INTRODUCTION
Legislative
means having the function of making laws while for for judial, it is pretending
to judgement in courts of justice or to the admistration of justice. For a
nation to prosper and develop holistically it needs to have an organised system
of administration; a system which seeks to redress the problems of the people
and most importantly, is free from corruption. Maladministration leads to
various obstacles in the progress of a nation and is like a termite which
slowly erodes the very foundation of a nation and prevents the very structure
of administration from accomplishing its task. The root cause of this problem
of maladministration is corruption. Administrative law is an ever growing
subject which cannot be confined to one single terrain. It does not confine
itself to any one branch of law and is eventually bound to be present at every
instance where there is an abuse of power. For an administrative system to be
good it must not abstain from being answerable to the people. But, as has been
said, absolute power corrupts absolutely which implies that if there is power
then its abuse is bound to be there. With the administrative agencies pervading
every aspect of our lives, the chances of administrative law interfering with
the rights of a person have increased manifold. It eventually leads to the need
for an appropriate mechanism which can secure the rights of a person from being
infringed by administrative wrongs.
OBJECTIVE
To give a simple review about the
legislative and judial institution in Malaysia
IMPORTANCE
More seeks to redress the problem of
the people and most importantly, is free from corruption.
PRINCIPLE OF ISLAMIC LAW
Shari’ah, or Islamic law, is the "centerpiece and backbone of the religion of
Islam." It is based on the Qur’an, which Muslims believe is the revealed
book of God given to Muhammad over 23 years, ending in 632 CE, and the Sunnah,
or example of the Prophet Muhammad, whom Muslims believe was divinely guided.
The Hadith, which are sayings of Muhammad and provide information about the
Sunnah, were recorded in the two centuries after Muhammad’s death in
authenticated hadith collections. Islamic law prescribes Muslim behavior in
every aspect of life from private matters between the individual and God to
relationships with others from the family or the widest community. The Shari’ah
contains categories and subjects of Islamic law called the branches of fiqh (literally,
"understanding"). They include Islamic worship, Family relations,
Inheritance, Commerce, Property law, Civil (tort) law, Criminal law,
Administration, Taxation, Constitution, International Relations, War and
Ethics, and other categories.
PROCESS OF JUSTICE
FIGURE
1 : Process chart of reaching decision
in Islamic Law
SOURCE
OF ISLAMIC LAW
Various sources of sharia are used by Islamic
jurisprudence to elucidate the body of Islamic law. The primary sources,
accepted universally by all Muslims, are the Qur'an and
Sunnah. The Qur'an is
the holy scripture of Islam, believed by Muslims to be the direct and unaltered
word of God.
MAN LAW IN MALAYSIA
1. Law firms in Malaysia
2.Sabah and Sarawak Law Court
This website contains information on Sabah
courts such as how the courts function and how cases are being dealt with.
This site covers the courts in Kota Kinabalu, Sandakan, Tawau and Labuan,
including the courts in the various districts. Latest judgments can also be obtained
from here.
Similar information as to the Sabah Law Courts’ website, set up
with the aim of promoting transparency and informing the advocates and the
public how the courts function and how cases are being dealt with. This site
covers the courts throughout Sarawak.
3.Syariah Law Court
The establishment of Syariah Court of Federal Territory was first
made under Section 44(1) & (2)
Selangor Islamic Administration of Islamic Law Enactment (1952). However, it
was revised by the Federal Territory Order (1974). This website helps us to
understand the syariah court procedures and contains other administartive
information.
4.Intellectual Property Court
The concern for the high rising number of piracy of copyrighted
materials and counterfeiting of goods in Malaysia drove the country to
establish an Intellectual Property Court. The Malaysian government has approved
the establishment of fifteen (15) Sessions Courts with criminal jurisdiction
known as “Sessions Court (Intellectual Property)”, one (1) in each state
including in Putrajaya. In addition, six (6) High Courts with both civil and
appellate jurisdictions known as “High Court of Malaya (Intellectual Property)”
or “High Court of Borneo (Intellectual Property)” as the case may be, would be
established in Kuala Lumpur, Selangor, Johor, Perak, Sabah and Sarawak, with
one (1) court already operational in the Kuala Lumpur High Court as of 17 July
2007.
5. Industrial
Court
The Industrial Court was established in 1940 under the Industrial
Court of Inquiry Rules but it did not function due to Japanese Occupation. The
Industrial Court’s objective is to set-up principles and guidelines for labour
law in the private sector through decisions and awards handed down by the court
which will set precedent to be followed in the practice of labour law and
industrial relation system. The present Industrial Court is instituted under
the Industrial Relations Act 1967. This website gives further explanations on
the Industrial Court functions, activities and its jurisdiction.
DIFFERENTIATION BETWEEN
ISLAMIC LAW & MAN LAW
Veneration
for and sanctity of the law
There are great differences between Islamic legislation and
man-made laws in terms of the veneration for, and the sanctity and appreciation
of the law in the individual’s inner self:
The veneration for, and the sanctity and appreciation of the law
is a characteristic of Islamic legislation because of its religious qualities
and that its legislator is Allah, Who the souls greatly revere and towards Whom
they bow in absolute submission.
Agreement
and suitability
The Shari’ah suits all nations and peoples of different natures,
habitats, races and languages, since its Maker and Legislator is Allah
Almighty. He (Glorified be He) has full Knowledge of what was and what will
come to be of human beings and their natural disposition, instincts,
temperament and everything related to mankind, and He, the Almighty, is far
Exalted from succumbing to any whims or desires.
Allah says: {So, set you (O Muhammad [sal-Allâhu ‘alayhi
wa sallam]) your face towards the religion (of pure Islâmic Monotheism) Hanîf
(worship none but Allâh Alone). Allâh’s Fitrah (i.e. Allâh’s Islâmic
Monotheism) with which He has created mankind. No change let there be in
Khalq-illâh (i.e. the religion of Allâh – Islâmic Monotheism), that is the
straight religion, but most of men know not. (Tafsir At-Tabarî)}(Ar¬-Rûm:30)
Man-made laws are legislated by humans whose knowledge, however
good it may be, is still greatly lacking. If they knew what might happen today
and tonight, they would never be able to tell you what might happen tomorrow.
Moreover, if they were to know some of the various natures of human beings,
they would still never be able to know all the natures of all humans. Hence,
the laws they legislate do not suit all natures or all environments. Even
though these laws are suitable for some people, they are not suitable for
everyone.
Rectitude,
truth and justice
Islamic Shari’ah corresponds with rectitude, truth and justice,
so as not to lead to the possibility of errors, mistakes, oppression, and
injustice in the legislation or to the submission toany whims or personal
desires when drafting any law. Allah says: {And the Word of your
Lord has been fulfilled in truth and in justice. None can change His Words. And
He is the All-Hearer, the All-Knower.}(al-An’aam:115)
Almighty Allah Alone, Exalted is He above having any personal
whimsical aims, is All-knowing of every matter, both externally and internally,
and has all-pervading knowledge of the affairs of His people. He only commands
them that which leads to their well-being and only forbids them that which is
harmful to them. Man-made laws, on the other hand, are prone to error,
mistakes, and omissions, and they follow the whims of mankind. They, therefore,
are never free of errors and faults, and are always being annulled, changed and
altered. Allah says: {Had it been from other than Allâh, they would surely have found
therein many a contradiction}(An-Nisâ’:82)
The
human nature of man
Islamic Shari’ah is not a set of abstract laws laid down through
the ideas of man. Rather, it was formulate by Allah Almighty to suit human
nature and His creation. For He Who created people is the best to know what
suits them. {Should not He Who has created know? And He is the Most Kind and
Courteous (to His slaves), the Well-Acquainted (with everything).}( al-Mulk:14)
He knows best what lightens the burden for them. {Allâh wishes to lighten
(the burden) for you; and man was created weak (cannot be patient to leave
sexual intercourse with women). }(An-Nisâ’:28)
As for man-made or positive laws, they are made according to the
wishes of he who makes them, and according to his temperament, interests and
environment.
The
spiritual aspect of man
Islamic Shari’ah tackles apparent and hidden actions. Allah
Almighty says: {And know that Allâh knows what is in your minds, so fear Him.
And know that Allâh is Oft-Forgiving, Most Forbearing.{ ( al-Baqarah:235)
It is unlike that of man-made laws, which only tackles the
apparent sides, and completely neglects the spiritual side or that related with
the Hereafter. As for the punishment in man-made laws, it is only worldly.
CONCLUSION
