Ahad, 20 Disember 2009

Prosiding Ex-Parte Menurut Kacamata Syarak .

INTRODUCTION

Islam’s approach to justice is comprehensive and all-embracing. Any path that leads to justice is deemed to be in harmony with Islamic Law. God has demanded justice and, although He has not prescribed a specific route, has provided general guidelines, on how to achieve it.He has neither prescribed a fixed means by which it can be obtained, nor has He declared invalid any particular means or methods that can lead to justice. Therefore, all means, procedures, and methods that facilitate, refine, and advance the cause of justice, and do not violate the Islamic Law are valid. Therefore, justice denotes placing things in their rightful place.


 THE IMPORTANCE OF EQUAL TREATMENT


 The Quran, considers justice to be a supreme virtue. It is a basic objective of Islam to the degree that it stands next in order of priority to belief in God’s exclusive right to worship (Tawheed) and the truth of Muhammad’s prophethood

إِنَّ اللّهَ يَأْمُرُ بِالْعَدْلِ وَالإِحْسَانِ

 “God commands justice and fair dealing...”

Al Quran Surah al Nahl (16:90)

يَا أَيُّهَا الَّذِينَ آمَنُواْ كُونُواْ قَوَّامِينَ لِلّهِ شُهَدَاء بِالْقِسْطِ

 “O you who believe, be upright for God, and (be) bearers of witness with justice!...” Surah al Maa-idah (5:8)
 The verse also shows that justice must be measured and implemented by the standards and guidelines set by revelation.


 Imam al Mawardi in his book ‘Adab al Qadhi, was quoted as narrated;

"Ali RA, said," The Messenger of Allah (PbUH), send him to Yemen as a judge, then he said, The Prophet (PbUH) said, ; “If you justify between two people who had dispute, don’t give your decision until you hear from the first. "



DEFINITION OF EX PARTE


 Word “ex parte” (ex par-tay, but popularly, ex party) is adjective. Literally means “on behalf of”

 For example; An ex parte injunction is granted after hearing only one party and in case of great urgency. Latin meaning "for one party," referring to motions, hearings or orders granted on the request of and for the benefit of one party only.

 The most common ex parte hearing is requests for an emergency injunction of some sort where there simply isn’t time to notify the other party. An ex parte hearing almost always results in only a temporary ruling until the enjoined party can be served and a full hearing held.

 This is an exception to the basic rule of court procedure that both parties must be present at any argument before a judge, and to the otherwise strict rule that an attorney may not notify a judge without previously notifying the opposition.


 WHY USE EX PARTE PROCEEDING ?


 The rationale why ex parte proceeding was allowed because of a great urgency and unusual circumstances occurred. The application was inter alia in family disputes as below;


+ To provide the parties avenue to obtain temporary relief pending settlement of the case .For instance the power of court to restrain taking of child out of Malaysia


+ To ensure that the rights of the parties are protected. For instance in the claim harta sepencarian. The Plaintiff may apply for restraining order prohibiting the other party from disposing of the any jointly acquired property

+ To prevent continues assault / harm, For instance in fasakh case on the ground of assault. The Plaintiff may apply for restraining order pending trial.


 THE NATURE OF EX PARTE PROCEEDING IN RELATION WITH SIYASAH SYARI’IYYAH 


Ex parte proceeding shall be allowed because of great urgency and the unusual circumstances occurred. This means ruler can make a special law for the exemption from the natural justice base on legal principle “istihsan” (juristic preference)



 Definition of Siayasah Syariah in relation with the role of Ulil Amri. There is among of the scholar define Siyasah al Syariyyah in accordance with the role of ruler or ulil amr.


 Among of them are;-

+ The Shafii jurists perceived Siyasah Syariyyah as “a discretionary power given by the Shariah to the imam or those in power to give a consideration on the principle of maslahah in deciding any matters

 Ibn Taimiyyah, Siyasah Syariyyah is “actions taken by the ruler (al Raai’) or ulil amr in the interest of people (ummah).”

Dr. Abd. Rahman Taj defines Siasah Syariyyah as “rules and regulations set up by the government in the administration of state and people’s affairs which actually in conformity with the spirit and general principles of Shariah and would realize the ideal of society even if it is not being revealed in the Quran or the Sunnah


Who is ulil amr ? 

  al Quran, verse al Nisaa: 59, Allah Almighty says:


يَا أَيُّهَا الَّذِينَ آمَنُواْ أَطِيعُواْ اللّهَ وَأَطِيعُواْ الرَّسُولَ وَأُوْلِي الأَمْرِ مِنكُمْ

“Obey Allah and the Messenger and obeyed the Ruler from among you (Ulil amri)”


 Syeikh Syaltut define ulul amri as “those who are really wise be able to study the affairs of the ummah, able to recognize the importance of the ummah and eager to champion the interests of public.

 Al Mutawalli in his book “Mabadi’ al-Nizam al- Hukum fi al-Islam”, concluded that Ulul amri embodied two groups;


1. Ulul amri al Diini which consists of members of ijtihad and fatwa
2. Ulul amri al Dunniawi was a government that have legislative powers (legislative) and government (executive)


 Sheikh Khallaf in his book, Usul al Fiqh Wa Khulasah Tarikh al Tasyri’ defines the, words "Al Amri" is meant "business"

.
 Its covers the general form of religion and world affairs.

+ Ulul amri al Dunniawi consists of kings, chiefs and governors. While Ulul amri al Diini (religion) consists of members of ijtihad and fatwa members
.
+ Some members interpreted including Ibn 'Abbas said that Ulul amri in this verse is to scholars, while the other members interpreted was Umara' (leaders) or governors.

- What is clear from this commentary covers it all must obey them and given to each group

 Thus , the obedience to Ulul amri is not absolute and limited.

As Rasulullah (PbUH) says: "There is no obedience to creation in disobedience to God (al ma’siat)".
In another Hadith Rasulullah (PbUH) said; "If any of them (the authorities) commands you do not disobedience to God (al ma’siat), then you do not hear and obey.

 In The Legal Maxim (al-Qawa’id al-Fiqhiyyah) have stated that:


 بالمصلحة منوط الامام تصرف ;"The actions of the ruler or Imam should be bound by public affair (maslahat)." In general, methods and debates of this maxim are to include matters related to the management and Siasah Syariyyah.


 It is also related to the general rule in matters relating to governance and action against leaders of the people
 In general, there is no specific explicit nas that allowed or deny an ex parte proceeding but at least the references can be dealt with the case of Hindun binti Utbah,Hadis narrated by Aisyah; Hendun complaint to Rasulullah (saw) that her husband, Aby Sufyan was a miserly person. Upon hearing the complaint, without calling Abu Sufyan, Rasulullah (PbUH) asked Hendun to take from the property of Abu Sufyan what is “enough for herself and her children.”



 Ibnu Farhun al Maliki viewed that the wisdoms of judicial system are to lift disorder, to reject disaster, to deter cruelty, to help the oppressed people, to settle dispute, to promote benefit and to prevent harm. Thus if a case need to be decided urgently, the court may use its discretion to hear the case one sided in order to protect the interest and to prevent harm.


 EX PARTE PROCEEDING IN SYARIAH COURT


Ex parte proceeding was allowed and as an exception to the general rule; The law allows trial in the absence of the contesting party in:

Absence of parties subject to proof of due service ex parte interim application.Normally, the order sought is temporary in nature until the full settlement of the whole proceeding.

Jurisdiction Of Syariah Court 


 In Syariah Court at Federal Territories, Ex parte proceeding was provided under;
The jurisdiction to grant interim order was under Syariah High Court especially in case the application of injunction and hadhanah. This interim order is not allowed to be appeal. Interim application may be made ex parte in case one of urgency.


[1] Section 154(2) Syariah Court Civil Procedure (Federal Territories) Act 1998 (Act 585) And Rules;” An application for leave to execute may be made ex parte, but the Court may order service of the application on any party or person concerned”.

[2] Section 187(3) Syariah Court Civil Procedure (Federal Territories) Act 1998 (Act 585) And Rules,”An application under this Chapter may be made ex parte unless the Court otherwise directs or otherwise provided in this Chapter”

In practice, the court adopts the ex parte application in cases involving;
i. Temporally custody rights (hadhanah)
ii. Temporally maintenance for children
iii. Leave of wife / applicant to stay from the matrimonial house in case of sexual abuse or threats involving personal safety.
iv. An Injunction of harassment and assault
v. An injunction to dispose of property in dispute
vi. An Injunction to nullified and abstain any transactions to frustrating the claimant of maintenance
vii. Substitute service


 Procedures

Mode an ex parte application should support by affidavit;

An affidavit for injunction and an interim order as to hadhanah shall contain a clear and concise statement.

 Refer to Practice Direction No 10 Year 2006, give a direction for an application of interim order of hadhanah. The direction says, “All applications for ex parte interim order of hadhanah is not allowed unless with specific reasons. The parties may submit applications for temporary custody during the proceedings in main custody cases to court.”


- In case of hadhanah, “urgent" means relating to the welfare of the children such as schooling, food expenses or protect from any abuse, or harmfully, trespassing over children or wife
The content of interim order was clarifying with secure an additional requirement in Practice Direction No. 11 Year 2003:

-That any party involved (affected) by the right to seek a interim order in inter parte to revoke or change a interim order if the applicant for a interim order does not disclose or reveal any of the relevant facts;


- The dated in hearing inter parte to extended, altered or revoke the interim order shall be appointed within 30 days from the date of the interim order was issued;


- The applicant shall submit an interim order together with a copy of the application, certificate of urgency and affidavit that support their ex parte application to all parties affected by such interim order;


- Affidavit in supporting the application for ex parte interim order shall contain, among others, undertaking (akujanji) the applicant will pay any damages assessed on the loss to any party as a result of obtaining a interim order that should not be issued; and


- Application for ex parte interim order shall be supported by a certificate of urgency and signed by the respective applicant's lawyer syarie.


- Revisions to the above judgment and ex parte order are not allowed as long as the main case is still pending. The appellant shall file a Notice of Appeal on the main case. (Practice Direction No 9 Year2006)

` If a party to any cause or matter, set aside an order made ex parte, Judges shall then be heard (orally) and ordered the inter parte whether to set aside or continue the application. Court may order the ex parte order issued to the parties filed a particular application within 14 days.


 Case Study


Wan Puziah binti Wan Awang lwn. Wan Abdullah bin Muda & Others, An injunction order was allowed to stop defendant from making any transaction or withdrawal from Tabung Haji Fund on the ground that the subject matter (saving in Tabung Haji Fund) was an issue and the case was pending and may lead to frustrated the heirs from claimant the inheritance.


See JH (2000) 14 p.235


Fatimah Hj. Md. Eusof lwn. Wan Shahruddin Wan Mahmood. Shah Alam Syariah High Court decided that the injunction order made by ex-parte order had void after finish 30 days. Plaintiff got injunction order through ex parte proceeding on 24 Mac 2003 and sealed on 17 April 2003. Plaintiff doesn’t make any action to renew the injunction order. The Court held that injunction order had void on 24hb. April, 2003, start from 30 days after the court gives the order.

See JH XXII/I (1427H) p.17


 Haslinda Binti Alias lwn. Johdi Matthew Byrne @ Yahya Bin Abdullah.[

The Plaintiff filed an ex parte application for :

(1) Interim custody for the children
(2) A restraining order
(3) An order to refrain the Defendant from taking the children outside Malaysia


 The trial judge stated that the term ex parte is not defined by the statute and a general principle in all legal systems is that all parties should be given the right to be heard before disposition of their cases to ascertain justice for both sides. The law does not allow any cases to be heard ex parte but there are exceptions provided by the legal maxims.

 The judge was of the view that even though the court is not allowed to decide the case without hearing from both sides, there was an urgent need for the plaintiff to get the order ex parte due to the fact that the Defendant is the Philippine citizen and the police report lodged by the Plaintiff. If the application was served to the defendant it was scared that the defendant will take the children out of Malaysia before the proceeding begin. The judge said that the existence of urgency is the essence for the ex parte application.

See JH(1999) 13 p. 47


 Lailah lwn. Wan Firuz,

Plaintiff applies fasakh for reasons inter alia of habitually harassment and battery and unfair deal with plaintiff as a second wife. Plaintiff cannot stand any longer and exit from matrimonial house to avoid harmfulness for her. An ex parte application was granted to protect herself from any harm occurred by defendant. Defendant was order to keep a distance from plaintiff estimate 100 meters or any contact or meeting or leave together with plaintiff.

See Kes Mal Bil: 10002-014-08 Tahun 2001, Syariah Lower Court at Petaling District, Selangor.

 Pendakwa Syarie lwn. Mohamed bin Sabu and Others


 The Syariah High Court of Kelantan allowed an application of injunction to stop journalist to report the case to media, take a photography by camera, video or any other electronically medium while during the trial. This reason given to respect the court proceeding from manipulated and contempt of court to be issued toward defiant the injunction order.

 See (1997) 11 JH 61


CONCLUSION


Even though the basic principle is that the judge should hear from both sides, based on the principle of siyasah syariyyah, ex parte application can be entertained in order to protect the maslahah of both parties.
Ex parte application is based on the legal principle of istihsan and due to dharurah that is the alternatives to overcome the difficulties, hardship and to prevent oppression or harm.Instead of, ex parte proceeding still give an assurances and guarantee that parties to the disputes will be given their rights to ensure justice for the litigants.Therefore, ex parte proceeding is not against the objective of Syariah because the proceeding should be managed with due care to prevent unjust for the other parties.

YA Haji Nassir Abd Azizi(HMTS Putrajaya)
YA Muhammad Adib Hussain(HMTS Selangor)