Malaysia Toward an Islamic State

1. UNDER CONSTITUTION

2. UNDER ECONOMIC FRAMEWORK

3. UNDER EDUCATIONAL & SOCIAL FRAMEWORK
    

I. UNDER CONSTITUTION

I.1. Islamic provisions in Malaysian Constitution adopted 31st August 1957; amended several times constitution.

Article number: 3
(1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.

(2) In every State other than States not having a Ruler the position of the Ruler as the Head of the religion of Islam in his State in the manner and to the extent acknowledged and declared by the Constitution, all rights, privileges, prerogatives and powers enjoyed by him as Head of that religion, are unaffected and unimpaired; but in any acts, observance or ceremonies with respect to which the Conference of Rulers has agreed that they should extend to the Federation as a whole each of the other Rulers shall in his capacity of Head of the religion of Islam authorize the Yang di-pertuan Agong to represent him.

(3). The Constitution of the States of Malacca, Penang, Sabah and Sarawak shall each make provision for conferring on the Yang di-Pertuan Agong shall be Head of the religion of Islam in that State.

(4) Nothing in this Article derogates from any other provision of this Constitution.

(5) Notwithstanding anything in this Constitution the Yang di-Pertuan Agong shall be the Head of the religion of Islam in the Federal Territories of Kuala Lumpur and Labuan; and for this purpose Parliament may by law make provisions for regulating Islamic religious affairs and for constituting a Council to advise the Yang di-Pertuan Agong in matters relating to the religion of Islam.
 

Article number: 75
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, be void.

Article number: 76
(1) Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say:

(a) for the purposed of implementing any treaty, agreement or convention between the Federation and any other country, or any decision of an international organization of which the Federation is a member; or

(b) for the purpose of promoting uniformity of the laws of two or more State; or

(c) if so requested by the Legislative Assembly of any State.

(2) No law shall be made in pursuance of paragraph (a) of Clause (1) with respect to any matters of Islamic law or the custom of the Malays or to any matters of native law or custom in the States of Sabah and Sarawak and no Bill for a law under that paragraph shall be introduced into either House of Parliament until the Government or any State concerned has been consulted.

(3) Subject to Clause (4), a law made in pursuance of paragraph (b) or paragraph (c) of Clause (1) shall not come into operation in any State until it has been adopted by a law made by the Legislature of that State, and shall then be deemed to be a State law and not a federal law, and may accordingly be amended or repealed by a law made by the Legislature.

(4) Parliament may, for the purpose only of ensuring uniformity of law and policy, make laws with respect to land tenure, the relations of landlord and tenant, registration of titles and deeds relating to land, transfer of land, mortgages, leases and charges in respect of land, easements and other rights and interests in land, compulsory acquisition of land, rating and valuation of land, and local government; and Clauses (1) (b) and (3) shall not apply to any law relating to any such matter.

Article 121(1A)
List II - State List
Except with respect to the Federal Territories of Kuala Lumpur and Labuan, 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 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 places 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, organisation and procedure of Syariah courts, which shall have jurisdiction only over person 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 fat as conferred by federal law*, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine Malay custom.
 

Ninth Schedule outlines legislative lists. Civil law (and family law as subset of civil law) come under federal legislature’s jurisdiction; however, persons of Malay race are defined as Muslims under Constitution and States empowered to make personal laws governing Muslims and laws relating to religious offences, and establish and regulate shariah courts for application of Islamic law. Family law relating to non-Muslims is in federal jurisdiction. Each State has Majlis (Council of Religion and Malay Custom) issuing fatawa generally in keeping with Shafi’i tenets except where such may conflict with public interest. Councils, with approval of State authorities, may follow minority Shafi’i views or interpretations from other three major Sunni madhahib.
 

I.2. Islamic law legislation

In Malaysia we have a different and separate statutes on Muslim matters. This is due to Article of the Federal constitution[5], which states that Islamic law is a state matters. At the moment we have plenty of statutes on Muslim matters. Some of them are categorised as follows:

a) Family Matters
    Islamic Family Law Act (Federal Territories)1984
    Islamic Family Law Enactments:
    Kelantan, Negeri Sembilan, Malacca 1983
    Selangor, Kedah, Perak, Federal Territories 1984
    Penang, Pahang, Trengganu, 1985
    Small Estates Distribution Act

b) Syariah Civil Procedure
    Syariah Court Civil (Mal) Procedure Act (Federal Territories) 1998
    Islamic Civil Procedure State of Selangor 1991
    Islamic Civil Procedure State of Negeri Sembilan 1992
 

c) Syariah Criminal Procedure
    Syariah Court Criminal Procedure Act (Federal Territories) 1998
    Islamic Criminal Procedure State of Kedah 1988
    Islamic Criminal Procedure State of Negeri Sembilan 1992
    Islamic Criminal Procedure State of Kelantan 1984

d) Islamic Evidence
    Islamic Law Evidence Act (Federal Territories) Act 1998
    State of Sabah Syariah Court Evidence 1992
    State of Malacca Syariah Court Evidence 1991
    State of Kelantan Syariah Court Evidence 1991
    State of Kedah Syariah Court Evidence 1989
    State of Pahang Syariah Court Evidence 1990

e) Islamic Banking System
    Islamic Bank Act 1983
    Islamic Development Act 1975

f) Islamic Takaful/Insurance
   Islamic Takaful Act 1984

h) States Enactment
    Administration of Islamic Law Enactments:
    Kelantan 1982
    Kedah 1983
    Selangor 1989
    Federal Territories 1993
    Kelantan Syariah Criminal Code Enactment 1993

Internet-Based Learning in Malaysia: Islamic Law
 

 

1.3. Administration and Islamic court in Malaysia
 
 

 
Court System:  There are three levels of shariah courts in a system parallel to and independent of the civil courts: Syariah Subordinate Courts, Syariah High Court and Syariah Appeal Court.

    Shariah Subordinate Courts have jurisdiction as indicated by state legislation over criminal suits liable to punishment up to 2,000 ringgit and/or imprisonment up to two years and civil suits in which the value of the subject in dispute is up to 100,000 ringgit or not estimable in cash.

     Shariah High Court has appellate jurisdiction over Subordinate Court decisions in civil suits of 500 ringgit or more and criminal suits. The Syariah High Court has original jurisdiction as indicated by state legislation in criminal suits and civil jurisdiction over betrothal and marriage, divorce, nullification or separation, marital property claims, maintenance of dependants, legitimacy, guardianship and custody, testate and in testate succession, gifts inter vivos and awqaf, in cases where all the parties are Muslims.

    Shariah Appeal Court has appellate jurisdiction over decisions arising out of the Syariah High Court’s original jurisdiction; all appeals are heard by the Chief Shar'ie Judge and two other members and decisions are by majority opinion.

In September 2000, the government announced that it would establish a separate family court.
 
 

Islamic Law: Conflicts and Contrasts with Non-Islamic legal systems
Legal System/History
Essential Features of the Islamic Political System

II. UNDER ECONOMIC FRAMEWORK

OVERVIEW OF MALAYSIAN ISLAMIC ECONOMICS

Since the 1970s, Islamic banking has emerged as a new reality in the international financial scene. Its philosophies and principles are however, not new, having been outlined in the Holy Qur'an and the Sunnah of Prophet Muhammad (p.b.u.h.) more than 1,400 years ago. The emergence of Islamic banking is often related to the revival of Islam and the desire of Muslims to live all aspects of their live in accordance with the teachings of Islam.

      In Malaysia, separate Islamic legislation and banking regulations exist side-by-side with those for the conventional banking system. The legal basis for the establishment of Islamic banks was the Islamic Banking Act (IBA) which came into effect on 7 April 1983. The IBA provides BNM, the Central Bank of Malaysia, with powers to supervise and regulate Islamic banks, similar to the case of other licensed banks. The Government Investment Act 1983 was also enacted at the same time to empower the Government of Malaysia to issue Government Investment Certificates (GIC), which are government securities issued based on Syariah principles. As the GIC are regarded as liquid assets, the Islamic banks could invest in the GIC to meet the prescribed liquidity requirements as well as to invent their surplus funds.

      The first Islamic bank established in the country was Bank Islam Malaysia Berhad (BIMB) which commenced operations on 1 July 1983. In line with its objectives, the banking activities of the bank are based on Syariah principles. After more than a decade in operations, BIMB has proved to be a viable banking institution with its activity expanding rapidly throughout the country with a network of 80 branches and 1,200 employees. The bank was listed on the Main Board of the Kuala Lumpur Stock Exchange on 17 January 1992.

      The long-term objective of BNM is to create an Islamic banking system operating on a  parallel basis with the conventional banking system. However, similar to any banking system, an Islamic banking system requires three vital elements to qualify as a viable system, i.e.:-

1. a large number of players;
2. a broad variety of instruments; and
3. an Islamic money market.

      In addition, an Islamic banking system must also reflect the socio-economic values in  Islam, and must be Islamic in both substance and form. Recognising the above, BNM adopted a step-by-step approach to achieve the above objective. The first step to spread the virtues of Islamic banking was to disseminate Islamic banking on a nation-wide basis, with as many players as possible and to be able to reach all Malaysians. After a careful consideration of various factors, BNM decided to allow the existing banking institutions to offer Islamic banking services using their existing infrastructure and branches. The option was seen as the most effective and efficient mode of increasing the number of institutions offering Islamic banking services at the
lowest cost and within the shortest time frame. Following from the above, on 4 March 1993 BNM introduced a scheme known as "Skim Perbankan Tanpa Faedah" (Interest-free Banking Scheme) or SPTF in short. In terms of products and services, there are more than 40 Islamic financial products and services that may be offered by the banks using various Islamic concepts such as Mudharabah, Musyarakah, Murabahah, Bai’ Bithaman Ajil (Bai’ Muajjal), Ijarah, Qardhul Hasan, Istisna’ and Ijarah Thumma Al-Bai’.To link the institutions and the instruments, the Islamic Interbank Money Market (IIMM) was introduced on 4 January 1994.

      In October 1996, BNM issued a model financial statement for the banking institutions participating in the SPI requiring the banks to disclose the Islamic banking operations (balance sheet and profit and loss account) as an additional item under the Notes to the Accounts.

      As part of the effort to streamline and harmonise the Syariah interpretations among banks and takaful companies, BNM established the National Syariah Advisory Council on Islamic Banking and Takaful (NSAC) on 1 May 1997 as the highest Syariah authority on Islamic banking and takaful in Malaysia.

      On 1 October 1999, a second Islamic bank, namely Bank Muamalat Malaysia Berhad (BMMB) commenced operations. The establishment BMMB was the effect of the spin-off following the merger between Bank Bumiputra Malaysia Berhad (BBMB) and Bank of Commerce (Malaysia) Berhad (BOCB). Under the merger arrangement, the Islamic banking assets and liabilities of BBMB, BOCB and BBMB Kewangan Berhad (BBMBK) were transferred to BBMB, while the conventional operations of BBMB, BOCB and BBMBK were transferred to BOCB accordingly. In addition, BMMB was given 40 branches of BBMB and BBMBK in various locations throughout Malaysia and a staff workforce of 1,000, migrated from BBMB, BOCB and BBMBK
 
 

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III. MALAYSIAN ATTEMPT ON ISLAMIC EDUCATION

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