Shari'ah Court Judges and Judicial Creativity (Ijtihad) in Malaysia and Thailand: A Comparative Study1

Abstract

This paper examines the role played by Shari'ah Court judges towards the development of Islamic law and its application in Malaysia and Thailand. It discusses issues concerning the appointment and jurisdiction of courts with cases drawn from the two countries. Thailand is chosen because it shares some features with Malaysia. The paper also highlights the differences in terms of the administration of Shari'ah Courts, power of the judges, conflict of laws and political interests that made both countries “special” in their own ways. In Thailand, Islamic law is applied but is limited to four southern provinces. The rest of the countries are ruled under civil law or common law. Thus, a Thai Muslim is not subjected to Islamic law if he resides in other than those four provinces though they can choose to be governed either under the Islamic law or the common law. In Malaysia, however Islamic law is a state matter. All Muslims are subjected to Islamic law as prescribed in the Federal Constitution. Another interesting thing to note is that the Shari'ah Court judge in Thailand is known as Dato' Yuthitham who is appointed by the Ministry of Justice. However, in Malaysia the Sultan makes the appointment of judges except in the Federal Territories.