1.0 Introduction
Legislation is law which has been
promulgated by a legislature or other Governing Body or the process of making
it. Before an item of legislation becomes law it may be known as a bill, and
may be broadly referred to as "legislation", while it remains under
consideration to distinguish it from other business. The purposes of
legislation are to regulate, to authorize, to proscribe, to provide (funds), to
sanction, to grant, to declare or to restrict. It may be contrasted with a
non-legislative act which is adopted by an executive or administrative body
under the authority of a legislative act or for implementing a legislative act.
Under the Westminster system, an item of primary legislation is known as an Act
of Parliament after enactment.
Legislation is usually proposed by a
member of the legislature (e.g. a member of Congress or Parliament), or by the
executive, whereupon it is debated by members of the legislature and is often
amended before passage. Most large legislatures enact only a small fraction of
the bills proposed in a given session. Whether a given bill will be proposed
and is generally a matter of the legislative priorities of government.
Legislation is regarded as one of the
three main functions of government, which are often distinguished under the
doctrine of the separation of powers. Those who have the formal power to create
legislation are known as legislators; a judicial branch of government will have
the formal power to interpret legislation (see statutory interpretation); the
executive branch of government can act only within the powers and limits set by
the law.
The judiciary is the system of courts that
interprets and applies the law in the name of the state. It also provides a
mechanism for the resolution of disputes. Under the doctrine of the separation
of powers, the judiciary generally does not make law (that is, in a plenary
fashion, which is the responsibility of the legislature) or enforce law (which
is the responsibility of the executive), but rather interprets law and applies
it to the facts of each case. This branch of the state is often tasked with
ensuring equal justice under law.
2.0 Problem Statement
1. What
are the principles and source of Islamic Law?
2. What
are the differences between Islamic Law and Conventional Law?
3. What
are Hudud Law, Qisas Law and Takzir Law?
4. Is
Islamic Law in Malaysia implemented to the full?
5. How
the judgement process is done?
3.0 Objectives
1. To
find out the core subject of law from the sources provide (example book,
internet)
2. To
find out the sources of law that has been use nowadays.
3. To
find out how the laws is making.
4. To
know how the legal system works in our daily life.
5. Find
out what is legal institution.
So, in this project we have distributed
the tasks to each of our group members to explain the topics clearly:
|
AMIRUL
IZWAN BIN MOHD NOORDIN
|
-
What
are the principles and source of Islamic Law?
-
What
are the differences between Islamic Law and Conventional Law?
|
|
MUHAMMAD
HARIRIE BIN YUSOH
|
-
What
are Hudud Law, Qisas Law and Takzir Law?
|
|
MUHAMMAD
FIKRI RUZAINI BIN MOHD RASHDAN
|
-
Is
Islamic Law in Malaysia implemented to the full?
|
|
MUHAMMAD
HARRIZ BIN MOHD HASAN
|
-
How
the judgement process is done?
|
|
MUHAMMAD
AIZAT BIN ABDUL RAHMAN
|
-
How
the judgement process is done?
|
4.0 Legislative
4.1 What are the principles and source of Islamic Law?
Islamic law is not a legal system, but a legal tradition,
much like the common or civil law tradition. A legal tradition is a set of
related beliefs, attitudes, and practices regarding the necessary components of
a legal system, including the scope and purposes of the law, the manner in
which law is created or discovered, the identity and function of legal actors,
and the manner in which law is learned, implemented, developed and adapted.
Islam has its own personal, civil, criminal, mercantile, evidentiary,
constitutional, and international law. In Malaysia, Islamic law and customary
law were the law of the land long before English law became prominent, as under
the current system. According to the Federal Constitution, Islamic law is a
matter falling within the State List, meaning that the State Legislatures are
empowered to enact the law. Exceptions to this are the Federal Territories
of Kuala Lumpur, Labuan and Putrajaya, in which Islamic law is enacted by the Parliament.
Malaysia maintains two parallel justice systems: the Syariah Court System in
each of the thirteen states, and the Civil Court System for the whole
Federation. Each state in Malaysia has its own Syariah court system, which
deals with matters relating to Islamic law in which all parties are Muslim.
All matters pertaining to Islamic law and Muslims shall only be heard in
the Syariah court; all other cases are heard in the civil courts. The
Constitution has empowered State Legislatures to promulgate Islamic law and
personal and family law for all persons professing the religion of Islam
(except in regard to matters included in the Federal List) such as
succession, betrothal, marriage, divorce, maintenance, adoption, guardianship,
trusts, Islamic religious revenue and mosques. Civil and Criminal law are
within the Federal Government’s jurisdiction, except on criminal offences which
effect Muslims as listed in the State List. The rules of Syariah are set by
various sultans, who serve as Head of the Islamic religion in their respective
states. Because Islamic law is administered by the respective states, there is
a lack of uniformity in the administration of Islamic law in Malaysia.
The Quran is the primary source of Islamic law,
as it contains all the fundamental directives and instructions of God. The
Sunnah is the second source of Islamic law. Sunnah is an Arabic word which
means "Method," and it refers to the statements, actions, and
agreements of the Prophet Muhammad. Its authority is derived from the text of
the Quran. The Quran and the Sunnah are complimentary – the laws described in
the Quran are general in nature, and the Sunnah makes them specific and
particular. The Sunnah explains the instructions of the Quran. The Quranic
injunction is sometimes implicit; the Sunnah makes it explicit by providing
essential ingredients and details. Ijma (consensus of opinion of scholars)
and Qiyas (laws derived through analogical deduction) are the
secondary or dependent sources of Islamic law.
4.2 What are the
differences between Islamic Law and Conventional Law?
Islamic criminal law has its own
advantages compared to criminal law civil mostly came from the West. In
Malaysia, for example the criminal law is mostly provided for in the Penal Code
(Act 574) which is sunken from the Indian Penal Code. The Indian Penal Code is
actually derived from the legal rules of the Common Law of England collected
and written in the form of a deed or canon. In addition to the Penal Code, the
criminal law is also found in certain acts such as the Dangerous Drugs Act, the
Customs Act 1967, the Prevention of Corruption Act 1997, the Internal Security
Act 1957, the Official Secrets Act 1983 and others. While the criminal
procedure is provided for in the Criminal Procedure Code (NMB. Chapter 6), the
Evidence Act and the Acts relating to court.
Because of these two laws are different
then there are some differences between Islamic criminal law and criminal law
civil. Among the differences between the criminal law and Islamic law is a
civil crime:
1. Islamic
law is from God while civil law is a human creation. God has all the attributes
of perfection would make law the best and most suitable for humans. Even human
beings are created by God, then surely Allah is Knowing whether criminal law in
accordance with human nature. Man-made laws of the weaknesses exposed by a
thousand because of the knowledge and human capabilities are limited. Those
people are always influenced by environmental conditions, family background,
education, encouragement of lust and the devil. That is why the law changed man
sentasa first instance homosexuality is considered a crime, but today it is no
longer considered an offense, even he was appointed as a legitimate practice by
marriage as practiced in certain countries.
2. The
criminal law aspects of Islam does not separate the beliefs of faith in things
unseen. Believe in the truth and power of Islamic criminal law is mandatory as
it is enshrined in the Holy Quran and Sunnah. Similarly, Islamic law does not
separate the question of retaliation in the world with a vengeance in the
afterlife. Elements of obedience to God, the concept of retribution in the
afterlife, and the concept of reward and punishment to push people away from
crime. This is not only because they fear punishment in the world even more
than they fear the punishment of the Hereafter is more severe and last longer.
Therefore they will refrain from committing a crime with serious crime even
though it can be done without the knowledge of law enforcement. Indirectly, it
can reduce the crime rate. Similarly to the already committed crimes, they will
be more willing to come forward to surrender them to be punished by the laws of
Islam in order to avoid punishment in the hereafter. This is what happened in
the days of the Prophet and Caliphs Caliphs. Unlike the civil law that directly
are not related to faith or beliefs. Sivi effectiveness of law depends entirely
on violence legislation, enforcement and control of the government.
3. The
scope of the crime or offense in Islam is much broader accounting for errors in
connection with Allah, human rights and the rights of God together human
rights. This means it includes various forms such errors related to belief or
faith, such as the punishment of apostasy. Islamic law also touched penalties
on offenses related to worship as they were leaving prayers, Friday prayers,
fasting during Ramadan and Hajj. Islamic criminal laws also are concerned with
the morals of such punishment to those who commit adultery, seclusion, gambling
and drinking alcohol. Unlike a civil criminal penalties do not consider some
crimes such as apostasy, adultery, abandon prayers, drinking and gambling as a
crime. This is because the elements of faith, worship and morality not be
inferred that it is important for lawmakers this.
4. Islamic
criminal law emphasis on prevention through a unique and very interesting. For
example, there are penalties in Islamic law such as whipping and stoning for
adulterers viewed as a serious and formidable by some. This makes people afraid
to commit the crime of adultery. While the conviction is difficult for those
conditions to convict punishment is very tight. For example, it requires four
witnesses were not wicked leleki see clearly what is happening. This makes the
actual amount of the penalty to be considered is a little heavy. If adultery is
not proven, they may be punished takzir lighter. But are at the time of the
Prophet s.a.w. and Rashidun Caliphs, hudud offenses such as adultery mostly
through the admission or non-admission through the testimony of four witnesses.
Similarly, in Islam there is a legal deterrent for example the ban on two-pair
of men and women ajnabi aims to avoid fornication, the ban on alcohol in order
to prevent greater crimes such as murder and others. This concept of prevention
is not taken seriously by the criminal law of civil, because it is more focus
on the aspect of punishment and reward.
5. Islamic
criminal law cannot be separated from the concept of commanding the good and
prevent evil deeds (al-amr bil kindness wa al nahyi anil Munkar). This concept
has helped reduce crime. Islam is not only directed the crime combated even
called for goodness disseminated. Those who are familiar with good practice and
worship will be spared from doing the evils and crimes. Bait prayers were
called by God as a worship that can prevent evil. Fasting is also called by the
Prophet Sallallahu 'Alaihi Wasallam as practices that can curb the desires of
lust. Similarly, the practice of other virtues. The concept of al-amr bil
kindness wa al nahyi anil Munkar invites all people, especially the Muslims to
jointly combating crime. In fact, they are also allowed to make arrests if they
have a solid foundation. The existence of hisbah as the official body set up by
the government to implement the concept of al-amr bil kindness wa al nahyi anil
munkar can also help reduce crime. In this way the criminals will be more
cautious in their actions. This concept does not exist in criminal law civil.
Authorities such as the police usually only take action after the crime was
reported.
6. Islamic
criminal laws are very careful in terms of convicting someone with criminal
penalties. For instance, in the case of hudud, conviction is terrible. For
example, in the case of theft, the stolen property must be stored in a
convenient, and does not apply to urgent problems such as war, famine and
disaster. Similarly in the case of adultery conviction for admission or
testimony by emapat man who saw the incident clearly like to see the bucket
into the well. If it fails to produce four witnesses, people who make such
accusations will be charged with the offense of qazaf. Terms of witnesses in
the Islamic law is very strict. A witness must be fair, that is not wicked.
There are witnesses who filtering process referred to as 'tazkiyah al-syuhud'.
If it appears that the witness had committed a great sin to do evil always has
moral evil, then his testimony can be disputed. In the criminal law of civil,
moral and temperament of the witness is not taken into account in determining the
validity of his statement.
7. Islamic
criminal law does not allow the government to detain a person without being
taken to court and prosecuted in accordance with legal procedures. Islam
upholds the concept that 'originally of innocence' (al-SLU bara'ah al-dhimma).
Detention without trial is considered a tyranny in Islam no matter what reason
whatsoever. If a person is alleged to have committed the crime, then a criminal
matter that needs to be proved by the prosecutor before a judge in court. The
burden of proof is on the accuser. If there is no evidence that the accused has
committed the crime, then the defendant should be released and he is free of
charge. In criminal law sivi, there is a provision that allows for detention
without trial called preventive detention or preventive detention. For example,
the Internal Security Act allows a person suspected affect public security
detained without trial for 60 days for investigation. A person who in the
opinion of the Minister of the Interior may affect public safety can be
detained for two years. They can be detained without trial in any tribunal or
court.
8. Islamic
law provides for various forms of punishment that had a profound impact. For
hudud is stoning to death, flogging, death penalty, amputations. Cut the foot
of the cross, and banishment. For qisas offenses, including the punishment of
qisas same reply with the crime that lives with life, eye for eye, ear for ear,
and so on, as well as penalties and compensate the damages with different
rates. Takzir sentence is very broad and can be worn by maslahah, the need and
wisdom of the government, the legislature and the judge. While in the civil
law, the penalty is a major death penalty, jail, whipping and a fine. Although
there are other penalties like perkelakuan guarantee good, damages, and
referral for adolescents, the main punishment is the death penalty,
imprisonment, fines and caning. Among the four were sentenced to this
punishment is imprisonment at most. Virtually all forms of criminal offenses
punishable by imprisonment. The main offenses and serious as murder, rape,
kidnapping, robbery and the like can be punished with a prison sentence. The
same applies to minor offenses such as traffic offenses, offenses related to
local authorities and others. While prisons can lead to various disadvantages
like it could be a crime training in addition to drug distribution centers and
immorality. Prisons also cause the wife, children and the family had to bear
the shame and the economic burden of a criminal offense. Those who come out of
prison usually set aside by the community and there is a return to crime.
9. The
last difference is from the point of blessing. Blessed is the one thing that
cannot be seen by the senses but it is proven through the promise of Allah and
His Messenger and events. God's blessings to ensure the implementation of
Islamic law, including criminal law. The implementation of Islamic law can
definitely reduce crime and create harmony among the people. In contrast to the
civil law of human invention that is considered contrary to Islamic law. It
failed to inspire fear and terror even though the punishment was severe. For
example, the mandatory death penalty for drug trafficking offenses are
successful in reducing crime. Similarly with other criminal offenses.
4.3 What are Hudud Law, Qisas Law and Takzir Law?
Security and stability are basic human
needs, no less important than food and clothing. Without security and
stability, a human being is not able to properly conduct his daily life, let
alone come up with new ideas or contribute to the development of a high level
of civilization.
By contrast, the Law of Islam was sent
down to Muhammad, may the mercy and blessings of God be upon him, in its
complete form as part of His final message to humanity. Islamic Law pays the most careful attention
to this matter and provides a complete legal system. It takes into consideration the changing
circumstances of society as well as the constancy and permanence of human nature. Consequently, it contains comprehensive
principles and general rules suitable for dealing with all the problems and
circumstances that life may bring in any time or place. Likewise, it has set down immutable
punishments for certain crimes that are not affected by changing conditions and
circumstances. In this way, Islamic Law
combines between stability, flexibility, and firmness.
Islamic criminal law recognizes three
categories of wrongs punishable by the state which is hudud a contravention of
limits set by God, which lead to a prescribed and mandatory punishment. Tazir ,
involving discretionary punishment inflicted by the ruler; and qisas a
retribution crimes, concerned with injuries against the person such as
homicide, infliction of wounds. In cases of qisas, the victim or the victim's next
of kin may waive retribution in exchange for financial compensation called diyyah.
The first one which is hudud, basically it
is a punishment fixed in the Quran and
hadith for crimes considered to be against the rights of God. The six crimes
for which punishments are fixed are theft (amputation of the hand), illicit
sexual relations (death by stoning or one hundred lashes), making unproven
accusations of illicit sex (eighty lashes), drinking intoxicants (eighty
lashes), apostasy (death or banishment), and highway robbery (death).
The second which is tazir, a punishment
for all other crimes is left to the discretion of the court. Punishment for
crime not measuring up to the strict requirements of hudud punishments,
although they are of the same nature, or those for which specific punishments
have not been fixed by the Quran. Punishments range from the death penalty for
espionage and heresy to flagellation, imprisonment, local banishment, and a
variety of fines. Determination of punishment is left to the judge or chief
executive, who can vary the punishment according to a number of criteria
including who has inflicted the crime and upon whom.
The third one qisas which mean
retribution. Prescribed in Islamic law for murder, voluntary manslaughter,
involuntary killing, intentional physical injury, and unintentional physical
injury. In cases of intentional killing and physical injury, the family or
victim may waive retribution and exact monetary compensation. In other cases,
only monetary compensation can be exacted. The perpetrator's clan is
responsible for payment of compensation, which is divided by the victim's clan.
Islam seeks to protect society from the
dangers of crime. It is common knowledge
that if crimes are not countered with serious punishments, then society will be
in grave danger. Islam seeks to make
social stability and security widespread, making life in society secure and
peaceful. It has made this consideration
a platform for action, legislating punishments that will discourage crime. This purpose has been articulated by the
following verse that discusses retribution and its effects on society.
“There is (preservation of) life for you in
retribution, O people of understanding, that you may become pious.” (Quran
2:179)
4.4 Is Islamic Law in Malaysia implemented to the full?
Syariah, Islamic sharia
or Islamic law is the religious
legal system governing the members of the Islamic faith. It is
derived from the religious precepts of Islam, particularly the Quran and the Hadith. The term sharia comes from the Arabic language term shariah, which means a body of moral and
religious law derived
from religious prophecy, as
opposed to human legislation.
Sharia
deals with many topics, including crime, politics,
marriage contracts, trade regulations, religious prescriptions, and economics, as
well as personal matters such as sexual intercourse, hygiene, diet, prayer, everyday etiquette and fasting. Adherence to sharia has served as
one of the distinguishing characteristics of the Muslim faith historically. In
its strictest definition, sharia is considered in Islam as the infallible law
of God.
There
are two primary sources of sharia:
the Quran and the Hadiths (opinions and life example of Muhammad). For topics and issues not directly
addressed in these primary sources, sharia is derived. The derivation differs
between the various sects of Islam (Sunni and Shia are the majority), and various
jurisprudence schools such as Hanafi, Maliki, Shafi'i, Hanbali and Jafari. The
sharia in these schools is derived hierarchically using one or more of the
following guidelines: Ijma (usually
the consensus of Muhammad's companions), Qiyas (analogy derived from the primary
sources), Istihsan
(ruling that serves the interest of Islam in the discretion of Islamic jurists)
and Urf (customs).
Sharia
is a significant source of legislation in many Muslim countries where some
countries apply a majority or some of the sharia code, and these include Saudi Arabia, Sudan, Iran, Iraq, Afghanistan, Pakistan, Brunei, United Arab Emirates, Qatar, Yemen and Mauritania. In these countries,
sharia-prescribed punishments such as beheading, flogging and stoning continue to be practiced judicially
or extra-judicially. There has been controversy over what some perceive as a
movement by various Islamist groups
to introduce and implement sharia throughout the world, including in Western
countries, but
attempts to impose sharia have been accompanied by controversy, violence,
and even warfare. Most countries do not recognize sharia; however, some
countries in Asia (such as Israel), Africa
and Europe recognize parts of sharia and accept it as the law on divorce,
inheritance and other personal affairs of their Islamic population. In Britain,
the Muslim Arbitration Tribunal makes use of sharia family law to settle disputes, and
this limited adoption of sharia is controversial.
The concept of crime, judicial process, justice and punishment embodied
in sharia is different from that of secular law. The differences
between sharia and secular law
have led to an ongoing controversy as to whether sharia is compatible with
secular forms of government, human rights, freedom of
thought, and women's rights
Sources of Islamic Law
Primary Sources
• The
Quran (words of Allah)
The Al-Quran, literally
meaning "the recitation"; also romanized Qur'an or Koran) is the central religious text of Islam, which Muslims believe to be a revelation from God (Arabic: الله, Allah).It is widely regarded as the finest piece of literature in
the Arabic language.
Quranic chapters are called suras and verses, ayahs.
• The
Sunnah (rules of the tradition from Prophet Muhammad S.A.W)
Sunnah is the verbally transmitted record of the teachings,
deeds and sayings, silent permissions (or disapprovals) of the Islamic prophet Muhammad, as well as various reports about
Muhammad's companions. Along with the Quran (the holy book of Islam), the Sunna makes up the two primary
sources of Islamic theology
and law. The Sunna is also defined as "a path, a way, a
manner of life"; "all the traditions and practices" of the
Islamic prophet that "have become models to be followed" by Muslims.
Secondary Sources
• Ijma’
Ijmāʿ (إجماع) is an Arabic term referring to the consensus or agreement of the Muslim scholars
basically on religious issues. Various schools of thought within Islamic
jurisprudence may define this consensus to be that of the first generation
of Muslims only; or
the consensus of the first three generations of Muslims; or the consensus of the jurists and scholars of the Muslim world, or scholarly
consensus; or the consensus of all the Muslim world, both scholars and laymen.
•
Qiyas
qiyās (Arabic: قياس) is the process of deductive
analogy in which the
teachings of the Hadith are compared
and contrasted with those of the Qur'an, in order to apply a known injunction (nass) to a new circumstance and create a
new injunction. Here the ruling of the Sunnah and the Qur'an may be used as a means
to solve or provide a response to a new problem that may arise. This, however,
is only the case providing that the set precedent or paradigm and the new problem that
has come about will share operative causes (عِلّة, ʿillah).
The ʿillah is the specific set of circumstances that trigger a certain law into action. An example of the use of
qiyās is the case of the ban on selling or buying of goods after the last call
for Friday prayers until the end of the prayer stated in the Quran 62:9. By
analogy this prohibition is extended to other transactions and activities such
as agricultural work and administration.
Issues that most
commonly involve Islamic Law in Malaysia
• Divorce
• Custody
and Guardianship
• Trust
Deed
• Polygamous
Marriage
• Violation
of the “Pillars of Islam”
The authority over
Islamic Law in Malaysia
• It’s a State Matter
• Each
state has separate legislations, mainly on administration of Islamic Law
• The
present enactments for 3 independent authorities in administrating Islamic Law
in Malaysia :
-
Majlis Agama Islam
§ A
corporation with primary function to advise the Sultan in all matters
concerning Islam.
§ Responsible
for all Islamic matters except Islamic Law & the administration of justice.
-
Mufti
§ He
is responsible for the determination of Islamic Law; i.e settle unsettled or
controversial issues by making & publishing in the Gazette a Fatwa (Legal
Ruling) on the issues.
-
Syariah Court
§ Responsible
for the administration Islamic Law/Justice.
5.0 Judicial
5.1 Judiciary in Malaysia.
In Malaysia,
they have several types of court which are Federal Court, Court of Appeal, High
Court and others. Each of this court has its own function to which cases they
hears. The Federal Courts is the highest court in Malaysia. It may hear appeals
of civil decisions of the Court of Appeal where the Federal Court grants leave
to do so. Court of Appeal hears all civil appeals against decisions of the High
Courts except where against judgement or orders made by consent. High Court has
unlimited civil jurisdiction and generally hear actions where the claim exceeds
RM1,000,000 other than actions involving motor vehicle accidents, landlord and
tenant dispute and distress.
5.2 How the judgement process is done?
For the judicial process to
execute, it must have 3 things which are Judge, Plaintiff and Defendant. A
judge conduct over court proceedings, either by himself/herself or as a part of
a panel of judges. A plaintiff is the one who initiates a court action while a
defendant is a person being charged with a crime.
To be a
judge in Islamic jurisdiction, they must have the following characteristic
which are; a Muslim, baligh, wise, independent, fair, man/woman, have knowledge
about
Al-Quran and Al-Hadis, capability about the process of
justice and have knowledge about Islamic jurisdiction.
A judge also required to have a good
ethics when conducting the court proceeding so that the judgement is fair and
justice. The following ethics should be have for a judge which are decide the sentence based on the
obvious evidence and not based on any hidden and not obvious, there is
nothing that restricts the validity of the decisions such as family
relationships, do not decide for himself, discuss to decide punishment, equalized between the two sides.
party plaintiff or his representative is present, party defendant or his
representative is present, trying to reconcile the dispute and understand the
dispute well.
For the
jurisdiction of the judge, a judge must deciding between the two warring
parties, make the judgement based on Al-Quran and Hadith, helping the poor and
entitles the owner, restoring the right of the victim, enforce the order and
law of Allah, give attention to the
orphan's property, give attention to the waqaf property, give attention to the
will(wasiat) and amar makruf wa nahi mungkar. (enjoining the good and
forbidding bad thing).
For the
impeachment when the process of asking for the right of a person to another in
front of the judge requires a person which are rational and mumaiyyiz(can
differentiate good and bad), in the event of judgment and state clear and
understand with things were charged.
There are two
types of prosecution which are legitimate prosecution (Qualified) and prosecution
was canceled (not eligible). For Hujjah prosecution, it requires witness (1
male@2 female) which are sanity/puberty/saw the incident/heard the
incident/fellow Muslims/free/fair and must have evidence.
For defence, the responsibility of the person who has been charge is he/she must answer yes or no only.
Quite are not allow. If answer no, must have answer and evidence. A Qadhi must
prove the evidence and if do not have evidence, he/she must swear in God name
that he/she not do it.
During the
judgement process, it involves Confession
(Ikrar) which is recognition of what the accused/witness himself. Then, Witness
(Penyaksian) which is to tell the truth about the case and lastly Swear
(Sumpah) which is if the prosecution is unable to bring witnesses/evidence the
party alleged to be asked to swear on the allegations against him (for
property).
6.0 Conclusion
What can be
concluded based on this topic are the legislative and judicial in Islam is
based on the Sharia Law. This Shariah Law are coming from the Al-Quran and
As-Sunnah. This law is created by Allah, thus it is perfect, cannot be change,
cover all aspects and ensuring the safety of mankind.
The
punishment given is already fixed in the Al-Quran. However, there are several
requirement in other for the punishment to be executed. For example,
eyewitnesses, the purpose of doing crime and others. This is to ensure and to
prove that Islamic Law is not ridiculous and cruel to the people. If the person
is stealing some food because they are hungry, the punishment cannot be
executed because he/she is stealing in other to save their lives.
A judicial
process requires a judge, plaintiff and defendant. To be a judge for Islamic
court, they need to have several characteristics in other to be a judge. Also,
a judge must have a good ethics when proceeding a court.
What we can
see is, Islamic Law are not fully implemented in Malaysia. This is because
Malaysia is a multiracial country which have different religion. However, a
Muslim in Malaysia must follow the
Sharia Law while the other follow the civil law.
7.0 References
Wikipedia. (2016). Legislation.
Retrieved on April 30, 2016.
Wikipedia. (2016). Application
of sharia law by country.
Retrieved on May 15, 2016.
Wikipedia. (2016). Judiciary.
Retrieved on May 5, 2016.
Editorial. (2007). An Introduction
to the Islamic Judiciary.
Retrieved on May 19, 2007.
Dr. Ragheb Elsergany. (2010). The characteristics of the Islamic judiciary.
Retrieved on December 26, 2010.
Wikipedia. (2015). Judiciary
in Malaysia.
Retrieved on December 10, 2015.
Anonymous. (2011). History
of The Malaysian Judiciary.
Retrieved on May 25, 2011.
Wikipedia. (2016). Law
of Malaysia.
Retrieved on May 11, 2016.
Wikipedia. (2015). Syariah
Court.
Retrieved on August 27, 2015.
Jeffrey Hays. (2013). ISLAMIC
LAW IN MALAYSIA.
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