Islam arrived in Southeast Asia in the early 13th century, especially in today`s states that make up Malaysia, according to research and results from local scholars such as Ahmad Ibrahim, Syed Muhammad Naquib Al-Attas and Western jurists such as MB Hooker.  The spread of Islam took place through the spread and preaching of Islam by Arabs and Indian Muslim traders who came to trade with the Malay states. Some have claimed that it was Chinese Muslims from southern China who came to the Malay archipelago, first to trade and establish business relationships with indigenous peoples, but eventually they mixed, mixed and settled with indigenous peoples, with the result that Islam also became a way of life for indigenous peoples. When Islam became the official religion of these states, renowned Muslim scholars from the Middle East and Indian subcontinents inevitably became religious advisors and teachers to leaders, members of the royal family, and families of dignitaries. Some of them have even held important positions in the administration of these states. According to Syed Muhammad Naquib Al-Attas, Islam has radically changed the way of life, thoughts and spiritual ideas of indigenous peoples who were Buddhists and then Hindus before the advent of Islam. Some of the various important aspects or influences of Islam on the inhabitants at that time were its law and legal administration in their society. This article attempts to reveal the legal history of wakaf in Malaysia from the advent of Islam in Malaysia (formerly known as the Malaccan Sultanate, then as the Malaysia of the British Colony) to the present day. In addition, this document also seeks to study and comply with the law concerning Wakaf and the jurisdiction of the court to deal with issues relating to Wakaf in Malaysia. For the sake of clarity, the legal history of Wakaf is divided into two periods, namely the period before independence and the period after independence. The Malaysian judicial system is based on the British legal system, which is familiar to those who are common law, but it also contains different features in the form of Islamic religious courts and two separate high courts for the peninsula and for the states of Borneo. The judiciary in Malaysia can be judged on its external relations with other branches of government as well as its own internal dynamics with the various judicial systems.
The external aspect is its relationship with the other two branches of government, namely the executive and the legislative. The internal aspect concerns the relationship between civil courts and religious Sharia courts – a relationship that has raised jurisdictional issues in certain areas such as apostasy. The Federal Constitution of Malaysia was drafted at the birth of the country in 1957 and provides the framework for Malaysia`s modern legal system. The Federation of Malaysia emerged from British colonialism to gain independence on August 31, 1957, and six years later it was merged by the states of Borneo – Sabah and Sarawak – and Singapore into the new nation of Malaysia. Singapore left Malaysia in 1965 to become its own sovereign nation, and the current Federation of Malaysia includes the Peninsula, Sabah and Sarawak. Malaysia was born in a climate of multicultural compromise as a constitutional monarchy governed by secular laws. Islam has been recognized as the religion of the federation, according to Article 3 (1) of the Federal Constitution, “but other religions may be practiced in peace and harmony in any part of the federation.” A description of Brunei`s traditional government and society in the 1954 report, written by Hugh Hickling, then Deputy Attorney General in Sarawak, who was sent to report on the feasibility of introducing a first written constitution for monarchical Brunei. One.
Section 3 and 5 of the Receipt of English Law Act 1956 1. The sources of unwritten law in the Malaysian legal system are: This book is an annotated edition of the 1954 report prepared by a former Attorney General, the late Professor R. H. Hickling, which was sent to Brunei to report on the existing political culture, institutions and laws of Brunei Darussalam, so that the British Colonial Office could be well informed before drafting a new constitution. What remedies are available to the innocent party .docx. Tew, Yvonne, “The Malaysian Legal System: A History of Two Courts” (2011). Georgetown Law School publications and other works. 1922. scholarship.law.georgetown.edu/facpub/1922 Malaysia was under British sovereignty for nearly 150 years. Under British influence, it was the principle of British authority not to interfere in local customs and religious matters.
The application of the law, beliefs and customs was considered a local personal matter and, therefore, both were administered by local laws. As for muslims, Islamic law was their local law as well as the usual practice, the essence of which was in various matters of their daily lives. However, for the application of the law, since the court of the hearing was the English court, english judges had to respect ecclesiastical jurisdiction in order to interpret and understand “local law”. This has somehow led to the application of certain principles of English law in local affairs. As a result, some of the English laws were applied for the inhabitants, including Muslims, which indirectly deprived the application of Islamic law. For example, the court allows the wish of the deceased in the division of his estates, although it goes beyond a third of the estate. The wish violated the principle of the hereditary third party, in which the share of the rest of the heirs was deducted from their exact values.
Last Update : 21 กันยายน 2022