INTRODUCTION

Shariah law is the law of Islam or known as the moral code and religious law of Islam.
The word Shariah is originated from Arabic language which means path or way leading to the
water or to chalk out a clear road to water. It comes from a combination sources which derived
from the Quran which was revealed by Allah SWT and also the Sunnah which is the sayings and
conduct of the prophet Muhammad SAW1. Other than the Quran and Sunnah, Ijma which is
defined consensus of the religious scholars thought to embody the consensus of the Muslim
Community and Qiyas or analogical reason of the Shariah law for the majority of Sunni
jurisprudence are also part of the sources in shaping the Shariah law. Primarily, this law
concerned to regulate the relationship of the individual who are the Muslim with Allah SWT. In
a relation to this, Shariah law deals with many topics addressed by secular law, including crime,
politics and economics, as well as personal matters such as sexual intercourse, hygiene, diet,
prayer, everyday etiquette and fasting.2 When it is revealed by Allah SWT, indeed, it is cannot be
altered in any way. For example, Allah has made polygamy and it is an acceptable form of
marriage in Islam, so it will be invariably permissible and no one can alter or change that. In a
relation to this, all Muslim shall obey every single thing which has been propounded in Shariah
law and none of them cannot set it aside.
In Malaysia, Shariah law has been practiced and utilized in the judiciary system. Islam is
the religion of the state as propounded in Article 3(1) of the Federal Constitution but other
religions may be practiced in peace and harmony. Malaysia has a dual-track legal system
1 Schacht, Joseph, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964),
page 1.
2 Ahmad, Imad-Ad-Dean. Islamic Rules Of Order. Beltsville, MD, Amana Publications,
2008. 80 pp.

comprised of civil courts running in parallel with Syariah courts where the Muslim can be tried
on religious and moral charges. Furthermore, Syariah law is only imposed on the Muslims and
deals with moral and family matters while the non-Muslims are required to follow secular laws
that deal with the same matters. As a matter of fact, the Malaysian Constitution has brought
Islamic law under legislative powers of the federal states. In a relation to this, the Shariah court
system which issues the rullings under Islamic law is composed of a high court and courts in
each state. Historically, Islam was found in 1303, since then local people had been taught on the
teachings of Islam and Shariah law has come to be in force. According to Hamid Jusoh, the
Malacca Laws and other legal digests are the earliest evidences of the implementation of Islamic
Law in Malaysia; in Family Law, Criminal Law, Law of Sales and Evidence 3. Islam has been
made the official religion of our country since Merdeka in 1957 by the virtue of the Federal
Constitution of Malaysia. The position of Islam and Shariah law as it stands today is not a new
constitutional development as it has its roots from historical experiences4. Before Merdeka,
Rulers of Malay States through their respective written and unwritten made Islam as their State
official religion. However, after the arrival of the British in 1826, with the introduction of the
English common law, the development of some of the principles of the Shariah law have been
abandoned. This is because, while introducing the English common law, the judges have always
endeavored to restrict the application of Shariah law.
Implementation of Shariah law in Malaysia has invariably been a debated issue since
independence. In a relation to this, the impact of its implementation can be seen by the
jurisdictional conflict between civil and Shariah courts. First of all, there are conflicts in Civil
3 Hamid Jusoh, op. cit n. 2, p.2
4 See Ahmad Ibrahim The Introduction of Islamic Values in the Malaysian Legal
System, Jurnal IKIM, Vol. 2, No. 1, p.27

Jurisdictions due to dissatisfactions with decisions of the civil courts were heard since early
1970s. In the case of Commissioner of Religious Affairs v. Tengku Mariam (1970) 1 MLJ
220, the Federal Court held that civil courts were not bound by the gazette fatwa of the Mufti
of Terengganu and followed by Privy Council Judgements to hold that the wakaf in question was
void. However, to overcome such conflict, Article 121 of the Federal Constitution was amended
amd it is downright vital in order to avoid for the future conflict between the decisions of the
Shariah courts and the civil courts which had occurred in a number of cases. A new clause 121
(1A) was added, which was effective from 10th June 1988. It stated that :
The courts referred to in Clause (1) (i.e the High Courts added) shall have no
jurisdiction in respect of any matter within the jurisdiction of the Syariah courts5
In addition to this, there are also a number of conflicts in criminal jurisdictions. This is
due to the criminal offences committed by the Muslims will be tried under the Penal Code but
not under Administration of Muslim Law Enactment. This is because, some of the offences
stated in the Islamic law appear to be overlap with those offences that are already existed in the
Penal Code and other federal laws. For example, sodomy appears to be overlap with sexual
intercourse against the order of nature and indecent on decency by the virtue of Sections
377A and 377D of the Penal Code, respectively. However, in cases which involve any Muslims
committing such offence will be tried under the Civil courts, not Shariah Courts.

5 The Federal Constitution of Malaysia

Conclusions and Recommendations

Muslim consider that Shariah law as the Law of Allah SWT which is considered as
divine and immutable and it will never be changed or amended in any way. In Malaysia, the
administration of Shariah law is confined to personal law for Muslims and the Shariah court is
subordinate to the courts established by the Federal Constitution and under federal law. In a
relation to this, it is downright vital to know the history or the background on how the religion of
Islam came to be inserted in the Federal Constitution of Malaysia so that the subject is fraught
with difficulty6. Thus, there are still implications in implementing Shariah law in Malaysia and it
cannot be denied that there are a number of cases which have jurisdictional conflict between civil
and Shariah courts. Those various challenges currently being faced by the country hopefully will
be resolved in due course.
The dual legal system in Malaysia is a very interesting way of enabling a multicultural
society to peacefully coexist. It should be noted that, Shariah law is only applicable to Muslims
and only as personal law, with provision for certain offences against the precepts of Islam.

6 Dahlan, Rosli, and Fawza Sabila Faudzi. "The Position of the Shariah Court in the Malaysian
Legal System Malay Mail Online. May 15, 2015. Accessed November 14, 2016.
http://www.themalaymailonline.com/what-you-think/article/the-position-of-the-shariah-courtin-the-malaysian-legal-system-rosli-dahla.

References
1. Dahlan, Rosli, and Fawza Sabila Faudzi. "The Position of the Shariah Court in the
Malaysian Legal System." Malay Mail Online. May 15, 2015. Accessed November 14, 2016.
http://www.themalaymailonline.com/what-you-think/article/the-position-of-the-shariah-court-inthe-malaysian-legal-system-rosli-dahla.
https://hq.ssrn.com/login/newMembershipCompleted.cfm
http://www.lawteacher.net/free-law-essays/international-law/legal-system-of-malaysia.php
https://zulkiflihasan.files.wordpress.com/2008/06/historical-background.pdf