islamisation of law: the malaysian experience

Islamisation of Law: the Malaysian Experience

Assoc Prof Dr Nor Asiah Mohamad

Ahmad Ibrahim Kulliyyah of Laws, I

International Islamic University Malaysia

11/18/2019

Nor Asiah Mohamad, Guest Lecture, The Harmonisation of Malaysian Law and Islam,

18 Nov 2019, Sultan Mehmet Fatih Vakif University, Turkey

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Maps of Malaysia14 states

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Malaysia:

• Capital : Kuala Lumpur

• ASEAN country

• Commonwealth country

• OIC country

11/18/2019 3Nor Asiah Mohamad, Guest Lecture, The Harmonisation of Malaysian Law

and Islam, 18 Nov 2019, Sultan

facts malaysia turkey

Area: 329,847 sq km 770,760 sq km

Population 32 Million 80 millions

Ethnic groups Malay 50.1%, Chinese 22.6%, Indigenous 11.8%, Indian 6.7%, Non-Citizens 8.2% (2010 est.)

Ethnic divisions: Turkish 80%, Kurdish 20%

Religion Muslim 61.3%, Buddhist 19.8%, Christian 9.2%, Hindu 6.3%, traditional Chinese religions 1.3%, Other s 1.4% (2010 census)

Religions: Muslim 99% (mostly Sunni), other 1% (Christian and Jews)

Religion Muslim : 61.3%Non Muslim : 38.7%

Religions: Muslim 99% (mostly Sunni), other 1% (Christian and Jews)

Independence day 31 August 1957 29 Oct 1923

11/18/2019 4Nor Asiah Mohamad, Guest Lecture, The Harmonisation of Malaysian Law

and Islam, 18 Nov 2019, Sultan

http://www.cnn.com/2013/11/12/world/islam-fast-facts/

http://www.cnn.com/2013/11/11/world/buddhism-fast-facts/

http://www.cnn.com/2013/11/12/world/christianity-fast-facts/

http://www.cnn.com/2013/11/07/world/hinduism-fast-facts/

http://www.allaboutturkey.com/islam.htm

http://www.allaboutturkey.com/siisunni.htm

http://www.allaboutturkey.com/hristiyan.htm

http://www.allaboutturkey.com/jews.htm

http://www.allaboutturkey.com/islam.htm

http://www.allaboutturkey.com/siisunni.htm

http://www.allaboutturkey.com/hristiyan.htm

http://www.allaboutturkey.com/jews.htm

Objectives of Presentation

To share on the process of harmonisation/islamisationof Malaysian law (land laws) in Malaysia with special consideration on the needs and circumstances of the multi-cultural and multi religious and ethnicity of the

country

To recommend for amendments to the laws

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The rapid development on matters (land transactions), waqf, and Islamic banking, as well as the land acquisition, underground land, condominium laws requires a review of the existing laws;

Meeting the new expectation of

the industry

The demand for amore Shariahcompliantapproaches andapplication in allmatters includingthe laws and itsapplication hascalled for arevision of thecurrent laws;

The demand of the general

Muslim

In fact, some provisions in the laws especially on banking, contract, land and waqf have been associated with the slow development of various fields of laws.

Removing the legal obstacle

Background and justification of the Presentation and Research

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Method of research: Doctrinal and Qualitative

Methods

Discussion and

Consultation among the

Experts;

LR

Presentation of outcomes

with all stakeholders

FGD

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Objectives of Research

Objectives

To identify the related issues on law (land)

and its contemporary needs;

To identify the Islamic principles on law ( land

, land acquisition, strata, housing) which

promotes justice and in harmony with Islam;

Identify the provisions on laws relating to land which are contrary to

Islamic Principles;

Recommendation for possible harmonisation/Islamisation and their

challenges

4 Processes

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Harmonise and/or Islamise??

Hypothesis 1 – harmonise offer a better approach with the consideration of the Malaysian legal background;Hypothesis 2 – Islamicise is necessary if it is the only option -Objectives of Shariah (Maqasid al Shariah)- public interest (maslahah ammah)-sad al Zarai’ (blocking of any action that may lead to haram (prohibition)--prioritise the lowest damage or evil

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Approach:Special Committee to Study Islamisation of the Land

Related Laws

Pro-tem Committee on Legislating the new National

Land Code (1988-89).

Bank Negara Law

HarmonisationCommittee

Report 2013;

JKPTG Harmonisation

of Law Committee

Academic Experts

Committee (IIUM)

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Benchmarking - Methodology of Islamisation of Laws in Pakistan

• To find the relevant verse of Quran regarding the question in issue;

• in the absence of direct verse, look for hadith, if not try to discover the intent of the Quran or hadith,

• if not, ascertain the views of the jurists;

• Lastly, try to apply any other option which is consistent and in harmony with Qur an and Hadith..

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Preliminary discussion Involves

• What is the correct term? Islamisation,

• What is the methodology? Islamisation or harmonisation; Releventization

• The reception of the Muslims

• What are the reaction of the non Muslim to any proposal with islamisation impact;

• The approach of the government

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What is Islamisation?Al Faruqi definition

• Islamisation of modern knowledge is to recasting knowledge as Islam relates to it. He believes that to Islamize knowledge is to redefine, and reorder the data, to rethink the reasoning and relating of the data, to revaluate the conclusions, to re project the goals, and to do so in such a way as to make the disciplines enrich the vision and served the cause of Islam.

(Ismail , 1988 in Islamisation of Knowledge: A Process to overcome the crisis of Knowledge in Muslim Ummah. Nazar Ul Islam Wani , Reyaz Ahmad Gania , HamidullahMarazi and Mushtaq Ahmad Bhat, Asian Journal of Multidisciplinary Studies, Nov 2013 ).

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Abdul Aziz Berghout,2011• 1) an Islamic response to the supremacy and domination of the

western paradigms of knowledge and styles of life which somehow ignore the question of values and ethics in the body and process of knowledge creation and application;

• 2) a methodology to approach knowledge matters from an Islamic stand point;

• 3) an epistemology (theory of knowledge, sources of knowledge, a system of thinking…etc);

• 4) a framework for knowledge production and application based on the Islamic worldview and values;

• 5) a process of deposivitisation and de-materialisation of contemporary western philosophy of knowledge stressing the need for balance between science and conscience, reason and revelation and religion and politics;

• 6) renewing the theories and methods of dealing with the Qur‟an, Sunnah, Islamic heritage and contemporary western knowledge; 11/18/2019



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• 7) re-constructing the Islamic heritage showing its relevance in the contemporary milieu;

• 8) a new educational philosophy leading to an Islamic system of education laid upon the Islamic worldview;

• 9) a body of general values and virtues that need to be taught, disseminated and inculcated within the Islamic general learning environment;

• 10) a systematic activity to creating favorable environment and conditions for the development of knowledge within the Islamic frame of reference;

• 11) a process of reconciliation / harmonization between the western knowledge and Islamic principles and theories;

• 12) a process of inculcating Islamic ethical, moral and spiritual injunctions into the personality and well-being of individuals and groups;

• 13) a process of reviving the qualities of ad deen including bringing up individuals with qualities like; holistic vision, critical and analytical abilities, ethical orientation leading to the formation of new ideas in various branches of knowledge etc.

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Harmonisation

• Verb – ‘harmonise’ which means to bring one thing into harmony or in agreement with another, or to make one thing harmonious with another;

• Harmonisation is focused on the harmonisation of civil laws which in general refers to positive laws and the body of rules and Shariah which refers to the authority of both revelation as well as reason.

• Harmonisation in Arabic is tawfiq – which means to bring one thing (two or more) into harmony or agreement with another (Muhmmad Amanullah, 2005)

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The Approaches

• Putting in place the government policies;• Islamisation and harmonisation of the Laws• Islamisation of the Economic system and Banking and Insurance,

strengthening and broadening Halal Industry• Emphasising and empowering Welfare (Hajj, Waqf, Baitul Mal• Empowering Women, easing the poor and marginalized group, if

any• Increase awareness among the non Muslims• Embed some Islamic principles (fair, equitable, God consciousness,

ethics and values, custom);• Categorisation of specific laws that are applicable to Muslim and

non Muslim (Wills Act 1949 is only for non Muslim, Marriage and Divorce Act)

• Affirmative legal Action (court, fatwa committee, tribunal)

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Harmonisation in Islamic banking matters involves several approaches:

a) Dual Banking system and Moderate approach

b) Introducing of the Islamic Banking Act 1983 and Section 124 of the Banking and Financial Institutions Act 1989;

c) Amendment and Reviewing of Several Laws;

d) Coordination amongst the Authorities; and

e) Central Bank of Malaysia’s Directives;

f) Confirmation through case law (ShariahAdvisory Decision)

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Fatwa is persuasive and not binding on Shariah court

• Example of fatwa emphasizing on Islamic principles:

• On 9th October 1973 the National Council of Religious Affairs issued a fatwa that

• nominees of the funds in EPF, Post Office Savings Bank, Insurance and Co-operative

• Societies can receive the money of the testator and it has to be divided among the persons entitled to them under the Islamic law of inheritance

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Initiative in land Law

• The term “court” – include Shariah court

• The word ‘interest’ – has been deleted “penalty”

• Minimising conflict of jurisdiction

• Open for Alternative Disputes Resolution (Housing Tribunal, Strata Management Tribunal, Court Annexed Mediation, Community Mediation)

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Amendment to the Federal Constitution – Article 121A

• Old -Article 121(1) of the Constitution provided that the judicial power of the Federation shall be vested in the two High Courts of co-ordinate jurisdiction and status, namely: One in the States of Malaya and one in the States of Sabah and Sarawak. This was well thought of a provision guaranteeing the independence of the judiciary.

• Current - the High Court shall have no jurisdiction in matters fall within the jurisdiction of the Shariah court

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Section 4 (2)• (1) Nothing in this Act shall affect the past operation of, or anything done

under, any previous land law or, so far as they relate to land, the provisionsof any other law passed before the commencement of this Act: Providedthat any right, liberty, privilege, obligation or liability existing at thecommencement of this Act by virtue of any such law shall, except ashereinafter expressly provided, be subject to the provisions of this Act. (2)Except in so far as it is expressly provided to the contrary, nothing in this Actshall affect the provisions of- (a) any law for the time being in force relatingto customary tenure; (b) any law for the time being in force relating to Malayreservations or Malay holdings; (c) any law for the time being in forcerelating to mining; (d) any law for the time being in force relating tosultanate lands; (e) any law for the time being in force relating to wakaf orbait-ul-mal; (f) the Trengganu Settlement Enactment, 1356; (g) the PadiCultivators (Control of Rent and Security of Tenure) Ordinance, 1955; (h) theKelantan Land Settlement Ordinance, 1955; (i) the Land (Group SettlementAreas) Act, 1960; (j) (ia) the Perlis Land Settlement Enactment 1966; or (k)any law for the time being in force relating to exemptions from the paymentof land revenue; and, in the absence of express provision to the contrary, ifany provision of this Act is inconsistent with any provision of any such law,the latter provision shall prevail, and the former provision shall, to the extentof the inconsistency, be void.

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Section 25 of the Civil Law Act 1956

• stated that the administration of Muslim’s property shall in accordance with the Islamic law. It provides that nothing in Part VII (devolution and disposal) of this statute shall affect the disposal of any property according to Muslim law, native law and custom. This provision shows the personal law of Muslims regarding with the administration of property is Islamic law and as clearly stated in Part VII on the disposal and devolution of property.

• Section 25 gives clear provision that the principles of English Law relating with the property’s administration do not apply to Muslims who are governed by Islamic law

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18 Nov 2019, Sultan Mehmet Fatih VakifUniversity, Turkey

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Findings from Bank Negara Committee

• i. Legal recognition to Shari’ah permissibility of imposing late payment charge on judgment debts in Islamic financial cases.

• Proposal incorporated in Order 42 Rule12A of the Rules of Court 2012 Procedural laws -Rules of High Court 1980 - Rules of Court 2012

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Important areas for consideration

• Recognition of Islamic finance transactions under the National Land Code 1965: Legal recognition of Shari’ah principles to facilitate provision of Islamic finance under the National Land Code 1965.

• JKPTG has published the outcomes of the review of the National Land Code 1965.

• It was reported that the detailed proposals are currently being deliberated at an industry Task Force in consultation with BNM and the Committee Land laws - National Land Code 1965

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Earlier amendmends to Islamise land law

• Definition of courts under s 5 – to include Shariahcourts;

• Recognition of Matrimonial Properties – jointly acquired properties can be claimed before polygamy, before distribution of law of inheritance and after divorce;

• Some changes done to facilitate the recognition of waqf land within Torrens registration system (sale and charge of lease of Waqf land)

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Land is solely vested in the state authoritys. 40

To add.. “ as a Divine Trust for the proper use and enjoyment of all”

Alienation Land for public interest; to those who deserve; size of land must commensurate the ability to develop it (99 years/freehold)

Disposal of land by alienation and othersNo adverse claim, immediate and deferred indefeasibility

ihya ul mawat, tahjir,

Interest rate in land dealings and penalty Late charges penalty - the Shariah Advisory Council of National Bank (2005, 2006 and 2010) ruled that Shariah compliant financial institutions may claim such sum as it is deemed as a late payment penalty charge on judgment debts based on the combination of principles of gharamah (penalty) and ta’widh(compensation) in Islamic banking and takaful. The Shariah Advisory Council of the Securities Commission Malaysia had similarly resolved the permissibility of claiming such sums as it is deemed as ta’widh on the late repayment of Islamic financing.

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contNon recognition of customary security transaction

Jual janji based on bay’ al wafa

Contract and agreement Aqad

No clear provision to exempt or govern waqflaws

Dedicate a chapter or exempt waqf land from some of rules that defeat the inalienabilty of waqf land

Idle land No implementation of rules for leaving land idle

Tax No tax for residential property – Al Kharaj Abu Ubayd

Securities transaction Recognition of Islamic finance products in the NLC and extend some remedies for default by the debtors in the NLC

Definitions and Instrument Provides definitions and review of Forms –interest rate, (housing and strata)11/18/2019



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The Priorities

• To change only the law, customs or practices that are either contrary to the express dictate of Allah or contravene the principles embodied therein;

• Not all legal changes necessary for some improvement;

• Improvement should also be made via other means

• Land matters and jurisdictions are in the hand of politicians;

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The challenges

• Awareness and education• Specialist Initiative• Government Commitment• Misunderstanding or rather denial state among the

non Muslims still exist.• Some of them believes that Islamisation of every

conceivable law to the detriment of multi-racial and multi-racial harmony. (when the party involves Muslim and non Muslim)

• Legal Amendment/Process are slow and painstaking• A journey of 100 miles begins with One Step….

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Recommendation

• Harmonisation or Shariah Committee to be established at all levels. Land Shariah Committee was established under the Ministry of Land and Natural Resources, AG and Depertment of Islam (JAKIM) to continuously address issues on Islamisation involving land matters;

• Syllabus on Islamisation of the NLC must be taught in all higher learning institutions as it encompass effort for islamisation of other areas;

• Shariah Index must be prepared and implemented to ensure a comprehensive action taking place at all agencies and industries

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The End

Q & A

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islamisation of law: the malaysian experience

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