The Islamic Legal System in Malaysia

Abstract

I.IntroductionBetween 1957 and 1963, a number of colonized states in peninsular Malaysia and Northern Borneo united to form the new, independent Federation of Malaysia.1 The legal system in the independent Federation of Malaysia reflected the plural model that had emerged in Britain's Malay colonies. Most areas of life were to be regulated by a common body of federal law. Federal law at the time of independence was based primarily on British models. A few aspects of Muslim life, however, were to be regulated not by federal law but by state Islamic-based law referred to locally as Syariah law. In this context, the states were permitted to establish their own state Islamic court systems, known locally as Syariah courts, to apply this law.As part of the global wave of Islamization that has taken place since the 1970s, some factions in Malaysia have called for an expansion of the role of Islamic law in the Malaysian legal system. Some have called for the federal government to revise federal law in order to make it more consistent with Islamic norms. This approach has had, at best, mixed success. Others have urged Malaysia's state governments to take advantage of a constitutional provision allowing them to regulate the lives of Muslims within their borders according to Islamic law. The champions of this approach have been more successful, and various states have interpreted their powers under these provisions ever more broadly over recent decades. They have established increasingly large bureaucracies, issuing and enforcing an expanding range of Islamic statutes. State governments have also invested heavily in establishing and regularly upgrading the state court systems that have jurisdiction over cases arising under Islamic law. The federal government has accepted the growing role of Islamic law, as defined by the sub-national state governments of Malaysia, and the growing power of the state courts that apply this law. Indeed, the Federal Constitution has recently been amended to strip from the federal courts most of their traditional powers to hear appeals from state Syariah courts.2In each of the sub-national states of Malaysia, significant parts of Muslim life are now regulated by Islamic laws developed by the governments of that state and applied by Islamic courts established by it. Thus, while attempts to Islamize federal law have been less than fully successful, attempts to carve out an autonomous Islamic area of the legal system have been more successful. This article will describe the evolving nature of the legal systems in the areas that now make up Malaysia from the colonial period to the present. Noting that different states in Malaysia have developed somewhat different interpretations of Islamic law and somewhat different systems of enforcing it, it will also describe the institutions that are trying to promote further harmonization. This article will thus provide useful background for those reading the subsequent articles in this special issue-articles which discuss in detail the increasingly homogenized forms of training that judges and lawyers in the state Syariah courts today undergo.II. The Evolving Role of Islamic Law in MalaysiaMuslim sailors and traders have been a presence in trading ports across Southeast Asia, including the Malay Peninsula, since the early centuries of Islamic history. By the end of the thirteenth century, the first Islamic sultanate was established in the region. Over the centuries that followed, other Muslim port polities were established across the region.3 Our knowledge of the political and legal systems of these sultanates is severely limited by a lack of primary sources. The few extant documents that do survive from the early period suggest, however, that in a number of sultanates on the Malay Peninsula various forms of Islamic law came to be applied to resolve some disputes within the sultanates.4 European travelers and British officers also reported that some substantive rules of Islamic law were applied in the Malay sultanates. …

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