Position of Islamic Law in Malaysia

1. Islamic Law
Current Status of Islamic Law in
Malaysia

2. The Position of Islamic Law under
Federal Constitution
• Art 3 of FC - Religion of the Federation
• Art 11 of FC- Freedom of Religion
• Art 8 of FC- Equality
• Art 12(2) of FC- the right to establish, maintain
or assist in establishing or maintaining Islamic
institutions.
• Art 160 of FC- “Malay” means a person
professes the religion of Islam, speaks Malays
language, conforms to Malay custom and …

3. Introduction
• Islam is the religion of Federation under Art 3
of FC
• Islam is given special position in FC under Art
11(4)
• However, Islamic law is not even included in
the definition of law in Art 160.
• Art 4 of FC declares the supreme law of
federation to FC

4. Article 3(1)
• Islam is the religion of the Federation; but other
religions may be practised in peace and harmony
in any part of the Federation.
• It’s effect:
a) Che Omar bin Che Soh v PP(1988)
- Where mandatory death penalty for drug
trafficking offences and Firearm(Increased
Penalties) Act 1974 were held valid despite the
fact that they were not incompatible with
Islamic law.

5. • Meor Atiqulrahman bin Ishak v Fatimah bte Sihi
(2000)
- the P sued a school headmistress for expelling
him from the school he was attending. The D had
earlier asked the P not to wear Islamic turban but
the latter did not budge. The P argued that the
action taken by the school has had the effect of
denying him, among others, the right to freedom
of religion.
- it was held that Islam was a complete way of life.

6. Freedom of Religion
• Art in11(1) of FC – every person has the right
to profess and practice his religion and ,
subject to Clause (4), to propagate it.
• Art 11(4) – allows restrictions by State law or
Federal law in the Federal territories in
respect of the propagation of other religions
among Muslims.

7. Lina Joy v Majlis Agama Islam Wilayah
Persekutuan dan lain-lain (2007)
• the freedom of religion under FC does not
mean freedom from religion . Thus, the
guarantee of freedom of religion at least for
Muslims could not be used as pretext for
breach of religious injunctions.

8. Islam in the State
• The power to administer the Islamic law
- refers to the Ninth Schedule, List II- item 1
of the State List of FC
• Lina Joy v Majlis Agama Islam Wilayah
Persekutuan dan lain-lain (2007)
- the Federal Court, the majority reasoned since
apostasy relates to Islamic law, and Islamic law is one
of the matters in Item 1 of State List under Ninth
Schedule to the FC, apostasy clearly falls within the
jurisdiction of Syariah Court.

9. Shariah Court
• In 1988, an amendment has been made to the FC
• The Federal Constitution (Amendment) Act 1988 has
amended Art 121 of the FC to add a new clause (1A)
which in effect provides that the High Courts and
courts subordinate to it shall have no jurisdiction in any
matter which in the jurisdiction of Syariah Court.
• Mohamed Habibullah bin Mahmood v Faridah bte
Dato Talib, Supreme Court held that the effect of Art
121(1A) is to take away the jurisdiction of High Court in
respect in any matter within the jurisdiction of Syariah
Court

10. Position of Syariah Court before
Amendment to Art 121
• Syariah Court has been regarded as inferior to
Civil courts
• Overlapping the jurisdiction
• Application of law inconsistent with Islam
• Judgement of Civil courts against judgement
of Syariah courts.

11. Examples of Cases where Islamic law
not applied
• Ainan bin Syed Abu Bakar (1939)
• The High Court decided that a child born to a
Muslim woman 4 months after her marriage
to a Muslim man is legitimate child of that
man by relying on the provisions of s. 112 of
the Evidence Enactment which clearly
contrary to Islamic law.

12. Myriam v Ariff
• There had been a divorce between the parties before the
Kathi and the learned Kathi had made a consent order
giving the custody of the children of themarriage, a girl
aged 8 yrs and a boy aged 3 yrs to their father.
• Subsequently, the mother married a man who was not
within the prohibited degree of marriage to the children
and she claimed the custody of the children.
• The learned judge held that the High Court had the
jurisdiction over the case under the Guardianship of Infants
Act 1916.
• The learned judge finally gave the custody of the younger
boy to mother and the elder sister to father.

13. Conclusion
• The Islamic law present in the Malaysia is
subject to the provisions under Malaysian
Federal Constitution.