Clause (1) of that Article mentions two High Courts of co-ordinate jurisdiction and status, that is, one in the states of Malaya known as the High Court in Malaya, and one in the states of Sabah and Sarawak known as the High Court in Sabah and Sarawak, together with lower courts as may be provided by federal law. The judicial power of the Federation resides in courts constituted under Article 121. Islamic law was left to be administered by the respective states, with the Sultans proclaimed as ‘Head’ of Islamic religion in each state, thus giving rise to the lack of uniformity in the administration of Islamic law in Malaysia, whereas the uniform application of English law throughout the land was guaranteed (Ahmad 1999). 2010), British intervention in the affairs of the Malay States had the effect of formalising the manner in which Islamic law was administered (Ahmad and Rajasingham 2001). … the constitution, organisation 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 paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law… (Federal Constitution, Article 74, Ninth Schedule).Īlthough it is true that the practices of Islamic law differed among the various Malay states due to the influences of custom (Abdullah et al. Likewise, the State Legislature has jurisdiction over: … 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… (Federal Constitution, Article 74, Ninth Schedule). With regards to Islamic criminal law, the Federal Constitution provides that the State Legislature may make laws for the: 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, trust, charities and charitable institutions operating wholly within the State Malays customs Zakat, Fitrah and Baitulmal or similar Islamic religious revenue mosques or any Islamic public places of worship … (Temperman 2010 Hooker 2003).
Matters over which the State Legislatures have been permitted to make laws are:
Under the Federal Constitution of Malaysia, Islamic law is a matter over which the State Legislature has jurisdiction (Federal Constitution, Article 74, Ninth Schedule). However, the grant of the Charters of Justice 1826 to the Straits Settlements, and the eventual application of English law both through the judicial process and through legislation in the Malay States had effectively displaced Islamic law from its premier position, to become limited (Ahmad and Rajasingham 2001).
One may agree with the argument that if colonisation had not been responsible for the introduction and application of English law in Malaysia, Islamic law would have become the law of the state (Bidin 2009 Ahmad 1999 Ibrahim and Yaacob 1997). Islamic law, which at times is referred to as hudud, has been discussed in term of its implementation (Haneef 2010). Islamic law, coupled with the various customary laws, is the foundation upon which the legal system came to be established (Shaik 1915). After independence, Malaysia attempted to harmonise civil and religious laws in the government. One of the conditions of independence is the establishment of a legal system based on English common law, with Islam as the official religion of the Federation. Undang- undang Melaka, that has elements of sharia, was introduced during the reign of Sultan Muhamad Syah (1422–1444) (Fang 2007). The sharia or Islamic law has been incorporated in the existing states’ law, such as the Undang- undang Kedah (Kedah Laws), Undang- undang Pahang (Pahang Laws), and Undang- undang Melaka (Malacca Laws). Before the independence of Malaya (now Malaysia) in 1957, the country has its ruling system mainly based on religious guidance.
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