ISLAMIC LAW IN MALAYSIAN LEGAL HISTORY

Malaysia is a Muslim country because the majority of its population are Muslims. Another reason is because of its long-standing history, which records the arrival of Islam to the land and the application of Syariah (Islamic laws) by its sultans who ruled the land hundreds of years ago.

The history records that first ruler who found Melaka and embraced Islam is Parameswara (his Muslim name is Iskandar Shah). Parameswara was a Javanese Hindu prince who ruled Singapura (presently known as Singapore) in the thirteenth century. Manuscripts such as Undang-undang Melaka, Undang-undang Johor, Undang-undang Pahang and Undang- undang Kedah were found to be the early legal texts that uphold the principles of Islamic criminal law, Islamic family law and other civil matters. The manuscripts, however, were discovered to contain resem­blances to Undang-undang Melaka as it came earlier, and thus it is recognised as one of the earliest Islamic legal texts of the country. Melaka did not only apply Shari’ah in its legal context; the influence of Shari’ah can also be traced in other aspects of its administration such as the usage of the term ‘Sultan’, which replaced the terms ‘Maharajah’ before that due to the Hindu influence, the use of ‘Jawi alphabets which are the alphabets of Arabic language and the language of the Quran. For this very reason, Islamic law has been recognised as the law of the land.

In acknowledging the importance of Undang-undang Melaka as one of the earliest legal texts of Islamic law in the country, it is pertinent that its contents, which are based on the principles of Islamic law, as the context of this chapter, are briefly highlighted.

Undang-undang Melaka, also known as Hukum Kanun Melaka, was compiled during the rule of Sultan Muzaffar Shah (1446-59).^[918] The set of laws which manifested the strong influence of Islamic laws in the administration of justice of Melaka, showed the impact of education on hukm fiqh (Islamic legal rulings) in the state.^[919] The set of laws has been a subject of research by many researchers who are interested to see how Melaka functioned legally. Liaw Yock Fang had analysed the contents of Undang-undang Melaka by taking into account the various versions of the set of laws. He claimed that laws found in other states in the Malay Peninsula, including Pahang, Johor and Kedah, had some striking resem­blance with Undang-undang Melaka; this suggested the strength of Melaka as a strong Islamic state then.^[920]

The influence of Islamic laws in the Undang-undang Melaka is reflected in the provisions and also the phrases used to elaborate the contents of the provisions. Phrases such as Bismillahi-rahman-rahim (with the name of Allah the Most Compassionate the Most Merciful),^[921] Wallahu-‘alam-bis-sawab (Allah Knoweth best what is true),^[922] mudda’I (plaintiff), mudda’a ‘alaihi (defendant), bai’ (sale) and ikrar (admission) are found in the laws.^[923]

Islamic laws that were applicable in Undang-undang Melaka consisted of hudud (limits ordained by Allah for serious crimes),^[924] qisas (laws of retaliation) and ta‘zir (laws set up by the ruler of state). Interestingly, the laws of qisas not only was applied in the aspect of retaliating against one’s act of causing injury (for example), but also it was extended to apply the other components of the law which include compensation, pardon and repentance on the part of the offender.

The application of the law of qisas is stipulated in section 5.1 of the Undang-undang Melaka, where it is specified that a person who kills shall be killed as his punishment.^[928] However, section 5.2 elaborated on the circumstances where punishment for killing another person is substi­tuted with certain amount of compensation. In this particular section, it is explained that such killing is substitutable with compensation when it has not reached the knowledge of the ruler or ministers. This suggests that the family of the murdered is entitled to give pardon and ask for compensation instead.^[929]

Another interesting aspect of Undang-undang Melaka is the inclusion of punishment of shaming. Section 11.1 prescribed the punishment of crime of theft. The section detailed three circumstances; first, the actions that can be taken by the owner of premises; second, the punishment when the theft is committed by one person and when it is participated by more than a person but only one of them entered the premises; and third, the punishment for the thieves who did not enter the premises. For the first circumstance, the owner has the right to kill the thief who entered his/her premises while in the course of pursuing the thief.

Another feature of Undang-undang Melaka is the implementation of Sulh or mediation. Mediation during this period of time was community mediation where a headman of a village (penghulu) or a religious leader (imam) was given the authority by the Sultan to handle and decide disputes. However, they did not carry such duty alone; they were assisted by a few assistants consisting of Ketua Adat, Tok Siding or Tok Empat and the elders.^[931] Their duties, other than heading a village or religious ceremonies and looking after the welfare of the villagers, included educating the villagers in precepts of both law and religion, mediating disputes and enforcing sanctions against offenders, including fining thieves, flogging adulterers and even killing murderers.^[932] Thus the appointment of a headman was based particularly on his religious background and show of piety by observing his religious duties.^[933]

The explanation above signifies the influence of Islamic law over Undang-undang Melaka. It is undeniable that the customary laws had as well influenced the drafting of such laws; but then again, the punish­ments under the customary laws could fall under the category of ta‘zir, in which such punishment does not go against Islam as long as it is in line with Shari’ah. The way the punishments were carried out suggests the informality of the authorities in ensuring the aspects of restoring, repairing and rehabilitating. The community mediation, prescription of compensation on the victim and the shaming that include not only the aspect of rehabilitating the offender, but also securing the peaceful living and safety of the members of society and educating them of the effects that could befall those who commit crimes, are observed to share some similarities with today’s concept of restorative justice.

IV.