The Law of the Land In political-legal matters, Islam replaced the Hindu system of devaraja or divine kingship with

the Sultanate system beginning in 1303 in Terengganu and then in 1414 in Malacca. Malay adat law with Hindu-Buddhist element overlaid with principles of Syariah law was the lex terrae. The Islamization of Malay adat law continued until the coming of the British. When the cession of Penang to the East India Company took place, it was the beginning of English law being the law of the land. This separated religion from the state. This can be seen in the Mohamadean Marriage Ordinance 1888. English law was further cemented as the legem terrae by the three charters of justice established in the Straits Settlements and culminated in the Reid commission which designed the Federal Constitution. Sections 3 and 5 of the Civil Law Act 1956 allows to this day, 55 years after Merdeka for English Law to be provided to fill in lacunas in the local law. Constitution, which is the supreme law of the land play an important role in administering the country. This is because all the institutions in the country and the power they have are in the details of the constitution. However, the constitution especially on the position of Islam can be misleading. In this uncertainty, the role of the courts is important. This can be seen when there is litigation and the court will assist in efforts to determine and confirm what should be the practice or otherwise. However, not all the judgment of the court can resolve these issues, it is not uncommon that a judgment by a court can be misleading and fail to solve the problem, especially in the long term. Constitutional status of Islam A similar scenario took place in a discussion about the position of Islam in the constitution, a matter that should be discussed prior to discussing the issue of Islamic criminal law. The position of Islam in the constitution is generally limited. Article 3 (1) of the Federal Constitution recognizes Islam as the official religion. It says: "Islam is the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation."

Debates persists on whether Malaysia is an Islamic state or secular state with Islam as merely the official religion. Indeed, in a landmark judgment of the Malaysian Supreme Court, the court clearly said that Malaysia was a secular State and that Islam was only relevant for ceremonial purposes. This was in the case of Wan Jalil Bin Wan Abdul Rahman & Anor v Public Prosecutor.1 This huge divide of opinion among Muslims in Malaysia can be highlighted by the two differing opinions of three different Prime Ministers itself namely Tunku Abdul Rahman who on the occasion of his 80th birthday, he stated in the 9 February 1983 edition of The Star that the "country has a multi-racial population with various beliefs. Malaysia must continue as a secular State with Islam as the official religion." In the same issue of The Star, Abdul Rahman was supported by the third Malaysian Prime Minister, Hussein Onn, who stated that the "nation can still be functional as a secular state with Islam as the official religion,on the other hand, Tun Mahathir who begs to differ who on September 29, 2001, declared that the country was an Islamic state. Article 160 has an important impact on Islam in Malaysia and the Malay people, due to its definition of a Malay person under clause 2. The article defines a Malay as "a Malaysian citizen born to a Malaysian citizen who professes to be a Muslim. As in the case of Lina Joy, a Malay Muslim who tried to convert to Christianity and was rejected by the Federal Court in a 2-1 majority decision as it goes against the Constitution on the grounds that she is a Malay and thus must be Muslim. We have two court systems both civil and ecclesiastical which is the Shariah Courts but the Shariah Court has limited jurisdiction among Muslims only with less severe punishments compared to stipulation in the Koran. However, the status of Islam compared to other religions is higher and is recognized by the government . We can see this in Article 12 (2) of the Federal Constitution when it provides the right "of the Federation or a State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in the religion of Islam and incur any expenses as may be necessary for that purpose. In the case Meor Atiqulrahman bin Ishak & Ors v Bte Fatimah Sihi & Ors, Mohd Noor Abdullah J. interpreted Islam is the religion of the Federation, but other religions may be practised in

( [1988] 1LNS 150)

peace and harmony as Islam is the principal religion compared to other religions which are practised in this country like Christianity, Buddhism, Hinduism and others. This is guaranteed under Article 11(1) of the Federal Constitution which guarantees the freedom of religion, yet Islam is not at par with other religions. It occupies a superior position, moving first, situated in the field and its voice clearly heard. If it is not like that, Islam is not the religion of the Federation but it is one among other religions which are practised in this country and every person is equally free to practise any religion which he believed, no privilege between one over the other. However, whether the position of Islam, which is said to be higher, is truly implemented, it remains to be seen. Malaysian Common Law Common law can be defined as law based on the ancient legal customs of society and are recognized and enforced by the judgment and decree of the court. The earliest record of Islamic law in Malaysia is the inscription on the Terengganu stone, which dates back to 1303. It provides penalties for some offenses in accordance with the Quran and Sunnah. For example, it is stated (in the traditional Malay):

Orang berbuat bala cara laki-laki perempuan titah Dewata Maha Raya jika merdehika bujang palu seratus rotan. Jika merdehika beristeri atau perempuan bersuami ditanam hinggakan pinggang dihambalang dengan batu matikan.

This is the law relating to the punishment for adultery. It can be interpreted as: "Those who commit illicit relations between men and women, the order of the King, if they are free (not a slave) and are not married, they would be whipped hundred lashes and if free men have a wife or husband free women, they will be buried up to the waist and be stoned to death. " This law is in line with Islamic teachings. Malacca is a Malay government, the set of laws that have been made on the orders of King and this law Melaka (Malacca Law), showing the influence of Islam in changing the Malay customary law. The first thing we need to remember about Malacca Law is that it is a hybrid text. In other words, it consists of several separate text

tied together as a manuscript. It has been copied and recopied, and even then it is certainly coming will be treated as a text, the various component parts are clearly shown themselves. Legal structure of Malacca consists of two different text, The law of Malacca (Hukum Kanun Melaka),and Maritime Law (Undang-Undang Laut Melaka) When the government of Malacca fell to the Portuguese in 1511, the Malay legal text has been taken and adapted with modifications in various Malay states including Pahang, Johor and Kedah. In Pahang law, which has been prepared during the reign of Sultan Abd. Ghafur Muhaiyyuddin Shah (1592 - 1614 AD), and like the Law of Malacca, we find that the influence of Malay custom is much less and Islamic law generally followed. Johor law also has been modeled on the Law of Malacca. Thus it is clear that the Common Law of Malaysia based on definition has always been Islamic law since 1303. Codification of Islamic Law Of course in modern times new crimes are being committed that are not specifically mentioned in the Quran or Hadith. Commercial crime, drug-related crime, trafficking and abuse, misrepresentation in the print and electronic media and various sophisticated ways of abuse of power, fraud and others are not specifically mentioned in the Quran or Hadith. Islamic law can be made to control this new crime. The most important thing about such laws is that they are at least consistent with the spirit and values that pervade the administration of justice in Islam as in the cases described in the Qur'an. How laws enacted or enacted and enforced not as important as their compliance with the spirit and clear injunction as described in various circumstances given in the Quran and Hadith that reflects the teachings of the Quran. It can be further added that law which may have not been rooted in the Arabic style can be Islamic law if it does not contravene the Quran and the Hadith.

Citing Abdul Hamid Mohamed, former Chief Justice of the Federal Court, who was on the drafting committee for various federal and state shariah procedures acts in the 1980s and 1990s:

We decided to take the existing laws that were currently in use in the common law courts as the basis to work on, remove or substitute the objectionable parts, add whatever needed to be added, make them Shariah-compliance [sic] and have them enacted as laws. In fact, the process and that methodology, if it can be so called, continue until today.The provisions of the Shariah criminal and civil procedure enactments/act are, to a large extent, the same as those used in the common law courts. Problem of Implementation One problem in implementing Shariah law is that the civil courts used to overrule and reverse decisions made in the Shariah Court. In the case of Re Huberdina Maria Hertogh which involved a Maria Hertogh, born in 1937, came into the care of Aminah Mohamed in 1942 and from that date he has been brought up as a Muslim named Natrah. At the time, Maria's father, a Dutch national, was inprisoned by the Japanese as a prisoners of war. After the war, the father commenced proceedings in the High Court in Singapore who seek custody of Maria, but the proceedings were held for nullity. On 1 August 1950 Maria was married with one son Mansor Adabi in Singapore. On 24 August 1950 the father returned for proceedings, is asking for a declaration, inter alia, that the marriage was invalid that he, as the father of Mary, given custody of the child. The Court held, on the facts, that since Mary is under 16 years old during the alleged marriage, the marriage is not valid because according to her domicilii lex (which is the Dutch law), the consent of the Queen of the Netherlands is a pre-condition for marriage. As consent is not obtained, the marriage is not valid and therefore was awarded custody to the father. Thus we can see that even before Merdeka and the Reid Commision, Islamic law which forbids murtad was stepped aside for not only for English law but even Dutch law. However this problem has been partly resolved due to the amendment in 121 (A) in 1988 making it difficult for Civil Courts to reverse Shariah law Court decisions.

Another problem is based on the fact that the power of Islam is referred to under the State List of the Ninth Schedule of the Federal Constitution, while the other important things such as defense, security, criminal law and the administration of justice, finance, and others listed below Federal Register. Based on this provision, the power to make laws of any law relating to Muslims on matters included in the State List is under the jurisdiction of the state. Therefore, each state has the power, and because of this, it is a fact that Islamic Law Enactment is different from one state to another. In addition, the fatwa related to some of the issues are different from one state to another. Islamic Law Enactment is not only confusing to the general public but also affects firmness fatwa itself and the image of Islam as a whole. Effect of lack of law can be seen from a different day event in the celebration of the Eid among other states. This happened in 1982, when the state of Perak celebrated one day earlier than the date announced by the King. This difference can also be seen from the point of view of the sect when for example, the State of Perlis does not state that it follows a movement or school of fiqh, while other states announced that they follow the Shafi `i madhhab.