Abstract
Background
Malaysia is a multicultural state comprising three main races: Malays, Chinese and Indians. The three main religions are Islam, Buddhism and Hinduism. Other religions such as Sikhism and Christianity are also practised. Muslims are the majority comprising 67 % of the population.
Methods
This paper is qualitative in nature. It applies historical comparative method in presenting its data. The Undang-undang Melaka (Malacca Laws) was obtained from the monograph available at National Library of Malaysia under the name of Hukum Kanun Melaka. Analysis was done on selected examples from this document.
Result
This paper highlights that had there been no introduction to a common law system, Malaysia would have remained with its traditional laws influenced by Islam and its local customs as evident from Undang-undang Melaka (Malacca laws). The Undang-undang Melaka was practised from 1422 to 1444 and the law of the country was developed to accommodate the introduction of civil law during the colonial period.
Discussion
One of the unique aspects of multicultural Malaysia is the fact that it has a parallel legal system: sharia and civil law. This paper examines histo-cultural development of the Islamic law as practised in pre-independent Malaysia, as well as the coexistence between these two laws after the independence of Malaya in 1957.
Conclusions
This paper concludes that Islamic law in Malaysia is confined to Muslim family matters, while civil law covers all other matters.
Background
Before the independence of Malaya (now Malaysia) in 1957, the country has its ruling system mainly based on religious guidance. 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). Undang-undang Melaka, that has elements of sharia, was introduced during the reign of Sultan Muhamad Syah (1422–1444) (Fang 2007). 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. After independence, Malaysia attempted to harmonise civil and religious laws in the government.
Islamic law, coupled with the various customary laws, is the foundation upon which the legal system came to be established (Shaik 1915). Islamic law, which at times is referred to as hudud, has been discussed in term of its implementation (Haneef 2010). 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). 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).
Under the Federal Constitution of Malaysia, Islamic law is a matter over which the State Legislature has jurisdiction (Federal Constitution, Article 74, Ninth Schedule). Matters over which the State Legislatures have been permitted to make laws are:
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).
With regards to Islamic criminal law, the Federal Constitution provides that the State Legislature may make laws for the:
… 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).
Likewise, the State Legislature has jurisdiction over:
… 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).
Although it is true that the practices of Islamic law differed among the various Malay states due to the influences of custom (Abdullah et al. 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). 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).
The judicial power of the Federation resides in courts constituted under Article 121. 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. Clause (1A) states that the court referred to in clause (1) shall have no jurisdiction in respect of any matter that falls within the jurisdiction of the Syariah Courts. The effect of Article 121 (1A) has been judicially considered in a number of cases whose decisions serve to further reinforce the fact that the role played by Islamic law within the system is limited, and is circumscribed by such powers and jurisdiction as may be conferred upon the Syariah Court and its officials under the various State enactments (Ahmad 1999). In a way, it confirms the establishment of two court systems, one related to Syariah matters and the other non-Syariah cases.
Historical background of Islamic law in Malaysia
Historical background is significant in order to understand the basis of Islamic law in Malaysia. So far, the earliest record of Islamic law in Malaysia was found in an inscription on a stone in Terengganu called Batu Bersurat Terengganu, which dates back to 1303 (Al-Attas 1984; Nor et al. 2012; Halim et al. 2012). It mentions punishments for some offences following the provisions in the Qur’ān and Sunnah. For example, it is stated (in traditional Malay language):
Orang berbuat bala cara laki–laki perempuan titah Dewata Maha Raya jika merdehika bujang palu seratus rotan. Jika merdehika beristeri atau perempuan bersuami ditanam hinggakan pinggang dihambalang dengan batu matikan (Ibrahim 2002).
This is the law relating to the punishment for zīnā (adultery). It can be translated as:
Those who commit unlawful intercourse between male and female, the order by the God are: if they are free person (not a slave) and unmarried, they will be flogged a hundred lashes and if the free man has a wife or the free woman has a husband, they will be buried till waist and will be stoned to death.
This law is in accordance with traditional Islamic teaching. When Malacca was a Malay kingdom in early 15th century, a compilation of laws was made on the orders of the Ruler and this, the Malacca Laws (Undang-undang Melaka), shows the influence of Islam in Malay customary laws (Ibrahim 2000; Jusoh 1991).
The Undang-undang Melaka is a hybrid text (Fang 1976). In other words, it is composed of several separate texts bound together as one manuscript. It was copied and later recopied and although it undoubtedly came to be regarded as one text, the various component parts still clearly show themselves. The Malacca Laws consist of six different texts (Hooker 1986):
The Undang-undang Melaka (proper)
The Maritime Law (partly)
Muslim Marriage Law
Muslim Law of Sale and Procedure
The Undang-undang Negeri
The Undang-undang Johor
Based on the social traditions depicted by the Sejarah Melayu (Malay Annals), it is certain that Islam became the state religion of Malacca (Baharudin 2008). It is clear that in its administration, the rulers had appointed Qādīs (judges) as their advisers in religious matters. This was proven by the presence of prominent religious men such as Kadi Yusof, Kadi Monawar and Maulana Abu Bakar (Ismail 1998).
The Islamic laws in Malacca occupy almost a quarter of the sum of the local provisions, which concern marriage law, law of sale and procedure, and criminal law (Jusoh 1991).
Criminal law is mentioned in five chapters, Chapter 36, 39, 40, 41 and 42. The texts of these chapters are as below:
Chapter 36: Rules governing apostasy.
If a Muslim turns apostate, he will be ordered thrice to repent. If he refuses to repent, it is permissible, according to the law of God, that he be killed and (his body) should not be bathed and no prayer should be read (at his funeral) and (furthermore) he should not be buried in the Muslim graveyard.
- 36.2
Concerning people (who fail to perform) the (obligatory) prayer, there are two cases. (First), neglecting (the prayer) and (second), without firm belief in the obligatoriness of prayer. If a man (still) believes that prayer is obligatory, he is (simply) ordered to perform the prayer. If he does not perform the prayer due to illness, he has not turned apostate, but he will be ordered thrice to repent like an apostate. If he does perform the prayer, he will be pardoned. If he refuses to perform the prayer, he shall be killed but he is to be treated like a Muslim, and his body is to buried in the Muslim graveyard. Such is the law” (Fang 1976).
Chapter 39 Rules governing killing (qiṣāṣ).
If a person who is sane and of age wilfully kills a Muslim: whether the person killed is a man or a woman, whether (the person) is small or big, he who kills shall be killed.
It is not permissible to kill a Muslim for killing an infidel: neither should a free man be killed for killing a slave; (nor) a father be killed for killing his son.
If a Jew kills a Christian or even an infidel or a fire-worshipper (and the crime) remains unknown, (and) only later it becomes known, even if the Jew has become a Muslim, he is to be punished according to the law of God.
Chapter 40 Rules relating to unlawful intercourse (zīnā)
- 40.1
Concerning zīnā (unlawful intercourse) there are two cases: first, (that committed by) a man who is muḥṣan (legally married), i.e. a man who has been married in a legal marriage; (and second, that committed by) a man who is non-muḥṣan (non-married), i.e. an unmarried man or an unmarried woman.
When muḥṣan he shall be sentenced to the rajm punishment and be stoned to death. When non-muḥṣan, the ḥad [ḥudud] punishment is that he shall be given one hundred lashes and expelled from the country for 1 year.
Being muḥṣan means four things: first, a Muslim, second, of age, third, in full possession of his mental faculties and fourth, (he is) not insane.
The ḥad punishment for a male slave or a female slave is half of that for a free man, that is, fifty lashes.
The punishment for sodomy and bestiality is the same as that for unlawful intercourse. If no actual intercourse has taken place, and the offence has gone no further than petting, the judge will pronounce a ta‘zīr punishment for the offender, and (if) the judge gives the ḥad punishment, it is twenty lashes only.
Unlawful intercourse is punished by the judge, if (the offender) has made a confession or when four male witnesses (who are) free men have caught the offenders in flagrante delicto (while the crime is flagrant, in the very act of committing an offence).
If two witnesses say, “We saw him committing unlawful intercourse on one corner” (and) two other witnesses declare, “We saw him committing unlawful intercourse in another corner”, (the offence) is not proven. With regard to the rules governing unlawful intercourse, the four witnesses must agree with one another, only then is the unlawful intercourse proven, (and the offender) shall be given the usual punishment mentioned above.
Chapter 41 Rules relating to slander.
- 41.
(If) a man slanders another man and the slanderer denies because there were no witnesses present, the slanderer shall be scourged eighty lashes.
If the slanderer is a slave, he shall be given forty lashes. When (the slander) occurs between a slave and another slave or an infidel, the slanderer shall be imprisoned until he is given a ta‘zīr punishment by the judge.
Chapter 42 Rules relating to alcoholic drinks.
(Concerning) anyone who drinks alcoholic drinks or any drink which is intoxicating: if a free man, he shall be scourged forty strokes; if a slave twenty strokes.
The ḥad punishment is given on the basis of two things; first, a confession (by the offender); (and second), when there are two male witnesses. The ḥad punishment shall not be inflicted, if someone’s mouth just smells of alcohol, that is, he (the man) shall not be sentenced (Fang 1976).
Hence, it can be seen that a dual system of law (customary and Islamic law) was practised. Therefore, it is noted that in many chapters of the law relating to punishment for a certain crime, after prescribing the penalty according to hukum adat (the law of local custom), the text also mentions various alternative penalties according to ‘hukum Allah’ (the law of God) (Jusoh 1991).
For instance, it is mentioned in Chapter 5.3: relating to the killing of a paramour, it is worth to highlight the reference from the Undang-undang Melaka. It says (in traditional Malay language):
Adapun jikalau membunuh madu, maka madunya itu lari ke dalam kampung orang, tiba–tiba maka diikutnya jua oleh empunya madu itu, maka berkelahi dengan orang yang empunya kampung itu, maka melawan ia, maka terbunuh oleh orang yang empunya kampung itu, mati sahaja tiada dengan hukum lagi. Itulah adat hukum dalam negeri, tetapi kepada hukum Allah, tiap–tiap membunuh itu dibunuh juga hukumnya, kerana menurut dalil di dalam Qur’ān dan menurut amru bil-ma‘rūf wan-nahyu ‘anil-munkar (MSS23 Hukum Kanun Melaka (n.d.)).
It is translated as:
If he (a paramour) runs into someone’s compound and is pursued by the husband, whereby the latter is involved in a fight with the owner of the compound; If he (the owner of the compound) resists him and the pursuer is killed, the latter simply dies and there shall be no litigation. This is the custom of the country. But according to the law of God, he who kills shall also be killed. For this is in accordance with what is stated in the Qur’ān and is in pursuance of (its teaching): (God bids us) to do good, and forbids us to commit sin (Fang 1976).
A similar feature of the law also appears in chapter 7.2 regarding theft, chapter 8.2, 8.3 and 8.4 pertaining to slapping and killing respectively. The law on killing is also described in chapter 18.4 while The law relating to fornication (zīnā) is described in chapter 12.2. The “law of God” is prescribed instead of the Kanun Law (a term referring to Undang-undang Melaka) for the crime of killing (chapter 5.1) and theft committed in a house (chapter 11.1). However, the Law of God as mentioned in chapter 10, 11.4, 14.2 and 16.1 contradict Islamic teachings (Jusoh 1991). Chapter 14.2 (concerning accusation of seizing another’s wife) is an example. It is stated:
If the accused succeeds (in pleading innocent), the accuser shall be sentenced to death, because the punishment for seizing another’s wife is death. If he (the accuser) is not sentenced to death, he shall be fined 10 ¼ tahil. Meanwhile only the judge can intervene (to save the accuser), because the punishment (for this offence) is death. But according to the law of God, it is not so, he (the accuser) is ordered by the judge only to swear the oath and repent his deed. Such is the law of God (Fang 1976).
According to Hamid Jusoh (1991), this religious terminology may have been used as a psychological tool to mislead society. He wrote that certain parts of the first 24 chapters are in conflict with Islamic criminal law and procedures described in chapters 36-42. The differences in these provisions maybe due to the different time period when the respective laws were written and compiled. It might have also been due to different attitudes of society towards the acceptance of Islamic law (Jusoh 1991).
According to Fang (1976), it is futile to attribute the compilation of Undang-undang Melaka (Malacca Laws) to any one ruler or at any one period. Nevertheless, the Malacca Laws (proper), and possibly also the section on Maritime Law, were first established during the time of Sultan Muhammad Shah (1424-44) and were completed during the reign of Sultan Muzaffar Shah (1445-58), the golden period of the Malacca Sultanate. The section on Muslim (Islamic) laws, especially those pertaining to commercial matters and procedures, (including criminal) may have been compiled sometime later (Fang 1976).
Again, according to Hamid Jusoh (1990), Malacca Laws failed to outline the rules and the country’s administration clearly. It only stated some of the Islamic principles relating to the rulers and the concept of leadership. On the other hand, Mahmood Zuhdi commented that, even if the matters relating to the Federation were not mentioned in Malacca Laws, this does not mean that absenteeism of the said laws in writing can be taken as grounds to say that the basis of Islamic constitution never existed at that particular time. This is because the constitution for a federation may not necessarily be in writing. It may have been an oral tradition (Mahmood Zuhdi 1997). Magix music maker 17 premium download.
When the kingdom of Malacca was defeated by the Portuguese in 1511, the texts of the Malay laws were taken and adapted with modifications in the various Malay states including Pahang, Johore and Kedah (Ibrahim, 2000).
The Pahang laws which were formulated during the reign of Sultan Abd. Ghafur Muhaiyyuddin Shah (1592–1614 A.D.) following the Undang-undang Melaka, the present authors found that the influence of the Malay custom was less than the Islamic law which was generally followed. Thus, there were provisions based on the Islamic law dealing with qiṣāṣ (section or s. 46 and 47), fines (s. 48), unlawful intercourse (s. 49), sodomy (s. 50), theft (s. 53), robbery (s. 54), apostasy (s. 62), omission to pray (s. 60), jihad (s. 61), procedure (s. 62), and witnesses and oaths (s. 64). There were also provisions dealing with trade sale, security, guarantee, investments trust, payment for labour, land, gifts and waqfs.
The Johore laws too, were modelled on the Undang-undang Melaka. At the beginning of the 20th century, the codifications of the Islamic law, as seen in Turkey and Egypt, were translated into Malay and adopted. The Majallah al- Aḥkām was as adapted as the Majallah Aḥkām Johor (Borham 2002) and the Ḥanafī code of Qadri Pasha was adapted and translated as the Aḥkām Shar‘iyyah Johor (Ibrahim and Joned 1995).
However, Mahmood Zuhdi (1997) commented that even Majallah al-Aḥkām was copied from Turkey; it was introduced during a period where Johore’s legal system was heavily influenced by the British. It can also be argued if Majallah al-Aḥkām was a true reflection of the Islamic law or if had been widely influenced by the legal system in Europe at that particular time (Mahmood Zuhdi 1997).
According to Ahmad Ibrahim, all these examples show that there were attempts before the arrival of the British to modify the Malay customary laws and to adopt Islamic laws. This was in progress when the British arrived and exercised their influence in the Malay states (Ibrahim and Joned 1995).
In the case of Shaikh Abd. Latif v. Shaikh Alias Bux [(1915) 1 FMSLR 204], the court held that the only law applicable to Malays was Mohammedan law modified by local customs. However, according to Hooker (1984), in this instance, Muslim law was applied, not because it was the law of Selangor but because it was the proper law relating to a Muslim estate. It was ‘the personal religious law of the Muhammadan inhabitants …’ and it was applicable in the Courts of the Federated Malay States because the Crown had bound itself by treaty not to interfere with issues related to Malay customs and the Muslim religion. In other words, Hooker was saying the Court was not prepared to admit that Muslim law had a territorial definition as the law of a State or an area.
In this case, the present authors are incline to support his view by mentioning the case of Ong Cheng Neo v. Yap Kwan Seng [(1897) 1 S.S.L.R. Supp. 1]. In this case it was held (a) that ‘English law as such does not prevail in these Courts except insofar as it has been adopted’, and (b) ‘… the entire Muhamedan law is a personal law … it gives rights only to those who acknowledge Islamism. Only a Muslim has a right of succession regulated by the laws of Islam’ (Hooker 1984).
In the case of Ramah binte Ta‘at v. Laton binte Malim Sutan, [(1927) 6 F.M.S.L.R. 128 (CA)] the majority of the Court of Appeal held that the Muslim law was not foreign law but local law and the law of the land of which the court must take judicial notice. The court must accept the law and there should be no confusion as to what was the local law. However, M. B. Hooker in commenting this case wrote:
However, as the judgment makes clear, the Court really had no idea of what the rules of this so-called ‘local law’ were in respect of the issue before it. It was, in other words, placed in the embarrassing position of attempting to administer a local law without knowing its contents! (Hooker 1984).
Replacing Islamic Law
The British arrival in Malaya led to the introduction of the English law thus replacing the hitherto Islamic law. Malaya was officially colonised by the British in 1824 via the Anglo-Dutch Treaty of 1824, which divided the Malay Archipelago into British and Dutch spheres of influence. Malacca and the rest of the Malay states came under the jurisdiction and administration of the British while Indonesia was governed by the Dutch.
Penang and Malacca became British colonies and therefore the English law was introduced via the Charter of Justice 1826, which set up the courts of judicature and provided in effect that the Courts should apply the English law. Nonetheless, this was subject to the qualification that in cases where the introduction of English law would cause hardship and injustice to the inhabitants, they would be allowed to follow their own personal law. Thus, in regard to the Muslims in Malacca and Penang, they were allowed to follow the Muslim law in matters of marriage and divorce. Later, legislation was enacted to provide for the administration of the Muslim family law.
The Malay States were, in theory, independent Malay kingdoms but English law was introduced through the influence of the British in two ways: first, under the treaties made by the Malay Sultans with the British, the Sultans agreed to receive British Residents or Advisers in the states and to follow their advice in all matters of administration except in relation to the Muslim religion and Malay customs. Under these provisions, the British Resident advised the Sultan to enact laws such as the Contracts Act, the Penal Code, the Evidence Act, the Criminal Procedure Code and the Civil Procedure Code, based on the Indian modifications of English law and in the case of land, laws following the legislation in Australia based on the Torrens system of registration of title.
The second stage of British influence was the introduction of the court system. On the advice of the British, the Malay Sultans set up civil courts and these were presided by British judges. In the absence of legislation governing this matter, the judges tended to refer to the law in England and in this way the English law of torts and the English rules of equity were introduced to the Malay States. The end result was the English law replaced the Islamic law in many matters and this was confirmed by the civil law legislations, culminating in the Civil Law Act 1956, provided in section 3 and 5 (Ibrahim 2000).
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British colonialism and its influence led to Peninsular Malaysia inheriting a dual system of courts. The civil courts deal with the majority of the laws concerning contracts, torts, commercial cases, property and succession to property, crime and constitutional and administrative cases; all Malaysians are subjected to the jurisdiction of the civil courts. The Syariah Courts on the other hand deal mainly with Islamic family law and some criminal offences relating to the practice of Islam, and have jurisdiction only over Muslims. An amendment to the Federal Constitution has provided that the civil High Court and subordinate courts shall have no jurisdiction over any matter that falls within the jurisdiction of the Syariah Court (Federal Constitution, Article 121 (1A)). The jurisdiction of the Syariah Courts however, is still limited (Ibrahim 2000; Faruqi 2005; Mohamad 2008; Salbiah 2005). Hence, some would see these two separate legal systems as not harmonious and thus, more serious efforts need to be taken to harmonise them (Pa et al. 2010).
Islam under the Malaysia’s Federal Constitution
A country’s Constitution plays an important role in its administration. However, most of the time the Constitution does not spell out everything in detail. For example, Malaysia’s Federal Constitution has not mentioned ‘the powers of the government’ or ‘the powers of the Prime Minister’… Thus, what is known as the unwritten constitution, namely the practice, convention, or the tradition of the constitution have been the fact.
Disable windows licensing monitoring service. Due to this uncertainty, the role of the court becomes important. This becomes apparent during the litigation process where the courts determine and validate (or invalidate) certain practices. Nevertheless, it is not rare that the judgements by the court are more confusing and fail to solve the problem.
The same scenario prevails regarding the position of Islam in the Constitution; a matter that has to be discussed first before discussing the issue of Islamic criminal law. The position of Islam in the Constitution is generally limited. Article 3 (1) of the Federal Constitution recognises Islam as the religion of the Federation. It says:
Islam is the religion of the Federation; but other religion may be practised in peace and harmony in any part of the Federation.
Though Article 3 (1) recognises Islam as the religion of the Federation, subsection 4 of the same Article limits it. It says:
Nothing in this Article derogates from any other provision of this Constitution.
Malaysia has two legal systems—civil and Syariah—and the Syariah Court has limited jurisdiction, as seen in in the above sub section. Nevertheless, the status of Islam compared with other religions—which are free to be practised by their followers—is at a higher level and recognised by the government (Bari 2002).
Article 12 (2) of the Federal Constitution gives rights “for the Federation or a State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in the religion of Islam and incur such expenditure as may be necessary for the purpose” (Federal Constitution, Article 12 (2)). In the case of Meor Atiqulrahman bin Ishak & Ors v. Fatimah Bte Sihi & Ors, (MLJ, 2000, 5: 375) it was interpreted that ‘Islam is the religion of the Federation, but other religions may be practised in peace and harmony…’ as Islam is the principal religion compared with other religions which are practised in this country such as Christianity, Buddhism, Hinduism and others. Thus, Islam in Malaysia occupies a superior position. It may be because of this position, it appears that some minority groups and open-minded Muslims feel increasingly discriminated despite the apparent protection provided by the Federal Constitution (Jeyamohan 2004; Haji 2014). However, whether Islam, the official religion, overshadows the civil courts remains to be seen.
According to Hairuddin Megat Latif, the position of Islam in Malaysia’s federalism is not very important. This is based on the fact that the said powers are mentioned under the State List of Ninth Schedule of the Federal Constitution, while important matters such defence, internal security, criminal law and the administration of justice and finance are listed under the Federal List (List I—Federal list (Legislative Lists) of Ninth Schedule of the Federal Constitution) (Latif 1992).
Based on this provision, the power to legislate any laws relating to Muslims regarding the matters included in the State List is within the jurisdiction of the state. Thus, every state has the power, and because of this, it is a fact that the Islamic Law Enactments are different from one State to another. Moreover, the fatwa relating to some issues are different between the States. These different Islamic Law Enactments are not only confusing the public but also affecting the firmness of the fatwa itself and the Muslim image as a whole.
The effect of the lack of uniformity of these laws can be seen from the different time when Hari Raya Aidilfitri is celebrated. This occurred in 1982, when the state of Perak celebrated it one day earlier from the date announced by the King (Yang di-Pertuan Agong--YDPA). The difference can also be seen from the madhhab (school of thought) point of view when for example, the state of Perlis does not state the madhhab it follows while other states follow the madhhab of Shāfi‘ī (Latif 1992).
Although Islam is the religion of the Federation, there is no head of Muslim for the entire Federation. The King (Yang di-Pertuan Agong--YDPA) is the Head of Islam in his own state and in the Federal Territory, Malacca, Penang, Sabah and Sarawak as these states have no Malay Rulers of their own. The King’s representatives in these states, known as Yang di-Pertuan Negeri, are effectively the patrons of Islam. The remaining nine states of Malaysia have each their own Ruler, or Sultan, as the Head of Islam in that states. The Conference of Rulers have agreed, however, that in respect of ceremonies and observances in the Federation, the King is authorised to represent each of the Rulers as the head of religion in their states [Federal Constitution, Article 3 (2)].
The various state constitutions provide that the Ruler may act in his discretion in the performance of any functions as the patron of Islam, but it appears that the YDPA may only act on advice in performing his functions as the patron of religion in Malacca, Penang, the Federal Territory, Sabah, and Sarawak (Kamali 2000).
Though the state government has the power to enact laws for Muslims it only relates to and governs personal laws and family matters. Criminal matters also, depend on the Syariah Courts (Criminal Jurisdiction) Act 1965 (revised 1988 (Act 355)). This means that even if the state governments can enact laws to govern Islamic criminal matters, their jurisdictions are still limited. For example, a Muslim who commits zinā cannot be punished as prescribed by the Qur’ān (24:2).
By virtue of the said Act, the punishments that can be imposed by the Syariah Court for criminal offences (including zinā) under Sect. 2, Syariah Court (Criminal Jurisdiction) Act 1965, are as below:
imprisonment not more than three years, or
fine not more than RM 5000, or
whipping not more than six strokes, or
the combination of all those punishments
The state government is neither able to implement or enforce the Islamic law other than what has been mentioned under the State List because it is against Article 74 (2) of the Federal Constitution, which reads as:
Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a state may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.
If this happens, the said laws will be regarded as invalid by the court because the laws, which are against the Federal Constitution, are void. This is mentioned in Article 4 (1) of the Federal Constitution, which reads as:
This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
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Thus it is clear that Islamic laws are only accepted to be implemented in a very limited way, and even this limitation is subject to intervention (Jusoh 1990). Hairuddin Megat Latif concluded that, this situation is not so strange because the main objective of making Islam as the official religion of the Federation is only for formal functions such as to allow prayers to be performed in a good manner, and the coronation function of the Yang di-Pertuan Agong, among others (Latif 1992).
Conclusion
Based on the above discussion, it can be discerned that historically, the laws which were implemented in Malaysia before colonisation, were mainly based on Islamic influence. Some of them were in harmony with Islam even though they were not based on the Quran or Hadith (they were based on customary laws). If we were to compare the position of Islam during the Malacca Sultanate and its current position, the scope in the Malacca Laws was wider as the laws were not only limited to the personal and family matters but also covered aspects of crime, civil, economy and commercial. The changes and developments to the Muslim laws were also influenced by the pluralistic society as well as respect for multiculturalism in Malaysia.
Authors’ contributions
MRMN, ATA and AKA designed the study, provided general and specific ideas, developed the methodology, performed the analysis, and wrote the manuscript. ATA and MRMN collected the data and while all the authors provided relevant input for the study. All authors read and approved the final manuscript.
Competing interests
The authors declare that they have no competing interests.
Contributor Information
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Abdul Karim Ali, Phone: +60379676011, Email: ym.ude.mu@mirakdba.
References
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Undang-Undang Laut Melaka (Malay for 'Maritime laws of Melaka', Jawi: آوندڠ٢ لاوت ملاك) was a legal code of Melaka Sultanate (1400-1511) that deals specifically on matters related to maritime laws and regulations, as well as nautical procedures concerning seafaring affairs of merchant vessels. The other important legal code of Melaka was the Undang-Undang Melaka ('laws of Melaka'), though it still contains certain provisions related to maritime laws, was sometime known as Undang-Undang Darat Melaka ('laws on the land of Melaka') instead. The clauses contained in the Undang-Undang Laut Melaka cover an extensive area, taking into account a wide variety of circumstances that could arise on a ship, with respect to social issues, such as slavery, adultery, murder, stealing, disrespecting an officer and negligence in carrying out duties; also, economic aspects such as tax and trade, including measurement of weight and area. The legal code also outlines a very well-structured organisation on ships, with titles of the officers are clearly specified complete with their responsibilities.[1] In Melaka's court, matters related to the enforcement Undang-Undang Laut Melaka was placed under the authority of Laksamana ('admiral of the fleet').[2]
- 2Content
History[edit]
The actual date when the legal code was drafted remains unknown. However, based on its manuscript, the promulgation of Undang-Undang Laut Melaka was the result of a meeting of a group of Melakan nakhodas (sea captain) during the reign of Muhammad Shah (1424-1444):
“ | First of all, Patih Harun and Patih Elias assembled Nakhoda Zainal, Nakhoda Dewa and Nakhoda Ishak, for the purpose of consulting and advising relative to the usages at sea, and of compiling , in conformity thereto, a code of Undang-Undang, or institutions. After they had consulted together, and collected the laws, they presented them to Datuk Bendahara, in the kingdom of Melaka, who laid them at the feet of the illustrious Muhammad Shah; whereupon the ruler said - I grant the request of the Bendahara, and establish these laws and institutions for your government and that of your posterity. When you administer these laws at sea, they shall not be afterwards interfered with on shore. Henceforth let the laws of the sea be carried into effect at sea, in like manner as those of the land are carried into effect on land; and let them not interfere with each other; for you (addressing himself to the nakhodas) are as rajas ('king') at sea, and I confer authority on you accordingly.[3] | ” |
Content[edit]
According to Stamford Raffles, the clauses of Undang-Undang Laut Melaka which numbered up to 20, can be grouped into four distinctive chapters:[4]
Chapter I[edit]
- Authority of the code.[5]
- Description of persons on board a vessel.[6]
- Of the officers and crew, their authority, duties, and the nature of their engagements - explains the administrative structure or hierarchy of power on ship. A ship is like a state or a kingdom where the nakhoda (sea captain) is the king. This power hierarchy follows successively downwards which partly described as the following:[7]
- Rules and procedures for the crew on the duty of berkepang (guarding the ship). Four points are mentioned for the guard to pay attention to: water getting into the ship, incoming storms and wind, enemies boarding the ship, and fire outbreaks.[9]
- Details on the duties of muda-muda; controlling the ship's rudder, guarding the weapons, defending the ship in warfare. They also responsible as the personal guards to nakhoda in ports.[10]
- Procedures for the crew who guarded the ship's tupai (the main of access point between deck and hold).[11]
- Procedures on supplies (food) for the awak-awak.[12]
- It was established that the nakhoda was responsible for providing a loan to whoever required it. This is subject to certain procedures and processes, including the repayment terms and tax levied. For example, it is stated that the person who borrows is normally tied to an agreement for three years, three months, there days.[13]
- Of the kiwis, or travelling merchants - in the 15th century Melaka, a system of commenda was well developed, whereby merchants would send goods in another man's ship, either in the care of some of his agents, travelling as kiwis, or entrusted to the nakhoda for a fixed return.[14] The clause outlines the responsibilities of a kiwi especially in matters related to rental rates and rights to a petak (a partition for storing goods).[15] The duties of the kiwi to look after the petak he rented and the time period allowed, are also mentioned in the clause . Penalties are specified for failure to fill up the rented petak within the stipulated period. A kiwi may join a ship's voyage in several ways; firstly, by renting a petak, secondly, by assisting the nakhoda with a capital of three or four tahils of gold, or by making an agreement to give 3/10 of his sales to the nakhoda. Also mentioned in this clause are the responsibilities of the maula or penghulu kiwi ('chief kiwi').[16] The chief kiwi shall be entitled to half of the division of hold, in which the rice or provisions are stowed.[17]
Designation at sea | Comparative designation on land |
---|---|
Nakhoda (sea captain) | Raja |
Juru mudi (helmsman) | Bendahara |
Juru batu ('leadsman') | Temenggung |
Malim (pilot) | Imam |
Tukang kanan (petty officer in charge of starboard) | Sida-sida |
Tukang kiri (petty officer in charge of portside) | Sida-sida |
Tukang agong ('head workman') | Sida-sida |
Awak-awak (crew) | Rakyat |
Another position which was just as important as that of the nakhoda was that of the malim (pilot). It is rather difficult to find a comparative designation on the land, because most of his functions were-maritime related. The position of malim is often compared to that of an imam (leader of prayer group) on a ship due to his sailing skills. He was the one who decides when to set sail because he is knowledgeable about the prevailing winds, storm prediction and waves, sandbanks and corals. Clearly, the malim was the first person to give advise to the nakhoda about each voyage. The function of the juru mudi, who was the nakhoda's closest aide, was comparable to that of the bendahara ('prime minister'). The juru batu is said to have been the same status as the temenggung ('chief of public security'), this means that his role was to keep the peace on the ship and act as a judge in any dispute. This corresponds to an excerpt of Undang-Undang Laut Melaka, '….to decide right and wrong'. Undang-Undang Laut Melaka gives an example, a crewman (awak-awak) who refused to follow the orders of the tukang agong was punished by the juru batu by canning of up to seven strokes.[8] Among other provisions in the clause are:
Chapter II[edit]
- Of the divisions of a vessel - certain areas on board can only be occupied by selected people according to their status. For example, the balai lintang ('covered porch' or 'across hall') is specifically for meetings, while the balai bujur ('principal hall') is for muda-muda. The peterana lawang is reserved for the nakhoda, muda-muda and tukang agong, the awak-awak is prohibited to enter any of these three areas. The clause also mentions on other issues on petak rental and the status of the rental space should any matter arise with regard to the crew member, such as altercation, illness, criminal act and so forth.[18]
- Regulations for the safety of a vessel while at sea.[19]
- Of fire.[20]
- Of throwing cargo overboard - procedures of throwing the ship's cargo overboard in the event of a big storm, for the safety of the ship's crew. The cargo that need to be reduced will be thrown out depending on the rate and value owned by each passenger and shareholder of each petak.[21]
- Of vessel running foul of each other - rules and penalties for ships colliding at sea, especially during rainstorms. The clause also mentions the procedures taken if a ship hit 'lintang payer' (vessels anchored across the sea or rivers to collect tax); the fine had to be paid by all those sailing on the ship, whether a free man, a slave, old, young, poor, rich, men and women, everyone have to contribute.[22]
- Of putting into ports, and the mode of trading - procedures and regulations for trading at the ports/towns. On arrival at port, when the market was at its most favourable, the nakhoda had first right to sell his merchandise, four days before the kiwis and six days before other sailors.'[23] The nakhoda also had the priority to offer his goods at the highest price. Anyone offering their goods at a higher price than the nakhoda could have his goods confiscated by the nakhoda after being paid only the cost price. This clause also stated that a nakhoda had to consult his officers if he wished to stop at any port which was not in the original schedule. In the same way, if he decided to cross a bay, strait, etc. he had to firstly get the consent of the juru mudi, juru batu and tukang agong.[24]
- Of detentions - the clause stated that: 'when the season is nearly over, and the nakhoda omits to sail, the kiwi shall wait, on his account, for seven days, after which, if the nakhoda does not proceed, and the season is over, the price paid for the petak shall be returned to the kiwis. If the kiwis are the cause of the delay, and the season is nearly over, the nakhoda shall detain the vessel seven days on their account, after which he is authorised to sail without them, if they are not ready; and no more shall be paid or done relating thereto.'[25]
- Of persons quitting a vessel.[26]
Chapter III[edit]
- Of persons who may be in distress, or who have been wrecked at sea - procedures for nakhoda who met castaways with their treasures, due to a shipwreck.[27]
- Of troves - procedures of distribution of confiscated treasures at sea. These procedures also followed the status categories of the beneficiaries-whether a slave, a person in debt or relative of the nakhoda. The code stated that: 'Whatever is found on the sea, whovever may discover it, is the property of the nakhoda of the vessel, who may give what he thinks proper to the persons who found it. Whatever may be found on shore by persons belonging to the vessel, at the time when they are not acting under the nakhodas orders, nor performing the duty of the vessel, even if the parties are kiwis or turun menugen, the trove shall be divided into three parts, and one-third shall appertain to the finder, and the remaining two parts become the property of the nakhoda.'[28]
- Of carrying off slaves from another country - procedures and laws for nakhoda who found slaves who had run away from their owners.[29]
Chapter IV[edit]
- Of crimes and punishments on board a vessel - penalties for those who fought and murdered on board ship including the punishment for a kiwi who tried to kill the nakhoda. There are also details of the persons who can be sentenced to death on board ship. Four types of offences can incur the death sentence;[30]
- i) Speaking offensively and being disloyal to the nakhoda.
- ii) Planning or collaborating with other crew members to kill the nakhoda, kiwi, tukang or malim.
- iii) A person who carries kris on board, whilst others do not.
- iv) Very bad behaviour and acting disrespectfully.
- Of disrespectful and contumacious conduct towards the nakhoda - for one who is outspoken and rude to the nakhoda or kiwi, the person can be punished, and may be killed if he retaliates with hostility.[31]
- Of adultery, and criminal connection with women on board a vessel - this clause is explained according to the status of the offenders, whether a free man, a slave, a single girl, a bachelor, a wife, a husband.[32]
- Of quarrels and dissections - the clause for those who fought on board ship.[33]
- Of theft.[34]
References[edit]
- ^Mardiana Nordin 2008, p. 18
- ^Ahmad Sarji Abdul Hamid 2011, p. 115
- ^Reddie 1841, p. 484
- ^Reddie 1841, pp. 482–483
- ^Reddie 1841, p. 482
- ^Reddie 1841, p. 482
- ^Mardiana Nordin 2008, p. 19
- ^Mardiana Nordin 2008, p. 19
- ^Mardiana Nordin 2008, p. 17
- ^Mardiana Nordin 2008, p. 17
- ^Mardiana Nordin 2008, p. 17
- ^Mardiana Nordin 2008, p. 17
- ^Mardiana Nordin 2008, pp. 16&19
- ^Tarling 2000, p. 133
- ^Mardiana Nordin 2008, p. 18
- ^Mardiana Nordin 2008, pp. 16&18
- ^Reddie 1841, pp. 485–486
- ^Mardiana Nordin 2008, pp. 17&18
- ^Reddie 1841, p. 483
- ^Reddie 1841, p. 483
- ^Mardiana Nordin 2008, p. 17
- ^Mardiana Nordin 2008, p. 17
- ^Tarling 2000, p. 133
- ^Mardiana Nordin 2008, pp. 17&18
- ^Reddie 1841, p. 486
- ^Reddie 1841, p. 483
- ^Mardiana Nordin 2008, p. 16
- ^Reddie 1841, p. 487
- ^Mardiana Nordin 2008, p. 16
- ^Mardiana Nordin 2008, pp. 16&20
- ^Mardiana Nordin 2008, p. 16
- ^Mardiana Nordin 2008, p. 16
- ^Mardiana Nordin 2008, pp. 17
- ^Reddie 1841, p. 483
Bibliography[edit]
- Ahmad Sarji Abdul Hamid (2011), The Encyclopedia of Malaysia, 16 - The Rulers of Malaysia, Editions Didier Millet, ISBN978-981-3018-54-9
- Mardiana Nordin (2008), 'Undang-Undang Laut Melaka: A Note on Malay Maritime Law in the 15th century', Memory and knowledge of the Sea in Southeast Asia, Kuala Lumpur: Institute of Ocean and Earth Sciences (IOES), University of Malaya, ISBN978-983-9576-36-8
- Tarling, Nicholas (2000), The Cambridge History of Southeast Asia, 2, Cambridge University Press, ISBN978-052-1663-70-0
- Reddie, James (1841), An Historical view of the law of maritime commerce, W. Blackwood and sons
Undang-Undang Melaka (Malay for 'Law of Melaka', Jawi: اوندڠ٢ ملاک ), also known as Hukum Kanun Melaka, Undang-Undang Darat Melaka and Risalah Hukum Kanun,[1] was the legal code of Melaka Sultanate (1400-1511). It contains significant provisions that reaffirmed the primacy of Malay customary law or adat, while at the same time accommodating and assimilating Islamic principles. The legal code is believed originally compiled during the reign of Muhammad Shah (1424-1444), before it was continuously expanded and improved by the succeeding sultans.[2] The Melaka system of justice as enshrined in the Undang-Undang Melaka was the first digest of laws, compiled in the Malay world. It became a legal resource for other major regional sultanates like Johor, Perak, Brunei, Pattani and Aceh,[3] and has been regarded as the most important of Malay legal digests.[4]
History[edit]
According to Malay Annals, earliest form of justice system had been in existence since the early days of Melaka. Early Melakan rulers promulgated court traditions and enforced the existing adat and religious rules to maintain social order. All rules, prohibitions and customs that have been codified as laws, were in turn collected through oral traditions and memorized by senior ministers of the sultanate.[5] During the reign of Muhammad Shah, laws were issued and recorded along with provisions for punishments of every offenses.[6] Among notable rules mentioned in the Malay Annals, were the prohibition of using yellow clothes and wearing golden anklets.[7] Under the order of the fifth Sultan, Muzaffar Shah (1445-1459), the legal digest of Muhammad Shah was further refined with the inclusion new laws and regulations. It was then continued to be expanded and improved until the reign of the last sultan, Mahmud Shah (1488-1511).[8]
As a part of important legacy of Melaka, which throughout its existence had exercised strong influence over Maritime Southeast Asia, the legal code of Melaka was copied and spread to other such sultanates as Johor, Perak, Aceh, Brunei and Pattani. It was made a reference in developing the local jurisprudence, with subsequent revisions and additions were made to its contents, to suit the usage in a particular sultanate.[9] This has contributed to the existence of a variety of hybrid copies of the manuscript in different structures and contents. In sum, there are 50 known surviving manuscripts of Undang-Undang Melaka, which can be categorized into; fundamental, Aceh, Pattani, long, Islam and Johor, and fragmented or short versions.[10]
Content[edit]
Based on the published version of Undang-Undang Melaka, the text consists of six parts dealing among others with maritime, marriage and trade law. The six parts are:[11]
- Intisari (abstract)
- Undang-Undang Laut (maritime law)
- Hukum Perkahwinan Islam (Islamic marital jurisprudence)
- Hukum Perdagangan dan Syahadat (Islamic economic jurisprudence)
- Undang-Undang Negeri (state law)
- Undang-Undang Johor (Johor law).
Due to continuous additions and revisions since the time of Melaka, the original 19 chapters of the text was expanded to 22, and lastly to the longest 44 chapters that we know today.[12] Although elements of customary law (adat) with influences from Animistic-Hindu-Buddhist era still prevailed in the text, marks of Islamic influences are strong, clearly evidenced with the existence of various terminologies and law of Islamic origin. For example, zina (section 40:2), qadhf or false accusation of zina (section 12:3), theft (section 7:2 and 11:1), robbery (section 43), apostasy (section 36:1), drinking intoxicants (section 42), baghy (section 5 and section 42). Qisas and diyya is legislated in section 5:1, 3; section 8:2, 3; section 18:4 and section 39, causing injury in section 8:2 and its various types in sections 16, 17, and 21. Punishment for the abovementioned crimes conform with those of classical Islamic law. There are also provisions for crimes punishable with tazir, i.e., when the crime lacks the conditions for hudud penalty (section 11:1), kissing between a man and a woman (section 43:5), gambling (section 42), giving false testimony (section 36).[13]
Section 25:2 is an example of provisions for Islamic marital jurisprudence, it outlines the conditions for ijab and qabul as well as rulings and conditions for witnesses. Besides that, the rulings on the dissolution rights or khiyar, talaq and all the conditions related to it, including the muhallil (a type of marriage when a man marries an irrevocably divorced woman so that after divorcing her she may get remarried to her first husband), are all contained in section 27 and 28:1. An example on provisions related to Islamic economic jurisprudence is section 30, that provides rulings on riba. The same section also identify the types of goods allowed in trade as well as those prohibited such as alcoholic drinks, dogs, pigs and rice wine.[14]
Undang-Undang Melaka also absorbed directly several fiqh rulings by referring to texts like Fath al-Qarib from Ibn Al-Qasim al-Ghazi, al-Taqrib from Imam Abu Syuja' and lastly Hasyiyah 'ala Fath al-Qarib from Ibrahim al-Bajuri. Thus, based on its references, historians have concluded that Undang-Undang Melaka is more inclined to Shafi'ischool of thought. This is further supported by section 36:2, which outlines the ruling on salat in accordance with Shafi'i thought.[15]
See also[edit]
References[edit]
- ^Abd. Jalil Borham 2002, p. 84
- ^Liaw 2007, p. 86
- ^Fauzia 2013, p. 81
- ^Ooi 2004, p. 1361
- ^Abd. Jalil Borham 2002, p. 86
- ^Liaw 2007, p. 86
- ^Abd. Jalil Borham 2002, p. 86
- ^Abd. Jalil Borham 2002, pp. 87–88
- ^Abd. Jalil Borham 2002, p. 94
- ^Liaw 2007, p. 86
- ^Liaw 2007, p. 86
- ^Abd. Jalil Borham 2002, p. 88
- ^Ashgar Ali Ali Mohamed 2012, p. 237
- ^Abd. Jalil Borham 2002, p. 92
- ^Abd. Jalil Borham 2002, p. 93
Bibliography[edit]
- Abd. Jalil Borham (2002), Pengantar Perundangan Islam (An Introduction to Islamic Legislature), Johor Bahru: Universiti Teknologi Malaysia press, ISBN983-52-0276-1
- Fauzia, Amelia (2013), Faith and the State: A History of Islamic Philanthropy in Indonesia, BRILL, ISBN978-9004233973
- Liaw, Yock Fang (2007), Naskah Undang-Undang Melaka: Suatu Tinjauan (Manuscript of Undang-Undang Melaka: an overview)(PDF), Universiti Kebangsaan Malaysia press
- Ooi, Keat Gin (2004), Southeast Asia: a historical encyclopedia, from Angkor Wat to East Timor, ABC-CLIO, ISBN1-57607-770-5
Malaysian legal history has been determined by events spanning a period of some six hundred years. Of these, three major periods were largely responsible for shaping the current Malaysian system. The first was the founding of the Melaka Sultanate at the beginning of the 15th century; second was the spread of Islam in the indigenous culture; and finally, and perhaps the most significant in modern Malaysia, was British colonial rule which brought with it constitutional government and the common law system.
Sultanate of Melaka[edit]
During the realm of the Sultanate, Melaka was an important trading port and the maintenance of law and order was crucial to its prosperity. The administration of justice was placed under the direct charge of the bendahara (or chief minister) who exercised both political and judicial functions. The temenggung (which is the commander of troops and police) was responsible for apprehending criminals, maintaining prisons and generally keeping the peace. The welfare of foreigners residing in the state was looked after by several shahbandars (harbour masters and collectors of customs).
Little is known of the legal system in those days but it is generally accepted that the law administered then was a combination of Muslim law and the 'Adat Temenggung' (patriarchal Malay customary law). The 'Adat Temengung' was the law of the Sultan or the law ordained by the rulers and later adopted in the other regions of Peninsular Malaysia. It was the basis of the law as found in Malay legal digests compiled between the 15th and 19th centuries.
The formal legal text of traditional Melaka consisted of the Undang-Undang Melaka (Laws of Melaka), variously called the Hukum Kanun Melaka and Risalat Hukum Kanun, and the Undang-Undang Laut Melaka (the Maritime Laws of Melaka).[1] The laws as written in the legal digests went through an evolutionary process. The legal rules that eventually evolved were shaped by three main influences, namely the early non-indigenous Hindu/Buddhist tradition, Islam and the indigenous 'adat'.
European and British influence[edit]
When Melaka fell into the hands of the Portuguese from 1511 to 1641 and the Dutch from 1641 till 1786, the local people continued to practise Islamic laws and Malay customs. It could be said that the Portuguese and the Dutch laws made relatively little impact on the legal system as a whole other than the political and administrative structures.
In 1786, Britain acquired the island of Penang, the first territory in Malaysia to fall into British hands. The main preoccupation of the British administrators during the first decades after the founding of Penang, was the maintenance of some form of order and to this end, local customs and law were allowed to continue but tempered by such portions of the English law as were considered just and expedient. Some judgements meted out may seem rather strange by today's standard but it should be borne in mind that they merely reflected the harsh and often chaotic conditions of those pioneering days. Complaints and petitions were made over many years for a better system of administering justice. Finally, it came in the form of the Royal Charter of Justice of 1807. The Charter is the most significant event in Malaysian legal history as it marked the beginning of the statutory introduction of English law into this country. The Charter established the Court of Judicature of the Prince of Wales' island (as Penang was then known) to exercise jurisdiction in all civil, criminal and ecclesiastical matters. It was interpreted by the courts as introducing to Penang the law of England as it stood in 1807 insofar as it was suitable to local conditions and circumstances.
When Penang, Singapore, which was founded by the British in 1819 along with Melaka, which fell to the British as a trade-off under the Anglo-Dutch Treaty of 1824, formed the Straits Settlement in 1826, a new charter, the Charter of Justice was introduced. A new court called 'The Court of Judicature of Prince of Wales' Island, Singapore and Melaka' was created by this Charter. Penang in a sense had a second statutory reception of English law although it was the first for Singapore and Melaka. In one stroke of the pen, the Straits Settlements received a large dose of English law.
Despite the new Charter, the administration of justice was far from satisfactory. A third Charter of Justice was granted in 1855 which enabled the reorganisation of the court system. In 1867, when the administration of the Straits Settlements from India was transferred to the Colonial Office, the court system was reorganised once again. By Ordinance 5 of 1868, the Court of Judicature of Prince of Wales' Island, Singapore and Melaka was abolished. A new court known as the Supreme Court of the Straits Settlements was established. In 1873, the Supreme Court was further reorganised under four judges – the Chief Justice, the Justice of Penang, the Senior Puisne Judge and the Junior Puisne Judge. The Court of Quarter Sessions was established as a criminal court and presided over by the Senior and Junior Puisne Judges in Singapore and Penang respectively. A Court of Appeal was also constituted. By then, the judiciary had slowly evolved into its modern form.
English commercial law was formally introduced into the Straits Settlements by Section 6 of the Civil Law Ordinance, 1878. This provision, as re-enacted in the Civil Law Act, 1956 (Revised 1972), is still applicable in Penang and Melaka.
English land law was specifically excluded by sub-section 2. The whole section of this Ordinance was incorporated into the Civil Law Ordinance of 1909 and later re-enacted as Section 5 of the Civil Law Ordinance (Chap. 42 of the 1936 Revised Edition). This was the legal situation in the Straits Settlements until its dissolution in 1946 following the formation of the Malayan Union.
The statutory introduction of English law to the Federated Malay States comprising the states of Perak, Selangor, Pahang and Negeri Sembilan occurred in 1937 with the introduction of the Civil Law Enactment, 1937. The Unfederated Malay States, consisting the states of Kedah, Perlis, Kelantan, Terengganu and Johor, became part of the Federation of Malaya in 1948 and the Civil Law (Extension) Ordinance, 1951, extended the application of the Enactment to these states.
Both enactments were replaced by the Civil Law Ordinance, 1956, which applied to all eleven states of the Federation. When Malaysia was established in 1963, it became necessary to harmonise the law to take effect in Sabah and Sarawak. The 1956 Ordinance was then superseded by the Civil Law Act, 1956 (revised 1972) which came into force on 1 April 1972.
Notes[edit]
- ^Winstedt, Richard. The Date of the Malacca Legal Codes. – The Journal of the Royal Asiatic Society of Great Britain and Ireland, No. 1/2, Apr. 1953.
Bibliography[edit]
- Undang-Undang Melaka & Undang-Undang Laut. Editor Liaw Yock Fang. Kuala Lumpur: YAYASAN KARYAWAN, 2003 (ISBN983-9510-06-1); 440 hlm.
- Liaw Yock Fang. Undang-Undang Melaka, a critical edition. Koninklijk Instituut voor Taal-, Land- en Volkenkunde, Martinus Nijhoff, The Hague, 1976.
- Undang-Undang Melaka. A Critical Edition, ed. by Liaw Yock Fang, Doctoral Thesis (Proefschrift) Leiden University, The Hague: De Nederlandsche Boek- en Steendrukkerij/ Verlagshuis S. L. Smits, 1976.
- Liaw Yock Fang, “The Undang-undang Melaka”, Melaka: The Transformation of a Malay Capital, c. 1400–1980, ed. by K. Singh Sandhu and P. Wheatley, Kuala Lumpur: Oxford University Press, 1983, vol. 1, pp. 180–94.
- Liaw Yock Fang. Naskah Undang-Undang Melaka: Suatu Tinjauan. – 'Sari' N 25. Bangi: Universiti Kebangsaan Malaysia, 2007, p. 85–94.
- Winstedt, Richard O., “The Date of the Malacca Legal Codes”, Journal of the Royal Asiatic Society of Great Britain and Ireland, 1–2 (1953): 31–3.
- Winstedt, R.O. and P.E. de Josselin de Jong, “The Maritime Laws of Malacca. Edited, with an outline translation”, Journal of the Malayan Branch of the Royal Asiatic Society, 29.3 (1956).
See also[edit]
Hukum Kanun Pahang (Malay for 'Pahang Laws', Jawi: حكوم قانون ڤهڠ ), also known as Kanun Pahang[1] or Undang-Undang Pahang[2] was the Qanun or legal code of the old Pahang Sultanate. It contains significant provisions that reaffirmed the primacy of Malay adat, while at the same time accommodating and assimilating the Islamic law. The legal code was largely modelled on the Undang-Undang Melaka and Undang-Undang Laut Melaka, and was compiled during the reign of the 12th Sultan of Pahang, Abdul Ghafur Muhiuddin Shah. It is regarded as one of the oldest digest of laws compiled in the Malay world.[3][4]
Historically, the Pahang Laws were adopted in Johor,[5] following the union between Pahang and Johor in 1623, and had also significant influence in the promulgation of Perak[6] and Brunei Laws.[7] In 2012, the Hukum Kanun Pahang was included in the Nation Heritage List of Malaysia, under tangible heritage object category.[8]
History[edit]
The adoption of various aspects of Melakan system of administration originated from the mid 15th century, when the Old Pahang Kingdom was conquered and brought into the realm of Melaka. Early rulers of the later Pahang Sultanate, which was established as a vassal to Melaka, promulgated court traditions based on the Melakan system as enshrined in both Undang-Undang Melaka and Undang-Undang Laut Melaka, and enforced the existing adat and religious rules to maintain social order. All rules, prohibitions and customs that have been codified as laws, were in turn collected through oral traditions and memorized by senior ministers.[9]
Between 1592 and 1614, under the order of the 12th Sultan of Pahang, Abdul Ghafur Muhiuddin Shah, the laws were improved with the details and most importantly, were recorded. The legal text would contains detailed provisions on ceremonial matters, settlement of social conflicts, maritime matters, Islamic laws and general matters. The original 44-clauses of Undang-Undang Melaka[10] were expanded into the 93 clauses of the Pahang laws.[11]
Shortly after the death of Abdul Ghafur Muhiuddin Shah, Pahang descended into chaos after suffering devastating attacks from Aceh. The installation of a relative, Raja Bujang, to the Pahang throne, and few years later in 1623, to the Johor throne, had united both states under a single administration. Pahang Laws were part of the elements that were integrated into the new administration. It was mentioned in the surviving text of Hukum Kanun Pahang, that the laws were also enforced in Johor.[12]
The Pahang Laws had also significant influence in the promulgation of Hukum Kanun Brunei ('Brunei Laws')[13] and Undang-Undang 99 ('the 99 Perak Laws').[14] Although both Perak and Brunei were never subjugated by Pahang, this was made possible as both states enjoyed strong diplomatic, trade and even marriage relations with the rulers of Pahang. Sultan Abdul Ghafur himself was married to a daughter of Saiful Rijal of Brunei, and he betrothed his eldest son to a grand daughter of the Sultan of Perak.[15]
Content[edit]
Similar to the Melakan Laws, the Pahang Laws was an evolving legal code and heavily influenced by both Malay Adat and Sharia law. In general, Islamic influence is dominant throughout the text, although the adat law is also prevalent in certain clauses related to commercial, family and marriage laws. In the early chapters of the text, extending from clause 1 to clause 23, are evidences of pre-Islamic influences. The legal code was further expanded to clause 66 as a result of Islamic influence. It was again further expanded up to clause 93 after receiving Melakan influences through Undang-Undang Melaka and Undang-Undang Laut Melaka. The 93 clauses of the legal code are neither systematically arranged nor classified, but can be categorised as follows;[16]
- Includes punishments for criminal offences like murder, theft, robbery, and trespassing. Method of punishments includes qisas and fines. Other criminal offences mentioned are adultery, rape, sodomy. gambling, bribery and many others. All these provisions are found in the following clauses: 4, 5, 6, 7, 8, 22, 46, 47, 48, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 63, 70, 72, 74, 79, 84, 86, 90, 92, and 93.[17]
- Includes rules of commerce, lease, secured loan, loan, wage and so on. It also contains the first codified laws pertaining to waqf in the Malay world.[18] All these provisions are found in the following clauses: 2, 3, 9, 11, 12, 14, 16, 17, 18, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44, 62, 77, 81, 85, 87, and 88.[19]
- Family and marriage laws
- Provisions for family and marriage laws are found in clause 67 of Hukum Kanun Pahang which regarded as directly copied from 3 clauses (25, 26, 27) of Undang-Undang Melaka.[20]
- Matters related to general religious offense and ibadah
- Includes punishments for offences like apostasy and omitting salah, and the rules on jihad, witnesses and oaths. Such provisions are found in clauses 60, 61, 62, 64, and 65.[21]
- Adat law and constitution
- Outlines the roles and special positions of the Sultan and his ministers. Provisions for adat law and constitution can be found in the following clauses; 1, 12, 20, 21, 23, 56, 57, 75, 76, 82, 83, 89, and 91.[22]
The most important part of the legal code, described as 'part one', states that the code was composed during the reign of Sultan Abdul Ghafur and applies not only to Pahang but also to Perak and Johor. A preface then states that the king should look after his subjects and appoints the leaders of the state, including the mangkubumi ('regent'), penghulu bendahari ('the treasurer'), temenggung ('leader of the army and the police'), hulubalang ('generals'), shahbandar ('harbour master'), and menteri ('ministers'). The duties of these officials are described, one by one.[23]
Notes[edit]
- ^Pusat Rujukan Persuratan Melayu - Kanun Pahang
- ^Liaw 2013, p. 434
- ^Zaini Nasohah 2004, p. 7
- ^Liaw 2013, p. 434
- ^Liaw 2013, p. 434
- ^Liaw 2013, p. 434
- ^Mohammad bin Pengiran Haji Abd. Rahman 2001, p. 176
- ^Jabatan Warisan Negara - Warisan Kebangsaan 2012
- ^Abd. Jalil Borham 2002, p. 86
- ^Abd. Jalil Borham 2002, p. 88
- ^Zaini Nasohah 2004, p. 7
- ^Liaw 2013, p. 434
- ^Mohammad bin Pengiran Haji Abd. Rahman 2001, p. 176
- ^Liaw 2013, p. 434
- ^Royal Ark - Genealogy of Melaka dynasty of Pahang
- ^Zaini Nasohah 2004, p. 7
- ^Zaini Nasohah 2004, p. 7
- ^Siti Mashitoh Mahamood 2006, p. 28
- ^Zaini Nasohah 2004, p. 7
- ^Zaini Nasohah 2004, p. 7
- ^Zaini Nasohah 2004, p. 7
- ^Zaini Nasohah 2004, p. 7
- ^Liaw 2013, p. 434
Bibliography[edit]
- Abd. Jalil Borham (2002), Pengantar Perundangan Islam (An Introduction to Islamic Legislature), Johor Bahru: Universiti Teknologi Malaysia press, ISBN983-52-0276-1
- Liaw, Yock Fang (2013), A History of Classical Malay Literature, Institute of Southeast Asian Studies, ISBN978-981-4459-88-4
- Mohammad bin Pengiran Haji Abd. Rahman (2001), Islam di Brunei Darussalam, Dewan Bahasa dan Pustaka Brunei, ISBN978-999-1701-81-3
- Siti Mashitoh Mahamood (2006), Waqf in Malaysia: Legal and Administrative Perspectives, University of Malaya press, ISBN983-100-287-3
- Zaini Nasohah (2004), Pentadbiran undang-undang Islam di Malaysia : sebelum dan menjelang merdeka, Utusan Publications, ISBN978-967-6115-19-5