Malaysian Islamic Legal System

Maqasid Shariah
The question above requires a discussion on Maqasid Shariah.
Shariah is the name given to the whole system of Islamic Law which also is
the totality of Allah’s commandment. It highest objectives is the Maqasid
Shariah, where its laws are designed to protect the Muslim’s and facilitate
improvement and perfection on their life and the life here-after. It can be further
classified into essentials (daruriyyat), the complementary (hajiyyat) and
embellishments (tahsiniyyat).
Thus, the issue arises in this question is, whether the (issue in question) is in
line with the Maqasid Syariah.
For the first objective, Essentials (daruriyyat), it can be further divided into
five fundamental values which are necessary to human life and must be protected
at all cost to prevent chaos (fasad) in life on earth or here-after. They are:
1. PROTECTION OF AL-DIN (RELIGION).
According to Surah Al-Imran:19, Islam is the religion before Allah, making it
a must for every Muslim to protect it at all cost. Besides, it is also essential
because Muslim are taught to live as a khalifah in this world while worshipping
Allah regardless of the conditions.
By saying at all cost, protection of religion can be done in two levels;
(personal level): religion is protected through performing all kinds of ibadah.
Performance of these ibadah will act as a shield to prevent a person from
committing sins or becoming an apostate. This can be read in the
 Surah al-Ankabut (29):“… prayer prohibits immorality and wrongdoing
and the remembrance of Allah is greater and Allah knows that which you
do.”
 Surah al-Ankabut: “… and perform al-salat. Verily, al-salat prevents
from al-fahsha and al-munkar.”
(wider scope): It involves defending Muslim countries and their sovereignties
from enemy of Islam. As a Muslim, we should respect the non-Muslim
community as long as they are willing to respect us, but we should not be bold in
letting them decides on how we should deal in our Muslim community. The
moment they create barriers in our life as Muslim, they became the enemy that
should be fought in the name of Allah. As seen in,

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 surah Al-Baqarah 2:190; “And fight in the Way of Allah those who fight
you, but transgress not the limits. Truly, Allah likes not the transgressors.
In conclusion, Allah obligated Muslim to protect religion, to ease the means of
practicing it. Thus, it must be defended from everything that leads to disobedience
and disbelieving. In ways that each guilty must be stop and lawful punishments
must be performed in line with Islamic law.
2. PROTECTION OF LIFE (AL-NAFS)
Life is the most wonderful and spectacular gift from Allah to every being on earth,
along with it, Allah also has also entrusted His people with equal rights to life.
With that, no one could take the life of others in an unjustly way.
This was emphasis in the Quran,
 Surah al-Isra: 33, “And do not kill anyone which Allah has forbidden,
except for a just cause. …”
Besides, killing unjustly will cause you troubles in the world hereafter. As stated
by Prophet Muhammad S.A.W in a hadith, “When two Muslims meet with their
sword, fighting with each other in anguish, both of them will be in the hell fire.”
Above all, the ultimate life that Allah forbids aggression upon is the person’s own
life. Thus, a Muslim who committed suicide or self-inflicted harm will be
subjected to grave and harsh penalties. This can be seen in a Hadith by Prophet
Muhammad (PBUH); “Whosoever jump from a mountain, drinks poison (with
the intention of killing him/herself) will be in the Hellfire forever. Whosoever
kills him/herself with a piece of iron, he will continuously do the same to
him/herself in the hereafter, while he/she in the Hellfire and remain forever.”
In conclusion, every breath is a gem and the best present from Allah to us. How
we obtain and preserves life is the same for everyone. As so, protecting others’
life as well as our own life at all cost is equally important and obligatory, after all
it is Allah’s command.
3. PROTECTION OF AL-‘IRD (DIGNITY OR LINEAGE)
Dignity is important for everyone. It portrays yourself to others and obviously
good dignity prevails better than the otherwise. The same goes for lineage as good
lineage will prevent problems in your future generation. Thus, in a Muslim’s life,
dignity and lineage must be protected.

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To protect lineage marriages must be done lawfully as according to shariat. As if

it is not, their children will bear the “out of wedlock child” status for all his life.
With this, how can the lineage be pure? It will definitely be a problem for the
child as when they want to be solemnized with their father as their wali.
To protect dignity includes not to accuse others of misbehaviours plus by
ensuring that the relationship between males and females are done in the
respectful and responsible way.
Accusing falsely is a sin. Especially when you are accusing without any valid
evidences. This was illustrated in Quran, Surah Al-Nur:4, each accusation must
be supported with evidences otherwise they will be punished with 80 lashes for
false accusation. Besides, Allah’s curse will be upon them as seen in the same
surah verse 23, (Surah al-nur:23).
Only married couple are allowed to touch each other out of love. Touching before
marriage is committing adultery and it will destroy your dignity.
This is supported by the hadith saying it is better for those who have the desires
to get married, to do so quickly and for those who are unable to do so, he shall
fast as it is a protection for him. Such prohibition will prevent one from
committing adultery.
Besides, in surah al-nur: 2, Allah says that unmarried couple who commits
adultery will be punished with 100 lashes. As for the punishment of married
person who commits adultery is being stoned to death as seen in the Hadith by
Prophet Muhammad SAW.
On virtue of this, women are advised to cover up their aurah as by covering up
their aurah, it will allow them to be respected as well as prevent lust and
eventually protect one’s dignity. It is also logic to say that once your dignity is
tarnished, no one would want to marry you which eventually will affect your
lineage too.
In conclusion, one’s lineage and dignity are part of the daruriyyah and their
protection is one of the prime Maqasid Shariah.
4. PROTECTION OF THE INTELLECT OF MIND (al-aql)
Intellect is one of the next greatest thing Allah had created after life. It is intellect
that distinguish us from the animals and also gives us the ability to think rationally

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as in the Quran Allah S.W.T, constantly asks us to think and ponder about His
creation.
In Islam, freedom of expression is given to its followers which enable the usage
of intellect to its fullest. However, such right must be in line with the Quran and
Sunnah. This lead to the formation of ijtihad which is an independent reasoning.
It allows the solving of problems which the Quran and Sunnah is silent about.
To protect intellect, one must not consume anything that can harm the ability and
function of the brain. This includes the consumption of liquor or any similar
substance that will disturb the brain’s function.
The evidence can be seen in Surah al-ma’idah:90, where it commands people
to avoid any form of intoxicants, gambling, al-ansab and al azlam as they are
the work of Satan. Avoiding them will grant you your success.
The punishment agree by the scholars for drinking liquor is 80 lashes. This was
provided in the hadith, which says that when Abdul al-Rahman b. Auf was
asked about the possible amount of lashing for those who drink liquor. He
answered it to be the mildest punishment which leads Umar to fix the lashes as
80 stripes.
The principle for any consumption of similar effect as liquor in the future shall
be the same through Qiyas an analogical deduction.
In conclusion, in order to protect intellect, Islam also encourage education and
seeking knowledge. It is also a basic right of a human being to be educated
regardless of gender.
5. PROTECTION OF AL-MAL (PROPERTY)
In Islam, every property exists on earth or beyond is Allah’s. He elects us as the
rightful guardian to take care of His property, so that we can use them moderately.
Thus, acquiring property is one of the necessities of mankind and shall be equal
to everyone either in the sense of acquiring or protection to it. It is constantly
repeated in the Quran, that no one shall transgress and acquire other’s property
without legitimate reason or contract.
It was supported by the Surah al-baqarah: 188 of the Quran, it was stated that
“and eat up not another’s property unjustly. Nor give bribery to the rulers that
you may knowingly eat up a part of the property of others sinfully.”

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The shariah prohibits the act of acquiring other’s property illegitimately such as
riba, cheating in transaction and any other means as it was provided in Surah an-
nisa: 10 that those who unjustly take the orphans’ property will be put in the
hell fire.
One of the punishment for such sin is that chopping their hand for those who were
convicted for stealing as seen in Surah al-maidah: 38, “cut off the hand of the
hand of the thief, male or female, as a recompense for that which they
committed, a punishment by way of example from Allah. and Allah is All
Powerful, All Wise.”
In conclusion, a Muslim as the guardian of Allah’s property must always protect
it. Therefore, he must acquire property as prescribed by Allah and not by unlawful
methods.
After the Essentials (daruriyyat) is fulfilled then there is the
complementary (hajiyyat). In complementary (hajiyyat), one has the right to
simplify one’s life. For example, in Islam, one has the right to shorten his prayers
while on a journey. After ease in life is achieved then there is embellishments
(tahsiniyyat); which is enjoying the luxuries in life like wearing good clothes and
eating good food.
THE APPLICATION OF MAQASID SHARIAH ON CONTEMPORARY
ISSUE.
The question above requires a discussion on the application of Maqasid Shariah
on Transgenderism. Thus, the issue arises in this question is, whether
transgenderism is in line with the Maqasid Syariah and is allowed under
Islam.
Scientifically, Transgender refers to the people who has gender identity or gender
expression that differs from their assigned sex. One will be known as transsexual
if he desires medical assistance to transit from one sex to another.
According to The American Psychological Association, transgender
individuals are the people whose gender identity, gender expression or behaviour
differs from birth sex. For instance, the famous ex-athlete Bruce Jenner who often
regard himself as a woman trapped in a man figure. He is known today to had
undergo sex-transition surgery to be a woman and was known as Caitlyn Jenner.
As in Al-quran, transgender is known as Mukhannathun, (effeminate ones,
men who resemble women') refer to men who were perceived as effeminate.

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Thus, the Islamic jurisprudence listed out 4 groups of human beings; male,
female, Khunsa (hermaphrodites), and mukhannis (males whose behaviour is
closely aligned to women’s behaviour) or mukhannasn (an effeminate male who
does want to change his sex).
Under Maqasid Shariah, a discussion on protection of religion, life and
dignity/lineage are necessary based on point whether it is permitted or prohibited.
Firstly, protection of religion.
 The Selangor fatwa committee decided that conversion of sex is clearly
contrary to Islam as Allah Forbade His servants to change His creation.
The National Fatwa Committee Muzakarah also decided that even if a
man or woman had undergone a sex-transition surgery, he or she will still
be bounded with their naturally born sex. And that a sex change is illegal
in term of syara. In virtue of Surah Al-Imran:19 read together with the
above fatwas, transgenderism is against the protection of Al-din as it falls
under the forbidden act of the teaching in Quran.
 Besides, in hadith narrated by ibn ‘abbas RA’ stated that the prophet
cursed effeminate men and those women who assume the similitude
(manners) of men. In other words, Prophet Muhammad cursed those man
who resembles woman and his figure changed so much that he is in nature
does not look like a man anymore. In this case, transgender is disgusted by
Prophet Muhammad which implied that it is against the Islam thus making
it not parallel to maqasid shariah. Insisting on doing it will cause you hell-
fire.
Secondly, protection of Life.
 As life is essential and valuable to us which was given by God, it must be
protected in all circumstances. In this issue, transgenderism encourages
transgenders to do Sex Reassignment Surgery which is risky that may
cause death.
 In surah Al-Baqarah :195 provides;” “And spend of your substance in
the cause of Allah, and make not your own hands contribute to (your)
destruction; but do good; for Allah loveth those who do good.”
 In light of the above surah, transgender may cause destruction to one’s life.
Thus, definitely it is prohibited in Islam. As the surah provides, Allah loves
those who do good and good include not to destroy your life.

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Lastly, the protection of lineage/dignity.

 Dignity and lineage are important for everyone. Transgenderism is against
the protection of dignity as it can damage one's reputation when they
change their gender. Their dignity is tarnished in a way that the public will
regard them as immoral or sinner as sex transition is against religion and
the norm of the society.
 The Selangor fatwa committee decided that the marriage of transsexuals
after sex changed is calculated illegal as contrary to Islamic law. Since
Islam concern a lot on the lineage, transgenderism is not allowed.
 In conclusion, transgender is not in line with the Maqasid syariah as it
against the protection of religion, life and dignity or lineage. Thus, not
allowed in Islam.
In conclusion, transgenderism is prohibited in Islam as it is not in line with the
Maqasid Shariah.
PRIMARY SOURCES
QURAN is derived from the root word of qa ra’ a which literally means reading
or recitation. As in technical term, book containing the words of Allah
revealed bto Prophet Muhammad in Arabic and transmitted to us by
continuous testimony or tawatur.
The distinctive features of Quran include,
It is the actual word of Allah.
This can be seen in Surah Al-Shuara: 192-194, Quran is a revelation from Allah
which was brought down to Prophet Muhammad by Gabriel, in the plain Arabic
language. It was stated that Prophet Muhammad was only the messenger of
Allah’s words to mankind. Thus, every word He includes in the Quran are His
expression which was inspired by Allah. Not his merely words.
The quran was revealed in Arabic language.
The Quran says in Surah al-shuara;195, Quran was revealed in the plain Arabic
language. This is the language chosen by Allah Himself and is a sacred language.
Thus, any translation on a Quran made in other languages will invalidate its ruling
in term of its purity. For instance, the requirement that one must be pure from the
major and minor impurities before touching Quran.

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Quran was transmitted with continuous testament. There is a consensus of

jurists that the entire corpus of Quran is tawatur which means universally
accepted testimony. The evident was seen from the transmission made by Prophet
Muhammad to the next generation which is a large number of people and most of
them agreed to His teachings. Thus, making it impossible to assume that they had
been lying.
The Quran is complete and comprehensive.
In the sense that it covers all aspects of a man’s life. For instance, the moral,
belief, law and jurisprudence also the relationship between female and male.
As seen in Surah Al-Nahl;89, they have sent down to mankind the Quran as an
exposition of everything, a guidance, mercy and glad tidings for those who
submitted themselves to Allah SWT.
This clearly show that Quran covers all aspects of life.
Quran is a miracle revealed to Prophet Muhammad for all succeeding
generations.
Miracle here refers to any act of living beings who’s trying to create something
similar as Quran, but will never be able to do so. As in Surah Al-Isra:88, even
if the whole mankind and jinn work together to produce something similar to
Quran, they will not be managed to do so. The Quran itself is one of a kind as it
consists of linguistic excellence, narration of events which took place centuries
ago and accurate prediction of future events such as the conquest of Makkah and
the eventual defeat of Persians by Roman Empire. Not to forget its scientific
discoveries such as the development of embryo. It has everything Human ever
need to know or even those they cannot yet foresee but imagine of.
SUNNAH is the second primary source of Islamic Law. Whereby, at time the
Quran is silent on a matter, the sunnah will prevails. Sunnah in its literal meaning
is a clear path or a beaten track. As in technical meaning, it refers to the actions,
sayings and whatever Prophet Muhammad had tacitly approved. Excluding his
description of physical features.
As Surah al-najm:3-4, mentioned that whatever originated from Prophet
Muhammad does not come from his own desire but was inspired by Allah. Thus,
Sunnah is important also as part of the primary source although its important is
not equal to Quran. Besides, Surah al-hasyr: 7, Quran commands the believers
to follow Sunnah. The roles of Sunnah are;

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Reemphasis and restate the injunctions of Quran

Particularly, injunction in Islam is based on 2 authorities and derived form 2
sources. This indicates that such particular injunction is established by the Quran
and supported by the sunnah. For instance, surah al-nisa:29 was emphasized by
sunnah. It is about the injunction relating to the prohibition of taking other’s
property without his consent.
Sunnah explains and elaborates the concise injunctions of Quran.
An example can be seen in the matter of quantity and amount of zakat which
Quran is silence about. The holy Quran only says in surah al-baqarah;110, to
perform salat and give zakat, but not stating its exact amount to be given. Thus,
the sunnah provides the latter. The same goes to manner of fasting and prayer.
These are mentioned in Quran but was never told on its method to perform. Thus,
sunnah was used by referring to the act of Prophet Muhammad.
The sunnah qualified the unqualified verses of Quran.
In a way that it provides the further clarification of the amount for stolen property
which is punishable with the punishment mentioned in Surah al-maidah: 38,
whereby it says, the punishment for any male or female thieves is their right hand
should be cut off from the wrist to joint. As in the sunnah, Prophet Muhammad
said “the hand of a thief should be cut off for stealing a quarter of a dinar.”

The sunnah also specify the general injunctions of quran.

An example can be seen in an injunction related to the prohibition of dead
animals. Whereby, originally in Surah al-maidah:3, it was forbidden for
Muslims to eat dead animals.This was later specified in Prophet Muhammad’s
Hadith: any animals in pure water, even if they are dead are still eatable as they
are halal.
SECONDARY SOURCES
SADD AL-DHARA’I, in its literal meaning is blocking the means of obtaining
a certain end. Thus, it indicates the act of blocking the means to an expected end
which is likely to materialise if such a means is not blocked. What it meant by
“means” is the evil deeds. Al-Qarafi defined Sadd al-dhara’I as closing down the
means of evil in order to prevent it.

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Sadd Al-Dhara’I can be classified into 4 categories by the scholars, they are;
Means which definitely leads to evil.
 It is basically referring to any evil act which has the tendency to cause
injury on others, this act/means is equally forbidden. For instances, digging
a deep pit on a public path which is not lit at night. Anyone who passes the
path is more likely to fall into it
 The consensus was made among the scholars that the above example is an
unlawful act of transgression in which the preparator is responsible for all
loss suffered.
 However, in cases like where the means is lawful, the scholars have
disagreed over the question of responsibility.
 For instance, when a person did some pilling works on his own land, but
since the place he was doing the pilling was so near with his neighbour’s
compound, the neighbour’s property was damage. The person’s act is
lawful as he did the work within his right. Hence, not responsible but, he
may still be liable for certain damages.
The one is more likely to lead into evil and is rarely toward benefit.
 For instances, the selling of weapons at the time of war or selling grapes to
a wine maker. The Al-Shatibi mentioned such transactions are forbidden,
so do the Maliki and Hanbali scholars.
 However, according to Badran and Abu Zahrah, only Maliki and Hanbali
scholars think so. Not the others.
 Another example is the free missing of male and female. Islam has put limit
toward this by listing out the ethics which must be followed. This to
prevent adultery which is a greater sin.
The one that often leads into evil, although this is not always the case.
 For instance, the usage of credit cards for those who are certain of not being
able to repay it at the due date. This will lead to debt and eventually harm
to the person. However, this may not all be the case for anyone who are
certain of paying the credited amount taken on time.
 the Malikis and Hanbalis held the opinion that the means which is likely to
lead to harm is haram and must be hindered.
 But Abu Hanifah and Shafi’I ruled that unless it definitely leads to evil, the
basic legality of the action must be helps to prevail.

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The one which is likely will lead to benefit rather than evil.
 For instance, the usage of many current equipment such as computers. in
this case the computer may be used to gain benefit or otherwise to commit
evil. This refer to a mere possibility of evil which overlooked due to the
stronger likelihood of benefit that it offers.
 The scholars are generally agreed on the appreciation of this type of means.
THE PROCEDURE OF CONVERSION INTO ISLAM
In Malaysia, there are many series of event pertaining to one conversion into
Islam every single day. It was entrenched in Article 11of the Federal
Constitution that every person has the right to profess and to practise his religion
and propagate it. However, such practise is restricted to certain limitation such as
the propagation of other religions to Muslims.
Every state in Malaysia established its own principle on the matter of conversion.
Therefore, all state Enactments including the Federal Constitution has express
provisions giving the Syariah court the jurisdiction to deal with cases of
conversion into Islam.
It must be known that the jurisdiction for such matter is under the power of
Syariah court. This is seen in Article 121(1A) of the Federal Constitution,
where it limits the civil courts from interfering within the scopes of jurisdiction
in Syariah court which is Islamic matter.
The procedure of converting into Islam were listed out in the Administration of
Islamic Law (Federal Territories) Act 1993.
Firstly, in order for someone to convert into Islam, he must be competent.
This was stipulated in Section 95(a)(b) of the said act above. This section
emphasized on the capacity to convert. It says a non-Muslim may convert into
Islam if he is,
 Of sound mind
 Attained 18 years old
 If he is below 18 years old, his parent or guardian consents to his
conversion.
Once he has fulfilled the above, he must meet certain requirements too, to
render his conversion valid. As seen in section 85(1)(a)(b)(c) stated the
requirements for conversion. This section must be read together with section 86,

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where it says that once section 85 has been fulfilled, he shall be referred to as a
Muallaf.
Section 85 says, a valid conversion contains the following requirements:
 The person must utter in reasonably the intelligible Arabic the 2 clauses of
the affirmation of Faith.
 At the time of uttering them, he must aware of its meaning: “I bear witness
that there is no god but Allah and I bear witness that Prophet Muhammad
is the Hid Messenger.”
 The utterance must be made of the person’s own free will.
Next, after the person has been successfully fulfil the requirement in section
85 and also is within the capacity mentioned in section 95(a)(b), he shall be
made as a register of muallafs by the registrar.
The appointment of registrar of muallafs is provided in section 88 whereby he
shall be appointed by the majlis to maintain a register of muallafs.
The registration of muallafs is stipulated in section 89 whereby, the person who
has converted to islam may apply to registrar of muallafs in the prescribed form
as a muallaf. The registrar shall determine and chip in the date of his conversion
into the register of muallafs. And the registrar may make enquiries and call for
evidence if he thinks necessary or even ask the applicant to utter the 2 clauses of
the Affirmation of Faith in his presence if he is not satisfied that the requirements
of section 85 have been fulfilled.
Lastly, section 90(1)(2), whereby the registrar shall after the conversion
has been registered, they be given with a certificate of conversion. The certificate
shall be conclusive proof of the facts stated therein.
Section 92 provides a way to determine if ever question arise as whether non-
registered person is a Muallaf or not, that questions shall be decided by the merits
of the case in accordance with section 85.
Which court shall here the case of conversion into Islam?
In the case of Kaliammal a/p Sinnasamy v. Pengarah Jabatan Agama Islam,
whereby the applicant prays for several declarations that include:
 A declaration that the applicant is a valid wife to Moorthy a/l Maniani
(deceased) until the date of his death on 20 December 2005.

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 A declaration that the deceased is a Hindu and follows the custom and
Hindu religion before death.
 A declaration that all documents of conversion of the deceased to the
Islamic religion is not valid in the eyes of law and is cancelled.
The issue arises in this case is whether Moorthy’s conversion to Islam is valid
in the eyes of law. In this case, there was an order by the Syariah Court which
clearly decided that on 22 December 2005 the deceased (Moorthy) was a Muslim
and his name was Mohamad bin Abdullah (in contrast with the case of Ng Wan
Chan). The civil court does not have any jurisdiction to determine the deceased
conversion to Islam and cannot review as the Syariah Court has the right
jurisdiction under Article 121(1A) of the Federal Constitution.
What if the conversion is by infants to Islam? What will the procedure be?
As again under section 95(a)(b) Administration of Islamic Law (Federal
Territories) Act 1993, for anyone who is below 18 but wish to be a Muslim, shall
first seek for his parents’ consent for his conversion.
Thus, in light of the above, any conversion to Islam of infants without the consent
from both parents regarding the conversion would be void ab initio.
In Malaysia, such event had been seen occurred in many cases. One of them is
the case of Teoh Eng Huat v Kadhi Pasir Mas, whereby a 17-year-old and 8
months Buddhist girl was converted to Islam under her own free will. However,
the conversion was not within her parents’ consent. Once the father knew about
his daughter’s conversion, he applied for a declaration that, as her father and
guardian, he had the right to decide her religion, education and upbringing in life.
Thus, he claimed her conversion was invalid. The issue arises is Whether a non-
Muslim minor can convert to Islam without the consent of the parent’s
consent? Initially, the High court ruled that the father’s right to decide her
religion is allowed subject to the condition that it does not conflict with the
principles of the infant’s choice of religion guaranteed to her under the FC.
Having said that, the daughter has a right to choose her own religion if she does
it on her own free will. However, she was absent during this time where she was
required to testify whether she had voluntarily become Muslim or not. Then, the
supreme court in appeal ruled that no infant shall have the automatic right to
convert oneself from his current faith without the permission of his parents or
guardian. In the end, the Supreme court dismissed the father’s claim for

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declaration as his daughter who had attained the age of majority rendering her as
above 18, had decided to embrace Islam.
From the above case, despite the squashing of the father’s claim, we should
emphasize on the fact that the supreme court did acknowledged the important of
the parent’s consent in regard of their child conversion into any religion.

The same approach was seen applied in a more recent case Pathnamathan a/l
Krishnan v Indera Ghandi. In this case, a couple was married under the LRA.
Soon after the marriage, the husband converted to Islam and got full custody for
all the three children of the marriage. He converted all of them to Islam and they
were given the certificates of their conversion as Muslim by the registrar Muallaf.
The wife at the time of knowing her children had been converted claimed that
those certificates are null and void as they were converted without her consent.

Apparently, the court held that the certificates are valid pursuant to article 12(4)
of FC which indicates that a unliteral conversion of child is allowed. This was
also the case in Subashini a/p Rajasingam v Saravanan a/l Thangathoray.
However, in the case of Indira, the court held that the consent of both parents
(father and mother) is required.

In conclusion, any children who ought to convert into another religion shall get
his parent’s consent first, only then he can proceed to the next level. As in the
context of Islam, once he receives such consent, he then had complied with
section 95 of the Administration of Islamic Law (Federal Territories) Act 1993.
Thus, next procedure will be the same as the adults.

THE PROCEDURE OF CONVERSION OUT OF ISLAM

The procedure for a person to convert into Muslim has been clearly established
under the law. However, the case is not the same for the procedure of converting
out from Islam. Whereby, there is path to leave, but the path is far from easy.
Department of Syariah Judiciary Malaysia (JKSM) says that there are 2 types of
switching religious status from Islam to other. Firstly, is the renunciation of Islam
which includes any practising Muslims regardless of ethnicity who want to
renounce Islam and convert to other faith. Although it exists, no official
application of it ever happen yet.

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The second type consider three types of applicants; whereby they request for a
declaration that one is no longer a Muslim.
1. Them who is mistakenly listed as Muslims due to name convention.
2. Them who embraced Islam, but now wish to revert back to his original
faith. This usually occur among people who become muallaf after marrying
a Muslim and want to renounce after the marriage fails.
3. The non-practising Muslims who want to be recognised as Non-Muslim
(also includes them who born Muslim)
The procedure either to renounce Islam or to declare one is not a Muslim anymore
is the same. However so, this procedure can only be found in Negeri Sembilan.
The Administration of the Religion of Islam (Negri Sembilan) Enactment
2003 states that counselling sessions should not exceed 90 days should be given
to those wish to renounce Islam but also allows the Shariah court to order a further
counselling session not exceeding a year if it believed “there is still hope that the
person may repent”. The reconciliation committee will submit a report to the
Shariah court, with a repentant applicant then resulting in the case being either
struck out by the courts or being withdrawn on the request of the state religious
council or the applicant himself. But if counselling is unsuccessful, the court will
hear evidence from both sides before deciding whether to allow or dismiss the
application. There is “no penalty” and no mandatory counselling session if the
Shariah court rejects the application, while applicants also have the right to
appeal.

Which court has the jurisdiction to hear matter of apostasy?

In Malaysia, the Syariah court has the exclusive jurisdiction to adjudicate cases
of apostasy. This was first set out in the case of Dalip Kaur V Pegawai Polis
Bukit Mertajam. The case is about a mother who sought declaration at High
Court Penang that his deceased son who had become a Muallaf to marry a Muslim
girl as not a Muslim at the time of his death and had in fact been rebaptise into
Sikhism. Relying on the fatwa issued by the Fatwa Committee of the Kedah
State Islamic Religious Council, the supreme court held that a Muslim who
renounced Islam by a deed poll or who went through baptism ceremony to
reconvert to Sikhism continued to remain in Islam until a declaration had been
made in a Syariah Court that he was a ''murtad'' (apostate).
The court found that the fatwa clearly showed that only a Syariah Court had the
exclusive jurisdiction to determine whether or not a person had ceased to be a

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Muslim. In accordance with the fatwa, the appellant was still a Muslim. Whether
or not his conversion was invalid was a matter for the Syariah Court to determine
in accordance with the Syariah laws.
The principle was applied in the case of Soon Singh a/l Bakar Singh v
Pertubuhan Kebajikan Islam (Perkim) Kedah & Anor. In this case, Soon
Singh was born as a sikh, but at the age of 18-year-old, converted to Islam under
the name of Salman Abdullah without his parents’ consents. Subsequently, when
he reached 21-year-old, he reverts back to Sikhism and had hereby renounced
Islam. He then, executed a deed poll in which he declared that he was a sikh and
had abandoned the name Salman Abdullah. However, his declaration was
rejected. The federal court ruled that the question of conversion as minor is not
relevant as 4 years had elapsed between the time of his conversion to Islam and
the time of his purported reconversion to Sikhism, yet he did nothing to
challenged his conversion to Islam as a Minor invalid. Thus, it was clear that his
conversion was made voluntarily. Hence, his conversion was lawful and any
application of renouncing as in the case of Dalip Kaur, fall within the Syariah
Courts.
The same approach was given to the case of Lina Joy v Majlis Agma Wilayah
Persekutuan & Yang Lain, where Lina is a born Muslim who sought to statutory
declaration at the NRD to change her name to Lina Lelani but, was rejected on
ground that NRD could not do so without proper order from Syariah Court as it
is a matter of renunciation of Islam. Devastated by it, Lina refused to go to
Syariah Court on ground that she is no longer govern by the court as she is not a
Muslim. Hence, she brought the case to Civil court. Whereby, the Federal Court
ruled that in order for her to renounce Islam, she must do so through the proper
procedure of conversion out of Islam under the Islamic law. Only after she had
done so and it was satisfied, she can embrace Christianity.
In this case however, she failed to go through the proper procedure: getting a
green light from Syariah court that she is ok to renounce Islam. Since, matter of
apostasy was still within the Syariah Court, so she is in fact still under the
jurisdiction of Syariah Court. Hence, failed in her renunciation.
Differ to the case of Fatimah Tan Abdullah@Tan Abdullah v Majlis Agama
Islam Pulau Pinang, whereby her declaration of apostasy is allowed as she had
undergone the proper procedure of renunciation Islam. She is a Muslim who had
never practised Islamic teachings since her conversion date and that she was

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never convinced by the Muslim teaching and only converted to Islam for her
marriage with a Muslim man.
She applied for the renunciation after being left alone by her husband. Pursuant
to the above reasons, the Syariah court allowed the application. This pave a
brighter way that matter of conversion out of Islam is within the jurisdiction of
Syariah court.
What are the punishment shall be given to those converted out of Islam?
Apostasy is abandonment or renunciation of Islam. According to Syariah law, the
act of changing religion or leaving Islam is a grave offence and is included in the
category of a hudud crime. The hudud principle requires anyone who seek to
renunciate Islam and refuses to repent, is punishable by death as seen in surah
al-baqarah, 2:217.
In Malaysia, legal provisions regarding the offence of attempting to abandon
Islam or apostasy are included in State Enactments. And so far, only 2 states in
Malaysia, Kelantan and Terengganu had made a provision for the death penalty
for apostasy.
These two states use the words apostasy or irtidad for the act of leaving Islam,
whereas the other states use the phrase ‘conversion out of Islam.’
However, legal limitations on the state’s jurisdiction have resulted in the hudud
sentence enshrined in Islamic hudud to be reduced to takzir.
Another issue arises as whether an apostate Muslim be sentenced under the
Syariah law?
Since Syariah courts only govern Muslims and Islamic matters, it is irrelevant for
them to entertain any cases of non-Muslims. This is what happen in the case of
Kamariah Ali & Yang Lain v. Kerajaan Negeri Kelantan & Satu Lagi. In
this case, the appellants were convicted for an offence against the Syarak and was
sentenced to 2 years in prison. Apparently, in their appeal, the court affirmed the
conviction but instead of prison sentence they were released on bail where they
need to be in good behaviour for 3-5 years :(utter their repentance to District
Qhadi’s office every month). However, they failed to so when they suddenly in
1998 made a statutory declaration that had renounce Islam. This lead to their
arrestment and being convicted into 3 years imprisonment by the Syariah court
in 2000. The issue arises whether the appellants must be Muslims when they were
sentenced in 2009? The court held, notwithstanding their claim to no longer being

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Muslims, the material time for determining the question of jurisdiction was the
time when the offence was committed and at that time the appellants were
Muslim. Thus, the conviction was lawful.

The court of ethic of Syariah Lawyer

There is not much different between the Shariah Lawyer and the civil lawyer. It
just that the responsibility bears by Syariah lawyer is bigger rather than civil
lawyer, mostly because he exercised his work based on Allah’s words.

The words ethics is derived from the Greek word ethos, which means character.
It represents a wide meaning of character, behaviour or code of conducts.On the
other hand, legal ethics specifically refers to principles of conduct governing an
individual or a profession. In Islam the word ethic is synonym with the term adab
and khuluq. These two terms denote good behaviour or a standard of conduct to
be observed in social interactions.

Lawyers must be honest and competent in order to ensure that judges are able to
deal with the cases that come before them justly. Lawyers may find guidance of
their duties to be honest and to establish justice as enjoined by the holy al-Quran.
In surah al-Nisa verse 58 Allah says: “Allah commands you to fulfill your
trusts to those to whom they are due and when you judge between man and
man that you judge with justice, verily how excellent is the teaching which
Allah gives you for Allah is He who hears and sees all things”. In this verse,
justice is Allah’s attribute and to stand firm for justice is to be witness to Him,
even if it is detrimental to our own interests or to the interest of those who are
near and dear to us. Profession of lawyers had already existed since the early
period of Islam although it was not formally or specifically called as lawyers or
solicitors or barristers. Saidina Ali ibn Abi Talib was known as one of the best
legal representatives amongst the companions. For instance, in case of zina
(adultery) where a pregnant woman who had been married confessed that she has
committed zina and asked Caliph Umar to stone her to death. Ali has investigated
and proven that the pregnant woman was unwillingly to have sexual intercourse
with a man in a state of extreme hunger and thirsty. Caliph Umar accepted view
of Ali and freed the woman. Although there is no formal legal profession during
the early stage of Islam but historical evidence in many literatures provide
indication of the existence of such profession. During the Abbasids Empire the

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lawyer’s profession is formally recognized where judges normally requested the

disputed parties to be represented by a learned person in Islamic law.
Islam mentions clearly one of the basic ethical principles of the lawyers in
the famous hadith narrated by Ummu Salama where the Prophet said: “The
Prophet said, "I am only a human being, and you people have disputes. May
be someone amongst you can present his case in a more eloquent and
convincing manner than the other, and I give my judgment in his favor
according to what I hear. Beware! If ever I give (by error) somebody
something of his brother's right then he should not take it as I have only,
given him a piece of Fire” This hadith lays down the principles of advocacy in
court whereby a judge heavily relies on the arguments and submission made by
the disputed parties or their representatives. In this aspect, lawyers must be
truthful and honest in conducting cases in court both by argument and as well as
the manner of bringing out the evidence.

Section 59(1) of the administration of Islamic law (FT) Act 1993, stated that
anyone having sufficient knowledge of Islamic Law may become peguam syarie
to represent in any proceedings before the Syariah Courts.

Section 59(4) on the other hand says that unless provided otherwise in any other
written law, no person shall appear in any Syariah on behalf of any party in
dispute, but the peguam syarie.

The qualifications of peguam syarie as stated in rule 10 of the peguam syarie

rules (FT) 1993 are,
a) He is a Muslim who had passed the final examinations which leads to the
certificate of a bachelor’s degree in Syariah from any university or any
Islamic educational institution recognised by the government of Malaysia,
also is a Muslim member of the judicial and legal service of federation, he
is a Muslim advocate and solicitor enrolled under the legal profession act
1976 or is a Syariah judge/kathi with any state gov in Malaysia for not less
than 7 years
b) Has attained age of 21
c) Good behaviour and never been convicted of any criminal offences, not
bankrupt neither been declared so
d) Malaysian citizen

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e) As an advocate and solicitor had passed the sijil peguam syarie

examination
If judges are required to adhere to certain code of ethics, the lawyers also must
uphold their standard code of conduct as embedded in the Legal Profession
(Practice and Etiquette) Rules 1978 (LPPER) and the Code of Ethics of
Peguam Syarie 2000 (COEPS)

In general, the ethics may be classified into general ethics (duty of lawyers to
behave accordingly in their daily life) and ethics in court (the latter refers to
the behaviour in the process of carrying out justice and fair play in court.)
For instance, general ethics require each lawyer to not to be influenced by others,
not to involve in bribery, not to wary of litigants and to encourage reconciliation.
In court, the lawyers shall remain calm, not to be influenced by those around
them, to give equal treatment, to avoid lengthy proceedings, punctual and due
respect to witness.

Good behavior and conduct with candor, Courtesy and fairness

Section 3 of the COEPS provides that Peguam Syarie shall preserve good
behaviour, attitude and character in carrying out his duty. Rule 18 of the LPPER
and section 16 of the COEPS mention that the conduct of lawyers before the
court and in relation to other lawyers shall be characterized by candor, courtesy
and fairness. In carrying out the duties, lawyers should not disparage another
lawyer or indulge in comparative promotion. This is because the obligation to
observe behaviour and good character is extremely encouraged in Islam.
In a hadith narrated by Abu Hurairah, the Messenger of Allah said: "The most
perfect of the believers in faith is the best of them in moral excellence, and
the best of you are the kindest of you to their wives".
As regard to the aspect of preserving courtesy, it is already practice of the lawyers
to respect their fellow members by calling them “my learned friend” and junior
lawyers will offer salutation to the senior lawyers. This is actually in line with the
Islamic teaching of promoting a sense of brotherhood. Abu Hurairah reported
that the Prophet said "The younger one should offer salutation to the older
one, and the one who is going along to the one who is sitting, and the smaller
group to the larger group”. This hadith signifies that Islam really encourage
Muslims to observe courtesy as it mirrors the individual’s character or akhlaq. In
this regard, the lawyers shall show respect and courtesy to other solicitors so as
to build good image and reputation to the profession.

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To Acquire Knowledge
Section 4 of the COEPS requires Peguam Syarie to keep on going seeking
knowledge in Shariah and law to improve his competency and efficiency. The
duty to seek knowledge is one of the codified ethics under the COEPS and it
represents the uniqueness of the COEPS since there is no such provision could be
found under the LPPER. The duty to seek knowledge is not only pertaining to the
area of substantive laws, procedural laws, Shariah rules and principles but it
covers any aspect of daily life. In Islam, seeking knowledge is a duty of every
Muslim as Anas reported that the Prophet said: "The seeking of knowledge
is obligatory upon every Muslim." In fact, Islam elevates and acknowledges the
one who has knowledge over the worshiper. In addition, Anas said, the
Messenger of Allah, said: "He who goes forth in search of knowledge is in
the way of Allah till he returns.” The above hadiths precisely support section 4
of the COEPS to advise every lawyer particularly Peguam Syarie to continuously
acquiring knowledge.

Duty of Diligence and Competence

It is the duty of lawyers to represent his client with diligence and competence.
The LPPER provides several provisions to ensure that lawyers shall observe the
duties diligently some are,
 Rule 3 not to accept brief if embarrassed,
 Rule 4 not to accept brief if professional likely to be impugned,
It is moral responsibility for lawyers to observe their works diligently and to keep
improving their level of competency as Islam really concerns on the quality of
works. As in a hadith Saidatina Aishah reported that the Rasulullah said:
"The deeds most loved by Allah (are those) done regularly, even if they are
small" (Bukhari and Muslim). This hadith demonstrates the Islamic ethical
principles on the duty of diligence and competence. The lawyers are required to
improve their working standards to the utmost and it should be maintained
constantly so as to avoid any occurrence of professional negligence which could
harm the interest of the client.

Not to Appear for Party Represented By another Lawyers

Rule 54 provides that where in any matter or proceeding, the name of a lawyer
or his firm appears on the records for any party in a matter whether in court or
not, no lawyer shall knowingly agree to appear or to act or continue to so for such

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party unless he obtains the consent of the previous lawyer. He is satisfied that the
proper remuneration of the previous lawyer has been paid and he undertakes that
the same will be paid, he has in ignorance that such name appears on the record
and the previous lawyer is unwilling or has refused to act further for such party.
The purpose of this provision is to maintain fair and just practice amongst the
practitioners as Islam prohibits any element of monopoly or domination and
unfair competition. The Messenger of Allah said: "Do not hate one another
and do not be jealous of one another and do not boycott one another, and be
servants of Allah (as) brethren; and it is not lawful for a Muslim that he
should sever his relations with his brother for more than three days."
Although, the client is free to seek legal advice from any lawyer but the lawyers
owe duty of fairness and courtesy to his fellow solicitors. If any lawyer still wants
to represent client of another solicitor, he then must obtain consent from that
solicitor.

Should charge fees which are reasonable and proper.

Rule 12 of the LPPER and section 12 of the COEPS mention provisions on fees
for litigious or contentious matter. In actual practice, lawyers shall inform the
basis on which the fees will be charged and the manner in which the client is
expected to pay the fees and payment. Any practice of excessive fees is against
the ethical principle of lawyers. In surah As-Shua’ra’ verse 18 Allah says:
“Withhold not things justly due to others”. This verse demands every
individual to gain what is really due to him and not by depriving others. As such,
the lawyers must charge their client reasonably by considering the elements in
Rule 12 of the LPPER and section 12 of the COEPS and if they take anything
beyond that it is considered as illegal gains.

Position of Fatwa as a source of Syariah law in Malaysia.

A mufti is a Muslim jurist who is authorised to give fatwas as answers to
questions regarding Islamic rulings on matters that contemporarily arise and are
silent under the Quran and hadith. A mufti provides one opinion only as a solution
to the submitted question from rulers, judges and private individuals. A mufti
must be just, trustworthy and pious as he holds the highest status among Muslim
jurists even higher than the Chief Syariah Judge.
He as a qualified mujtahid should be knowledgeable in the legal texts, and
sciences of al-Quran, Hadith and know to use and apply ijma, qiyas also is fluent
in Arabic language. So that, he will be able to resolve others’ problems easily. As

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a fatwa is a form of ijtihad, generally it does not bind its recipient unless it is
made a law instrument.
The Prophet (PBUH) said that Muslim scholars are successors of the holy prophet
making qualified muftis so too. By that, the Muslims must respect the muftis and
their opinions.
In Malaysia, a mufti is appointed by the Ruler, and, is also removable by the
Ruler. A mufti has the authority to aid and advise the Ruler in respect of all
matters of Islamic law. The mufti chairs the State Fatwa Committee which has
the power to issue fatwas on unsettled or controversial questions relating to
Islamic law. The practice of state muftis issuing binding fatwas is
constitutional, even though the process does not go through the legislative
organ. It has been established that the office of state muftis having the authority
to issue binding fatwas was already in existence when the Federal Constitution
was drafted. In fact, the office had existed in some states (for example, Kelantan)
before the British intervened in the affairs of the states, and the British did not
abolish it. In some other states (for example, Negeri Sembilan), the office was
established during the British intervention. When the country was gaining
independence, the Reid Commission which drafted the Federal Constitution did
not change that position. Thus, it is submitted that the practice of state muftis
issuing binding fatwas which was then allowed should continue to be
practised and that such practice is constitutional.
Muftis have an important role to provide opinions for the civil courts in cases
which are within the jurisdiction of the civil courts but involve questions on
Islamic law. The practice of the civil courts referring questions on Islamic law
arising in the courts to the muftis continues until today.
However, a fatwa is not binding on the civil courts. This is illustrated in the
case of Tengku Mariam binte Tengku Sri Wa Raja & Anor v Commissioner
for Religious Affairs, Trengganu & Ors, whereby, the High Court judge was of
the view that even if the civil court had sought a fatwa, the civil court retained
discretion as to how much of such fatwa it should accept, and may decline to be
bound by it.
Nevertheless, in the case of Re Dato' Bentara Luar (decd) Haji Yahya bin
Yusof & Anor v Hassan bin Othman & Anor, the court acknowledged that,
whilst the civil court was not bound to accept a mufti's fatwa as the civil court
was entitled to expound what the Islamic law on a given topic was, the civil court

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was equally not bound to reject the opinion stated in the fatwa. The court was of
the view that as the opinion was expressed by the highest Islamic authority in the
state, who had spent his lifetime in the study and interpretation of Islamic law,
the court had no reason to justify the rejection of the opinion, especially when the
civil court judges themselves were not trained in the system of Islamic
jurisprudence.
Although the matter falls within the jurisdiction of the civil courts and
although a fatwa is not binding on the civil courts, civil courts normally seek
the opinions of muftis on questions involving Islamic law and decide in
accordance with the muftis' opinions.
The case of Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit
Mertajam & Anor was on whether a Muslim convert had renounced the Islamic
faith before his death. By consent of all the parties, the Supreme Court directed
the judicial commissioner to refer certain questions of Islamic law that arose to
the Fatwa Committee of Kedah. The judicial commissioner referred the questions
to the Fatwa Committee and, after receiving the fatwa, confirmed his earlier
findings and decision at the High Court. The Supreme Court held that clear
directions from the Fatwa Committee should be adhered to.
The case of Halimatussadiah v Public Service Commission, Malaysia & Anor
was on the constitutionality of the dismissal of a female public servant who wore
purdah when on duty in contravention of a government circular. The mufti of the
Federal Territory gave a fatwa in the High Court after making references to
Quranic verses, hadiths and treatises. The High Court judge said that as the mufti
had spent his whole life in the study, teaching of, and interpreting, the Islamic
law, he knew of no compelling reason why he should reject the views expressed
by the highest Islamic authority in the Federal Territory.
In the case of Isa Abdul Rahman v Majlis Agama Islam, Pulau Pinang, expert
evidence was sought in the High Court from the mufti of Penang and a member
of the state fatwa committee. The High Court judge stated that members of the
fatwa committees were more qualified than civil court judges in matters of
Islamic law. The Supreme Court was of the opinion that when a civil court heard
a claim for an order and if a question regarding the Islamic law should arise in
the course of such hearing, the parties involved may call experts in the religion
of Islam to give evidence at the hearing; or the court may refer questions to the
fatwa committee for certainty on the matter. In conclusion, fatwa may not be

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binding toward civil courts, but nevertheless, civil courts may refer to fatwa
on questions involving Islamic law and decide in accordance with the fatwa.
------------------------------------------------------------------------------------------------
Question; Although Malaysia does not implement hudud laws, there are
aspects of such laws which are criminal offences in Islamic-related statutes.
The examples of such offences include consumption of intoxicating drink and
sexual intercourse out of wedlock. With reference to either the Syariah criminal
offences (FT) Act 1997 or the Syariah criminal (state of Selangor) enactment
1995, examine how the above-mentioned offences are dealt with. -6m
Answer: Islamic Criminal Law is a criminal law interpreted from the Quran,
Sunnah and ijtihad of Islamic jurist. It is also referred to as Syariah Criminal
Law. Islamic Criminal Law is known to be a form of deterrent law, acting mainly
to deter human from committing criminal offences by imposing heavy
punishments. The Islamic Criminal Law consists mainly of three types of
offences and punishments which are hudud, qisas, and ta’zir.
The Syariah Criminal law in Malaysia is not complete in the sense that it
does not include hudud and qisas nor does it make any homage to Quran or
Sunnah. Since Islamic matters is a state matter, each state has its own Syariah
offences legislations. The state’s power to legislate for Islamic matters is not
without limit. Although State Government has fairly wide jurisdiction to legislate
for Islamic family and personal matters, however, for criminal matters, the State
Government can only legislate Syariah laws in so far as they subscribe to the
matters that are under the state purview and within the scope of what is provided
under the Syariah Courts (Criminal Jurisdiction) Act. It is only enforceable to
Muslims and can only be applied in the Syariah court. For the Federal Territories,
its Syariah offences are governed by the Syariah Criminal Offences (Federal
Territories) Act 1997.
The Syariah Criminal Offences (Federal Territories) Act 1997 provides for
the offences of consuming intoxicating drinks. According to Section 19 (1) of the
act, any person who in any shop or other public place, consumes any intoxicating
drink shall be guilty of an offence and shall on conviction be liable to a fine not
exceeding RM 3000 or to imprisonment for a term not exceeding 2 years or both.
Subsection (2) states, any person who makes, sells, offers or exhibits for sale,
keeps or buys any intoxicating drink shall be guilty of an offence and shall on
conviction be liable to a fine not exceeding RM 5000 or to imprisonment for a
term not exceeding 3 years or both.
The Syariah Criminal (State of Selangor) Enactment 1995 provides for

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the offences of zina and qazaf. Zina is punishable by a fine not exceeding RM
5000 or to imprisonment or a term not exceeding 3 years or to whipping not
exceeding 6 strokes in the Selangor’s enactment. Hudud law that provides for
much heavier punishment as for the married person they will be stoned to death
and for the unmarried person will be flog with 100 strokes.
In conclusion, it can clearly be seen that although Syariah law in Malaysia
provides for the offences under hudud and qisas but they cannot be considered to
reflect the position of the crimes in the context of Islam. This is because they do
not carry the same punishments as have been provided in the Quran and Sunnah.

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