ISLAMIC LAW IN SYARIAH COURTS

Historical and theoretical backgrounds of Islamic judicial institution The constitution and structure of Syariah Courts in Malaysia Jurisdiction and powers of the Syariah Courts The administration of Islamic personal and criminal law

ISLAMIC JUDICIAL INSTITUTION



Islam emphasises the importance of justice (adalah / adl) and shuns injustice (zulm) as stipulated in the Quran and Sunnah Islamic law provides a number of judicial principles :  Decision must be based on evidence  Amicable settlement in encouraged and preferred  A person in innocent until proven guilty  Decision must be based on the Quran and Sunnah  Ijtihad is used when there is no clear answer in the Quran and Sunnah

Prophet Muhammad (s.a.w) was the head of the first Islamic state and he was the head of the judiciary Heard cases on family matters and criminal laws He was assisted by his companion. Ali Abu Talib and Muaz Ibn Jabal were his judges in Yemen, while Umar al-Khattab assisted in alMedina Appeals from decisions given by his judges went to the Prophet

No specific court building and sometimes trials were conducted in mosques. However, judges were paid salaries Caliph Abu Bakar also headed judiciary. He also made judicial appointment, e.g appointed Umar as judge in Medina The system of separation of power was initiated by caliph Umar al-Khattab albetween governors and judges with separate powers and functions

In Medinah, Caliph Umar established a three tier court system. Some sohabah had less powers where as others enjoyed more powers and had wider jurisdiction, and the Khalifah heard final appeals The right of appeal is also based on the Quran, where it was mentioned that where there is dispute the matter should be referred to the Ulil Amr (4 : 59) The Ulil Amr was responsible to ensure justice. Umar, e.g. gave advice to his judges via letters, e.g. to Abu Musa alalAshari

Caliph Uthman introduced further changes in the judicial system where he also built a specific court building Ummayah Caliphs respected their judges and their decisions. Judges in capital were appointed by caliph while elsewhere they were appointed by governors Judges had wide jurisdiction including to supervise the execution of punishment. During this period, judges started to record their judgments in writing in order to prevent litigating parties from disputing judgment given orally

During Abbasid Caliphated judges were appointed from among qualified based on the mazhab of the population In this period, Qadhi al-Qudhah was also alappointed to ensure separation of powers, e.g the appointment of Abu Yusuf Judges wore special dress, and there were special stamp and seal and judges were assisted by a number of court officials Trials were conducted at special court buildings on specified date. The judges were required to record their judgment with its grounds, details and evidence

THE CONSTITUTION AND STRUCTURE OF THE SYARIAH COURTS IN MALAYSIA



Syariah Courts are established by the state legislature by virtue of the State List : the Constitution, organisation and procedure of Syariah Courts In the Federal Territories, they are established by Parliament by virtue of item 6 (e) of the Federal List

ADMINISTRATION OF ISLAMIC LAW ENACTMENT 1989 (SELANGOR)



Section 37 Constitution of Syariah Courts His Royal Highness the Sultan may, on the advice of the Majlis by notification in the Gazette constitute Syariah Subordinate Courts, Syariah High Court and Syariah Appeal Court for the state at such places as he considers fit.

ADMINISTRATION OF ISLAMIC LAW (FEDERAL TERRITORIES) ACT 1993



Section 40 Constitution of Syariah Courts The Yang di Pertuan Agong on advice of the Minister, may by notification in the Gazette constitute Syariah Subordinate Courts for the Federal Territories at such places as he considers fit. The YDPA, on advice of the Minister, my by notification in the Gazette, constitute a Syariah High Court for the Federal Territories The YDPA, on advice of the Minister, may by notification in the Gazette constitute a Syariah Appeal Court for the Federal Territories

In the previous enactment before the Administration of Islamic law Enactment, the Syariah Court was only a section within the Majlis Agama Islam and for administrative purposes was accountable to the Head of the Religious Department The person presiding in Syariah Courts was called Qadhi or Qadhi Besar and they were appointed by the Ruler of each state The difference between the Qadhi and Qadhi Besar was the limits of their jurisdiction in hearing cases

The procedure of Syariah Courts similar to that of Civil Court. Appeals should lie in the Majlis Rayuan / Jemaah Pengadilan from any decision of the Court of Qadhi Besar or Qadhi In the event of any difference or conflict arising between the decision of Shariah Courts and Civil Court, the decision of the Civil Court should prevail In some states, a separate piece of legislation pertaining to Shariah Courts was introduced, i.e. Administration of the Shariah Courts Enactment (Kelantan) 1982, followed by Kedah in 1983

The purpose of having the legislation was to restructure the Syariah Courts independent from Majlis Agama Islam and giving more power and prestige to the judges of the Shariah Courts

JURISDICTION AND POWERS OF THE SYARIAH COURTS



Syariah Courts have jurisdiction only over Muslims and as state courts, only within state boundaries. Section 52 of the Administration of Islamic Law Enactment (Selangor) 1989 provides that no decision of the Syariah Courts shall involve the rights or the property of a non Muslim

Subject matters that are within the jurisdiction of Syariah Courts can be devided into civil and criminal matters Jurisdiction is only in respect of matters enumerated in List II of the 9th schedule of the Federal Constitution Criminal jurisdiction is only in respect of Creation and Punishment of offences against precepts of Islam and in so far as conferred by federal law A Syariah Court is not a court of inherent jurisdiction

ADMINISTRATION OF ISLAMIC LAW ACT 1993 (FEDERAL TERRITORIES)

    

 

S. 46 : Jurisdiction of Syariah High Court S. 47 : Jurisdiction of Syariah Subordinate Court S. 48 : Appeals to Syariah High Court S. 49 : Application for leave to appeal S. 51 : Supervisory and Revisionary Jurisdiction of Syariah High Court S. 52 : Jurisdiction of Syariah Appeal Court S. 53 : Supervisory and Revisionary Jurisdiction of the Syariah Appeal Court

JURISDICTION OF SYARIAH SUBORDINATE COURTS

Only original jurisdiction : Civil Jurisdiction covers all such proceedings as the Syariah Court is authorised to hear but limited to proceeding in which the amount or value of the subject matter in disputes does not exceed 50, 000 or the monetary value cannot be estimated

Criminal Jurisdiction over offences under the Syariah Criminal offences (Federal Territories) Act 1997 or any other written law prescribing offences against precepts of Islam for which the maximum punishment does not exceed 2,000.00 or imprisonment of one year or both

JURISDICTION OF SYARIAH HIGH COURTS

Original, appellate and supervisory and revisionary jurisdiction :

(a) Original Civil : Hear all matters provided under the Act of 1993 and other matters where jurisdiction is conferred by any written law Criminal : Over offences punishable under the Syariah Criminal offences (Federal Territories) Act 1997, the Islamic Family Law (Federal Territories) Act 1984 or any other written law prescribing offences against precepts of Islam. E.g. Khalwat (Close proximity) between two persons of the opposite sex who are not prohibited from marriage, consumation of liquor, and failure to fast during Ramadan

(b) Appellate May here appeals against any decisions of Syariah subordinate in civil and criminal matters

Civil : Where the amount claimed is not less than 1,000.00 concerns personal status or maintenance of dependant, but no appeal against a decision made by consent Criminal : * Appeal against acquital, conviction or sentence * Has power to dismiss appeal, convict and sentence the accused, order the trial court to make further inquiry, alter the sentence, reverse any order of the trial court, or order a retrial

(c) Supervisory and Revisionary Jurisdiction Under s.5, of the 1993 Act the Syariah Court may either of its own motion or at the instance of any interested party in any stage of any proceedings in any Syariah Courts, call for and examine any records and give such directives as justice may require

JURISDICTION OF SYARIAH APPEAL COURT

Appellate and Supervisory and Revisionary Jurisdiction : Appellate : Can hear appeal from the Syariah High Courts. It may also determine question of law of public interest arising in the course af appeal in the High Court from Subordinate Courts. This power to determine this question subject to leave granted by the Court of Appeal

Supervisory and Revisionary Jurisdiction : The Syariah Appeal Court may call for and examine, at any stage of any proceedings (civil & criminal) in the Syariah Court the records of such proceedings and give such directions as justice may require. The court may do so either of its own motion or at the instance of any party. In such a case, the proceedings in the Syariah High Courts shall be stayed pending further order of the Syariah Appeal Court

ADMINISTRATION OF ISLAMIC PERSONAL / FAMILY AND CRIMINAL LAWS

Family Matters  At the present time all the states in Malaysia and also the Federal Territories have enacted or proposed laws relating to Islamic family laws

The laws are as follows : - The Islamic Family Law Enactment, Kedah, 1979 - Islamic Family Law Enactment, Kelantan, 1983 - Islamic Family Law Enactment, Malacca, 1983 - Islamic Family Law (Negeri Sembilan) Enactment, 1983 - Islamic Family Law (Federal Territories) Act, 1984 - Islamic Family Law Enactment, Selangor, 1984 - Islamic Family Law Enactment, Perak, 1984 - Islamic Family Law Enactment, Penang, 1985 - Administration of Islamic Family Law Enactment, Terengganu, 1985 - Islamic Family Law Enactment, Pahang, 1987 - Islamic Family Law Enactment, Johore, 1990

- Islamic Family Law Ordinance, Sarawak, 1991 - Islamic Family Law Enactment, Sabah, 1992 - Islamic Family Law Enactment, Perlis, 1993


The federal constitution was amended in 1988 by adding Article 121 (1A) to provide in effect that the High Courts and courts below it shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts In the case of Mohd Habibullah bin Mahmood v. Faridah bte DatoTalib, the Supreme Court has DatoTalib, decided that Article 121 (1A) has granted exclusive jurisdiction to the Syariah Courts in the administration of the Islamic laws which are within the jurisdiction of the Syariah Courts

Criminal Matters


Syariah Courts have jurisdiction in respect of several offences such as gambling, drinking intoxication drinks, adultery, fornication, khalwat, ill-treatment of wife, non-payment illnonof zakat and disrespect of Ramadhan Examples of governing laws : - Syariah Courts (Criminal Jurisdiction) Act 1965 - Syariah Criminal Offences (Federal Territories) Act 1997

The state enactments listed various offences which are under the jurisdiction of Syariah Courts : - Matrimonial offences (ill-treatment of wife, (illdisobey husband) - Sexual offences (zina, khalwat, adultery, fornication) - Akidah and faith (deviant teachings, do not perform Jumaah prayer, non payment of zakat and disrespect of Ramadhan - Intoxication drink (sell, buy or consume) - Conversion (non-registration of conversion) (non- Other offences Jurisdiction for punishment : not more than 3 years imprisonment or fine not more than RM5,000 or whipping for 6 strokes or combination

Whipping is provided in Kelantan for the following offences : - Zina (s.11) 6 strokes - Muqaddimah Zina (s.12) 3 strokes - Liwat (s.14) 6 strokes - Intoxication (s.25) 6 strokes Whipping in Wilayah Persekutuan : - Zina (s.87) 6 strokes - Taqarrub (s. 88) 6 strokes - Qazaf (s. 89) 6 strokes - Liwat (s.91) 6 strokes - Intoxication (s.102) 6 strokes

State List : creation and punishment of offences against precepts of religion of Islam, except in regard to matters included in the Federal List