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MALAYSIAN LEGAL SYSTEM Sources of law – islamic lawPresentation Transcript
14th century. Islam was brought by Muslim
Spread in Malacca during the reign of
Parameswara who married a muslim princess
from Pasai in 1414. He changed his name to
Other sultans of Malacca (Sultan Mansur
Shah and Sultan Mohammad) adhered
strictly to Islam.
15th century. Malacca became the centre for
Islamic missionary work in the region.
1. Hukum Kanun Melaka
(Laws or Malacca)
2. Undang-undang Laut Melaka
(Maritime Laws of Malacca)
Was prepared during the reign of Sultan
Muzaffar Shah (1446-1459)
Contains 44 chapters, 18 of which had Islamic
Chapters on marriage and divorce
On wali, witnesses to marriage, rules on talad
Were based on writings by Abu Shuja in “Al-Taqrib”
Chapters on commercial transactions
Weight and measure, prohibition of riba, sale of land
Based on writings by Abu Shuja (in Al-Taqrib), Ibn Al-
Qassim Al-Ghazzi (in Fath al-Qarib) and Ibrahim Al-
Baijuri (in Hashiya ala al-Fath al-Qarib)
Chapters on evidence and procedure
Chapters on criminal offences
Punishment for killing, zina, sodomy, bestiality,
slander, drinking liquor.
Prepared during reign of Sultan AbdulGhafur
Was modelled on Hukum Kanun Melaka
Contained provisions on qisas, fines, zina,
sodomy, theft, robbery, apostasy, omission of
prayers, jihad, witness and oath.
Also modelled on Hukum Kanun Melaka
Johor Constitution 1895 -- during the reign of
Sultan Abu Bakar.
The translation of Majallat al-Ahkam al-
Adliyyah (the Ottoman Civil Code 1876) into
Malay, which was named as MajalahAhkam
Hanafi Code of Qadri Pasha in Egypt was
adopted and translated into Malay as the
Ahkam Shariyyah Johore.
“There can be no doubt that Muslim law
would have ended by becoming the law of
the Malays had not British law stepped to
“Before the first treaty [the PangkorTreaty
1874] the population of these State [FMS]
consisted almost solely of Mohammedan
Malays with a large industrial and mining
Chinese community in their midst.
The only laws at that time applicable to Malays
was Mohammedan modified by local custom”
“Muslim law is not foreign law, it is the law of
the land and the local law is a matter of which
the court must take judicial notice.”
(Note: “judicial notice” means matters which are so notorious
and well known.
S 56 Evidence Act 1950: “No facts of which the court will take
judicial notice need to be proved”).
Islamic law was not recognised by the courts
in the following cases:
In theGoods of Abdullah
Fatimah v Logan
Courts recognised Islamic law in the following
Chulas v Kolson
Sahrip v Mitchell
Ainan v Syed Abu Bakar  MLJ 209
PP vWhite  MLJ 214
Attorney General of Ceylon v Reid  2 MLJ
Martin v Umi Kelsom  MLJ 1
Re Maria Hertogh  MLJ 214
S 112 Evidence Enactment was enforced on
“The Evidence Enactment is a statute of general
application and that all the inhabitants of the
Federated Malay States are subject to its
provisions whatever may be their race or
religion. In questions of legitimacy in the case of
Muhammadans section 112 of the Evidence
Enactment applies to the exclusion of the rule of
S 122 Evidence Enactment provides that the
birth of a child during a valid marriage or
within 280 days after its dissolution, is
conclusive proof of legitimacy, unless it can
be shown that the parties to the marriage
had no access to each other at any time when
the child could have been begotten.
The shortest period of gestation in the
human species is six months.
A child born before six months is considered
In this case, the child was born 3 months after
the marriage. The court applied the Evidence
Enactment and held that the child is a
The accused married a Christian lady at
Taiping, Federated Malay States, in 1918
according to the rites and ceremonies of the
Church of England. In 1936 while his wife was
still alive, the accused married another
Christian lady according to Mohammedan
law after they had been converted to the
Mohammedan religion. In a prosecution
instituted at the instance of the first wife for
Bigamy in an offence under S 494 of the
"Whoever, having a husband or wife living,
marries in any case in which such marriage is
void by reason of its taking place during the life
of such husband or wife, shall be punished with
imprisonment of either description for a term
which may extend to seven years, shall also be
liable to fine.”
Court held that the first marriage being a
monogamous one, the accused had committed the
offence of bigamy.
A person who enters into a marriage relationship with
a woman according to monogamous rites takes upon
himself all the obligations springing from a
monogamous relationship and acquires by law the
status of "husband" in a monogamous marriage and
he cannot, whatever his religion may be, during the
subsistence of that monogamous marriage marry or
go through a legally recognised form of marriage with
Issue:Whether the second marriage was void
by reason of its taking place during the life of
the respondent's first wife.
Held: Ceylon is a country of many races and
creeds and has a number of Marriage
Ordinances and Acts. In matrimonial matters
there is no one law which applies to all locally
domiciled persons; they are governed by their
personal laws. A Christian monogamous
marriage does not prohibit for all time during
the subsistence of that marriage a change of
faith and personal law on the part of a husband
resident and domiciled there.
In such countries there is an inherent right in
the inhabitants domiciled to change their
religion and personal law and so to contract a
valid polygamous marriage if recognised by
the laws of the country notwithstanding an
earlier marriage. If such inherent right is to be
abrogated it must be done by statute; but
there was none in the case of Ceylon and
therefore the appeal must fail.
Martin and Umi Kelsom got married under the
Christian Marriage Enactment on February 25
1950. At that time, Martin was a Christian
domiciled in England and Umi was a Malay
Muslim domiciled in Selangor.
Issue: Whether the marriage was void on the
ground that at the time of its solemnisation he
was a Christian and she was a Muslim and
therefore by reason of her personal law
incapable of inter-marrying with him.
Court held that since the marriage was
solemnised according to the law of the
husband's domicile, it is therefore according
to that law that the validity of that marriage
must be judged by thisCourt.
So determined, the marriage was valid.
Validity of marriage between Natra (who was
13 years old) and MansurAdabi.
Marriage was declared void because Natra
was below 16 following Dutch Law.
“Islam is the religion of the Federation; but
other religions may be practiced in peace and
harmony in any part of the Federation.”
The interpretation of that provision can be
found in the official Report of the Legislative
Council Debate, 1 May 1958.
Tengku Abdul Rahman , the first Prime
Minister of Malaysia:
“I would like to make it clear that this country
is not an Islamic state as it is generally
understood, we merely provide that Islam
shall be the official religion of the state.”
The interpretation was reaffirmed in this
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.
Held that Islamic law was to be confined to
the areas of personal law such as marriage,
divorce and inheritance for Muslims.
“Was (Islam as the way of life) the meaning
intended by the framers of the Constitution?
For this purpose, it is necessary to trace the
history of Islam in this country after the
British intervention in the affairs of the Malay
States at the close of the last century”.
Article 3(1) according to the Supreme Court:
“It means only such acts as related to rituals
and ceremonies. If it had been otherwise,
there would have been another provision in
the Constitution which would have the effect
that any law contrary to the injunction of
Islam will be void”.
“law” includes written law, the common law
in so far as it is in operation in the Federation
or any part thereof, and any custom or usage
having the force of law in the Federation or
any part thereof;”
(1) Every person has the right to profess and
practice his religion and, subject to Clause (4), to
(4) 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
This Constitution is the supreme law of the
Federation and any law passed after Merdeka
Day which is inconsistent with this
Constitution shall, to the extent of the
inconsistency, be void.
If any State law is inconsistent with a federal
law, the federal law shall prevail and the State
law shall, to the extent of the inconsistency,
List I – Federal list
List II – State list
List III – Concurrent list
1. 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, including the Islamic law relating to succession,
testate and intestate, betrothal, marriage, divorce,
dower, maintenance, adoption, legitimacy,
guardianship, gifts, partitions and non-charitable trusts;
Wakafs and the definition and regulation of charitable
and religious trusts, the appointment of trustees and the
incorporation of persons in respect of islamic religious
and charitable endowments, institutions, trusts,
charities and charitable institutions operating wholly
within the State;
Malay customs; Zakat, Fitrah and baitulmal or
similar Islamic religious revenue; mosques or any
Islamic public place of worship, creation and
punishment of offences by persons professing the
religion of Islam against precepts of that religion,
except in regard to matters included in the Federal
List; the constitution, organization 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