Syariah laws in Malaysia
Posted on August 9, 2010, Monday
THE fasting month is due to begin this week.
Many of us in Malaysia, do not have sufficient understanding of each other’s cultural ways and laws.
For example, most non-Muslims in Malaysia either have little or no conceptualisation of what Syariah law is, except for negative portrayals in the Western media.
In today’s article we look at the practice of Islamic laws in Malaysia today.
According to Malaysian jurist Zaitoon Othman, contrary to the perception of many, Malaysia is not an Islamic country.
The Federal Constitution of Malaysia 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.
All Malays in Malaysia are Muslims.
There are also Muslims born of other races such as Indians, Chinese and Pakistanis.
When reference is made to Muslims, convert Muslims by virtue of marriage and voluntary conversions are included.
In today’s practice of Islamic laws in Malaysia, you may ask these questions:
1.Who is affected by (Syariah) Islamic law in Malaysia?
Muslims in Malaysia are governed by Islamic personal and family law, which has been in existence since the 15th century.
Islamic laws have been administered, not only by the Syariah Courts, but also the Civil Courts.
However by Article 121 (1A) of the Constitution of Malaysia, today, exclusive jurisdiction has been given to the Syariah Courts in the administration of Islamic laws.
The Syariah laws in Malaysia do not apply to non-Muslims.
2.When does Syariah laws apply to Muslims?
Syariah laws in Malaysia apply in the following areas: (i) Family laws in respect of marriage, divorce, custody and guardianship, maintenance of children, matrimonial properties, and alimony.
(ii) Laws of succession: Probate and Administration – relating to distribution, as well as Trust Deed – in respect of gift inter-vivos.
(iii) With regard to criminal laws the jurisdiction of the Syariah laws are limited and confined to offences in respect of polygamous marriage, close proximity, indecent dressing and behaviour, violation of the ‘pillars of Islam’ (not fasting during Ramadan, not attending Friday prayers, desertion by either spouse), and apostasy.
3.Often the question arises whether there is a conflict between the jurisdiction of the Syariah Courts and the Civil Courts.
For example in certain fields of law there is a definite conflict of jurisdiction between the Syariah Courts and the Civil Courts: (i) Application for Grant of Letter of Administration of a Muslim can only be made in the Civil Courts despite Article 121 (1A).
(ii) Action against unnatural offences (eg sodomy) committed by a Muslim is brought in the Civil Court although such offences are provided in both Syariah Law and Civil Law.
(iii) A Court Order from the Syariah Court is not enforceable in the Civil Court and may not even be enforceable in a Syariah Court in another state in Malaysia.
4. Lastly according to Zaiton, we also need to look at the Syariah laws and its impact on political ideology and vice-versa.
We cannot ignore the fact that sometimes the development of Syariah laws and its practice are influenced by political ideology. This is so in Malaysia. For example, in Kelantan, it is said that women are discouraged from working or having a career.
Women are also sometimes segregated from men both literally and otherwise — women must queue separately from men in the supermarket.
The influence of Islamic ideology is also reflected by the ruling government. The government in Malaysia has striven to enforce Islamic values in all aspects of our lives.
Various steps have been taken to introduce and apply Islamic values in the fields of economy and trade.
We have now in Malaysia a well-developed system of Islamic banking, takaful (Islamic insurance) Rahn and Amanah Saham (shares investment), which have shown how the teachings of Islam can be successfully applied in practice and this development in Malaysia has been followed by similar developments in these fields in Indonesia, Brunei and the Philippines.
The system of commercial transactions following the teachings of Islam has also been accepted and applied by other banks and insurance companies in Malaysia.
The government and many other public and private bodies including universities have applied the principles of Islam in the giving of loans including housing loans to their employees.
The administration of Syariah law
There are two main juristic schools of Syariah law. They are the Sunni school and the Shia school.
The Sunni schools have four main divisions called mazhabs. They are Hanafi, Shafi, Hanbali and Maliki.
It is said about 80 per cent of the total Muslim population of the world are Sunni Muslims and the majority of them are Hanafis followed by Shafis.
Nearly 90 per cent of the Muslims in Malaysia are Shafis. Imam Shafi founded the Shafi school.
He was well-known for his progressive and modern views.
According to the Sunni school there are four chief sources of Syariah law.
They are the Holy Quran, Al-Hadith and Sunnah, Ijma and Qias.
The Holy Quran is the paramount source of Syariah law and expressed revelation of Allah.
The Al-Hadith means what the Prophet said.
The Sunnah means the physical deeds of the Prophet.
The Al-Hadith and Sunnah are regarded as the second most important source of Islamic jurisprudence after the Holy Quran.
Ijma is the consensus of the companions and followers of the Prophet — the agreement of the jurists among the followers of the Prophet in a particular age on a particular question.
Imam Shafi had rejected ijma as the consensus of the scholars and reconstructed it as the consensus of the Muslim community.
Qias is referred to as analogical deduction based on the sound reasoning from the sources of Syariah law.
Qias was applied when the three sources of Syariah law namely, the Holy Quran, the Al-Hadith and Sunnah and Ijma could not adequately answer certain issues.
Two parallel rivers of law
In conclusion, it can be observed that Malaysia has done well as Syariah law and Civil law have been practised side by side successfully.
What is also to be noted is that Syariah law does not affect non-Muslims with regard to offences under the Islamic law however non-Muslims are not prevented from taking advantage of any Muslim products or following Muslim principles whenever available.
• To be continued.
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