Islam had been established in Malaya by the 14th century. Malacca, one of the Malay States in Malaya, emerged as a Muslim Kingdom under Sultan Iskandar Syah and his successors. By the early 15th century, it had become a power of great importance in South East Asia. This brought an end to the political control and cultural influence of the Hindu and Buddhist powers over the Malay Peninsula. This brought an end to the political control and cultural influence of the Hindu and Buddhist powers over the Malay Peninsula. Malay society and its laws were influences by thought and ideas from various Muslim countries.
This because Islam itself came to this region from different countries, namely the Arab countries, India and even China. The law used in Malacca was Muslim law together with Malay customary law. Malay customary law may also referred as to as Adat Melayu. In 1511, Malacca was conquered by the Portuguese. However, it’s difficult to provide a satisfactory account of the legal development during that period. Although Malay customary law was preserved under Portuguese rule and later by the Dutch, during their conquest of Malacca in 1641, it was ultimately replaced by English law during the British colonization of Malaya beginning from 1786.
Evidences and traces of Islamic legal thought and institutions are present in Malay law. Terminology and ideas from the Islamic legal system found their way into the numerous treatises on traditional Malay law. They are found in the Melaka Digest (Undang-undang Melaka or Risalah Hukum Kanun of 1523) and the Pahang Digest of 1596 with a later supplement, and in the Kedah Digest dated 1606 containing port rules. Further evidence is found in the 18th century, 99 Laws of Perak and in the Johor Digest of 1789.
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Finally the orthodox Muslim works of the Shafiee School of Islamic Law, such as the treatises on the law of marriage, divorce and legitimacy of children were translated in Malay. The Majalah al-Ahkam al- Adliyyah (The Mejelle), a set of Muslim civil laws of the Ottoman Empire, was also translated into Malay and recognized as the law to be followed by the Johor courts in 1914. Islamic law, being an imported law, evolved through a period of 6 centuries of development. Its impact on the country’s legal system was far reaching, even until the early part of the present century.
This is well illustrated in the case of Laton v Ramah, where the Court of Appeal held that Islamic law in Peninsular Malaya was not foreign law but local law, the law of the land which every court must take judicial notice. But during the post British colonial period, Islamic law has been reduced in importance and its significance has further declined after the independence. The ninth Schedule of the Federal Constitution, Legislature Lists (List II- State List) states: ‘The Islamic Law is under state authority. Each state enacts its own enactment with jurisdiction over it.
Every state has its own Council of Islamic Religion and Malay Custom and the Kadis Courts. These courts have limited jurisdiction on persons professing the Islamic religion, and only included in this list, but shall not have jurisdiction in respect of offences except insofar as centred by Federal Law’. The Muslim Courts (Criminal Jurisdiction ) Act 1965 [No. 23 of 1965] provides that the jurisdiction of the Shariah Courts : ‘ Shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding 6 month or with any fine exceeding one thousand dollars or with both’.
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It’s been a questioned among the people about the application of Hudud law in Malaysia since there are different types of religious and beliefs the nations uphold. Many people agreed with the implementation whereas some disagreed with the issue. Basically, Hudud is the most severe and strict Islamic law for resorting to punish those offenders through physical means. The provisions of the Hudud law cause Malays feared the law and they are not ready for the implementation of Hudud laws as there are lack of understanding on the need of a proper model on the Islamic criminal law.
According to Professor Dr. Mahmood Zuhdi Abdul Majid of IIUM, he said ‘If we do not politicize it, we Malays are definitely ready to implement hudud in Malaysia, but if we were look at Hudud as a political issue, then it becomes a problem’, He also stated that criminal laws should be imposed on all citizens because Islam does not discriminate on whether you are a Muslim or a non-Muslim. Besides, PAS had decided that it will seek constitutional amendment in the Parliament to apply the Hudud law once the Pakatan take over the federal administration. According to our Former President, Dr.
Mahathir Mohammad, had stated his dissatisfaction on the implementation of Hudud laws in Malaysia which will create an injustice judiciary system. For an instance, a Muslim who committed an offence will be punished according to Hudud law, which is a severe punishment whereas the non-Muslims who committed the same offence will be punished according to civil law which is much lineal. He also commented that there is nothing mentions in the Quran about the severe punishments and he urged Muslims to follow the primary sources of Islam, Quran instead of the Sunnah or Hadith which are basically those interpretations of the Quran.
Furthermore, Nibong Tebal MP, Tan Tee Beng said Kita president, Zaid Ibrahim confessed that non-Muslims can be punished under the Hudud criminal code enactments. He added that Shari’ah laws that being practiced in Malaysia are based on civil and family legislation, which governs individual Muslim matters. The issue is controversy as Hudud law can be applied if the Federal Constitution amended which requires majority votes from the members of Parliament. Based on UMNO Minister, Datuk Seri Jamil Khir Baharom view, he stated that Hudud Law will never give any impact on Non-Muslims.
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The government is alert that there are distinctions of views and thoughts on this issue among Islamic scholars and jurists and a research need to be done before the Hudud law implemented in Malaysia, so that the penal code is fair to all, complies with Allah’s conditions and is in accord with the Malaysia legal system. He also added that if Hudud law is to be applied in Malaysia, the Syari’ah Court would only have jurisdiction over those who practice Islam in accord with the Federal Constitution, the Supreme law of the Federation.
Though the issue on the application of Hudud law in Malaysia is indecisive stage, the application of Shari’ah law does not lose its position. The Islamic law that is in force in Malaysia totally is not genuine Islamic law but may have been influenced by written laws judicial decisions and customary law. For an instance, the written laws, especially, those enacted before independence, may reject Islamic law. Thus in Ainan v Syed Abu Bakar, it was held that the legitimacy of a child should be determined by the Evidence Enactment (F. M. S. ) and not accordance with Islamic law.