The implementation of the Islamic law is the contemporary issue in the most of the modern Muslim states such as Malaysia and Nigeria. Most of these modern Muslim states have legal systems that are plural in nature. Peters (2001) argue that Islamic law in Nigeria and Malaysia has been confirmed to be one of the significant sources of legal systems that supplement the English law and other forms of legislations in the two countries. According to (Uthman, 2009), Nigeria and Malaysia did not start to use the Islamic laws recently; the laws have been part of the two societies since centuries ago. However, as bin Sulong (2013) states, their effectiveness has not been used because of their advent and lack of the goodwill for full implementation. Therefore, it is still a great task until today, to implement Islamic laws in the two states. There are series of challenges facing the implementation process, which depends on the popularity of each state involved (Kendhammer, 2013). However, to be able to reduce or eliminate these challenges, Uthman (2009) suggests that the two countries need to improve their educational system so as to create a smooth platform for the implementation of the Islamic Shariah laws. This section is going to examine the implementation and application of the Islamic laws in Malaysia and Nigeria.
It is important to highlight that most of the Common Wealth states with a large population of Muslims have many common characteristics in common when it comes to the implementation and application of the Islamic laws. Malaysia and Nigeria are some of the members of the Common Wealth Organization, which has a plural legal system that is able to accommodate the diversity of these societies. Despite the challenges experienced in the implementation of the Islamic laws in these states, it is important to recognize that Islamic laws are still considered part of the legal systems in these countries (Adebayo, 2012).
There are many controversies that have emerged over the past years regarding the implementation and application of the Islamic laws effectively and fully in Malaysia and Nigeria. In Malaysia for instance, the Islamic laws have not been implemented fully as part of the countrys legal system because most of the Muslims in the country are basically governed by the Islamic personal and family legislations, which are administered by the Syariah courts (Chinyong, 2009). However, there are some certain issues that still emerge regarding the implementation of pure Islamic laws as enshrined in the Quran and Sunnah (Chinyong, 2009). The most recent controversy that can be remembered easily when talking about the challenges in the implementation of the Islamic laws in Malaysia is the application of Hudud law in the country (Etim, 2014). Many scholars have greatly contributed to this discussion, especially when it comes to the contemporary controversial issues emerging from the implementation of Islamic laws in Malaysia and Nigeria. According to Etim (2014), Hudud is the penal laws of Islam contained in the Hadith and Fiqh. The word Hudud means prevention, restraints, hindrance, and prohibition; thus, the Islamic states consider it as a statute of God regarding the things that Muslims should indulge in and those that are unlawful and should not be done (Jalil, 2015). The Hudud law is associated with two main aspects of punishments described in the Quran and Sunnah. The first aspect of punishment is the Hadd, which is the measure of the punishment as contained in the Quran and Sunnah (Etim, 2014). The second aspect is the Tazir, which is a measure of punishment that can be implemented by the law courts to decide on which punishment can be administered to a crime offender (Etim, 2014). The first aspect of punishment (Hadd) allows death by stoning for adultery offenders, amputation of limbs for robbers, and one hundred strokes for drunkenness (Etim, 2014). However, the punishments can be reviewed and applied differently depending on the nature of the case and evidence presented and circumstances that the crime was committed.
According to Shuaib et al., 2010), the Malaysian federal constitution provides every individual the right and freedom to practice any religion of his/her choice. For example, Article 3(1) of the Federal Constitution highlights that Islam is the religion of Federation, but other religions are also acceptable and one may practice than in peace and harmony in any part of the Federation (Noor, 2014). Further, Article 8(2) also guarantees no discrimination to any person who wishes to practice any religion of his/her choice (Freedman, 2006). The article further goes to explain that any person should not be discriminated based on his racial background, religion, or place of birth in the appointment to any office. However, the marginalization and discrimination cases that have been witnessed in different states whether Muslim or non-Muslim, have greatly contributed to the negativity towards the implementation of Islamic law in Malaysia (Freedman, 2009). Although Islam in Malaysia is a provision of the Federation it has little significance when it comes to the administration of Islam. It is the responsibility of the states; thus, it is difficult to integrate it in the national legal system. Apart from the above-mentioned challenge, it is difficult to implement the Islamic laws especially Shariah in some states even if they wish to do so because of various setbacks created by the Federation Constitution. First, Article 75 of the Federation constitution which states that in case of any inconsistency between the national and state law, the latter shall prevail (Freedman, 2006). Secondly, the Constitution has created a limited space for the practice and application of the shariah law in the courts. The Shariah courts in Malaysia are limited to try offenses that do not involve any punishment (Freedman, 2009). As a result, it is impossible for the Shariah courts to implement the hudud punishments. Critics have argued that the Federation Constitution marginalized the Islamic law in respect to the civil law, which is derived from the English common law. According to George (2016), some of the Islamic content contained in the Federation Constitution was not intended by the drafters because their effectiveness and application have been limited to certain areas. Further, the Islamic law does not have jurisdiction in the Federation courts. The Federation constitution has ensured that despite Islams exalted status, the Islamic laws still occupy an inferior position in the Constitution (Freedman, 2009).
The same controversy in Malaysia is almost what has been experienced in Nigeria regarding the implementation of Islamic laws. According to Kendhammer (2013), the controversy in the implementation of Islamic laws in Nigeria provides a key case for understanding the politics of Islamic policies in the modern Islamic states. Nigeria has been led by the politicians from the Muslim majority states in the Northern part of the country that have successfully managed to incorporate the Islamic laws into the criminal laws (Harbin, 2014). The leaders have also managed to launch various extensive Islamic social and economic changes. However, the main challenge has been the effective and full implementation of the laws across the whole country given the diversity of Nigerian religion. Nigeria consists of about 170 million people, who are divided almost in equal proportions between Muslims and Christians (Gofwen, 2004). However, Muslim states in the Northern part of the country have slightly the majority of the population. However, the implementation of Shariah laws in the whole legal system has been a challenge because the Christians from the South interpret the Islamic laws as a political and cultural provocation (Harnischefeger, 2008). This division among the Nigerian population has set off a chain of reaction of political conflict that has significantly reduced the success of implementation of the laws. Attempts to implement the Islamic laws such as Shariah started on 19th September 1999 when the governor of Zamfara state, Ahmed Sani Yerima publicly announced that he would take it a personal initiative to campaign for the implementation of the Shariah laws in the legislative process (Ibrahim, 2016). The governors of the Northern state who joined Yerima did not have it easier either, especially with the strong opposition from the South led by the president, Olusegun Obasanjo who was an evangelical Christian (Igboin, 2014). However, in some cases where the Shariah laws were successfully implemented in the North, the jurisdictions was extended into the criminal matters; thus, creating Islamic criminal codes that provided an opportunity for wide-spread of Islamic social policies across most of the Northern states.
Research has shown that despite attempts by the governments to apply the Islamic laws alongside the other legislations, the majority of the population in Nigeria and Malaysia are not ready to adopt or accept pure Islamic laws (Imam, 2011). This is one of the reasons that can explain the reluctance and controversies revolving around the implementation of the Islamic laws in the two case countries. The common factor in both countries that hinder successful implementation of the Islamic in Nigeria and Malaysia is the diverse nature of the two societies. In Malaysia, for instance, over half of the population believes that the implementation of the Islamic laws such as Hudud may not serve them equally and fairly (Etim, 2014). However, even those who are in support of the Islamic laws still believe that they are not ready yet for its implementation. Some of the factors associated with the low level of readiness in Malaysia regarding the implementation of the Islamic laws such as Hudud include fear and lack of understanding of the law. Most of Malaysians who believe that the country is not yet ready for the Islamic laws to fear the impact of the laws, citing an incessant politicking as the main reasons behind their opinion (Lee, 2010). Nigerians on the other hand, believe that the country is not ready for the Shariah laws especially the Christians from the South who feel and believe that their rights and lifestyle would be infringed and eradicated with the new laws propagated by a different religion. The division in Nigeria has not only been associated with the different religions but also the different sets of politics (Last, 2007). The Christians from the South feel that they have been marginalized when it comes to representation in the federal or national government. Therefore, if the Shariah laws are implemented, it would marginalize them further. It is this fear and lack of adequate education to help them understand the effectiveness of the Islamic laws when applied alongside the customary and other legislations in the country. Further, heavy politicking in both Nigeria and Malaysia has become one of the leading factors that the two countries are not ready to implement the Islamic laws (Hudud for Malaysia and Shariah for Nigeria). If the implementation of the Islamic laws in the two countries would not be politicized, maybe Malaysians and Nigerians would be ready for the full implementation of these laws. However, looking at it from a political perspective further deteriorates the already deteriorated situation that implementation of the Islamic laws is a problem rather than a solution to criminal challenges experienced in the two countries. Both countries have multi religious and racial groups; thus, it is very difficult to implement the Islamic laws. In Nigeria for instance, there are over 200 ethnic groups and different racial groups who practice different religious practices. Therefore, forcing the implementation of the Islamic laws in a...
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