By Myrra binte Abdul Jalal
Prof. Emeritus Tan Sri Dato’ Seri Ahmad Mohamed Ibrahim, the esteemed legal luminary who donned the iconic white shirt in a black coat, and a black songkok needs no introduction. However, out of respect, it is only appropriate for one to be reminded of his accolades, among which include taking up the position as Singapore’s first Attorney General after its independence, drafting Singapore’s Administration of Muslim Law Act 1966, drafting the Women’s Charter and Intestate Succession Act, and who could forget harmonising the Shariah and Civil courts in Malaysia?
The above is simply a gist of Professor Ahmad Ibrahim’s unending list of accolades in his 82-year-long story. Undeniably, he is a man who dons many hats – or many songkok.
Although, this is not a biography to rehash his achievements, as many have done. This article seeks to explore the mind of one of the greatest scholars in our legal fraternity, by analysing how Professor Ahmad Ibrahim applied ijtihad in arguments, decisions, and principles in judicial cases.
IJTIHAD AND JUDICIAL CREATIVITY
Ijtihad is literally defined as ‘exertion’, but could simply be understood as an independent reasoning exercised for issues with no valid authority and consensus among jurists. commonly linked to judicial creativity or judicial activism in the Western legal sphere, and is juxtaposed with judicial restraint. For the sake of this article’s ease of reading, the terms ‘ijtihad’ and judicial creativity will be used interchangeably, although they may not necessarily be exactly similar in nature. In his writing, Dr. Ibrahim Ismail wrote as follows:
“…the judge must develop the law to meet social justice on behalf of the government and the governed. Mere application of rules, either by statute or precedent to facts should give way to the immediate necessity of shaping the law to fit the need of modern society.”
The philosophy of judicial creativity is integral to the development of law, especially where laws are frequently imported from other Commonwealth countries. Prof Ahmad Ibrahim himself was a strong proponent of judicial creativity, especially when it came down to developing Malaysian law, citing Section 3 of the Civil Law Act 1956 as a gateway to establish a Malaysian Common Law whenever there is a lacuna in our law.
It is a natural deduction that as a country with a diverse demographic from all walks of life, whether it be in terms of religious beliefs, racial background, or ethnicity, Malaysian law is a product of judicial creativity exercised by judges to adapt rigid laws to our culture.
Despite Prof Ahmad Ibrahim rarely exercising a judicial function, we shall not take a narrow and literal interpretation of ‘judicial creativity’ to limit its application merely to judges, but also to lawyers and legal luminaries who have interpreted the law in the interest of justice and fairness.
HIS JUDICIAL CREATIVITY
As previously mentioned, Prof Ahmad Ibrahim had spearheaded the movement to construct an autonomous Malaysian Common Law as encouraged by Section 3 of our Civil Law Act 1956.
Every law student has had Article 121A of the Federal Constitution drilled into their brain by their Constitutional Law lecturer, but not many know about the motivation and story behind the distinction of Civil Courts and Shariah Courts in Malaysia. Following the 1950s aftermath of the Maria Hertogh Controversy and riots in colonial Singapore, Prof Ahmad Ibrahim saw the crux of the problem at the time: Islam in the colonial era was purely symbolic. There was no proper regulation nor enforcement of Islamic laws upon Muslims, and there was little understanding of such laws. Prof Ahmad Ibrahim opined that the Maria Hertogh riots in Singapore could have been prevented, had the British expedited the appointment of a Mufti to interpret the laws in Islam. The Mufti would then, in turn, guide the kathis with proper procedures and ethical codes. He stated that such an organisation would prevent misunderstanding and confusion between ‘Muslim law’ and ‘Colony law’. This was the preliminary and foundational stage of the dual court system we have now.
So, how exactly does judicial creativity tie into this?
During the colonial times, while Muslims were divided between two polar opposites of an Islamic or secular state, Professor Ahmad Ibrahim rejected this dichotomy and proposed a harmonious solution: a dual court system of the Civil court and the Syariah court, making Islamic laws more than mere symbols but rather an enforced system.
The above barely scratches the surface for instances of Prof Ahmad Ibrahim’s judicial creativity. He has also previously illustrated how judges may utilise such philosophy in arriving at decisions for cases.
One such case where Prof Ahmad Ibrahim had acted within his judicial capacity was the case of Syed Abdullah Al-Shatiri v Shariffa Salmah [1959] 25 MLJ 137, where he had to adjudge the issue of a father’s right as a wali mujbir to marry off his virgin daughter without her consent. Here, acting as the President of Singapore’s Appeal Board, he was faced with the opinion of multiple schools of thought in Islam regarding a virgin daughter’s right to consent to a marriage after obtaining puberty. The appellant-father in this case had cited that the Shafie school allows a father to marry off his virgin daughter without need for her consent. Despite already identifying that the Shafie school allows as such, Prof Ahmad Ibrahim had rejected the practice of ‘mazhab shopping’ and instead looked at the four walls of all mazhab views to arrive at a conclusion that the absence of a virgin daughter’s consent to marry does not invalidate a marriage, which exemplifies judicial creativity. This shows that the judge had exhausted all available sources of law, instead of being confined to one source of law which is the Shafie school of thought.
CONCLUSION
Judicial creativity has been a vital tool in developing the Malaysian legal sphere, going as far as reconstructing the court system in our nation. This article shows that Prof Ahmad Ibrahim himself had championed judicial creativity in his legal career. Therefore, judges, lawyers, and all aspiring legal practitioners are encouraged to refrain from a strict interpretation of the law which would detriment clients, but should take active steps towards a reasonable interpretation of the law in order to ensure justice and fairness in our courts.
BIBLIOGRAPHY
1. Vernon Cornelius-Takahama and Mohamad Tauhid Mohd Bakhit, “Prominent Malays of Singapore: Ahmad Bin Mohamed Ibrahim,” Ahmad bin Mohamed Ibrahim, October 2025, https://www.nlb.gov.sg/main/article-detail?cmsuuid=aa60d648-d989-4a4b-96fa-5f983d90b6fc, 1.
2. Faruqi, Muhammad Yousuf. 2013. “Modes of Ijtihad in the Judgements of the Khulafa Al- Rashidun”. Intellectual Discourse 1 (1). https://doi.org/10.31436/id.v1i1.329.
3. Abbasi, Muhammad Zubair. “Judicial Ijtihād as a Tool for Legal Reform: Extending Women’s Right to Divorce under Islamic Law in Pakistan.” Islamic Law and Society 24, no. 4 (2017): 384–411. https://www.jstor.org/stable/26571283.
4. Ibrahim Ismail, “Judicial Certainty and Creativity: An Evaluation of Stare Decisis,” Jurnal Undang-Undang Dan Masyarakat 8 (2004): 95–96.
5. Time to malaysianise common law system – the malaysian bar, September 18, 2007, https://www.malaysianbar.org.my/article/news/legal-and-general-news/general-news/time-to-malaysianise-common-law-system.
6. Syed Muhd Aljunied, “A FORGOTTEN ACTIVIST: Ahmad Ibrahim and the Maria Hertough Controversy in Colonial Singapore,” Journal of Social Issues in Southeast Asia 25, no. 2 (October 31, 2010), https://doi.org/10.1355/sj25-2g.
7. Chua, B. L. “Muslim Law of Marriage.” University of Malaya Law Review 1, no. 2 (1959): 362–64. http://www.jstor.org/stable/24874826.
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