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Yearbook of Islamic and Middle Eastern Law

Volumn 4, Issue , 1998, Pages 153-179

Islamic Law in Malaysia: Issues and Developments

(1) Kamali, Mohammad Hashim a

a INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA (Malaysia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84907100368 PISSN: 13842935 EISSN: None Source Type: Book Series
DOI: None Document Type: Chapter

Times cited : (11)

References (41)

1
- 85182248511
- Justice in the shan't* court
- Ahmad bin Mohamed Ibrahim Aidit Ghazali ed, Institute of Islamic Understanding Malaysia, Kuala Lumpur
- Ahmad bin Mohamed Ibrahim, "Justice in the shan't* court", in Aidit Ghazali (ed.), Islam and Justice, Institute of Islamic Understanding Malaysia, Kuala Lumpur, 1993, p. 92.
- (1993) Islam and Justice , pp. 92

2
- 34548063257
- Dewan Bahasa dan Pustaka, Kuala Lumpur
- Hamid Jusoh, ThePosition ofIslamicLaw in theMalaysian Constitution, Dewan Bahasa dan Pustaka, Kuala Lumpur, 1993, p. 63.
- (1993) ThePosition ofIslamicLaw in theMalaysian Constitution , pp. 63
- Jusoh, H.¹

3
- 85182198245
- Sisters in Islam, dated 8 August
- Sisters in Islam, letter to the Prime Minister Datuk Seri Dr Mahathir Mohamad in thirteen pages, dated 8 August 1997, p. 9.
- (1997) letter to the Prime Minister Datuk Seri Dr Mahathir Mohamad in thirteen , pp. 9

4
- 85182206894
- Beauty contests and the Syariah laws
- Kuala Lumpur, 27 July
- Abdul Aziz Bari, "Beauty contests and the Syariah laws", The Sun, Kuala Lumpur, 27 July 1997, p. 12.
- (1997) The Sun , pp. 12
- Bari, A.A.¹

5
- 85182201064
- The position of Islam in the Constitution of Malaysia
- for details £C Ahmad Ibrahim ed, Institute of Southeast Asian Studies, Singapore
- £CThe position of Islam in the Constitution of Malaysia", in Ahmad Ibrahim (ed.), Readings on Islam in SoutheastAsia, Institute of Southeast Asian Studies, Singapore, 1986, p. 218.
- (1986) Readings on Islam in SoutheastAsia , pp. 218
- Ibrahim, A.¹

6
- 85182208676
- Ibrahim at
- Ibrahim, "The position of Islam", at p. 218.
- The position of Islam , pp. 218

7
- 85182201664
- I.e. the High Courts and Subordinate Courts
- I.e. the High Courts and Subordinate Courts.

8
- 85182224354
- Act A 704
- The Constitution (Amendment) Act 1988 (Act A 704).
- (1988) The Constitution (Amendment) Act

9
- 85182166031
- The introduction of Islamic values in the Malaysian legal dystem
- Kuala Lumpur
- Ahmad Ibrahim, "The introduction of Islamic values in the Malaysian legal dystem", IKIM Journal^ 2 (1), 1994, Kuala Lumpur, p. 41.
- (1994) IKIM Journal^ , vol.2 , Issue.1 , pp. 41
- Ibrahim, A.¹

10
- 85036624247
- Faridah
- MohamedHMbullah. at 803
- MohamedHMbullah v. Faridah [1992] 2 MLJ 793 at p. 803.
- (1992) MLJ , vol.2 , pp. 793

11
- 85182241522
- f£The Syari'a and Syariah courts in Malaysia
- Abdul Munir Yaacob ed, Institute Kefahaman Islam Malaysia, Kuala Lumpur
- f£The Syari'a and Syariah courts in Malaysia", in Abdul Munir Yaacob (ed.), Undang-XJndcmgKetemngan diMahkamah, Institute Kefahaman Islam Malaysia, Kuala Lumpur, 1995, p. 34.
- (1995) Undang-XJndcmgKetemngan diMahkamah , pp. 34
- Albar, S.H.¹

12
- 85182167752
- S. 23, Act 303) published by International Law Book Services, Kuala Lumpur
- S. 23, Islamic Family (Federal Territories) Act 1984 (Act 303) published by International Law Book Services, Kuala Lumpur, 1987.
- (1987) Islamic Family (Federal Territories) Act 1984 (

13
- 85182152080
- additions were introduced as a result of coming into force of the IFL (Federal Territories) (Amendment) Act
- A total of thirty-nine amendments and new additions were introduced as a result of coming into force of the IFL (Federal Territories) (Amendment) Act 1994.
- (1994) A total of thirty-nine amendments and new

14
- 85182174892
- Ideal state of marriage in Islam
- Sisters in Islam Kuala Lumpur, 22 October
- Sisters in Islam, "Ideal state of marriage in Islam", The Star, Kuala Lumpur, 22 October 1996, p. 19.
- (1996) The Star , pp. 19

15
- 85182237036
- Unpublishedfive-pageletter (and seven enclosure) entided 11 December
- Unpublishedfive-pageletter (and seven pages enclosure) entided "Memorandum on reform of the Islamic family laws on polygamy submitted to the Prime Minister Datuk Seri Dr Mahathir Mohamad", 11 December 1996, p. 3.
- (1996) Memorandum on reform of the Islamic family laws on polygamy submitted to the Prime Minister Datuk Seri Dr Mahathir Mohamad , pp. 3

16
- 85182156031
- Sisters in Islam etal
- Sisters in Islam etal. "Memorandum on reform", pp. 9-11.
- Memorandum on reform , pp. 9-11

17
- 85182144808
- Ahmad Ibrahim, "Justice in the shari'a court", p. 101.
- Justice in the shari'a court , pp. 101
- Ibrahim, A.¹

18
- 85182247716
- Memorandum on reform of the Islamic family laws and the administration ofjustice in the Syariah system in Malaysia
- National Council for Women's Organizations a at January
- National Council for Women's Organizations a at., "Memorandum on reform of the Islamic family laws and the administration ofjustice in the Syariah system in Malaysia". Formulated and approved at the National Workshop on Reform of Islamic Family Laws and the Administration of Justice in the Syariah System in Malaysia on 4 January 1997, p. 4.
- (1997) Formulated and approved at the National Workshop on Reform of Islamic Family Laws and the Administration of Justice in the Syariah System in Malaysia on , pp. 4

19
- 85182234006
- "Memorandum on reform of Islamic family law", p. 8.
- Memorandum on reform of Islamic family law , pp. 8

20
- 85182192830
- Cf. s. 44 of the Kelantan
- Cf. s. 44 of the IFL Enactment of Kelantan 1983.
- (1983) IFL Enactment of

21
- 85182247330
- Cf
- Cf. Nik Noriani, "Controversial areas", p. 149.
- Controversial areas , pp. 149
- Noriani, N.¹

22
- 85182181795
- Cf. Sisters in Islam's letter to the Prime Minister,. have often used fatwa" interchangeably with legal reasoning, or ijtihad, neither of which is, however, binding. The collection offatwas that Muslim jurists and Muftis have compiled in their capacities as academic advisers to the judges, and writers, are basically oriented and provide feasible solutions to legal and religious issues. If one were to differentiate the fatwa from ijtihad^ the former may simply consist of a response, however brief, to a question without necessarily elaborating its own justification and rationale, whereas the latter must specify its own evidential basis. A ruling ofijtihad^ or offatwa for that matter, can acquire the force oflaw either through general consensus (ijma7) or by the command ofthe lawful government (i.e. the ulu al-amr). A fatwa or ijtihadwhich is not supported by either of these is not binding. A distinctive genre oflegal literature, known asfatawa, has developed over centuries consisting ofa learned response to practical questions posed to the Mufti often by the disputing parties in a lawsuit. If a person was dissatisfied with the fatwa of one Mufti, he or she wasfreeto consult another Mufti, or lawyer as in the current usage, for another opinion. It may readily be said evenfromthese cursory remarks that if the authorities in the various states ofMalaysia have decided, in their capacity as the ulu al-amr to give fatwas the automatic force of law they may be said to have exercised their legitimate authority. A simplistic answer ofthis kind may seem specious, yet it is basically correct from the perspective of siyasah sha^iyyah or a sharica-oriented polity. I shall explore this question a little further as the discussion proceeds but it must be noted at this point that although the shari'a entities the ulu al-amr to determine a certain procedure for fatwa, that procedure must in the meantime be in harmony with the dictate of a judiciary. As a doctrine ofpublic law, siyasahshafiyyah is inherendy rational and consist mainly ofActs and policy decisions, be they within or outside the established shari'a, which facilitate efficiency and good government, provided that they do not violate the recognized goals and principles crfshari'a. The before us is whether giving the fatwa the force oflaw outside normal constitutional procedures, and then creating a criminal offence on that basis is judicious and acceptable within theframeworkofsiyasahshafiyyah. Ifwe envisage the Federal Constitution as a command of the ulu al-amrfar excellence and then reach the conclusion that the fatwa procedure that is now devised is at odds with the Constitution, then the before us would be one of internal inconsistency and conflict within the generalframeworkofsiyasah shariyyah. For siyasah shafiyyah advocates pursuit of the legitimate interests of the people and authorizes government leaders to take all necessary measures, including legislation, that facilitate efficient management of the community affairs.43
- 43

23
- 85182249832
- Sisters in Islam's Letter to the Prime Minister, p. 6.
- Sisters in Islam's Letter to the Prime Minister , pp. 6

24
- 85182173602
- Cf. ed, Berhad, Kuala Lumpur
- cil (ed.), Hudud inMalaysia: The Issues at Stake, SIS Forum (Malaysia) Berhad, Kuala Lumpur, 1995, pp. 51-52.
- (1995) Hudud inMalaysia: The Issues at Stake, SIS Forum (Malaysia) , pp. 51-52
- Ismacil, R.¹

25
- 85182197200
- October ibid.
- Razaleigh Hamzah, opening speech to the Semangat 46 Seminar of 17 October 1993, in ibid., p. 57.
- (1993) opening speech to the Semangat 46 Seminar of 17 , pp. 57
- Hamzah, R.¹

26
- 84856851943
- Quoted in
- Quoted in M.H. Kamali, Punishment in Islamic Law: An Enquiry into the Hudud Bill ofKelantan,
- Punishment in Islamic Law: An Enquiry into the Hudud Bill ofKelantan
- Kamali, M.H.¹

27
- 85182200656
- Institute for Policy Research, Kuala Lumpur
- Institute for Policy Research, Kuala Lumpur, 1995, p. 8.
- (1995) , pp. 8

28
- 85182205356
- Razaleigh Hamzah's speech quoted
- Ismail
- Razaleigh Hamzah's speech quoted, in Ismail, Hudud in Malaysia, p. 59.
- Hudud in Malaysia , pp. 59

29
- 85182212248
- We will not allow PAS to commit cruel acts
- Dr Mahathir's Speech 10 September
- Dr Mahathir's Speech, "We will not allow PAS to commit cruel acts", New Straits Times, 10 September 1994, pp. 1-2.
- (1994) New Straits Times , pp. 1-2

30
- 0004008505
- Time Books International, Singapore
- Anwar Ibrahim, TheAsian Renaissance, Time Books International, Singapore, 1996, p. 114.
- (1996) TheAsian Renaissance , pp. 114
- Ibrahim, A.¹

31
- 84856851943
- For more details Kamali
- For more details see Kamali, Punishment in Islamic Law: An Enquiry into the Hudud Bill of Kelantan.
- Punishment in Islamic Law: An Enquiry into the Hudud Bill of Kelantan

32
- 85182210231
- Two young peoplefromtwo different religions met and fell in love with tragic consequences
- Kuala Lumpur, 16 April
- R. Mageswary, "Two young peoplefromtwo different religions met and fell in love with tragic consequences", SunMagazine Special, Kuala Lumpur, 16 April 1998, p. 6.
- (1998) SunMagazine Special , pp. 6
- Mageswary, R.¹

33
- 85182157385
- Tilings that people do in the name of religion
- Kuala Lumpur, 5 June
- Mazlan Nordin, 'Tilings that people do in the name of religion", New Straits Times, Kuala Lumpur, 5 June 1998, p. 12.
- (1998) New Straits Times , pp. 12
- Nordin, M.¹

34
- 85182245909
- uphold the normative Qur'anic principle on freedom of religion and the provision, same time, of the death punishment for apostasy. In an attempt to reconcile these positions, it has been suggested, and rightly so, that the hadith in question envisaged only a hostile renunciation of Islam which was, in the early days of Islam, equivalent to high treason. The punishment was, in other words, meant, not for apostasy that emanated from conviction and belief, but for blasphemy and rebellion against the community and its legitimate leadership.60
- 60

35
- 0011845631
- For details die chapter on blasphemy in The Islamic Texts Society, Cambridge
- For details see die chapter on blasphemy in M.H. Kamali, Freedom ofExpression in Islam, The Islamic Texts Society, Cambridge, 1997, pp. 212-250.
- (1997) Freedom ofExpression in Islam , pp. 212-250
- Kamali, M.H.¹

36
- 85182180377
- 25 July
- The Sun, Kuala Lumpur, 25 July 1997, p. 27.
- (1997) The Sun, Kuala Lumpur , pp. 27

37
- 84860251288
- Sun, 11 July Report and comment by A. Ghani Ismail
- Sun, Kuala Lumpur, 11 July 1997, p. 11. Report and comment by A. Ghani Ismail.
- (1997) Kuala Lumpur , pp. 11

38
- 85182229612
- Kuala Lumpur, 25 July 67 The Sun, Kuala Lumpur, 6 July 1997, 5
- 67 The Sun, Kuala Lumpur, 6 July 1997, p. 5.
- (1997) 55 The Sun , pp. 20
- Hassan, A.¹

39
- 85182243284
- 23 July
- The Star, Kuala Lumpur, 23 July 1997, p. 8.
- (1997) The Star, Kuala Lumpur , pp. 8

40
- 0346140949
- Modesty according to the Qur'an
- Sisters in Islam Kuala Lumpur, 9 August
- Sisters in Islam, "Modesty according to the Qur'an", New Straits Times, Kuala Lumpur, 9 August 1997, p. 11.
- (1997) New Straits Times , pp. 11

41
- 85182206894
- Beauty contests and the syariah laws
- Kuala Lumpur, 27 July
- Abdul Aziz Bari, "Beauty contests and the syariah laws", The Sun, Kuala Lumpur, 27 July 1997, p. 12.
- (1997) The Sun , pp. 12
- Bari, A.A.¹

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