The judicial power of the Federation resides in courts constituted under Article 121. Islamic law was left to be administered by the respective states, with the Sultans proclaimed as ‘Head’ of Islamic religion in each state, thus giving rise to the lack of uniformity in the administration of Islamic law in Malaysia, whereas the uniform application of English law throughout the land was guaranteed (Ahmad 1999). 2010), British intervention in the affairs of the Malay States had the effect of formalising the manner in which Islamic law was administered (Ahmad and Rajasingham 2001). … the constitution, organisation and procedure of Syariah Courts which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any 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… (Federal Constitution, Article 74, Ninth Schedule).Īlthough it is true that the practices of Islamic law differed among the various Malay states due to the influences of custom (Abdullah et al. Matters over which the State Legislatures have been permitted to make laws are: Under the Federal Constitution of Malaysia, Islamic law is a matter over which the State Legislature has jurisdiction (Federal Constitution, Article 74, Ninth Schedule). However, the grant of the Charters of Justice 1826 to the Straits Settlements, and the eventual application of English law both through the judicial process and through legislation in the Malay States had effectively displaced Islamic law from its premier position, to become limited (Ahmad and Rajasingham 2001). One may agree with the argument that if colonisation had not been responsible for the introduction and application of English law in Malaysia, Islamic law would have become the law of the state (Bidin 2009 Ahmad 1999 Ibrahim and Yaacob 1997). Islamic law, which at times is referred to as hudud, has been discussed in term of its implementation (Haneef 2010). Islamic law, coupled with the various customary laws, is the foundation upon which the legal system came to be established (Shaik 1915).
After independence, Malaysia attempted to harmonise civil and religious laws in the government. One of the conditions of independence is the establishment of a legal system based on English common law, with Islam as the official religion of the Federation. Undang- undang Melaka, that has elements of sharia, was introduced during the reign of Sultan Muhamad Syah (1422–1444) (Fang 2007). The sharia or Islamic law has been incorporated in the existing states’ law, such as the Undang- undang Kedah (Kedah Laws), Undang- undang Pahang (Pahang Laws), and Undang- undang Melaka (Malacca Laws). This paper concludes that Islamic law in Malaysia is confined to Muslim family matters, while civil law covers all other matters.īefore the independence of Malaya (now Malaysia) in 1957, the country has its ruling system mainly based on religious guidance. This paper examines histo-cultural development of the Islamic law as practised in pre-independent Malaysia, as well as the coexistence between these two laws after the independence of Malaya in 1957. One of the unique aspects of multicultural Malaysia is the fact that it has a parallel legal system: sharia and civil law. The Undang- undang Melaka was practised from 1422 to 1444 and the law of the country was developed to accommodate the introduction of civil law during the colonial period. This paper highlights that had there been no introduction to a common law system, Malaysia would have remained with its traditional laws influenced by Islam and its local customs as evident from Undang- undang Melaka (Malacca laws).
Analysis was done on selected examples from this document. The Undang- undang Melaka (Malacca Laws) was obtained from the monograph available at National Library of Malaysia under the name of Hukum Kanun Melaka. It applies historical comparative method in presenting its data. Muslims are the majority comprising 67 % of the population. Other religions such as Sikhism and Christianity are also practised.
The three main religions are Islam, Buddhism and Hinduism. Malaysia is a multicultural state comprising three main races: Malays, Chinese and Indians.