2007] RAIHANA ABDULLAH 517
legislative approach began as a way to examine issues pertaining to the
Islamic Family Law. The writings and studies of the Islamic family law are
not only bound to the traditional aspects of family laws such as marriage,
polygamy, divorce, maintenance, property and the like, but have advanced to
current issues that arose from the implementation of the Islamic Family Law.
This third period saw the advent of several writings and studies that focused
on protection for and assurance of women’s and children’s rights pursuant to
the requirements of the United Nations Convention, guaranteeing and
protecting the rights of women and children.
From these three periods we are able to discern the differences of the
writers and researchers who are critical of Islamic family laws. On the whole,
writings and studies pertaining to the Islamic Family Laws in Malaysia not
only discuss the state of marriage, divorce and matters in relation thereto from
the perspective of the classical Islamic Law, but it also covers matters
pertaining to the history of Islamic Family Laws, the implementation and
administration of the Islamic Family Laws and current issues that arise from
the implementation of the Islamic Family Laws.
I
SLAMIC FAMILY LAWS AND CUSTOM
British colonial administrators were involved in a number of matters
pertaining to the laws of the Malay Muslim community, in particular matters
regarding to the family. The accurate information on the practices of the local
people with regard to their personal matters was of utmost importance in
outlining effective policies that were practical. The requirement of the
colonial administration finally caused a few of the British administrators to
observe further the practices of the Malay community and the uniqueness of
Malay customs, particularly those pertaining to family relationships, which
are matrilineal in nature. They promulgated several rules with respect to
personal affairs, maternal relatives of the Malay community, and matters
regarding land and jointly acquired properties. This may be seen in the works
by Wilkinson (Wilkinson 1980), Taylor (Taylor 1929, 289), Parr and Mackray
(Parr and Mackray 1910, 114), and Winstead and Kempe (Winstead and
Kempe, 1952). Their writings have shown that custom played a very
important role in molding the life of Malay families, particularly when it
touched on matters regarding land ownership in divorce contexts.
These writings have prompted many local researchers to conduct
further study on the application of custom in the Malay community. The
uniqueness of the Malay social system and the relatives of the Malay
community have also drawn the interest of many researchers, who write on