Islamic Law and Land in the State of Selangor, Malaysia
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ISLAMIC LAW AND LAND IN THE STATE OF SELANGOR, MALAYSIA : PROBLEMS OF ADMINISTRATION AND ISLAMISATION PRESENTED BY ABDUL FATAH BIN HAJI KHALID NOVEMBER 1988 THESIS SUBMITTED TO THE UNIVERSITY OF EDINBURGH FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE FACULTY OF ARTS BISM ALLAH AL-RAHMAN AL-RAHIM IN THE NAME OF GOD, THE BENEFICIENT, THE MERCIFUL i ACKNOWLEDGEMENTS: First and foremost I must thank the Almighty Allah, Most Gracious and Most Merciful for enabling me to proceed with this work until to its final form. To my supervisor, Dr. M. V. Macdonald, I wish to express my heartfelt gratitude and profound thankfulness for his invaluable assistance and encouragement throughout the past three years and three months (July 1985 - October 1988). He alone patiently supervised the whole of this work and often made useful and constructive suggestions for alteration or addition. His advice and criticism have been of immense value, sustaining this research, especially during the period of its preparation. It is inevitable that there are errors made in this work and I hold myself fully responsible. I would like also to express my sincere thanks to Miss I. Crawford who has been magnificently kind in giving me every kind of assistance throughout the period of my study,. and also to the staff of the Main Library of the University, especially the Inter-Library Service for their unflagging efforts in finding books, without whose help this work could not have been completed. ii Secondly, I would like to record my appreciation and indebtedness to the Selangor State Government of Malaysia for providing me with a full scholarship to pursue my studies at all levels. Alhamdullillah, I have been most fortunate to receive their generous financial support. Also I would like to thank the Public Services Department of Malaysia for granting me study leave. A lasting debt of gratitude is owed to two individuals, Datuk Haji Ahmad Razali and Encik Jaafar Saad, without whom I would never have been able to pursue my further studies. To both of them, only Allah will reward the kindness that they have rendered to me. Other people who deserve my thanks are my colleagues Encik Tukiman Nail and Puan Mariyam Lamri. I would also like to thank the staff of the Selangor State Library, Jabatan Agama Islam Selangor, Syah Alam and the Kuala Langat district office who helped and supported me in one way or the other in the course of my study. I would also like to record my appreciation to my colleagues especially to my brother, Ustaz Dr. Wan Salim Noor, who gave me much guidance and advice during the period of my stay in Livingston. iii Last, though not in significance it must be mentioned that I owe a special debt to my wife Faridah binti Abdul Majid and my children Safiyyah Hayati, Fariz Afridee, Siti Shakira and Ahmad Imtiyaz for their patience and forebearance in withstanding the stress and strains caused by my frequent absence from their midst. They have kept my life pleasant and happy throughout my academic sojourn in Edinburgh. This work is however dedicated to my beloved late parents, Haji Khalid bin Thamby Zainal and Halimah binti Zainal Abidin. May Allah forgive them and place them among those residing in Jannah. For those mentioned, I have this to say: jazakallahu khairan kathiran jazilan, May Allah bless you with well- being in great abundance and perpetuity. 27 Rabiul' Awal, 1409. Department of Islamic and Middle Eastern Studies, University of Edinburgh, iv TABLE OF CONTENTS Paqe ACKNOWLEDGEMENT i TABLE OF CONTENTS iv ABSTRACT ix A NOTE ON TRANSLITERATION xii MAP OF SELANGOR STATE xiii LIST OF ABBREVIATIONS xiv LIST OF APPENDICES xvi INTRODUCTION 1-9 Objective of Study. 9-16 CHAPTER 1: Historical Background of Selangor I. (a) Early Civilisation and Geographical 17-22 Position (b) The Role of the Bugis 22-25 (c) The Sumatrans and Javanese 25-31 (d) The Chinese 31-33 (e) The Indians 33 (f) Islam in Early Selangor 34-38 II. (a) Early British Relationships With Selangor (1) Selangor Treaty of 1818 (Cracrofts Commercial Treaty) 39-40 (2) Selangor Treaty of 1825 (Anderson's Treaty) 41-44 V (3) The Anglo Siamese Treaty of 1826 44-46 (4) Rationale for British Intervention in Selangor 46-51 CHAPTER 2: Land and Agricultural Policies in British Selangor 1. (a) Malay Customary Law 59-70 (b) The Concept of Adat Pepateh, Adat Kampong and Adat Temenggong (1) Adat Pepateh 70-72 (2) Adat Kampong and Adat Temenggong 72-78 (c) The Malay Indigeneous System of Land Tenure 78-81 (d) The Status of the Malay Ruler in Relation to Land 81-82 II. British Land and Agricultural Policies (a) Native Holdings 89-90 (b) The Works of W. E. Maxwell 90-92 (c) The Selangor Land Code, 1891 92-96 (d) The Concept of Malay Land Reservation 96-105 CHAPTER 3: Land Administration : Legal and Religious Institutions (a) The District officer 115-117 (b) The Probate and Administration Act, 1959 117-118 (c) The Small Estates (Distribution) Act, 1955 118-125 vi (d) The Penghulu or Village Headman 125-126 (e) The Pegawai Pesaka Kecil or Small Estate Officer 126-127 (f) The Formation of Jabatan Agama Islam Selangor (J. A. I. S. ) or Selangor Religious Department 127-129 (g) The Administration of Muslim Law Enactment of 1952 129-130 (h) The Role of 3. A. I. S. 130-131 (i) The Organizational Structure of J. A. I. S. 131-138 (j) The Organizational Structure of Majlis Agama Islam Selangor (M. A. I. S. ) or the Selangor Council of Religious Affairs 138-142 (k) The Shariah Law Courts 142-148 (1) The Shariah Law Courts Under the Muslim Law Enactment of 1952 148-152 (m) Problems of the Shariah Courts 152-155 CHAPTER 4: Faraid or Islamic Law of Inheritance (a) Wasiyat or Bequest 161-170 (b) Penama or the Issue of Nomination 170-177 (c) The Concept of Faraid ' 177-182 (d) The Practical Administration of Faraid in Selangor 183-190 (e) Duration and Procedures Taken to Process a Faraid case in Selangor 190-202 (f) Problems Associated with the Implementation of Faraid in Selangor vii (1) Administrative Perspective 203-215 (2) Social Perspective 215-223 CHAPTER 5: Wakaf and Baitulmal Administration in Selangor I. Wakaf ' (a) The Concept of Wagf 231-234 (b) Condition for the Validity of a Wakaf 235-239 (c) Subject of the Wakaf (1) Immovable Property 239 (2) Movable Property 240 (3) Wakaf on communally-Held property or Musha' 241 (d) Classification of Wakaf 241-244 (e) The Administration of Wakaf 244-247 (f) Wakaf Administration in Selangor 248-254 (g) The Nature of Wakaf Properties in Selangor 254-258 (h) Problems Confronting Wakaf Administration in Selangor 258-262 (i) Shortage of Financial Resources 262-263 II. Baitulmal (a) The Concept of Bayt-al-Mal 263-265 (b) The Historical Institution of Baitulmal 266-268 viii (c) Baitulmal in Selangor 268-269 (d) Development between 1952 - 1969 269-276 (e) Restructuring the Organization of the State's Baitulmal 277 (f) Selangor's Baitulmal in the 70's 278-281 (g) Overall Performance of Selangor's Baitulmal 282-285 (h) Problems Confronting Baitulmal in Selangor 285-289 III. Zakat (a) The Concept of Zakat 290 (b) Zakat Activities in Selangor 290-309 CHAPTER 6: RECOMMENDATIONS AND CONCLUSION 318-341 APPENDICES 342-347 BIBLIOGRAPHY 348-364 ix ABSTRACT This research deals with the administration of faraid, wakaf, baitulmal and zakat in the state of Selangor, Malaysia. It covers the period from the British intervention in the state in 1874 to the early 1980's. The study begins with the historical background of the state and the contributions made by the early immigrants towards the economic development of the state and the extent to which they developed the vast areas of empty land throughout the state. It then considers the coming of the British into the state in 1874 and the various commercial treaties signed between them and the Rulers of Selangor which reinforced their authority over the political, economic and administrative affairs of the state. Chapter 2 discusses the various concepts of Malay customary laws, adat pepateh, adat temenggong and adat kampong, and seeks to explain why first two adat failed to. make any inroads into the land tenure system in the state. It finally studies the work of W. E. Maxwell and the introduction of the various Land Codes, particularly X the Malay Reservation Enactment and the Torrens System by the British, which led to the establishment of a systematic approach to land administration in Selangor. In Chapter 3, the institutions of the district office, the Small Estate Office, the Kathi, the Penghulu and the establishment of the shariah -courts are discussed. These establishments can be considered to be backbone of the adminstration of the four Islamic concepts, particularly at the village level. The Chapter also analyses the dichotomy of authority that exists between the shariah and the civil courts in which the latter has the upper hand when it comes to making final decisions, especially in faraid cases. The problems confronting the shariah courts and the importance of the Adminstration of the Muslim Law Enactment of 1952 are discussed. The components of faraid, namely wasiyat and penama, and the practicalities of their administration constitute the discussion in Chapter 4. This, with Chapter 5 may be considered to be the core of the thesis. The writer's experience in the district of Kuala Langat and the problems from two perspectives (administrative Si and social) confronting the implementation of faraid at the grassroot level is utilised in the course of the discussion.