Malaysia;
Similarities and Differences in Islamic Law
Malaysia
is a federal constitutional monarchy in Southeast Asia. It consists of thirteen
states and three federal territories and has a total landmass of 329,847 square
kilometers (127,350 sq mi) separated by the South China Sea into two similarly
sized regions, Peninsular Malaysia and Malaysian Borneo. Land borders are shared
with Thailand, Indonesia and Brunei, and maritime borders exist with Singapore,
Vietnam, and the Philippines. The capital city is Kuala Lumpur, while Putrajaya
is the seat of the federal government. In 2010, the population exceeded 27.5
million, with over 20 million living on the Peninsula.
Malaysia
has its origins in the Malay Kingdoms present in the area which, from the 18th
century, became subject to the British Empire. The first British territories
were known as the Straits Settlements, in which the establishment was followed
by the Malay kingdoms becoming British protectorates. The territories on
Peninsular Malaysia were first unified as the Malayan Union in 1946. Malaya was
restructure to becomethe Federation
of Malaya in 1948, and achieved independence on 31 August 1957. Malaya united
with Sabah, Sarawak, and Singapore on 16 September 1963, with is being added to
name the new country as Malaysia. Less than two years later in 1965, Singapore
was expelled from the federation. Since its independence, Malaysia has had one
of the best economic records in Asia, with GDP growing an average 6.5% for
almost 50 years. The economy has traditionally been fueled by its natural
resources, but is expanding in the sectors of science, tourism, commerce and
medical tourism.
The
country is multi-ethnic and multi-culture, which plays a large role in
politics. The government system is closely modeled on the Westminster
parliamentary system and the legal system is based on English Common Law. The
constitution declares Islam the state religion while protecting freedom of
religion. The head of state is the King, known as the Yang di-Pertuan Agong. He
is a monarch elected from the hereditary
rulers of the nine Malay states every five years. The head of government is the
Prime Minister.
Malaysia
contains the southernmost point of continental Eurasia, Tanjung Piai. Located
in the tropics, it is a megadiverse country, with large numbers of endemic
flora and fauna. It is a founding member of the Association of Southeast Asian
Nations and the Organisation of Islamic Cooperation, and a member of
Asia-Pacific Economic Cooperation, the Commonwealth of Nations, and the
Non-Aligned Movement.
In Malaysia, Islam is highly
viscous. Since the early period of independence, it had already been
deliberated that one day, the autochthon (Malayan) and Muslim could be
controlled by the non-autochthon and non-muslimn (as happens in Singapore),
that was why they made statutes to protect autochthon and muslims in Malaysia.
- Yang di-Pertuan Agong (King of Malaysia)
must be a Malayan ( most of the Malayan are muslims)
- Prime Minister of Malaysia must be a
Malayan
- The Sultan in each state to control the
stability of Islamic law
- Islam is the official religion (other religion is permited)
- Malay is the official language of
Malaysia, English is the second language
Malaysia
is a country that is still highly viscous with authoritarian, because
obviously, Malaysia is a federal constitutional monarchy. Each state regulates matters
related to Islamic practice life in Malaysia. The aim of state in Malaysia is
to control and protect Islam.
Essentially,
Malaysia adopts British Law (that in fact invaded Malaysia) and Islamic Law, but
practically, Malaysia applies various Islamic values. Statutes must be based on Al-Qur’an, hadits, Ijma, Qiyas, and governmental system of kingdom in which the
king become the leader.
Malaysia
not fully adopts Islamic Law as their law. Malaysia also adopts British Law. Malaysia
use Common Law System. It is law developed by judges through decisions (legal
opinion) of courts and similar tribunals, as opposed to statutes adopted
through the legislative process or regulations issued by the executive branch.
On
the other hand, Sharia courts traditionally do not rely on lawyers; plaintiffs
and defendants represent themselves. Trials are conducted solely by the judge,
and there is no jury system. There is no pre-trial discovery process, and no
cross-examination of witnesses. Unlike common law, judges verdicts do not set binding
precedents under the principle of stare decision. Common law courts tend to use
an adversarial system, in which two sides present their cases to a neutral
judge.
Even
though Malaysia considered as Muslim Country, that states Islam as the
official religion, but the matter of fact, Malaysia is a plurality country that
the important minority group are non-Muslim.
Malaysia
is a federal monarchy that has thirteen states. As seen from the historical
aspect, the appearance of Islam in Malaysian islamization process through
trading route from the Arab and the Gujarat trader.
The
Islamic role in Malaysian politic can be seen on missionary movements or
islamic Perties such as PAS, ABIM, and Darul Arqam which basically wants the
implementation of Islamic law, where the leaders of these movements give many
impacts on the Malaysian government. Furthermore, Prime Minister Mahatir
Muhammad place UMNO/government oriented on islam.
Basically,
Islamic Law in practice in Malaysia not
fully stand to all of the citizen of Malaysia. It is because of three factors:
1.
There is religious pluralism.
2.
Influences of colonialism.
3.
The influences of secularism and
globalization.
Even
though some problems are already regulated in Malaysian Islamic law, but
British Law is still adopted in most of legislations and jurisprudences. Law
Statute on Civil Law states that if there is no written law in Malaysia, then
Civil Court has to follow British customary rule or another proper law. By that
system, the existence of Islamic law is only applied in certain limited scope
related to family and religious violation. Civil court still has jurisprudence
in family law, such as case related to ownership, inheritance and also raise of
child. The civil judiciary will be appraised if there is clash between Islamic
Law with civil law.
By
viewing the reality above, Islamic Law is still not fully applied to all
citizens of Malaysia thank to the influence of British colonialism that ever
colonized Malaysia.
It seems that Islamic Law in
Malaysia still needs further scrutiny and supporting legislation to implement
Islamic Law in Malaysia effectively.
Hope this post will add your knowledge guys.
XOXO,
Lintang
