Documente Academic
Documente Profesional
Documente Cultură
Islam came into Melaka in 1414 and was brought by Muslim traders
during the reign of Parameswara. By 15th century Malacca became the
centre for Islamic missionary work in the region.
Before the coming of Islam, the Malays followed the Malay customary
law influenced by Hinduism. However, the elements were later overlaid
with principles of Syariah law.
Cases:
1. English law had been made the law of the land while
Islamic law was restricted to be a mere personal matter
concerning marriage, divorce and private aspect of
Muslim rituals.
The idea was first rejected by the Commission and the Malay Rulers but
later it was accepted after the coalition explained their intention not to usurp
the position of the Malay Rulers as Head of Islam in their respective states
but primarily to be symbolic so that religious ceremonies could be
conducted at federal official functions.
Article 3 merely declares that Islam is the official religion of the Federation
and not declaring the federation as an Islamic state
According to Sheridan and Grove, it does not seem that the clause “Islam is
the religion of the Federation” has any legal effect. These words possibly
impose an obligation on the participants in any federal ceremony to
regulate any religious parts of the ceremony according to Muslim rites
Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55
Mandatory death penalty for drug trafficking offences and Firearms
(Increased Penalties) Act 1974 were held valid despite not being
compatible with Islamic law. It was argued that the death penalty was
unislamic and therefore contrary to Article 3 of the Constitution.
The Supreme Court rejected this argument. It was held that Islamic law
was to be confined to the areas of personal law such as marriage, divorce
and inheritance for Muslims.
It was held that Article 3(1) means only such acts as related to rituals and
ceremonies.
Teoh Eng Huat v Kadhi of Pasir Mas, Kelantan & Anor [1990]
2 MLJ 300
Issue that had been raised in this case was whether a person below the
age of eighteen years old had legal capacity to choose her own religion in
exercise of her constitutional right
The Supreme Court having looking at the drafting history of the Federal
Constitution held that the constitution was drafted on the basis that
although Islam is the religion of the federation, the federation is a secular
state.
As such, the right of religious practice of an infant shall be exercised by the
guardian on her behalf until she becomes major.
Article 11 of Federal Constitution
Article 11(1) of Federal Constitution: Every person has the right
to profess and practice his religion and, subject to Clause (4), to
propagate it.
Art. 11(4) provides that State law and in respect of the Federal
territories of Kuala Lumpur, Labuan and Putrajaya, federal law
may control or restrict the propagation of any religious doctrine
or belief among persons professing the religion of Islam
Ninth Schedule: List II – State list
According to the Federal Constitution, the power to administer
Islamic law is primarily under the jurisdiction of the states.
It is provided that: Except with respect to the Federal territories
of Kuala Lumpur, Labuan and Putrajaya, Islamic law and
personal and family law of persons professing the religion of
Islam..
However, the states do not have the full and exclusive power to
legislate on legislate on Islamic law. Only matters that have
been enumerated in Item 1 or other Islamic matters as provided
in the State List or Concurrent Lists.
State jurisdiction in Islamic law is restricted not only by the
provisions of the Federal Constitution, but also by the operation
of federal legislation for instance Syariah Court (Criminal
Jurisdiction) Act 1965 to confer a limited criminal jurisdiction
upon the Syariah court.
Mamat Bin Daud & Ors v Government of Malaysia [1988] 1 MLJ
119
In this case, each of the petitioners was charged for an offence under section
298A of the Penal Code for doing an act which is likely to prejudice unity among
persons professing the Islamic religion.
The issue before the court is whether the said section which was enacted by
Parliament by an amending Act in 1983 is ultra vires against Article 74(1) of the
Federal Constitution, since the subject matter of the legislation is reserved for
the State Legislatures and therefore beyond the legislative competency of
Parliament.
The Supreme Court had allowed the application and declared that the provision
was ultra vires the Federal Constitution because the provision in pith and
substance is a law on the subject of religion with respect to which only the states
have power to legislate under Articles 74 and 77 of the Federal Constitution
Administration of Islamic Law
As administration of Islamic law is vested on the states,
separate legislations could be found according to each states on
various aspect of Islamic law.
And each state shall have their Adminitration of Islamic Law
Enactment or Act to govern the following:
1. Majlis Agama Islam – responsible for all matters concerning
the Islamic religion (enforcement)
2. Mufti – responsible to determine Islamic Law
3. Syariah Courts – responsible for the administration of justice
Majlis Agama Islam
The Majlis is a corporate body whose primary function is to
advice the Ruler (or the YDPA) in all matters concerning Islam.