Assalamu'alaikum wr.wb.
Rasanya yang menjadi masalah adalah law enforcement itu yang lemah dan
penerapannya tidak sesuai dengan dasar negara kita (Pancasila),
kalau sudah disepakati bahwa dasar negara berdasarkan yang lima itu, maka
seharusnya implementasinya harus sesuai dengan kesepakatan tersebut.
Disepakati bahwa kita berketuhanan yang maha esa, logikanya yang tidak
berketuhanan yang maha esa seperti hindu dlsbnya tidak layak tinggal di Ina,
kemudian pembangunan juga tidak menumpuk di P Jawa saja agar sesuai dengan
niat menjadikan keadilan bagi seluruh rakyat indonesia. Kalau mau consisten
jangan pakai sila berketuhanan yang maha esa
Sehingga semboyan dengan praktek sehari hari tak ada hubungan sama sekali,
sama halnya seperti membuat motto work hard, work smart, time is money namun
prakteknya kita bermalas malasan. Sehingga motto hanya tinggal motto.
Seingat saya Malaysia juga menerapkan syari'ah islam walaupun juga ada unsur
penggabungan dengan hukum adat setempat ( apakah mereka ber abssbk juga..?).
Dalam court systemnya terdapat 3 level yaitu syari'ah courts, syari'ah
subordinate court, syari'ah high court dan syari'ah appeal court
Ras Melayu dianggap semuanya muslim dan dikenakan hukum Islam (syari'ah)
sedang yang non melayu/muslim dikenakan hukum federal. Setiap negara bagian
bisa mengeluarkan fatwa namun semuanya mengacu kepada madzab Syafi'i. Bahkan
di Kelantan diterapkan hukum haad / rajam walaupun pelaksanaanya belum
pernah terjadi.
Walaupun mereka tidak menyebutkan istilah khalifah, namun dalam
konstitusinya bahwa semua pemimpin tiap2 state adalah head of the religion
of islam, ketiadaan pimpinan state2 ini (Malaka, Penang, Sabah, Negeri
Sembilan, Kuala Lumpur, Labuan) maka Yang dipertuan agong ditunjuk sebagai
the head of the religion of islam.
Artikel dibawah ini mungkin bisa memperjelas apa yang saya sampaikan.
wassalam
Adrisman
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Legal History:
The legal system is based on English common law, with both Islamic law and
'adat constituting significant sources of law, particularly in matters of
personal status.
Parts of present-day Malaysia were under Portuguese and Dutch control, and
starting from Penang in the late 18th century, the region eventually came
under British rule, formalised by the Anglo-Dutch Treaty 1824. Malaysia and
Singapore were the eventual successor states to the Straits Settlements
(Penang, Singapore, Malacca), Federated Malay States (Selangor, Perak,
Pahang, Negri Sembilan) and Unfederated Malay States (Perlis, Kedah,
Kelantan, Trengganu, and Johor). Sabah and Sarawak, formerly constituents of
British Borneo, later joined Malaysia.
Under British rule, the first legislation regulating Islamic marriage in the
Straits Settlements was the Mohammedan Marriage Ordinance 1880, mainly
procedural in content. The Ordinance was amended in 1908 to make
registration of marriage and divorce compulsory, non-compliance being
punishable by fine or imprisonment. A 1923 amendment directed the
application of Islamic law to intestate succession of Muslims insofar as
local custom would permit, and without disinheriting non-Muslim kin. The
Ordinance continued to be applied in Penang and Malacca until State Acts
were passed in 1959. The first codification of Malay customary law (a
mixture of 'adat and Islamic law) came in 1915 with enactment of Laws of the
Malay Courts 1915 in Sarawak.
The region was occupied by Japanese forces from 1942 to 1945, with control
reverting to the British after WWII. A legislative assembly was established
in 1955 and independence achieved in 1957. From 1948, the States were
granted jurisdiction over application and legislation of shari'ah and from
1952 to 1978, new laws were promulgated in the eleven Muslim-majority States
of Malaysia and Sabah, generally entitled Administration of Islamic/Muslim
Law Enactments and covering the official determination of Islamic law,
explanation of substantive law, and jurisdiction of syariah courts. New laws
relating to personal law were enacted in most States between 1983 and 1987.
Efforts by Kelantan State to pass a Syariah Criminal Code Enactment 1993
relating to the application of hadd penalties resulted in a stand-off
between the Federal and State governments. It was passed by the State
legislature but never brought into force. It was a matter of much
controversy as criminal matters are within Federal and not State
legislatures' jurisdiction.
Schools of Fiqh: The majority of Muslims are Shafi'i, with Hanafi
minorities. There are also significant Buddhist, Hindu and Christian
minorities and a high proportion of followers of indigenous religions,
particularly in Sabah and Sarawak (both States are Muslim-minority).
Constitutional Status of Islam(ic Law): The Constitution was adopted on
31st August 1957 and has been amended several times. Article 3(1) declares
Islam the official state religion as well as guarantees religious freedom.
Articles 3(3) and (5) provide that the Ruler of each State is the head of
the religion of Islam by the Constitution of that State. In the absence of a
Muslim ruler (in the States of Malacca, Penang, Sabah and Sarawak) or in the
Federal Territories (Kuala Lumpur and Labuan) Yang di-Pertuan Agong (Head of
State) is declared the head of the religion of Islam.
The Ninth Schedule of the Constitution outlines the legislative lists.
Malaysia is a federation of 13 States with both State and Federal level
executive and legislative powers; civil law (and family law as a subset of
civil law) come under the federal legislature's jurisdiction, but persons of
the Malay race are defined as Muslims under the Constitution and the States
are empowered to make personal laws governing Muslims and laws relating to
religious offences, and to establish and regulate syariah courts for the
application of Islamic law. Personal status law relating to non-Muslims is
within the Federal legislature's jurisdiction (governed by the Malaysian Law
Reform (Marriage and Divorce) Act 1976 that repealed all previous statutes
on marriage and divorce governing non-Muslims). Clarification of points of
Islamic law comes under the jurisdiction of each State's Majlis (Council of
Religion and Malay Custom). The Majlis' generally issue fatawa that are in
keeping with Shafi'i tenets except where such may conflict with public
interest. In such instances, the Councils (with the approval of State
authorities) may follow minority Shafi'i views or interpretations from other
three major Sunni madhahib.
Court System: There are three levels of syariah courts in a system parallel
to and independent of the civil courts: Syariah Subordinate Courts, Syariah
High Court and Syariah Appeal Court.
Syariah Subordinate Courts have jurisdiction as indicated by state
legislation over criminal suits liable to punishment up to 2,000 ringgit
and/or imprisonment up to two years and civil suits in which the value of
the subject in dispute is up to 100,000 ringgit or not estimable in cash.
The Syariah High Court has appellate jurisdiction over Subordinate Court
decisions in civil suits of 500 ringgit or more and criminal suits. The
Syariah High Court has original jurisdiction as indicated by state
legislation in criminal suits and civil jurisdiction over betrothal and
marriage, divorce, nullification or separation, marital property claims,
maintenance of dependants, legitimacy, guardianship and custody, testate and
intestate succession, gifts inter vivos and awqaf, in cases where all the
parties are Muslims.
The Syariah Appeal Court has appellate jurisdiction over decisions arising
out of the Syariah High Court's original jurisdiction; all appeals are heard
by the Chief Syarie Judge and two other members and decisions are by
majority opinion.
In September 2000, the government announced that it would establish a
separate family court.
Notable Features: The minimum marriage age is 18 for males and 16 for
females, with provision for judicial permission for underage marriages. A
valid marriage requires both parties' consent as well as the consent of the
wali or syariah judge if no wali is available; compulsion of wards or
unreasonable objection to their valid marriage is punishable by fine and/or
imprisonment.
Marriage registration is obligatory; both parties must apply to the
Registrar for permission to marry at least seven days before the wedding.
Marriage is not to be solemnised except in the kariah masjid of the woman's
normal residence or by special permission to marry elsewhere. The Registrar
is required to record the value and contents of items of dower given and
promised at the solemnisation of marriage. There is provision for the
appointment of Registrars in public offices as well as in kariah masjid.
Non-registration is punishable by fine and/or imprisonment although it does
not determine the validity of marriage.
Polygamy is allowed with judicial permission, contingent upon application to
the court and a hearing with existing wife or wives. The court requires
proof of necessity (e.g., first wife's sterility, physical infirmity, wilful
avoidance of restitution order, etc.); proof of financial capacity;
guarantee of equitable treatment of co-wives; and proof that the proposed
marriage will not lower the standard of life of the existing wife or wives
and other dependants. Contravention of the application procedure and
permission requirements is punishable by requiring immediate payment of any
outstanding dower to the existing wife or wives and by fine and/or
imprisonment.
The wife's right to maintenance is subject to classical definitions of
obedience. The wife may obtain a maintenance order from the court in cases
where her husband fails to provide maintenance; the levels and period for
which the wife might sue for arrears are not specified. The wife's
disobedience can result in restitution order or punishment of fine.
Extra-judicial repudiation is punishable by fine and/or imprisonment. A
husband wishing to pronounce talaq is required to apply for judicial
permission, outlining his reasons as well as the amounts of payments of
nafkah edah ('idda period maintenance), mutaah (consolatory gift) and
maskahwin (dower) he intends to make and provisions for the division of
harta sepencarian (matrimonial property). If a court hearing determines the
consent of the other party and the irretrievability of the breakdown, the
court advises the husband's pronouncement of a single talaq and registers
the divorce. If the other party disagrees or the court is not convinced of
irretrievable breakdown, the court begins conciliation efforts. The
conciliation committee has up to six months to effect a conciliation; if the
committee fails to do so, it issues a certificate of its failure, including
any recommendations regarding custody, maintenance, division of property,
etc. (The Act only provides penalties for extra-judicial repudiations and
does not refer to their validity; courts tend to adjudicate on the validity
of a talaq pronounced outside of court on the basis of classical law.)
The wife may apply for judicial dissolution on the following grounds: the
husband's disappearance for over one year; failure to maintain for three
months; sentencing to three years or more in prison; failure to perform
marital obligations for one year; continued impotence, if the wife was
unaware of it upon marriage; mental illness lasting two years or leprosy,
vitalgo or communicable venereal disease; the wife's repudiation of a
marriage concluded by her father or grandfather before she attained 16, if
she is below 18 years and the marriage was not consummated; cruel treatment;
husband's refusal to consummate for four months; invalidity of her consent
(obtained under duress, mistaken, etc.); and any other grounds for
dissolution or nullification recognised in hukm shar'. A wife divorced
without just cause may apply for maintenance during her 'idda and mut'a,
levels of which are to be set by the court.
The court also divides assets acquired by joint effort during marriage, and
may also order the division of assets acquired by sole efforts, with
consideration of the contribution made by the other party in terms of
housework and caring for the family, though the other party will in all
cases receive the smaller portion. The divorced wife is also entitled to
reside in the marital home during the 'idda or until the expiry of her
custody or her remarriage, if the former husband cannot provide other
suitable accommodation.
The divorced mother is entitled to custody over boys until 7 years and girls
until 9 years, subject to classical conditions. The court may extend custody
to 9 and 11 years respectively upon the hadina's application. After the
expiry of the hadinah's custody, the father becomes custodian, with the
proviso that wards having reached the age of discernment may choose with
which parent to live, unless the court directs otherwise.
Succession is governed by classical law as modified by Malay custom. This is
particularly important in rural areas and with reference to the inheritance
of land, as all Malay 'adat have specific rules on inheritance of land and
such rules are often inconsistent with Islamic law. For example, inheritance
in Malaccan 'adat is matrilineal.
Notable Cases:
Law/Case Reporting System: Case reporting of Federal Court and High Court
decisions is through the Malayan Law Journal. Law reporting is through the
Federal and State Official Gazettes. Some Syariah Court judgements are
included in some issues of the Syariah Law Journal of the International
Islamic University of Malaysia.
International Conventions (with Relevant Reservations): Malaysia acceded to
the CEDAW in 1995 with a number of reservations relating to discriminatory
aspects of customary and personal status laws and discrimination to
appointments in public office (particularly relating to the offices of mufti
or qadi). These reservations were withdrawn in 1998. The reservation to
Article 11 on elimination of discrimination against women in employment
still stands, stating that "Malaysia interprets the provisions of this
article as a reference to the prohibition of discrimination on the basis of
equality between men and women only".
Malaysia acceded to the CRC in 1995 with a general reservation to Articles
1, 2, 7, 13, 14, 15, 22, 28, 37, 40(3) & (4), 44 and 45, declaring that
"said provisions shall be applicable only if they are in conformity with the
Constitution, national laws and national policies of the Government of
Malaysia." (The articles mentioned relate to majority, measures to eliminate
discrimination against children, birth registration and nationality rights,
children's freedom of expression, religion, and association, adoption, right
to education, children's rights and liberties in criminal law, the system of
reporting to the CRC and co-operation with UNICEF.)
Background and Sources: Hooker, Islamic Law in South-East Asia, Singapore,
1984; Ibrahim, Family Law in Malaysia and Singapore, Singapore, 1984;
Kamali, "Islamic Law in Malaysia: Issues and Developments," Yearbook of
Islamic and Middle Eastern Law, vol. 4 (1998): 158-179; Mahmood, "Malaysia"
in Statutes of Personal Law in Islamic Countries, 2nd ed. New Delhi, 1995;
Redden, 'Malaysia' in Modern Legal Systems Cyclopedia, vol. 9, New York,
1990; Selangor, Administration of Islamic Law Enactment 1989 and Islamic
Family Law Enactment 1984 (as at 15th September 1991), comp. by Legal
Research Board, Kuala Lumpur, 1992; Siraj, Women and the Law: Significant
Developments in Malaysia," Law and Society Review, vol. 28, no. 3 (1994):
561-581.
----- Original Message -----
From: "harman" <[EMAIL PROTECTED]>
To: "Komunitas MINANGKABAU (Urang Awak) Pertama di Internet (sejak 1993)"
<[EMAIL PROTECTED]>
Sent: Monday, March 08, 2004 10:51 PM
Subject: RE: [EMAIL PROTECTED] Demokrasi : Gambaran Sebuah Sampah Peradaban
>
> Satuju ambo, Malaysia memang indak memakai Pancasila tapi juga
> tidak menggunakan Syari'at Islam terlebih-lebih lagi sistim ke
> khalifahan..., jadi tanpa syari'at Islam dan kekhalifahan seka
> lipun Malaysia dan Brunai mampu menampilkan wajah dan Peradaban
> Islam dan melayu yang lebih baik dari Ind. yg punya Pancasila dan
> juga punya semangat Syari'at Islam tapi nan nampak justru
> semangat korupsi no nan jaleh... labiah sadiah lagi nan tertinggi
> terjadi di tubuh Dep.Ag wabil khusu pelaksanaan Haji.
> Oh iya, Partai yang berkuasa di Malaysia (UMNO) adolah Partai
> Nasionalis/sekuler (bukan Partai Islam) tapi toh mereka mampu
> menampilkan wajah islam dan Melayu dibanding negeri ini....:-)
> Mungkin karena mereka lebih mementingkan subtansi dari pada
> sekedar label Islam.
> Kalau malie islam di negeri ini memang kasihan dan sadiah.
>
>
> wassalam,
> harman St.Idris (32th)
>
> -----Original Message-----
> From: Ronald P. Putra [mailto:[EMAIL PROTECTED]
> Sent: Tuesday, March 09, 2004 10:44 AM
> To: Komunitas MINANGKABAU Pertama di Internet
> Subject: RE: [EMAIL PROTECTED] Demokrasi : Gambaran Sebuah Sampah Peradaban
>
>
> Mungkin sudah saatnya kita mengkritisi sejauh mana kesaktian Pancasila ini
> bagi bangsa dan negara Indonesia. Tak perlu harus Pancasila. Toh Malaysia
> tidak menjadikan Pancasila sebagai dasar negaranya (padahal mereka juga
> multi etnis dan multi agama) tapi lihatlah sekarang, mereka jauh melesat
> meninggalkan kita. atau mungkin kita akan bernostalgia terus dengan
> Pancasila ini, sehingga lima puluh tahun ke depan, kondisi bangsa ini akan
> tetap spt ini.
>
>
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