This article discusses about the applicable Islamic laws of inheritance in Malaysia and the conflicts that happened due to the delay in its distribution. The focus of this study lies in the transformation of Administration of Islam Law in Northern States of Peninsular Malaysia i.e. Perak, Penang, Kedah and Perlis relating to Islamic inheritance. This study aims to identify legal provisions relating to Islamic inheritance contained in the Administration of Islamic Law Enactments in Northern States of Peninsular Malaysia. Using doctrinal analysis as a research method, this study will be based on qualitative data to examine the imbalance forms and trends of Islamic laws of inheritance between the pre and post-independence eras. This imbalance will be explained in the form of comparison made on the Administration of Islamic Law Enactments of the respective states in the pursuit to make them in tandem with the current needs. The finding from this study indicates that the transformation in Islamic laws of inheritance is not balance because there is only one section provided for it since pre-independence until today. This has resulted in various conflict within Muslim community. Relevant authorities must take proactive actions to address the conflict. To this end, this study recommends that the authorities will enact specific enactment for Islamic laws of inheritance and enforce provisions that compel any relevant parties to speed up the distribution process of Islamic inheritance.
Keywords: Islamic Law of InheritanceNorthern State of Peninsular MalaysiaTransformation
Law is a form of management system for human development that aims to govern and manage day-to-day human activities to achieve a prosperous life with an abundance of blessings form Allah SWT. Without laws, a society will freely enjoy their life without any limitations. This uncontrollable situation will certainly lead to imperfect life (Sulong, 2011, p.7). In the context of inherited property, people may easily involve in cheating, murder and illegal property-grabbing despite the property does not belong to them (Ayyub, 2006, p. 9 -13).
In Malaysia, the Federal Constitution has provided jurisdiction to the State Government to enact laws related to Islamic law or hukum Syarak, Islamic personal and family laws. This was stated in 9th Schedule, List II which provides:
Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy guardianship, gifts, partitions and non- charitable trusts… (9th Schedule, List II, Federal Constitution, Contains Latest Amendments - P.U. (A) 164/2009).
In addition to that, the States’ Admiration of Islamic Law are the body of laws that are substantive in nature and have been regularly amended in tandem with the current situation. As such, this article will emphasise the aspect of legal evolution in Islamic inheritance contained in the Administration of Islamic Law Enactments in Northern States of Peninsular Malaysia during pre and post-independence eras.
The author focuses on two main issues that reflect weaknesses in Islamic law of inheritance which have led various conflicts. The two issues are:
Delay in Making Claim for Distribution of Inherited Property
Nowadays, heirs tend to delay the process to claim for the distribution of inherited property after the death of the property’s owner up to few years (Abdul Rahman, Ngah, Mustaffa, Abdul Mutalib, & Hamzah 2016). This attitude of delaying the process to claim for inheritance distribution has given negative impact to Islamic law or hukum syara’ and the social and economic developments which have rightly been pointed out by various scholars such as Wan Harun (2008), Naiimi (2015), Mohamad (2016), Abdullah, Zakaria, & Mahad Musa (2016), Abdul Rahman et.al, (2016) and Zulkifli & Ahmad (2016) as demonstrated in Table
In addition, the delays in making claim for inherited property distribution at Amanah Raya Berhad (ARB) has caused the increase of “money waiting to be claimed” throughout the country (Shafie et.al, 2014) as indicated in table
Non-existence of Specific Laws on Inheritance
In general, provisions of laws related to inheritance in Peninsular Malaysia maybe referred to Section 8, Small Estate (Distribution) 1955 [Act 98], Section
According to Lakim (2016), the non-existence of specific laws or procedures relation to the management of inherited property has led to the non-uniformity nature of the Islamic inheritance system in Malaysia. Bureaucracy factor and jurisdictional limitations between Federal and State have contributed to the difficulty in establishing a substantive statute on Islamic inheritance. Sabah is the only state in Malaysia that has managed to create rules or procedures on management Islamic inheritance which is known as “Guidelines on Application of Distribution, Appointment of Wali, Estate and Clarification of Estate Inheritance (Sabah) 2007” or “Garis Panduan Permohonan Pembahagian, Pelantikan Wali, Harta dan Perakuan Perwarisan Harta Pusaka (Sabah) 2007”.
To learn what is actually the legal provision related to Islamic inheritance contained in the Administration of Islamic Law Enactment in the Northern States of Peninsular Malaysia?
Purpose of the Study
This study aims to help the relevant authorities to amend the existing legislation or pass new enactment related to Islamic inheritance. The existence of such amendment or new enactment would empower claim for distribution of Islamic inherited property such as summon, court order, fine or penalty to heirs of nominees who have delayed the management of inheritance distribution.
This amendment or establishment of new enactment will address any unresolved issues such as delayed cases, multi-layered death
(munasakhah),total amount of money which has been transferred to the account of Unclaimed Money Fund, Money Waiting to be Claimed at ARB etc. Besides, this amendment or establishment of new enactment would also generate income to the State government through the payment of land taxes, assessment tax, and other payment related to deceased’s properties.
This study employs qualitative method by investigating the trends in Islamic law of inheritance during pre and post-independence eras. More specifically, doctrinal analysis method has been used by this study to analyse Administration of Islamic Law Enactments in the Northern States of Peninsular Malaysia between the two eras. Data are obtained using library-based research method by referring to books, journals, acts, internet sources, newspapers as well as field-work based on interviews with relevant authorities in the four states. The data were analysed in the form of comparison between the two eras against the backdrop of the needs to establish new and specific laws relating to Islamic inheritance.
This study indicates that the Administration of Hukum Syarak Enactment (Selangor), 1952 was the first of its kind enacted in the Federation of Malaya. This legislation has been considered as a “model” for other Malay States in the Federation. This enactment consists of 10 parts and 180 sections but out of this, only Section 47 has touched on certification of Islamic inheritance i.e.:
“If, in the course of any proceedings relating to the administration or distribution of the estate of a deceased who professed the Muslim religion, any Court or authority, other than the Court of the Kathi Besar or a Court of Kathi, shall be under the duty of determining the persons entitled to share in such estate, or the share to which such persons are respectively entitled, the Court of a Khadi, if the gross value of the estate does not appear to him to exceed five thousand dollars, and the Court of the Kathi Besar in any case, may, on a request by such Court or authority, or on the application of any person claiming to be a beneficiary and on payment by him of the prescribed fee, certify, upon any set of facts found by such Court or authority, or on any hypothetical set of facts, its opinion as to the persons who are, assuming such facts, whether as found or hypothetical, entitled to share in such estate and as to the shares to which they are respectively entitled. The Court of the Kathi Besar or Khathi may, before so certifying its opinion, require to hear the parties on any question of law, but shall not hear evidence or make findings on any question of fact. In any case of special difficultly the Kathi Besar or a Kathi may refer the question to the Legal Committee for its opinion, and shall, and shall, if such opinion be given, certify in accordance therewith”.
The Enactment provides the roles of States Islamic Council or Majlis Agama Islam Negeri, the jurisdictions of Syariah Courts, administration of Mosque, administration of marriage, divorce and rujuk all of which are general in nature. The finding from this study discovered that there has been transformation and evolution in Islamic law of inheritance were rather not synchronised because there is only one section provided to Islamic inheritance since pre-Independence until post-Independence eras in particular in the four States of the research location, as follows;
Administration of Islamic Law in Perak was passed on 1 May 1965, consisting of 10 parts and 192 sections. It is similar to that of in Administration of Muslim Law Enactment, Penang No. 3, 1959 and Administration of Muslim Law Enactment, Kedah No. 9, 1962. However, Administration of Islamic Law (Perak) 1965 was repealed and replaced by Administration of Islamic Law Enactment (Perak) 2004 which contains 113 sections. Out of these sections, only Section 54 which empowers the court to approve heir’s portion. Nevertheless, the provision was not given the status it deserved. In fact, there also exists loopholes that make the enactment not competitive as compared to other enactments (Yusof, 2016).
Administration of Islamic Law Enactment of Penang was passed on 15 April 1959. This enactment has 10 parts and 180 sections equivalent to that of in the Administration of Muslim Law Enactment, Selangor No.3, 1952. Factor of this similarity was due to the fact that both enactments came into effect for a period of seven years within the period of colonial rule. In these legislations, only Section 47 was dedicated to inheritance of estate similar to Section 47, Administration of Muslim Law Enactment, Selangor No.3, 1952. This enactment has been amended in 1993, 2000 and 2004 (www.esyariah.gov.my). Most recently, the Administration of Islamic Law Enactment (States of Penang) 2004 was established and it contained 11 parts and 124 sections in which on Section 65 was dedicated to Islamic inheritance. According to Ismail (2016), issues related to administration or distribution of the estate of a deceased who professed the Muslim religion was not given appropriate emphasis as compared to the issues related to crime, administration of Muslim marriage, divorce and rujuk, evidence in court, administration of Mosque, wakaf and administration of persons who converted to Islam (Muallaf). If there is application for distribution of the estate of a Muslim deceased, the matter should be directly referred to Malay customary law or hukum Syarak.
Administration of Muslim Law Enactment, Kedah No.9, 1962 was passed in 1962. It consists of 10 parts and 174 sections. Section 44 which is related to Certification of Faraid is still contained in main enactment or “Enakmen Ibu” i.e. the Syariah Court Enactment (Kedah) 1979. However, Section 44 was subsequently repealed and replaced with Section 22 of the Enactment. After being gazetted, Syariah Court Enactment (Kedah Darul Aman) 2008 continues to include a section on certification of inheritance i.e. subsection 2 (1) which constitute part of previous enactment i.e. since 1962. Hence, the efforts to establish specific laws relating to inheritance of Muslim people are highly welcomed in facing the challenges that affect the Islamic legal institutions nowadays (Mustapha, 2016).
Administration of Muslim Law Enactment Perlis, which was passed in 1963, contains 12 parts and 136 sections. In this enactment, only Section 11 that provides the jurisdiction of Kathi Court in determining heirs / beneficiaries and estate portions according to Islamic law (hukum Syarak). The enactment has subsequently been amended to become Administration of Islamic Law Enactment (Perlis) in which the provision on certification of Islamic inheritance has been changed to Section 65. The number of sections in Administration of Islamic Law Enactment (Perlis) was decreased due to the repeal of previous provisions and establishment of new enactments such as Islamic Family Law Enactment (Perlis) 2006, Administration of Syariah Court Enactment (Perlis) 2007, Syariah Court Mal Procedure Enactment (Perlis) 2007, Criminal Offences in the Syarak Enactment (Perlis) 2007, Criminal Procedure in the Syarak Enactment (Perlis) 2007, and Control of Islamic Religious Schools Enactment (Perlis) 1988. Nevertheless, it was discovered that, since the British colonization until the post-independence era, the aspect of administration of Islamic inheritance has neven been given appropriate status in the legal system applicable in the respective state (Ahmad, 2016).
Based on the above data analysis, this study recommends that the authorities will enact Islamic Law of Inheritance Enactment and enforce provisions that will make it compulsory for any relevant parties to speed up the application for the distribution Islamic inheritance in the pursuits to avoid conflict in claiming the ownership of deceased’s properties and family crisis in Muslim community.
The Government must be more concerned with the issue of delays in the distribution of the estate of a deceased who professed the Muslim religion. The effort to empower the Islamic law of inheritance in Malaysia ia a proactive move and very significant. The development of Administration of Islamic Law since 1950 until now as stated in this study indicated that the aspect of administration of the estate of a Muslim deceased was not legalized as equivalent to the other enactments which have been given the status that conforms with the current development. Thus, it is high time now for the authority to start transforming the law on Islamic inheritance as the soonest possible time so that it can be developed for the sake of the sustainability of Muslim property and the ummah as a whole.
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23 September 2019
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Sociolinguistics, linguistics, literary theory, political science, political theory
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Azhar, A., Noor, F. M., & Ahmad*, F. (2019). Transformation Of Islamic Inheritance Laws In Northern States Of Peninsula Malaysia. In N. S. Mat Akhir, J. Sulong, M. A. Wan Harun, S. Muhammad, A. L. Wei Lin, N. F. Low Abdullah, & M. Pourya Asl (Eds.), Role(s) and Relevance of Humanities for Sustainable Development, vol 68. European Proceedings of Social and Behavioural Sciences (pp. 224-231). Future Academy. https://doi.org/10.15405/epsbs.2019.09.23