Malaysia: Religious Pluralism and the Constitution in a Contested Polity

2012 ◽  
Vol 4 (2-3) ◽  
pp. 356-385 ◽  
Author(s):  
Andrew Harding
Keyword(s):  
Islamic Law ◽  
Religious Conversion ◽  
Common Law ◽  
Islamic State ◽  
Colonial Era ◽  
Federal Constitution ◽  
Highly Sensitive ◽  
Plural Society ◽  
Muslim Majority ◽  
Historical Developments

Malaysia has a classically plural society with a Malay/ Muslim majority and a legal system which, for historical reasons, is bifurcated between the common law and Islamic law. It also has a colonial-era federal constitution under which Islam is a state issue. Disputes concerning religion are both many and divisive. They are dealt with mainly in constitutional terms, especially in debates about the notion of an Islamic state, in light of Article 3 and the enshrinement of an official religion and in litigation. The latter is rendered complex by the separation of Islamic from common law jurisdiction in 1988, a fact that has given rise to highly sensitive and troubling litigation involving, especially, religious conversion in Lina Joy (2007). This article traces historical developments relating to religion and the law, and finds cause for some optimism that religious divides can be bridged by constitutional means, in light of recent judicial responses and evolving debates about the constitutional position of Islam.

scholarly journals The Politics of Congregational Prayer

2020 ◽  
Vol 8 (2-3) ◽  
pp. 251-271
Author(s):  
Imran Ahmed
Keyword(s):  
Public Health ◽  
Islamic Law ◽  
The State ◽  
The Political ◽  
Religious Leaders ◽  
Colonial Era ◽  
Muslim Majority ◽  
Religion And State

Abstract Religious authorities in many Muslim-majority countries have argued that the suspension of communal prayers during an epidemic does not contravene Islamic law. In Pakistan, such measures have proven difficult to enforce, in part because many religious leaders in the country have opposed the closure of places of worship and the limits placed on public religious gatherings. The question is why? This paper suggests that the distrust of the state in matters of religion in Pakistan can be traced back to the colonial era, and that the political developments following independence have amplified frustration and mistrust between political and religious authorities in the country. Significant sources of contention in matters of religion and state remain unresolved under the prime ministership of Imran Khan. At the same time, the pandemic has thrust earlier conflicts into the spotlight and exposed contests over opinion, expertise, and authority in matters of religion and public health.

scholarly journals The Rule of Law and Legal Pluralism in Malaysia

ICR Journal ◽  
2010 ◽  
Vol 2 (1) ◽  
pp. 90-108
Author(s):  
Constance Chevallier-Govers
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Islamic Law ◽  
Common Law ◽  
Legal Pluralism ◽  
The Rule Of Law ◽  
Federal States ◽  
Definition Of ◽  
Historical Developments ◽  
Rights Issues

In Malaysia, Islam is the religion of the state, although other religions may be practised in peace and harmony. Having inherited the English common law tradition at its independence in 1957, Malaysia is neither a secular state nor an Islamic theocracy. As a matter of fact, the Malaysian Constitution has brought Islamic law under the legislative powers of the federal States. Historical developments have thus led to the existence of two sets of law: common law and shari'ah law. Legal pluralism in Malaysia applies foremost to personal status, but also to some aspects of criminal law. The shari'ah as well as legal pluralism seem to question the rule of law in Malaysia. This two-fold aspect of the rule of law will be analysed in this article. The formal definition of the ‘rule of law’ implies the respect for the hierarchical principle and the Constitution’s supremacy. It will be explained to what extent legal pluralism in Malaysia is challenging the supremacy of the Constitution. Nevertheless, the hierarchical principle is not a goal in itself, and the material definition of the ‘rule of law’ will also be discussed. The second part of this article will focus on potential human rights issues that are implied by the notion of legal pluralism and by shari'ah law in Malaysia.

Take Me to Khiva: Sharīʿa as Governance in the Oasis of Khorezm (19th–Early 20th Centuries)

2017 ◽  
Vol 24 (1-2) ◽  
pp. 20-60
Author(s):  
Paolo Sartori ◽  
Ulfatbek Abdurasulov
Keyword(s):  
Islamic Law ◽  
The State ◽  
Islamic State ◽  
Muslim Majority ◽  
Interpretive Model ◽  
Settlement Of Disputes ◽  
Shed Light

It is commonly held that the settlement of disputes in Muslim-majority areas depended on “judges” and “arbitrators” who settled disputes independently or facilitated reconciliation by means of mediation, either judicial or extra-judicial. In the resulting narrative, the state occupies only a marginal place, at best. In this essay, we contend that this narrative creates an artificial opposition between the Islamic state and sharīʿa, an opposition predicated on the reified notion of Islamic law as the exclusive preserve of Muslim legists (ʿulamāʾ), that is, a self-contained jurisprudence inaccessible to the uninitiated and to state officials. Materials from modern Khorezm call into question the application of this binary interpretive model and shed light on an Islamic juridical field in which Muslims brought their affairs to state officials because they had the power to coerce parties to achieve a settlement and enforce a decision, either formal or informal.


scholarly journals Gerakan Isis dan Ancaman Radikalisme Agama di Indonesia

2016 ◽  
Vol 32 (1) ◽  
pp. 31
Author(s):  
Fisher Zulkarnain ◽  
Tata Septayuda Purnama
Keyword(s):  
Literature Review ◽  
Islamic Law ◽  
Islamic State ◽  
Muslim Community ◽  
Religious Ideology ◽  
Islamic Movement ◽  
Data Collecting ◽  
Muslim Majority

This article purposes to analyze the movement of Islamic State of Iraq and Syria (ISIS) and its influence in Indonesia. The concept of theocratic state, is often adapted by ISIS movement to create a country based on a caliphate system while treating the rigidity of Islamic law. This reseach employes correspondence with former activists of the radical Islamic movement and literature review as data collecting technique. The study finds out there some ideologies of ISIS movement. One of them is takfir (an infidel) others who disagrees with him and kills anyone who opposes religious ideology. Although ISIS is resistant from the Muslim majority, it still appeal tacit sympathy from jihadist groups in Indonesia. One evidence of the support in Indonesian Muslim community, can be viewed the access on the ISIS website until now.

Forensic Evidence in Proving Crimes: Exploring the Legal Frameworks of Sharīʿah Bukti Forensik Bagi Membuktikan Jenayah: Menerokai Rangka Kerja Guaman Sharīʿah

2016 ◽  
Vol 13 (1) ◽  
pp. 220-247
Author(s):  
Sayyid Mohammad Yunus Gilani ◽  
K. M. Zakir Hossain Shalim
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Common Law ◽  
Legal Framework ◽  
New Method ◽  
Criminal Investigation ◽  
Forensic Evidence ◽  
Administration Of Justice ◽  
Legal Frameworks

AbstractForensic evidence is an evolving science in the field of criminal investigation and prosecutions. It has been widely used in the administration of justice in the courts and the Western legal system, particularly in common law. To accommodate this new method of evidence in Islamic law, this article firstly, conceptualizes forensic evidence in Islamic law.  Secondly, explores legal frameworks for its adoption in Islamic law. Keywords: Forensic Evidence, legal framework, Criminal Investigation, Sharīʿah.AbstrakBukti forensik adalah sains yang sentiasa berkembang dalam bidang siasatan jenayah dan pendakwaan. Ia telah digunakan secara meluas dalam pentadbiran keadilan di mahkamah dan sistem undang-undang Barat, terutamanya dalam undang-undang common (common law). Untuk menampung kaedah pembuktian baru ini dalam undang-undang Islam, artikel ini, pertamanya, konseptualisasikan bukti forensik dalam undang-undang Islam. Kedua, ia menerokai rangka kerja undang-undang untuk penerimaannya dalam undang-undang Islam.Kata Kunci: Bukti Forensik, Rangka Kerja Guaman, Siasatan Jenayah, Sharīʿah.

The Other Muslim Bans

2020 ◽  
Vol 1 (1) ◽  
pp. 2-38
Author(s):  
Will Smiley
Keyword(s):  
Security Policy ◽  
Islamic Law ◽  
State Level ◽  
The State ◽  
The Other ◽  
State Court ◽  
Court Cases ◽  
State Laws ◽  
Foreign Law ◽  
Muslim Majority

This Article addresses and critiques the case for state-level legislative bans on courts citing “Islamic law” or the law of Muslim-majority countries. In particular, the Article reviews the most substantive evidence adduced by the bans’ supporters, in the form of a set of state court cases published by the Center for Security Policy (CSP). Very few of these cases, in fact, show courts actually applying Islamic or foreign law, and in none of these cases would the various forms of proposed legislation have been likely to alter the result. Thus even this report does not suggest a need for the state laws purporting to ban sharīʿa. The Article thus argues that even if these bans are not unconstitutionally discriminatory in their effect, they are ineffective at achieving their claimed purpose. This Article was originally published as an Occasional Paper in the Harvard Papers in Islamic Law series in 2018.

Islamic Constitutions and Democracy

2021 ◽  
pp. 106591292199124
Author(s):  
Moamen Gouda ◽  
Shimaa Hanafy
Keyword(s):  
Islamic Law ◽  
Muslim Population ◽  
Informal Institution ◽  
Additional Control ◽  
Negative Effect ◽  
Alternative Measures ◽  
Resource Wealth ◽  
Muslim Majority ◽  
Natural Resource Wealth ◽  
The Relationship

There is an ongoing debate on the relationship between Islam and (lack of) democracy. Considerable literature shows that Islam, represented as an informal institution by Muslim population share, has a negative effect on democracy. This study examines the effects of formal institutions, specifically constitutions that prescribe Islamic law ( Shari’a) as a source of legislation, on democracy. We use a newly developed coding of the degree to which Islam is incorporated in constitutions. Our empirical results show that the constitutional entrenchment of Islamic law has a negative and significant effect on democracy. Our findings are robust to using different estimators and instrumental variable regressions, employing alternative measures of democracy and controlling for Muslim population, natural resource wealth, and additional control variables. While we show that Islamic constitutionalism is a reason for a democracy deficit in Muslim-majority countries, we find no evidence that Islam is inimical to democracy when not entrenched in the constitution.

scholarly journals A Novelty of Perspective of Fikih and PP No. 17 1965 for Status of Ownership of Life Insurance in Claims Fund

2017 ◽  
Vol 4 (2) ◽  
pp. 193
Author(s):  
Fuji Rahmadi ◽  
Amiur Nuruddin ◽  
Nawir Yuslem
Keyword(s):  
Life Insurance ◽  
Constitutional Law ◽  
Islamic Law ◽  
Social Phenomenon ◽  
Normative Approach ◽  
Muslim Majority

Islam considers insurance or “insured” as a social phenomenon that was ormed by helping each other and humanity. Treasure gained after the death of a person as a result of a cause that by its nature will bring profit, which is done in the period he was still alive then the property as it was by Ibn Hajar al-Haytami, an expert from the Shafi'ites fiqh, in his book Tuhfatul-Muhtaj Syarah Kitab al-Minhaj (by Imam al-Nawawi), fall into the category tirkah treasure. Although the normative existence of insurance is a necessity in the communities in Indonesia but considering Indonesia as a Muslim majority country, then its existence cannot be released by the paradigm of the dynamics of the system of Islamic law. Therefore in this paper describes some of the approaches used in assessing the existence of insurance in Indonesia, it is not enough just to use the normative approach to Islam, but must be coupled with a conventional legal approach that is shaded by the science of law, especially constitutional law.

scholarly journals DEMOCRATIC POLITICAL SYSTEM IN THE PERSPECTIVE OF MAQASID SHARIA : STUDY ANALYSIS OF YUSUF AL-QARADAWI’S THOUGHT

2020 ◽  
Vol 5 (1) ◽  
pp. 55
Author(s):  
Athoilah Islamy ◽  
Sansan Ziaul Haq
Keyword(s):  
Political System ◽  
Islamic Law ◽  
Primary Source ◽  
Political Life ◽  
Islamic State ◽  
Epistemological Foundation ◽  
Democratic System ◽  
Holistic Vision ◽  
The Relationship ◽  
Democratic Political System

Abstract: one of the big issue that is still debatable about the relationship between Islam and politics is how legitimate the democratic political system is in the paradigm of Islamic law. This study will explain the alternative paradigm in evaluating the democratic system based on the paradigm of Islamic law from a prominent Muslim intellectual named Yusuf al-Qaradawi. This research is a qualitative research in the form of literature review. The primary source used is a variety of literature that explains Yusuf al-Qaradawi's thoughts about democracy in Islam. The method used is the method of interpreting the thoughts of the figures with the maqasid al-shari‘ah approach. There are two big conclusions of this research. First, Yusuf al-Qaradawi's view of democracy can be said to be grounded in its epistemological foundation in understanding the concept of an Islamic state. For al-Qaradawi, an Islamic state is a system of government that provides policy improvisation space in the benefit of social, economic and political life based on the objectives of Islamic law (maqasid shari'ah). Second, Yusuf al-Qaradawi's view, the democratic system can be compatible with Islam if the principles in the democratic system are in accordance with various values which are the spirit of the objectives of Islamic law (maqasid shari'ah), such as the value of justice, equality of rights, freedom, etc. so. To realize this, the democratic system must carry a holistic vision and mission, which includes worldly and ukhrawi benefits as well as individual and social benefits.       Keywords: Validity, democracy, Yusuf al-Qaradawi, maqasid shari’ah; 

scholarly journals PENERAPAN QANUN ACEH DI KOTA SUBULUSSALAM: Kajian Atas Qanun No. 12, 13 Dan 14 Tahun 2003

2019 ◽  
Author(s):  
Ali Geno Berutu
Keyword(s):  
Local Government ◽  
Islamic Law ◽  
Central Government ◽  
Field Research ◽  
Secondary Data ◽  
Research Field ◽  
Primary Data ◽  
Legislative Process ◽  
Islamic State ◽  
Political Consolidation

his Research proves that the implementation of Aceh Qanun No. 12, 13 and 14 Year 2003 on Khama r, M a i s i r , and Khalwat in Subulussalam is not completely worked well, because in addition to legal issues qanuns, most have efforts political consolidation of the central government and local government. This thesis supports and strengthens the conclusion Michail Buehrel in this article entitled “The Rise of Sharia by Laws in Indonesia District an Indication For Changing Patterns of Power Accumulation and Political Corruption ” (2008) who found the formulization of Islamic Law in the region is political consolidation instrument for exploring the local government, especially financially in building. Buehler did not even find a conservative movement in the imposition of Islamic Law in the area. This research also support M.B Hooker’s opinion in his work entitled Indonesian Syariah : Defining a National School of Islamic Law, (2008)which states that in legislative process of Islamic law in aceh. There are many obstacles and barriers , because the Sharia Law to be applied must necessarily correspond with the system national law, while the central government to add more breadth of autonomy for Aceh in the part of Islamic Law to legislate in the part of law qanuns jina>na>t . This thesis does not agree with the conclusion of Harold Crouch in his work The Recent Resurgence of Political Islam in Indonesia, “ Islam In Southeast Asi a: Analysing Recent Development” , ed. Anthony L. Smith, (Singapore: ISEAS, 2002) as saying that the barrage history of failure of Islamic parties in order to implement Islamic Law-making opportunities for the application of Islamic Law in Indonesia did not exist. Crouch’s opinion just say that the application of Islamic Law to be in the sense of establishing an Islamic State. Data obtained from field research (field research) with qualitative methods and approach the socio - legal - historical . The primary data of the document and the results wawancara and field observations. Primary data in the form of documents are: Law No. 44 In 1999, Law No. 18 of 2001, Law No. 11 In 2006, Qanun 5 In 2000, Qanun No. 12, 13, 14, 2003, Qanun 7 In 2013, Qanun 6 In 2014 and Qanun 8 Year 2014. The primary data in the form of interviews and observations sourced from: Office of Islamic Law (DSI), the Wilayatul Hisbah (WH), the Court Syar'iyah (MS), the Police, the Mufti Consultative Assembly (MPU), the Aceh Tradition Council (MAA). Secondary data in the form of: 1) the books on Islamic law, sociology and anthropology of law, the historical development of Islam in Indonesia; 2) journals and other scholarly works that examine the rules of Islamic law, the application of Islamic law, social and Community; 3) as well as other sources such relevant, scientific papers, websites, newspapers, magazines and others

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