There is a concern that some of the Shari’ah judges may have limited knowledge of procedural law. Many of them have only Islamic law university degrees in which they have not been exposed to conventional procedural laws applied by the courts in Malaysia. Procedural laws, both civil and criminal, are meant to help the court ensure fair and consistent application of the due process. Procedural unfairness is likely to lead to substantively unfair outcomes in the case. Therefore, Shari’ah judges must ensure that there is strict adherence to the due process of law. This is not to say that the judge should substitute substantive justice in the case with procedural one simply because there has been a failure on the part of one of the parties to fill in, for example, a proper form or something of similar nature. One of the actions that could solve many of the challenges mentioned above would be to fill in the Shari’ah judicial posts with individuals who have both Islamic law and the common law background. This was precisely the idea behind establishing the Ahmad Ibrahim Kulliyyah of Laws (AIKOL) at the International Islamic University Malaysia. AIKOL was the first faculty of law in Malaysia, and probably in the world, which taught both the common law syllabus in parallel with Islamic law one. The graduates of AIKOL, after the completion of four years of study, are qualified common law lawyers (LL.B (Hons.)) who, at the same time, understand well Islamic laws and how they are applied in the Shari’ah courts in Malaysia. These graduates can also practice Islamic law in Shari’ah courts as Shari’ah lawyers after they have completed an additional fifth year of the law degree in which Islamic law units are taught in the Arabic language. Currently, many Shari’ah court judges and officers, including the current Director General and Chief Shari’ah Judge of the JKSM, The Honorable Dato’ Dr. Hj. Mohd Naím bin Hj. Mokhtar, are graduates of AIKOL. The editors and some of the contributors to this book are proud to say that they too are graduates of AIKOL. It is hoped that this new breed of legal practitioners who have the expertise in both legal systems would transform  the Shari’ah judiciary and other related institutions for the better. 3. Can Malaysia’s plan to promote a moderate, middle path, and compassionate interpretation of Islam remove some of the obstacles faced in the implementation of Islamic law?

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Malaysia’s approach to Islamic law can be characterized as a balanced approach predicated on the middle path, which embraces the progressive views and the technological advancements while at the same time appreciates its Islamic and traditional values. The Islamic tradition and its adaptability to other legal systems and traditions have made Malaysia a very successful country where diverse cultures and ethnicities have been living in peace and harmony. This success, however, did not come by chance. It is the result of a concerted effort by the Malaysian Government, Shari’ah institutions both at State and Federal levels, and Malaysian people to adopt the balanced (moderate) approach to Islamic law. This approach helped Malaysia sustain its Islamic identity and boosted the development of Islamic law and institutions in the country, and made it ready for the future. Malaysia’s compassionate approach to the implementation of Islamic law is a reminder to those in charge of the implementation of Islamic law about the noble objectives of Islam. It reminds them that Islam values human life, dignity, intellect, property, freedom, and the environment in which we live. Islamic law should be implemented in a way that would preserve these values and help people achieve the best versions of themselves. Islamic law wishes to rehabilitate individuals so that they become useful members of society. This is why the JKSM, in recent times, has been promoting the restorative justice concept in the implementation of Islamic criminal law in the country. More traditional modes of punishments like imprisonment or caning may not be necessary or effective for some types of offenses. In some cases, rehabilitation of the offenders through community service and active monitoring by the relevant religious authorities could be more effective. The offenders may even partake in the victim’s recovery process by issuing an apology and understanding the gravity of hardship and suffering that he/she has caused to the victim and the victim’s family. The compassionate approach to Islamic law implementation, however, should not be mistaken for weakness. The offenders and those in breach of Islamic law must understand that they will be accountable for their actions. When necessary, Shari’ah institutions will not hesitate to take decisive action against those who are at fault. For example, the newly established Family Support Division under the JKSM is established to take decisive actions against the errant husbands who refuse to provide courtordered maintenance to their wives and children. There has also been a strong push by the Shari’ah institutions and scholars for the amendment of the Shari’ah Court (Criminal Jurisdiction) Act 1965 to increase the punishments for Islamic law offenses. This shows that a compassionate approach does not mean that there is no more place for the traditional Islamic law punishments for some types of offenses where they would be best suited as deterrent, retribution, and incapacitation of the offender.

Future Developments We take the liberty to suggest likely future developments with regard to the implementation of Islamic law in Malaysia based on our discussions in this book and also our conversations with various parties. We would suggest the following two

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developments are likely, although we are fully aware that such conclusions are contestable. First, Islamic law and Shari’ah courts will receive greater status and recognition under Malaysian law. This should not come as a surprise as their existence is deeply rooted in Malaysian legal history. Islamic law was the law of the land in Malaya before it was colonized by the British, who imposed English law on the majority Muslim population. This fact needs to be recognized. The Malaysian Federal Constitution does not curtail the development of the Islamic legal system in Malaysia as long as it is done within the parameters allowed by the Constitution. The current status of the Shari’ah courts is expected to be revised. One solution could be to merge Shari’ah courts into the mainstream civil judiciary and, in this way, ensure its independence from the Executive Branch of Government. The Shari’ah court judges should also be awarded the same privileges provided to the civil court judges. At the same time, the expectation as to the independence, accountability, and competence expected from the civil court judges would equally apply to Shari’ah court judges in their respective domains. If the merger between the two would be a difficult task, then the Shari’ah courts could operate in parallel with the civil courts as an equal part of the judiciary. In that case, the Shari’ah courts would have their own apex Shari’ah Court with the Chief Justice in charge of the entire Shari’ah judiciary. Second, the lawmakers and those entrusted with Islamic law’s implementation will intensify their collaboration because they are jointly responsible for the effective implementation of Islamic law. A good law may produce undesirable outcomes if its implementation is poor and, likewise, a good implementation may not be enough to produce desirable outcomes if the law is bad. Therefore, the lawmakers should take heed of the Islamic law experts’ and Shari’ah officers’ advice on what laws would be appropriate to enact in the given circumstance. Likewise, the experts and officers need to relay timely information to lawmakers on the challenges faced in the implementation of the law so that appropriate steps could be taken promptly to address the weaknesses and amend the law if necessary. The lawmakers would also need to consider the views of the electorate that elected them to the office. This is where the members of the governmental and non-governmental organizations could also take a proactive role and bring their attention to the areas that may be of concern. All in all, it should not come as a surprise that Islamic law in Malaysia has had some challenges in its implementation. In this regard, Islamic law is not different from other laws. The appropriateness of any law and the extent to which it might need to be amended become more evident only after the law has been implemented. If the law did not produce the desired results, then it should be reviewed and improved, where considered necessary. Those in charge of the implementation of Islamic law should also reflect on their internal policies and procedures and make adjustments in those areas too, if required.

List of Statutes and Regulations

Administration of Islamic Law (Federal Territories) Act 1993 Administration of Muslim Law (State of Selangor) Enactment 1952 Administration of the Religion of Islam (State of Penang) Enactment 2004 Administration of the Religion of Islam (State of Perlis) Enactment 2006 Ahkam Shariyyah Johor Anglo-Siamese Treaty 1909 Central Bank of Malaysia Act 2009 Charter of Justice 1807 Charter of Justice 1826 Charter of Justice 1855 Child Support (Assessment) Act 1989 (Australia) Child Support (Registration and Collection Act) 1988 (Australia) Civil Law (Extension) Ordinance 1951 Civil Law Enactment 1937 Civil Procedure Code Constitution (Amendment) Act 1988 Court Enactment of 1905 Courts of Judicature Act 1964 Courts Ordinance 1878 Courts Ordinance 1948 Criminal Procedure Code Digital Signature Act 1997 Electronic Commerce Act 2006 English Master and Servant Act 1823 (England) Evidence Act 1950 Evidence Act 1872 (India) Evidence Ordinance 1893 Family Code (Code de la Famille) 1984 (Algeria) Family Courts Act 1964 (Pakistan) Family Law (Mudawwana) 2002 (Morocco) © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4

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Guidelines on Late Payment Charges for Islamic Banking Institutions 2012 Hague Conventions on Private International Law Hakam (State of Selangor) Rules 2014 Hanafite Code of Qadri Pasha Islamic Banking Act 1983 Islamic Family Law (Federal Territories) Act 1984 Islamic Family Law (State of Selangor) Enactment 2003 Islamic Financial Services Act 2013 Johor Constitution 1895 Johor Laws of 1789 Kedah Laws of 1605 Majallah Ahkam Johor Majallah Al Ahkam of Egypt Majallatul Ahkam Adliyyah (The Ottoman Courts Manual) Malaysian Federal Constitution Manual for Reference by the Court and Arbitrator to the SAC 2012 Muslim Courts (Criminal Jurisdiction) Act 1965 Ninety-Nine Laws of Perak 1765 Ordinance No. 5 of 1868 Pahang Laws of 1596 Perak Code Practice Direction of the Chief Shari’ah Judge of Penang Number 1/2016 – Order of Iddah and Reciprocal Child Maintenance in Divorce Cases Shariah Governance Framework 2010 Shariah Governance Policy 2019 Subordinate Courts Act 1948 Shari’ah Court Civil Procedure (Federal Territories) Act 1998 Shari’ah Court Civil Procedure Enactment (Selangor) 2003 Shari’ah Court Evidence (Federal Territories) Act 1997 Shari’ah Court Practice Direction No. 14, 2007 Shari’ah Courts (Criminal Jurisdiction) (Amendment and Extension) Act 1989 Shari’ah Courts (Criminal Jurisdiction) Act 1965 Shari’ah Criminal Offences (Federal Territories) Act 1997 Shari’ah Criminal Procedure (Federal Territories) Act 1997 Takaful Act 1984 The Laws of Malacca (Hukum Kanun Melaka) Treaty of Vienna 1818 Trustee Act 1949 Zakat and Fitrah (State of Selangor) Regulation 2012

List of Cases

Abdul Shaik Md Ibrahim & Anor v. Hussein Ibrahim & Ors [1999] 3 CLJ 539 Ainan bin Mahmud v Syed Abu Bakar [1939] MLJ 209 Ajar bt Taib dan lain-lain lwn Majlis Agama Islam dan Adat Istiadat Melayu Perlis [2014] 9 MLJ 321 Alma Nudo Atenza v PP & Another Appeal [2019] 5 CLJ 780 Arab-Malaysian Merchant Bank Bhd v Silver Concept Sdn Bhd [2006] 8 CLJ 9 Ashabee & Ors v. Mahomed Hashim & Anor [1887] 4 Ky 213 Badrolhisyam bin Khalid vs Masriah Hj. Ismail (2015) 41 JH 1 Bank Islam Malaysia Berhad v Lim Kok Hoe & Anor and other appeals [2009] 6 MLJ 839 Bank Kerjasama Rakyat Malaysia Bhd v Brampton Holdings Sdn Bhd [2015] 4 CLJ 636 Che Omar Che Soh v Public Prosecutor and Wan Jalil Bin Wan Abdul Rahman & Anor v Public Prosecutor [1988] 2 MLJ 55 CIMB Islamic Bank Berhad v LCL Corporation Berhad & Anor [2014] MLJU 561 Dato’ Kadar Shah bin Tun Sulaiman v Datin Fauziah binti Haron [2008] 7 MLJ 779 Duff Development v Government of Kelantan (1924) AC 797 Faridah David and another vs. Mohd Firdaus Abdullah @ Jettle Francis (2004) JH(1) Fatimah and Ors v Logan and Ors. (1871) 1 Ky 255 Government of Perak v Adam [1914] 2 FMSLR 144 Haji Abdul Rahman v Mohamed Hassan (1917) AC 209 (PC) Hasnah v. Zaaba (1995) 10 JH 59 Hasnah vs Borhan al-Din (1998) 6 JH 1 Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 Ismail Mohamad v. Wan Khairani Wan Mahmood & Another Appeal [2009] 4 CLJ 653 Jamaluddin Othman v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1989] 1 CLJ 448

© Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4

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List of Cases

JRI Resources Sdn Bhd vs Kuwait Finance House (Malaysia) Berhad [2019] 3 MLJ 561 Kamoo v Thomas Turner Bassett (1808) 1 Ky 1 Kuwait Finance House (Malaysia) Berhad v AC Property Development Sdn Bhd & Anor [2013] 1 LNS 1253 Latifah Mat Zin v Rosmawati Sharibun & Anor [2007] 5 CLJ 253 Leonard v Nachiappa Chetty (1923) 4 FMSLR 26 Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Anor [2004] 6 CLJ 242 Low Chin Meng v. CIMB Islamic Bank Berhad [2015] 5 CLJ 324 Majlis Agama Islam Pulau Pinang v Shaik Zolkafly Shaik Natar [2003] 3 MLJ 705 Malaysian Debt Ventures Berhad v FLH ICT Services Sdn Bhd & Anor [2013] 1 LNS 1345 Mamat Daud & Ors v. The Government of Malaysia [1988] 1 CLJ 11 Martin v Umi Kelsom [1963] MLJ 1 Mat Husain Daud vs Zawiah Mamat (1992) 8 JH 1 Maybank Islamic Bhd v M-10 Builders Sdn Bhd (M) & Anor [2015] 4 CLJ 526 Md Hakim Lee v. Majlis Agama Islam Wilayah Persekutuan, Kuala Lumpur [1997] 4 CLJ Supp 419 Meor Atiqulrahman Ishak and Ors v Fatimah Sihi & Ors [2006] 4 MLJ 605 Mighell v Sultan of Johor (1894) 1 QB 147 Mohamed Gunny v Vadwang Kuti (1930) 7 FMSLR 170 Mohamed Habibullah bin Mahmood v. Faridah bte Dato Talib [1993] 1 CLJ 264 Mohd Hanif bin Farikullah v Bushra Chaudri [2001] 5 MLJ 533 Motor Emporium v Arumugam [1933] MLJ 276 Ong Cheng Neo v Yeap Cheah Neo and Ors (1872) 1 Ky 326 Pahang Consolidated Co. Ltd. v The State of Pahang (1933) 2 MLJ 274 PP v White [1940] MLJ 214 Pripih Permata Sdn Bhd v Bank Mualamat Malaysia Bhd [2015] 6 CLJ 135 Ramah binti Ta’at v Laton binti Malim Sutan [1927] 6 FMSLR 128 Re Goods of Abdullah (1835) 2 Ky Ec 8 Re Maria Huberdina Hertogh; Adrianus Petrus Hertogh & Anor v Amina Binte Mohamed & Ors [1950] 1 LNS 64. Regina v Willans (1858) 3 Ky 16 Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 5 CLJ 526 Shaik Abdul Latif & Ors v Shaik Elias Bux [1915] 1 FMSLR 204 Shamala a/p Sathiyaseelan v Dr Jeyaganesh a/l C Mogarajah [2004] 2 MLJ 241 Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 CLJ 507 Sulaiman Takrib v. Kerajaan Negeri Terengganu; Kerajaan Malaysia (Intervener) & other cases [2009] 2 CLJ 54 Syarie Prosecutor v Rosli bin Japar (2001) (Unreported) Tan Sri Abdul Khalid Ibrahim v Bank Islam (M) Bhd [2013] 3 MLJ 269 Teoh Eng Huat v The Kadhi of Pasir Mas, Kelantan & Anor [1990] 2 CLJ 11 Yong Fuat Meng v Chin Yoon Kew [2008] 5 CLJ 705 Zarina bt Syaari vs. Mohd Yusof b. Omar (2005) ShLR 4 173

Bibliography

40 Hadith Nawawi. (n.d.). https://sunnah.com/nawawi40/33 Abdullah, S.  M. (2018, September 18). Yet another one: 15-year-old girl marries father of two in Tumpat. New Straits Times. https://www.nst.com.my/news/nation/2018/09/412355/ yet-­another-­one-­15-­year-­old-­girl-­marries-­father-­two-­tumpat Abdullah, M.  I. U. (2020, May 28). Kompleks Mahkamah Shari’ah Sabah siap Mei 2020. BH Online. https://www.bharian.com.my/berita/wilayah/2019/05/568937/ kompleks-­mahkamah-­syariah-­sabah-­siap-­mei-­2020 Abū, D. S.-A.-S., & Hasan, A. (1984). Sunan Abu Dawud. Lahore: Sh. M. Ashraf. Ahmad, M.  H., & Ali Mohamed, A.  A. (2020). Legal theory and concept of law. In A.  A. Ali Mohamad (Ed.), Malaysia legal system. Ampang: CLJ Publication. Ahmad, A., Leong, F. Y., & Andrews, P. L. (2019). Legal system in Malaysia. The ASEAN Law Association. https://www.aseanlawassociation.org/legal-­system-­in-­malaysia/ Ali Mohamed, A. A. (2014). Malaysian legal system: an introduction. In A. A. Ali Mohamad (Ed.), Malaysia legal system (pp. 1–32). Ampang: CLJ Publication. Ali Mohamed, A.  A. (2018, September 24). Criminalise child marriages. New Straits Times. https://www.nst.com.my/opinion/letters/2018/09/414545/criminalise-­child-­marriages Alias, R. M., & Alina, T. (2011). Unleashing the potential of the Waqf as an economic institution in Malaysia: policy, legal and economic reforms. Kuala Lumpur: INCEIF. Al-Jauziyah, I. Q. (1977). al-Turuq al-Hukmiyyah fi al-Siyasah as-Syar’iyyah. Matba’ah al-Adab. Al-Zuhaili, W. (1985). Al-Fiqhul Islami wa Adillatuhu. Darul Fikr. Australian Government. (2020, March 20). Child support guide. https://guides.dss.gov.au/ child-­support-­guide Azmi, A. S. M., Hanif, N. R., & Mahamood, S. M. (2017). Revitalising the development of Waqf properties: a way forward. International Journal of Real Estate Studies, 11(3), 1–11. https:// umexpert.um.edu.my/public_view.php?type=publication&row=NzM1NTk%3D. Bahagian Sokongan Keluarga. (n.d.). http://www.jksm.gov.my/index.php/ms/profil-­jabatan/ pengenalan/bahagian/49-­bahagian-­sokongan-­keluarga Baharuddin, A. S., Ruskam, A., & Yacob, A. R. (2015). The role of forensic biology in realising Maqasid al-Shariah (the objectives of Islamic law). Sains Humanika, 4(1), 9–15. Baharuddin, A. S., Wan Ismail, W. A. F., Abdul Mutalib, L., Ahmad, M. H., Nasir, B. M., & Wan Harun, M. A. (2019). A preliminary review on fiqh forensics fundamental modules for the use of Shariah officers in Malaysia. International Journal of Islamic and Civilisational Studies, 6(2), 195–209. Bahnasi, A. F. (1964). al-Qisas fil Fiqhi Islami. Al-Syirkah al-‘Arabiyya. Bank Negara Malaysia. (2018a). Annual report 2018. Available at http://www.bnm.gov.my/files/ publication/ar/en/2018/ar2018_book.pdf © Springer Nature Singapore Pte Ltd. 2021 A. Trakic, H. Haydar Ali Tajuddin (eds.), Islamic Law in Malaysia, https://doi.org/10.1007/978-981-33-6187-4

147

148

Bibliography

Bank Negara Malaysia. (2018b). Financial stability and payment system report 2018. Available at http://www.bnm.gov.my/files/publication/fsps/en/2018/fs2018_book.pdf Bank Negara Malaysia. (2019). Shariah governance. Retrieved from https://www.bnm.gov.my/ index.php?ch=57&pg=140&ac=835&bb=file Bank Negara Malaysia. (2020). Financial stability. Available at https://www.bnm.gov.my/index. php?ch=fs&pg=fs_ovr_what&ac=112 Beech, H. (2018, July 29). 11 and married: Malaysia spars over an age-old practice. The New York Times. https://www.nytimes.com/2018/07/29/world/asia/malaysia-­child-­marriage.html Bernama. (2018, September 21). Follow SOP on child marriages, Mujahid tells Shari’ah court judge. New Straits Times. https://www.nst.com.my/news/nation/2018/09/413510/ follow-­sop-­child-­marriages-­mujahid-­tells-­syariah-­court-­judges Borham, A.  J. (2002). Pengantar perundangan Islam. (Trans. An introduction to Islamic legislature). Universiti Teknologi Malaysia Press. http://www.esyariah.gov.my/images/esyariah/ Document/RisalahJKSM/BI/E-­Syariah%20Portal.pdf Case, A. C., Lin, I.-F., & McLanahan, S. (2003). Explaining trends in child support: economic, demographic, and policy effects. Demography, 40(1), 171–189. Department of Shari’ah Judiciary of Malaysia. (2018, November 26). Family support division. http:// www.jksm.gov.my/index.php/en/about-­us/background/division/439-­family-­support-­division Department of Statistics of Malaysia. (2011, August 5). Population distribution and basic demographic characteristic report 2010. https://www.dosm.gov.my/v1/index.php?r=column/ ctheme&menu_id=L0pheU43NWJwRWVSZklWdzQ4TlhUUT09&bul_id=MDMxdHZjWTk 1SjFzTzNkRXYzcVZjdz09 Dr M: Caning of 2 women doesn’t reflect Islamic justice or sympathy. (2018, September 6). The Star. https://www.thestar.com.my/news/nation/2018/09/06/ dr-­m-­caning-­of-­2-­women-­doesnt-­reflect-­islamic-­justice-­or-­sympathy/ Dzulkifly, D. (2018, October 6). Islamic affairs minister vows end to moral policing. Malay Mail. https://www.malaymail.com/news/malaysia/2018/10/06/ islamic-­affairs-­minister-­vows-­end-­to-­moral-­policing/1679871 E-Perintah. (n.d.). http://www.mahsyariahmelaka.gov.my/index.php/en/services/ online-­services/e-­perintah Family Support Division Help Services. (n.d.). https://www.malaysia.gov.my/portal/content/28866 Hague Conference on International Private Law. (2020). More about HCCH. https://www.hcch. net/en/about/more-­about-­hcch Hassan, Z. (n.d.). The development of Islamic law of evidence in Malaysia. https://zulkiflihasan. wordpress.com/2012/09/06/the-­development-­of-­islamic-­law-­of-­evidence-­in-­malaysia/ Hooker, M. B. (1984). Islamic law in south-east Asia. Singapore: Oxford University Press. Ibn Qayyim al-Jauziyah. (1977). al-Turuq al-Hukmiyyah fi al-Siyasah as-Syar’iyyah. Cairo: Matba’ah al-Adab. Ibrahim, A. (1984). Overview of Islamic law. Shari’ah Law Journal, 7, 12–13. Ibrahim, A. M. (1993). Suitability of the Islamic punishments in Malaysia. IIUM Law Journal, 1, 14. Ibrahim, A., & Joned, A. (1987). The Malaysian legal system. Kuala Lumpur: Dewan Bahasa dan Pustaka. Irsyad al-Fatwa: The Ruling of Making Oath Using al-Quran. (2017). https://muftiwp.gov.my/ en/artikel/irsyad-­fatwa/irsyad-­fatwa-­umum-­cat/1031-­irsyad-­al-­fatwa-­series-­171-­the-­ruling-­of-­ making-­oaths-­using-­al-­quran Jabbar, S.  F. A., & Kasri, N.  S. (2015). Malaysia’s Islamic Financial Services Act 2013: The world’s first comprehensive legislation on Islamic finance. Journal Publication in Company Lawyer Journal, 36(7), 215–220. Jayne, T. (2018, July 30). Hannah Yeoh: 15,000 child marriages took place in Malaysia within the past decade. Says. https://says.com/my/news/ there-­are-­15-­000-­child-­marriage-­cases-­within-­the-­past-­10-­years JKSM Profile. (n.d.). http://www.esyariah.gov.my/portal/page/portal/Portal%20ESyariah%20BI/ Portal%20E-­Syariah%20Profil%20JKSM

Bibliography

149

Jusoh, H. (2007a). Tazkiyah al-Shuhud in Undang-undang Islam: Jenayah, Keterangan dan Prosedur (Islamic Laws: Criminal, evidence and procedural laws) Dewan Bahasa dan Pustaka, Kuala Lumpur. Jusoh, H. (2007b). Tazkiyah al-Shuhud. In N. Hussin et al. (Eds.), Undang-undang Islam: Jenayah, Keterangan dan Prosedur (pp. 129–160). Kuala Lumpur: Dewan Bahasa dan Pustaka. Kader, S. Z. S. A. (2014). Legal framework for management of Waqf land in Malaysia. Shariah Law Reports, 4, 1. Kader, S. Z. S. A. (2015, January 9). The legal framework of waqf in Malaysia. Available at SSRN: https://ssrn.com/abstract=2547440 or https://doi.org/10.2139/ssrn.2547440. Kader, S.  Z. S.  A., & Dahlan, N.  H. M. (2011, October 20–22). Current legal issues concerning Awqaf in Malaysia. International Conference on “Waqf Laws & Management: Reality and Prospects”, Cultural Activity Centre (CAC), International Islamic University Malaysia, Malaysia. http://repo.uum.edu.my/4525/ Kamali, M. H. (1990). Appellate review and judicial independence in Islamic law. Islamic Studies, 29(3), 215–249. Kamarudin, K. (2019, June 25). Unlocking the potential of Wakaf land. Bernama. http://www. bernama.com/en/news.php?id=1738848 Latar Belakang JKSM. (n.d.). http://www.jksm.gov.my/index.php/ms/profil-­jabatan/pengenalan/ latarbelakang-­jksm Latiff, R. (2018, September 27). Malaysian state to cane a third woman for infringing Islamic law. Reuters. https://af.reuters.com/article/worldNews/idAFKCN1M7141 Lee, H. P. (2017). Constitutional conflicts in contemporary Malaysia (2nd ed.). Oxford: Oxford University Press. LGBT rights: Malaysia women caned for attempting to have lesbian sex. (2018, September 3). BBC News. https://www.bbc.com/news/world-­asia-­45395086 Md Noor, R. (2008). Kedudukan Bayyinah, Syahadah dan Qarinah Dalam Penggubalan Undang-­ undang Keterangan Islam di Malaysia. Jurnal Hukum, 16(2), 1–23. Md Noor, R. (2015). Shari’ah Court Evidence (Federal Territories) Act 1997 (Act 561). Jurnal KANUN, 37(1), 195–200. Migdad, A. (2019). Managing Zakat through institutions: Case of Malaysia. International Journal of Islamic Economics and Finance Studies, 3, 28–44. https://dergipark.org.tr/en/download/ article-­file/868357. Ministry of Economic Affairs. (2019). Shared prosperity vision 2030. https://www.pmo.gov.my/ wp-­content/uploads/2019/10/SPV2030-­summary-­en.pdf Mohamad, A.  H. (2008, November 6). Harmonisation of common law and the Shariah law in Malaysia: A practical approach. Tun Abdul Hamid Mohamad’s Blog. https://tunabdulhamid. me/2008/11/harmonization-­of-­common-­law-­and-­the-­shariah-­in-­malaysia-­harvard/ Mohamad, A. H., & Trakic, A. (2012). The Shariah Advisory Council’s role in resolving Islamic banking disputes in Malaysia: A model to follow? (Research paper no. 47). Kuala Lumpur: International Shariah Research Academy for Islamic Finance. Noor, I., & Azaham, M. (2000). The Malays par excellence, warts and all: An introduction. Selangor Darul Ehsan: Pelanduk Publications. Normal Baharu Mahkamah Shari’ah Negeri Selangor: Bicara Secara Dalam Talian. (2020 June). http://www.jakess.gov.my/v5/index.php/en/ news/759-­normal-­baharu-­mahkamah-­syariah-­negeri-­selangor-­bicara-­secara-­dalam-­talian Nour, N. M. (2009). Child marriage: A silent health and human rights issue. Reviews in Obstetrics and Gynaecology, 2(1), 51–56. http://www.khubmarriage18.org/sites/default/files/27.pdf. Official Website of Department of Shari’ah Judiciary Malaysia. www.jksm.gov.my Oxford Islamic Studies Online, Talfiq/Takhayyur. (2017). www.oxfordislamicstudies.com Pengenalan E Shari’ah (Introduction to E Shari’ah). Retrieved 12th July 2020. http://www.esyariah.gov.my/images/esyariah/Document/RisalahJKSM/BI/E-­Syariah%20Portal.pdf Pew Research Centre. (2013, April 30). The world’ Muslims: Religion, politics and society. https:// www.pewforum.org/2013/04/30/the-­worlds-­muslims-­religion-­politics-­society-­overview/

150

Bibliography

Policy and Research Division, JKSM. (2017). Kajian ke atas keberkesan bahagian sokongan keluarga dalam membantu menyelesaikan kes ketidakpatuhan terhadap perintah nafkah mahkamah Shari’ah 2011–2015. Program Kehakiman (Program of Judiciary). (n.d.). http://www.jksm.gov.my/index.php/ms/ profil-­jabatan/pengenalan/bahagian/56-­program-­kehakiman Projek E-Siap Raih Anugerah Emas di Mini Konvensyen Team Excellence Wilayah Utara, 2015. (n.d.). http://jksnpp.penang.gov.my/index.php/en/20-­berita/221-­projek-­e-­siap-­raih-­anugerah-­ emas-­di-­mini-­konvensyen-­team-­excellence-­wilayah-­utara Radhakrishna, G. (2016). Section 90A Evidence Act 1950 of Malaysia: A time for review. Proceeding Paper at the 5th Annual International Conference on Law Regulation and Public Policy. Rahim, R. N. R. (2019, September 26). Special committee in talks with BNM, EPF on child custody and maintenance. New Straits Times. https://www.nst.com.my/news/nation/2019/09/524814/ special-­committee-­talks-­bnm-­epf-­child-­custody-­and-­maintenance Ramadan, S. (1992). Islamic law: Its scope and equity (2nd ed.). Kuala Lumpur: Muslim Youth Movement of Malaysia. Rau, K. V. P., & Kumar, P. J. (2005). General principles of the Malaysian legal system. Petaling Jaya: International Law Book Services. Sahih al-Bukhari. (n.d.-a). Chapter one on how the divine revelation started being revealed to the messenger. https://sunnah.com/bukhari/1/1 Sahih al-Bukhari. (n.d.-b). Hadith no. 53, book 86 on limits and punishments set by Allah (Hudood). https://sunnah.com/bukhari/86 Saifuddin, S., Markom, R., & Muhamad, M. M. (2019 January). Methods of proving according to law of evidence in Malaysian Shariah and civil courts: a comparative study. Jurnal KANUN, 31(1), 1–34. Saingan Akhir Anugerah Inovasi Islam. (2016). Islamic Development Department of Malaysia (JAKIM). http://www.islam.gov.my/berita-­semasa/15-­bahagian-­dakwah/663-­saingan-­akhir-­ anugerah-­inovasi-­islam Saiti, B., & Abdullah, A. (2016 July). The legal maxims of Islamic law (excluding five leading legal maxims) and their applications in Islamic finance. Journal of King Abdul Aziz University (JKAU): Islamic Economics, 2(29), 139–151. Sejarah Penubuhan. (n.d.). http://pahang.jksm.gov.my/index.php/korporat/sejarah-­penubuhan Sejarah Penubuhan E Shari’ah. (2008). http://jksnpp.penang.gov.my/index. php/2015-­04-­24-­07-­46-­02/e-­syariah/47-­pengenalan-­e-­syariah Sheppard, M.  C. (1959). Historic Malaya: An outline history. Singapore: Eastern Universities Press Ltd.. Sunan Abu Dawood. Book 6 – Divorce (Kitab Al-Talaq). Numbers 2170 – 2304. http://www.iium. edu.my/deed/hadith/abudawood/006_sat.html Sunan Abu Dawud. Chapter on struggling for an opinion when passing judgments. https://sunnah. com/abudawud/25 System MySolve. (n.d.). Shari’ah Judiciary Department of Perak. http://syariah.perak.gov.my/ index.php/maklumat-­tetap/sistem-­mysolve-­pendaftaran-­cerai Talha, R., Mohd Nor, M. N., Embong, M. R., & Zulkifli, M. F. (2017 June). Zakat fund in Malaysia: Where does it all go? Management and Accounting Review, 16(1), 137–166. http://arionline. uitm.edu.my/ojs/index.php/MAR/article/view/493 Teoh, S., & Rodzi, N. H. (2018, January 29). Malaysia’s highest court rules unilateral conversion of children to Islam void in Indira case. The Straits Times. https://www.straitstimes.com/asia/ se-­asia/unilateral-­conversion-­of-­indira-­gandhis-­3-­children-­is-­null-­void-­federal-­court Wan Ismail, W.  A. F. (2016). Acceptance and strength of electronic documents as proof in Malaysian Shari’ah courts. Jurnal KANUN, 28(2), 338–355. Wan The, W.  Z. (2001). Malaysia adalah Sebuah Negara Islam (Malaysia is an Islamic State/ Nation). Jabatan Hal Ehwal Khas, Kementerian Penerangan Malaysia (Ministry of Communications and Multimedia, Malaysia).

Bibliography

151

Yasin, R.  F. F., & Jani, M.  S. (2014 August). The efficiency of legal provision on polygamy in Malaysia, a critical analysis from Qur’anic perspective. Paper, presented at International Conference on Multidisciplinary Innovation for Sustainability and Growth (MISG 2014), Kuala Lumpur. Malaysia. http://irep.iium.edu.my/38000/1/Kanita_THE_EFFICENCY_ OF_LEGAL_PROVISION_ON_POLYGAMY_IN_MALAYSIA%2C_A_CRITICAL_ ANALYSIS_FROM_QUR%E2%80%99ANIC_PERSPECTIVE_1.pdf Zaydan, A. K. (1989). Nizamul Qadha’. Muassasah al-Risalah.