1. Introduction
Prior to 1887, it was not known that Islamic law had existed in Malaysia; in that year, a rectangle shaped stone was found in Kuala Berang, Terangganu, with an inscription, which detailed a code of Islamic law. The stone was dated in the year 1303, hundreds of years earlier than the Law of Malacca Code was first introduced.
Islamic law was established in Malaysia by the fourteenth century. During the colonial period, the British did not interfere with religion in the country. Islam was adopted as the religion of the state, with the Constitution providing that the leader in each state must be a Muslim. Yet, the Constitution also guarantees full religious freedom to members of all faiths.
With the exception of Putrajaya, the new administrative capital of Malaysia, each state in Malaysia, including the Federal Territories (Kuala Lumpur and Labuan) has its own religious Council. The function of this Council is to advise the ruler, or the king in non-ruler states, on Muslim and Islamic matters. All of these Councils are established by state law. The Federal Constitution also provides that a State Legislature has power to enact laws relating to, inter alia, personal and family law for Muslims, Muslim Waqf, Zakat, Fitrah, Baitul Mal, Mosques, the creation and punishment of offences by Muslims against precepts of Islam, Muslim Courts, the control and propagation of doctrines and beliefs among Muslims, and the determination of matters of Islamic Law.
The Muslim courts established by State authorities have jurisdiction only over Muslims, and have no jurisdiction over criminal offences, unless specifically conferred by federal law. Most of the Islamic Law that has been enacted in the States of Malaysia has developed into an independent legal system, substantially different from the strict Islamic Law of the Syariah, except perhaps in family law.
[Post] independence (Noordin, the amendment was in 1988 – Article 121(1A)), a constitutional amendment was passed which resolved any questions of power or jurisdiction which might arise between the Shariah Court and the Civil Court. This amendment stated that no court has jurisdiction in any matter, which is under the jurisdiction of the Syariah Court; in effect, the Civil court has no influence on the jurisdiction of Syariah Court.
Problems occasionally arise in the implementation of Islamic Criminal Law. The enactment (or implementation, which?) of the Syariah Criminal Code in each State does not distinguish between the three types of crimes in Islamic law, which are Hudood, Qisas and Tazir; rather, they are all combined, which often causes confusion. In order to gain the confidence of the public, the Syariah Courts, their Judges and Officers have to show that Islamic Law is not only the best Law in theory, but also the best in practical application; hence, the aforementioned confusion is a serious concern.
In Malaysia, most of the books on Islamic law are written in the Malay language rather than the English language, and contain many Arabic terms that describe the law.
2. Scope of Islamic Law
Islamic law is not a legal system, but a legal tradition, much like the common or civil law tradition. A legal tradition is a set of related beliefs, attitudes, and practices regarding the necessary components of a legal system, including the scope and purposes of the law, the manner in which law is created or discovered, the identity and function of legal actors, and the manner in which law is learned, implemented, developed and adapted.
Islam has its own personal, civil, criminal, mercantile, evidentiary, constitutional, and international law. In Malaysia, Islamic law and customary law were the law of the land long before English law became prominent, as under the current system. According to the Federal Constitution, Islamic law is a matter falling within the State List, meaning that the State Legislature is empowered to enact the law. Exceptions to this are the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, in which Islamic law is enacted by the Federal Parliament. Malaysia maintains two parallel justice systems: the Syariah Court System in each of the thirteen states, and the Civil Court System for the whole Federation. Each state in Malaysia has its own Syariah court system, which deals with matters relating to Islamic law in which the permitted litigants are all Muslim.