islamic law in syariah courts

8/3/2019 Islamic Law in Syariah Courts

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ISLAMIC LAWISLAMIC LAWIN SYARIAH COURTSIN SYARIAH COURTS

Historical and theoretical backgrounds ofHistorical and theoretical backgrounds ofIslamic judicial institutionIslamic judicial institution

The constitution and structure of Syariah CourtsThe constitution and structure of Syariah Courtsin Malaysiain Malaysia

Jurisdiction and powers of the Syariah CourtsJurisdiction and powers of the Syariah Courts

The administration of Islamic personal andThe administration of Islamic personal andcriminal lawcriminal law


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ISLAMIC JUDICIAL INSTITUTIONISLAMIC JUDICIAL INSTITUTION

Islam emphasises the importance of justice (adalah /Islam emphasises the importance of justice (adalah /adl) and shuns injustice (zulm) as stipulated in the Quranadl) and shuns injustice (zulm) as stipulated in the Quranand Sunnahand Sunnah

Islamic law provides a number of judicial principles :Islamic law provides a number of judicial principles :

Decision must be based on evidenceDecision must be based on evidence

Amicable settlement in encouraged andAmicable settlement in encouraged and

preferredpreferred

A person in innocent until proven guiltyA person in innocent until proven guilty

Decision must be based on the Quran andDecision must be based on the Quran and

SunnahSunnah

Ijtihad is used when there is no clearIjtihad is used when there is no clear

answer in the Quran and Sunnahanswer in the Quran and Sunnah


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Prophet Muhammad (s.a.w) was the headProphet Muhammad (s.a.w) was the headof the first Islamic state and he was theof the first Islamic state and he was thehead of the judiciaryhead of the judiciary

Heard cases on family matters and criminalHeard cases on family matters and criminal

lawslaws He was assisted by his companion. Ali AbuHe was assisted by his companion. Ali Abu

Talib and Muaz Ibn Jabal were his judges inTalib and Muaz Ibn Jabal were his judges inYemen, while Umar alYemen, while Umar al--Khattab assisted inKhattab assisted in

MedinaMedina Appeals from decisions given by his judgesAppeals from decisions given by his judges

went to the Prophetwent to the Prophet


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No specific court building and sometimesNo specific court building and sometimestrials were conducted in mosques.trials were conducted in mosques.However, judges were paid salariesHowever, judges were paid salaries

Caliph Abu Bakar also headed judiciary. HeCaliph Abu Bakar also headed judiciary. He

also made judicial appointment, e.galso made judicial appointment, e.gappointed Umar as judge in Medinaappointed Umar as judge in Medina

The system of separation of power wasThe system of separation of power wasinitiated by caliph Umar alinitiated by caliph Umar al--KhattabKhattabbetween governors and judges withbetween governors and judges withseparate powers and functionsseparate powers and functions


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In Medinah, Caliph Umar established aIn Medinah, Caliph Umar established a

three tier court system. Some sohabah hadthree tier court system. Some sohabah hadless powers where as others enjoyed moreless powers where as others enjoyed morepowers and had wider jurisdiction, and thepowers and had wider jurisdiction, and theKhalifah heard final appealsKhalifah heard final appeals

The right of appeal is also based on theThe right of appeal is also based on theQuran, where it was mentioned that whereQuran, where it was mentioned that wherethere is dispute the matter should bethere is dispute the matter should bereferred to the Ulil Amr (4 : 59)referred to the Ulil Amr (4 : 59)

The Ulil Amr was responsible to ensureThe Ulil Amr was responsible to ensurejustice. Umar, e.g. gave advice to hisjustice. Umar, e.g. gave advice to hisjudges via letters, e.g. to Abu Musa aljudges via letters, e.g. to Abu Musa al--AshariAshari


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Caliph Uthman introduced further changes inCaliph Uthman introduced further changes in

the judicial system where he also built athe judicial system where he also built aspecific court buildingspecific court building

Ummayah Caliphs respected their judgesUmmayah Caliphs respected their judgesand their decisions. Judges in capital wereand their decisions. Judges in capital were

appointed by caliph while elsewhere theyappointed by caliph while elsewhere theywere appointed by governorswere appointed by governors

Judges had wide jurisdiction including toJudges had wide jurisdiction including tosupervise the execution of punishment.supervise the execution of punishment.

During this period, judges started to recordDuring this period, judges started to recordtheir judgments in writing in order to preventtheir judgments in writing in order to preventlitigating parties from disputing judgmentlitigating parties from disputing judgmentgiven orallygiven orally


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During Abbasid Caliphated judges wereDuring Abbasid Caliphated judges were

appointed from among qualified based onappointed from among qualified based onthe mazhab of the populationthe mazhab of the population

In this period, Qadhi alIn this period, Qadhi al--Qudhah was alsoQudhah was alsoappointed to ensure separation of powers,appointed to ensure separation of powers,

e.g the appointment of Abu Yusufe.g the appointment of Abu Yusuf Judges wore special dress, and there wereJudges wore special dress, and there were

special stamp and seal and judges werespecial stamp and seal and judges wereassisted by a number of court officialsassisted by a number of court officials

Trials were conducted at special courtTrials were conducted at special courtbuildings on specified date. The judges werebuildings on specified date. The judges wererequired to record their judgment with itsrequired to record their judgment with itsgrounds, details and evidencegrounds, details and evidence


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THE CONSTITUTION ANDTHE CONSTITUTION AND

STRUCTURE OF THESTRUCTURE OF THESYARIAH COURTSSYARIAH COURTS

IN MALAYSIAIN MALAYSIA Syariah Courts are established by the stateSyariah Courts are established by the state

legislature by virtue of the State List : thelegislature by virtue of the State List : the

Constitution, organisation and procedure ofConstitution, organisation and procedure ofSyariah CourtsSyariah Courts

In the Federal Territories, they are establishedIn the Federal Territories, they are establishedby Parliament by virtue of item 6 (e) of theby Parliament by virtue of item 6 (e) of the

Federal ListFederal List


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ADMINISTRATIONADMINISTRATION

OF ISLAMIC LAWOF ISLAMIC LAWENACTMENT 1989ENACTMENT 1989

(SELANGOR)(SELANGOR) Section 37 Constitution of Syariah CourtsSection 37 Constitution of Syariah Courts

His Royal Highness the Sultan may, on the His Royal Highness the Sultan may, on the

advice of the Majlis by notification in theadvice of the Majlis by notification in theGazette constitute Syariah Subordinate Courts,Gazette constitute Syariah Subordinate Courts,Syariah High Court and Syariah Appeal CourtSyariah High Court and Syariah Appeal Courtfor the state at such places as he considersfor the state at such places as he considers

fit.fit.


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ADMINISTRATION OF ISLAMIC LAWADMINISTRATION OF ISLAMIC LAW

(FEDERAL TERRITORIES) ACT 1993(FEDERAL TERRITORIES) ACT 1993

Section 40 Constitution of Syariah Courts The YangSection 40 Constitution of Syariah Courts The Yangdi Pertuan Agong on advice of the Minister, maydi Pertuan Agong on advice of the Minister, mayby notification in the Gazette constitute Syariahby notification in the Gazette constitute SyariahSubordinate Courts for the Federal Territories atSubordinate Courts for the Federal Territories at

such places as he considers fit.such places as he considers fit.

The YDPA, on advice of the Minister, my byThe YDPA, on advice of the Minister, my bynotification in the Gazette, constitute a Syariahnotification in the Gazette, constitute a Syariah

High Court for the Federal TerritoriesHigh Court for the Federal Territories The YDPA, on advice of the Minister, may byThe YDPA, on advice of the Minister, may by

notification in the Gazette constitute a Syariahnotification in the Gazette constitute a SyariahAppeal Court for the Federal TerritoriesAppeal Court for the Federal Territories


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In the previous enactment before theIn the previous enactment before theAdministration of Islamic law Enactment, theAdministration of Islamic law Enactment, theSyariah Court was only a section within theSyariah Court was only a section within theMajlis Agama Islam and for administrativeMajlis Agama Islam and for administrativepurposes was accountable to the Head ofpurposes was accountable to the Head of

the Religious Departmentthe Religious Department The person presiding in Syariah Courts wasThe person presiding in Syariah Courts was

called Qadhi or Qadhi Besar and they werecalled Qadhi or Qadhi Besar and they wereappointed by the Ruler of each stateappointed by the Ruler of each state

The difference between the Qadhi andThe difference between the Qadhi andQadhi Besar was the limits of their jurisdictionQadhi Besar was the limits of their jurisdictionin hearing casesin hearing cases


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The procedure of Syariah Courts similar to thatThe procedure of Syariah Courts similar to thatof Civil Court. Appeals should lie in the Majlisof Civil Court. Appeals should lie in the MajlisRayuan / Jemaah Pengadilan from anyRayuan / Jemaah Pengadilan from anydecision of the Court of Qadhi Besar or Qadhidecision of the Court of Qadhi Besar or Qadhi

In the event of any difference or conflictIn the event of any difference or conflict

arising between the decision of Shariaharising between the decision of ShariahCourts and Civil Court, the decision of theCourts and Civil Court, the decision of theCivil Court should prevailCivil Court should prevail

In some states, a separate piece of legislationIn some states, a separate piece of legislation

pertaining to Shariah Courts was introduced,pertaining to Shariah Courts was introduced,i.e. Administration of the Shariah Courtsi.e. Administration of the Shariah CourtsEnactment (Kelantan) 1982, followed byEnactment (Kelantan) 1982, followed byKedah in 1983Kedah in 1983


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The purpose of having the legislationThe purpose of having the legislationwas to restructure the Syariah Courtswas to restructure the Syariah Courts

independent from Majlis Agama Islamindependent from Majlis Agama Islamand giving more power and prestige toand giving more power and prestige tothe judges of the Shariah Courtsthe judges of the Shariah Courts


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JURISDICTIONJURISDICTION

AND POWERS OF THEAND POWERS OF THESYARIAH COURTSSYARIAH COURTS

Syariah Courts have jurisdiction only overSyariah Courts have jurisdiction only overMuslims and as state courts, only within stateMuslims and as state courts, only within stateboundaries. Section 52 of the Administrationboundaries. Section 52 of the Administration

of Islamic Law Enactment (Selangor) 1989of Islamic Law Enactment (Selangor) 1989provides that no decision of the Syariahprovides that no decision of the SyariahCourts shall involve the rights or the propertyCourts shall involve the rights or the propertyof a non Muslimof a non Muslim


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Subject matters that are within theSubject matters that are within the

jurisdiction of Syariah Courts can bejurisdiction of Syariah Courts can bedevided into civil and criminal mattersdevided into civil and criminal matters

Jurisdiction is only in respect of mattersJurisdiction is only in respect of mattersenumerated in List II of the 9enumerated in List II of the 9thth schedule ofschedule of

the Federal Constitutionthe Federal Constitution Criminal jurisdiction is only in respect ofCriminal jurisdiction is only in respect of

Creation and Punishment of offencesCreation and Punishment of offencesagainst precepts of Islam and in so far asagainst precepts of Islam and in so far as

conferred by federal lawconferred by federal law

A Syariah Court is not a court of inherentA Syariah Court is not a court of inherentjurisdictionjurisdiction


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ADMINISTRATION OF ISLAMIC LAW ACTADMINISTRATION OF ISLAMIC LAW ACT

19931993(FEDERAL TERRITORIES)(FEDERAL TERRITORIES)

S. 46 : Jurisdiction of Syariah High CourtS. 46 : Jurisdiction of Syariah High Court

S. 47 : Jurisdiction of Syariah Subordinate CourtS. 47 : Jurisdiction of Syariah Subordinate Court S. 48 : Appeals to Syariah High CourtS. 48 : Appeals to Syariah High Court

S. 49 : Application for leave to appealS. 49 : Application for leave to appeal

S. 51 : Supervisory and RevisionaryS. 51 : Supervisory and Revisionary

Jurisdiction of Syariah High CourtJurisdiction of Syariah High Court

S. 52 : Jurisdiction of Syariah Appeal CourtS. 52 : Jurisdiction of Syariah Appeal Court

S. 53 : Supervisory and RevisionaryS. 53 : Supervisory and Revisionary

Jurisdiction of the Syariah Appeal CourtJurisdiction of the Syariah Appeal Court


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JURISDICTIONJURISDICTION

OF SYARIAHOF SYARIAHSUBORDINATE COURTSSUBORDINATE COURTS

Only original jurisdiction :Only original jurisdiction :

CivilCivil

Jurisdiction covers all such proceedings as theJurisdiction covers all such proceedings as theSyariah Court is authorised to hear but limited toSyariah Court is authorised to hear but limited toproceeding in which the amount or value of theproceeding in which the amount or value of thesubject matter in disputes does not exceed 50,subject matter in disputes does not exceed 50,000 or the monetary value cannot be estimated000 or the monetary value cannot be estimated


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CriminalCriminal

Jurisdiction over offences under theJurisdiction over offences under theSyariah Criminal offences (FederalSyariah Criminal offences (Federal

Territories) Act 1997 or any other written lawTerritories) Act 1997 or any other written lawprescribing offences against precepts ofprescribing offences against precepts ofIslam for which the maximum punishmentIslam for which the maximum punishmentdoes not exceed 2,000.00 or imprisonmentdoes not exceed 2,000.00 or imprisonment

of one year or bothof one year or both


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JURISDICTION OFJURISDICTION OFSYARIAH HIGH COURTSSYARIAH HIGH COURTS

Original, appellate and supervisory andOriginal, appellate and supervisory andrevisionary jurisdiction :revisionary jurisdiction :


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(a)(a) OriginalOriginal

CivilCivil ::

Hear all matters provided under the Act of 1993Hear all matters provided under the Act of 1993and other matters where jurisdiction is conferredand other matters where jurisdiction is conferred

by any written lawby any written law

CriminalCriminal ::Over offences punishable under the SyariahOver offences punishable under the SyariahCriminal offences (Federal Territories) Act 1997,Criminal offences (Federal Territories) Act 1997,the Islamic Family Law (Federal Territories) Actthe Islamic Family Law (Federal Territories) Act1984 or any other written law prescribing1984 or any other written law prescribingoffences against precepts of Islam. E.g.offences against precepts of Islam. E.g. KhalwatKhalwat(Close proximity) between two persons of the(Close proximity) between two persons of theopposite sex who are not prohibited fromopposite sex who are not prohibited frommarriage, consumation of liquor, and failure tomarriage, consumation of liquor, and failure to

fast during Ramadanfast during Ramadan


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(b) Appellate(b) Appellate

May here appeals against anyMay here appeals against any

decisions of Syariah subordinate in civildecisions of Syariah subordinate in civil

and criminal mattersand criminal matters


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CivilCivil ::

Where the amount claimed is not less thanWhere the amount claimed is not less than1,000.00 concerns personal status or1,000.00 concerns personal status ormaintenance of dependant, but no appealmaintenance of dependant, but no appealagainst a decision made by consentagainst a decision made by consent

CriminalCriminal ::

* Appeal against acquital, conviction or* Appeal against acquital, conviction orsentencesentence

* Has power to dismiss appeal, convict and* Has power to dismiss appeal, convict andsentence the accused, order the trial court tosentence the accused, order the trial court tomake further inquiry, alter the sentence, reversemake further inquiry, alter the sentence, reverseany order of the trial court, or order a retrialany order of the trial court, or order a retrial


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(c)(c) Supervisory and Revisionary JurisdictionSupervisory and Revisionary Jurisdiction

Under s.5, of the 1993 Act the SyariahUnder s.5, of the 1993 Act the Syariah

Court may either of its own motion or atCourt may either of its own motion or at

the instance of any interested party in anythe instance of any interested party in any

stage of any proceedings in any Syariahstage of any proceedings in any Syariah

Courts, call for and examine any recordsCourts, call for and examine any records

and give such directives as justice mayand give such directives as justice mayrequirerequire


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JURISDICTION OFJURISDICTION OF

SYARIAHSYARIAHAPPEAL COURTAPPEAL COURT

Appellate and Supervisory and RevisionaryAppellate and Supervisory and Revisionary

Jurisdiction :Jurisdiction :

AppellateAppellate ::

Can hear appeal from the Syariah High Courts. It mayCan hear appeal from the Syariah High Courts. It may

also determine question of law of public interestalso determine question of law of public interestarising in the course af appeal in the High Court fromarising in the course af appeal in the High Court fromSubordinate Courts. This power to determine thisSubordinate Courts. This power to determine thisquestion subject to leave granted by the Court ofquestion subject to leave granted by the Court of

AppealAppeal


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Supervisory and Revisionary JurisdictionSupervisory and Revisionary Jurisdiction ::

The Syariah Appeal Court may call for andThe Syariah Appeal Court may call for andexamine, at any stage of any proceedingsexamine, at any stage of any proceedings(civil & criminal) in the Syariah Court the(civil & criminal) in the Syariah Court the

records of such proceedings and give suchrecords of such proceedings and give suchdirections as justice may require. The courtdirections as justice may require. The courtmay do so either of its own motion or at themay do so either of its own motion or at theinstance of any party. In such a case, theinstance of any party. In such a case, the

proceedings in the Syariah High Courts shallproceedings in the Syariah High Courts shallbe stayed pending further order of thebe stayed pending further order of theSyariah Appeal CourtSyariah Appeal Court


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ADMINISTRATIONADMINISTRATION

OF ISLAMICOF ISLAMICPERSONAL / FAMILYPERSONAL / FAMILY

AND CRIMINAL LAWSAND CRIMINAL LAWS

Family MattersFamily Matters

At the present time all the states in MalaysiaAt the present time all the states in Malaysiaand also the Federal Territories have enactedand also the Federal Territories have enactedor proposed laws relating to Islamic family lawsor proposed laws relating to Islamic family laws


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The laws are as follows :The laws are as follows :

-- The Islamic Family Law Enactment, Kedah, 1979The Islamic Family Law Enactment, Kedah, 1979

-- Islamic Family Law Enactment, Kelantan, 1983Islamic Family Law Enactment, Kelantan, 1983

-- Islamic Family Law Enactment, Malacca, 1983Islamic Family Law Enactment, Malacca, 1983

-- Islamic Family Law (Negeri Sembilan) Enactment,Islamic Family Law (Negeri Sembilan) Enactment,

19831983

-- Islamic Family Law (Federal Territories) Act, 1984Islamic Family Law (Federal Territories) Act, 1984-- Islamic Family Law Enactment, Selangor, 1984Islamic Family Law Enactment, Selangor, 1984

-- Islamic Family Law Enactment, Perak, 1984Islamic Family Law Enactment, Perak, 1984

-- Islamic Family Law Enactment, Penang, 1985Islamic Family Law Enactment, Penang, 1985

-- Administration of Islamic Family Law Enactment,Administration of Islamic Family Law Enactment,

Terengganu, 1985Terengganu, 1985

-- Islamic Family Law Enactment, Pahang, 1987Islamic Family Law Enactment, Pahang, 1987

-- Islamic Family Law Enactment, Johore, 1990Islamic Family Law Enactment, Johore, 1990


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-- Islamic Family LawOrdinance, Sarawak, 1991Islamic Family LawOrdinance, Sarawak, 1991

-- Islamic Family Law Enactment, Sabah, 1992Islamic Family Law Enactment, Sabah, 1992

-- Islamic Family Law Enactment, Perlis, 1993Islamic Family Law Enactment, Perlis, 1993

The federal constitution was amended in 1988 byThe federal constitution was amended in 1988 byadding Article 121 (1A) to provide in effect thatadding Article 121 (1A) to provide in effect thatthe High Courts and courts below it shall have nothe High Courts and courts below it shall have no

jurisdiction in respect of any matter within thejurisdiction in respect of any matter within thejurisdiction of the Syariah Courtsjurisdiction of the Syariah Courts

In the case ofIn the case of Mohd Habibullah bin Mahmood v.Mohd Habibullah bin Mahmood v.

Faridah bte DatoTalibFaridah bte DatoTalib, the Supreme Court has, the Supreme Court hasdecided that Article 121 (1A) has granteddecided that Article 121 (1A) has grantedexclusive jurisdiction to the Syariah Courts in theexclusive jurisdiction to the Syariah Courts in theadministration of the Islamic laws which are withinadministration of the Islamic laws which are within

the jurisdiction of the Syariah Courtsthe jurisdiction of the Syariah Courts


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Criminal MattersCriminal Matters

Syariah Courts have jurisdiction in respect ofSyariah Courts have jurisdiction in respect ofseveral offences such as gambling, drinkingseveral offences such as gambling, drinkingintoxication drinks, adultery, fornication,intoxication drinks, adultery, fornication,khalwat, illkhalwat, ill--treatment of wife, nontreatment of wife, non--paymentpayment

of zakat and disrespect of Ramadhanof zakat and disrespect of Ramadhan

Examples of governing laws :Examples of governing laws :

-- Syariah Courts (Criminal Jurisdiction) ActSyariah Courts (Criminal Jurisdiction) Act

19651965-- Syariah CriminalOffences (FederalSyariah CriminalOffences (FederalTerritories) Act 1997Territories) Act 1997


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The state enactments listed various offences whichThe state enactments listed various offences whichare under the jurisdiction of Syariah Courts :are under the jurisdiction of Syariah Courts :

-- Matrimonial offences (illMatrimonial offences (ill--treatment of wife,treatment of wife,disobey husband)disobey husband)

-- Sexual offences (zina, khalwat, adultery,Sexual offences (zina, khalwat, adultery,fornication)fornication)

-- Akidah and faith (deviant teachings, do notAkidah and faith (deviant teachings, do notperform Jumaah prayer, non payment of zakatperform Jumaah prayer, non payment of zakatand disrespect of Ramadhanand disrespect of Ramadhan

-- Intoxication drink (sell, buy or consume)Intoxication drink (sell, buy or consume)

-- Conversion (nonConversion (non--registration of conversion)registration of conversion)

-- Other offencesOther offences

Jurisdiction for punishment : not more than 3 yearsJurisdiction for punishment : not more than 3 yearsimprisonment or fine not more than RM5,000 orimprisonment or fine not more than RM5,000 orwhipping for 6 strokes or combinationwhipping for 6 strokes or combination


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Whipping is provided in Kelantan for theWhipping is provided in Kelantan for thefollowing offences :following offences :

-- Zina (s.11) 6 strokesZina (s.11) 6 strokes

-- Muqaddimah Zina (s.12) 3 strokesMuqaddimah Zina (s.12) 3 strokes

-- Liwat (s.14) 6 strokesLiwat (s.14) 6 strokes

-- Intoxication (s.25) 6 strokesIntoxication (s.25) 6 strokes Whipping in Wilayah Persekutuan :Whipping in Wilayah Persekutuan :

-- Zina (s.87) 6 strokesZina (s.87) 6 strokes

-- Taqarrub (s. 88) 6 strokesTaqarrub (s. 88) 6 strokes

-- Qazaf (s. 89) 6 strokesQazaf (s. 89) 6 strokes

-- Liwat (s.91) 6 strokesLiwat (s.91) 6 strokes

-- Intoxication (s.102) 6 strokesIntoxication (s.102) 6 strokes


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State List :State List :

creation and punishment of offencescreation and punishment of offences

against precepts of religion of Islam,against precepts of religion of Islam,except in regard to matters included inexcept in regard to matters included inthe Federal Listthe Federal List

islamic law in syariah courts

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