تقرير عن الدورة المتخصصة في القضاء لأصحاب الفضيلة قضاة ماليزيا التي سيعقدها المعهد العالي للقضاء
(25/1/2011 في الفترة من (25/12/2010 حتى.
Oleh yang demikian selama tokeh blog ini berada disana,maka semak samun dijangka akan tumbuh liar..hehehe dirumah ni,rimau tiga ekor tu pun akan ngamuk sakan,jauhi dari mereka sejauh-jauhnya untuk keselamatan .Pohon mendoakan saya selamat pergi dan balik dan diberi kelapangan,kesihatan yang baik dan keselematan.Di panjangkan jugak pada keluarga yang tinggal....ilal liqo`
Hajat hati nak menulis panjang tentang berapa isu,namun atas keterbatasan waktu,maka terpaksa dibatalkan(tangguhla tu),namun untuk membersihkan sawang,semak samun rumah ni kena tengok-tengok jugak,rimau kat depan tu pun dah lapar benar.heheheh.
Disember 2010 merupaka bulan yang merakamkan beberapa episod malam di institusi berjenama `syariah` ini.Keinsafan menerjah masuk kesanubari,dan terasa betapa perlunya muhasabah diri dan membina benteng kekuatan dalam agar tidak terjebak sama.ketakutan amat dirasainya,(takut dalam memikul amanah besar menjaga institusi ini)dan doa sentiasa dipanjatkan agar Allah tidak menguji diri aku khasnya,dan teman-teman lain amnya dengan ujian yang tidak mampu kami tanggung.
Godaan datang dan pergi,setiap ruang dan peluang ,sama ada diambil atau dibiarkan sahaja ,hanya iman yang menenetukan dan membentenginya,kalau level tahap air di empangan musim kemarau maka,tergolek kesukaan binatang bertanduk itu untuk memainkan peranannya.Begitulah lah juga dalam perjalanan yang sederhana jauh ini,ada yang tewas,ada yang maju dan berjaya ,ramai-ramai yang sedang-sedang aje,macam aku ni hehehehe.Apapun aku mohon sungguh-sungguh agar dihindarkan segala macam perkara yang datang dan bertentangan dengan fitrah sebenar diri kita sendiri.
Sukan Mahkamah Syariah -1.
Akan bermula petang besok dengan dirasmikan oleh Pak Menteri Senator Datok JKB-di UNISZA Kuala Terengganu.Acara dipertandingkan antaranya Menembak Air Rifle/Pistol(aku masuk acara ni),Dart,Bola Jaring/Futsal/Badminton/Pingpong dan Golf.kontinjen Tok Gajah turun dengan semangat separuh je..almaklum sponsor tak ada.Mula-mula dicadangkan perbarisan petang esok,skuad Tok gajah pakat -pakat pakai kain pelikat dan kain batik beserta baju pagoda(laki) baju cekak musang/bertudung kain batik jugak dan berselipar Asadi paling murah..sebagai tanda protes(?)..hangpa ni..nak protes kat sapa?Apapun semangat untuk turut serta tu yang dipuji walaupun serba kekurangan.sungguhpun akan bermain berkaki ayam dan menggunakan tangan kiri(bagi yang kidal la) dan bas yang nak bawa diorangpun jenis yang di keluarkan dari kilang sejak 4 pilihanraya yang lalu,namun unjuran pungutan pingat kita jangka antara 3 ke 4 pingat emas pehhh.bravo skuad Tok gajah..namun dalam masa yang sama malam Ahad nanti mantan Ketua hakim akan menikahkan anaknya di Dewan Jubli dengan kehadiran VVVVIP..serba salah dibuatnya.nak hadir..ni bukan majlis kenduri kat Kg ..main redah je,tapi saip protokol masa kehadiran..senarai jemputan.Tengok la camne nanti...
Kembara lagi............
Kalau bulan Okt dulu ,aku cadang nak melawat sotong yang pandai meramal tu,semua benda dah siap sedia,dari tiket,perjalanan di sana serta penginapan semua dah set,tapi aku terpakasa memilih antara dua..bila time nya sampai..akhirya aku terpaksa batalkan kembara 2 minggu tu,tiba pula musim haji..alangkah hibanya..haji tahun ini Allah belum membenarkan aku jadi tetamunya walaupun beberapa perkara dah diatur,akhirnya tadi aku sekali lagi ke Pej Kedutaan Tok Arab yang sama untuk urusan visa,punyalah lece h urusan,mahu dekat 3-4 jam jugak,urusan tak juga setel,dia yang jemput kita,dia yang banyak cekadak,ini tadak itu tak kena,tapi apa ke heinya dengan surat tawaran,tiket free dan pengurusan untuk berlepas..tu bukan urusan aku dan kengkawan kat sini,namun aku mengurut adda,sabor..sabor..kesabaran akan menghasilkan natijah yang manis dan indah untuk dikenang..ye la tu..
Ambe mengucapkan setinggi tinggi tahniah dan kepada mantan Ketua hakim Syarie Negeri Pahang,Dato` Haji Abd Hamid Haji Abd Rahman(65 tahun) atas anugerah Tokoh Maal Hijrah Negeri Pahang pada tahun ini.Anugerah ini disampaikan oleh KDYMM Sultan Pahang Sultan Haji Ahmad Shah di Kuantan,sempena sambutan Hari Maal Hijrah Peringkat Negeri Pahang hari ini.
Beliau telah menamatkan perkhidmatanya pada 27 mac 2010 yang lalu,sehingga kini belum ada penganti Ambe berada dibawah pentadbiranya selama lebih kurang 14 tahun.beliau seorang yang sangat sabar,mudah menerima pandangan orang lain ,berketerampilan dan memahami orang lain.Beliau jugak adalah Ketua Hakim Syarie pertama Negeri Pahang sejak jabatan ditubuhkan pada tahun 1995.
The Syariah Court jurisdiction is laid down in the Administration of the Religion of Islam and it covers either criminal or civil matters. In Selangor, the Syariah Court has jurisdiction, in criminal matters, to try any offences committed by a Muslim and punishable under the Syariah Criminal Offences Enactment (Selangor) 1995 or under any written law for the time being in force[2] whereas in civil matters the Syariah Court has jurisdiction to hear and determine all actions and proceedings if all parties to the actions are Muslim in the proceeding relate to[3]:-
(i)betrothal, marriage, ruju’, divorce, annulment of marriage (fasakh), nusyuz, judicial separation(faraq) or any other matter related to the relationship between husband and wife;
(ii)any disposition of or claim to property arising out of any of the matters set out in subparagraph (i);
(iii)the maintenance of dependants, legitimacy, or guardianship or custody (hadhanah) of infants;
(iv)the division of, or claims to harta sepencarian
(v)wills or gifts made while in a state marad-al-maut;
(vi)gifts inter vivos or settlements made without adequate consideration in money or money’s worth by Muslim;
(vii)wakaf or nazar;
(viii)division and inheritance of testate or intestate property;
(ix)the determination of the person entitled to share in the estate of a deceased Muslim or the shares to which such persons are respectively entitled;
(x)a declaration that a person is no longer a Muslim;
(xi) a declaration that a deceased person was a Muslim or otherwise at the time of his death;
(xii)administration of mosques; and
(xiii)Other matters in respect of which jurisdiction is conferred by any written law.
Besides the expressed jurisdiction as mentioned above, the Syariah Court has its inherent jurisdiction in disposing of its functions. It is stated in Section 244[4] that nothing in the Enactment shall be deemed to limit or affect the inherent power of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. It is further provided that any provisions or interpretation of the provisions under the Enactment, which is inconsistent with Hukum Syarak, shall be void to the extent of the inconsistency [5] and if any matter is not expressly provided under the Enactment, the court shall apply Hukum Syarak.[6] The Syariah Court in executing its function in the administration of cases always refer to the primary sources i.e. the Quran and the Sunnah as well as the secondary sources i.e. the Ijma and Qiyas. Those authorities become the fundamental references as the shariah cases involve not only the right of the parties or any interested person but it cannot be separated from the question of the Islamic rules (hukum). Thus the judges in the Syariah Courts have wider scope of references to exercise their individual reasoning (ijtihad) in disposing off the cases before them and not only subjected to the statutes. There are also cases where the Syariah Court judges have make references to the Legal Maxims in their ground judgments.
DEFINITION OF LEGAL MAXIM (al-Qawa`idul al-Fiqhiyyah)
Al-Qawa`id is the plural of al-qa`idah, which means principles.[7] The word fiqhiyyah originated from the word al-fiqh which means al-Fahmu that is understands. Thus the term al-Qawa`idul al-Fiqhiyyah literally defined as the principles pertaining to the legal ruling (hukum).[8] In theoretical definition, legal maxims are theoretical abstractions in the form usually of short epithetic statements that are expressive, often in a few words, of the goal and objectives of Shariah and consist mainly of statement of principles derived from the detailed reading of the rules of fiqh on various themes.[9]
The legal maxims have a great role in the formation of Islamic Law because they are used as principles to deduce many rules of fiqh.[10] A prominent jurists, Mustafa al-Zarqa’, in his introduction when discussing about legal maxim, mentioned that although these legal maxims are general principles, they have significant roles in fiqh. These maxims have solved most of the minor rules (ahkam) of fiqh and without them these minor rules will have no standing ground which will make it hard to solve them.[11] The knowledge about legal maxims is very important as it is significant as the fiqh itself and it helps the scholars to know the detailed principles of the shariah and fiqh as well.
In the Syariah Courts, legal maxim has its distinctive tasks. Even though, in Malaysia the legal maxims is not codified like other statutes, the court have its inherent, either in criminal or civil jurisdictions, in order to prevent injustice or to prevent an abuse of court shall apply to Hukum Syarak if anny matter is not expressly provided under the Enactments.
Section 230 of the Syariah Criminal Procedure (State of Selangor) 2003 provides under subsection (1) that any provisions or interpretations of the provisions under this Enactment which is inconsistent with the Hukum Syarak shall, to the extent of inconsistency, be void. Subsection (2) futher elaborate that in the event of a lacuna or where any matter is not expressly provided by this Enactment, the court shall apply Hukum Syarak.
Whereas in civil jurisdiction the courts’ inherent power is stated under section 244 of the Syariah Court Civil Procedure (State of Selangor) 2003 which reads as follows:
Section 244. Nothing in this Enactment shall be deemed to limit or affect the inherent power of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court.
It is futher elucidated in section 245 of the Enactment that:
245. (1) Any provisions or interpretation of the provisions under this Enactment which is inconsistent with Hukum Syarak shall, to the extent of the inconsistency, be void.
(2) In the event of lacuna or where any matter is not expressly provided for in this Enactment, the court shall apply Hukum Syarak.
One ways taken by the Syariah Courts to refer to Hukum Syarak is by utilizing the legal maxims propounded by the jurists. Albeit the court is not bound to quote the legal maxims, it’s indeed, helps the judges to identify the issues in question, established the principles and to decide the issues which were brought forward by the parties in depending on the facts of each cases accordingly.
ROLE OF THE LEGAL MAXIMS IN THE SYARIAH COURTS
The role of legal maxims in the shariah court comes in different categories and it depends on the nature of the cases to be decided by the courts. There are cases which proved that the legal maxims were employed by the Syarie judges in their case. Among the maxims cited in the reported cases are:-
(1) Legal maxim as the source of law
The maxim of ألعادةمحكمة which means custom is authoritative has constituted the foundation of harta sepencarian in the Malaysian law. The subject of harta sepencarian has become very important and the right of the divorced spouses to harta sepencarian has now been given recognition under the law. It is provided under the Islamic Family Law Enactments throughout Malaysia. The significance of the provision is that the right to harta sepencarian does not confine to the woman only but also applicable to the man as well. By having such provision, the efforts of the wife and the husband during the subsistence of their marriage will be taken into consideration upon divorce and both parties are entitled to shares based on what they have contributed for the peace of mind towards each other.
The Islamic Family Law Enactment (Selangor) 2003[12] defines harta sepencarian as property jointly acquired by husband and wife during the subsistence of marriage in accordance with the conditions stipulated by Hukum Syarak. The earlier researched[13] observed that the local Malays did not follow the whole of the Mohammedan law as expounded by the Arabian jurist and that the Courts are to apply a composite law in which part of the Mohammedan Law is mingled with ancient Malay Custom. The intermingling of Malay custom and Islamic law is common feature found in most of the reported cases where the Kathis who were called by the courts to give their ruling on the distribution of the property of the married couple upon their divorce invariably cited Malay custom alongside hukum syarak as being the basis of their opinion[14].
In early years there was no established rule or principle to guide the court in deciding the claim towards the property acquired by a husband and wife during their marriage and their respective shares. Perak State Council Minute dated 18 January 1907[15] stated that,
The Council declares and orders to be recorded that the custom of the Malay Perak in the matter of dividing up property after divorce. When such property has been acquired by the parties or one of them during marriage, is to adopt the proportion of two shares to the man and one share to the woman and that the gifts between married persons are irrevocable either during marriage or after divorce.
In Wan Mahattan v Haji Abdul Samat (Ipoh Civil Appeal No. 27 of 1925),[16] it was held that the divorced wife’s share of one third would not be defeated in divorce by tebus talak unless the consideration thereof was the waiver of her claim to harta sepencarian. The divorced woman’s one-third share may be increased to one-half if she assisted in the actual cultivation of the land.
In Wan Nab v Jasin (Kedah Civil Appeal No 37 of 1922),[17] Daly J had to consider the position of a divorced wife for a share of the joint earnings during her seven years of marriage. The judge remarked that in previous cases of sharikat disputes decided by the Kedah High court, he was of the opinion that in every case the “decisions rest on guesswork” and recommended that the matter be given serious attention by the government with a view to solving a ”very unsatisfactory state of things”.
The law on harta sepencarian was judicially considered in Hajjah Lijah Jamal v Fatimah Mat Diah[18], and became the leading authority cited for its precise definition of harta sepencarian where Briggs J defined itas “acquired property during the subsistence of their marriage of a husband and wife out of their resources or by their joint efforts” and he extended the word “acquisition” to cover mere enhancement of value by reason of cultivation or development. He further remarked that:
On full consideration of those cases and the views of the learned author, I think there can be no doubt that the rules governing harta Sepencarian are not part of Islamic Law proper, but a matter of Malay ‘Adat’. Again the claim by a widow for a share of harta sepencarian is not the claim for a share of the deceased’s estate but a claim adverse to the estate for property of the claimant held in the name of the deceased”
And later he said:
In view of the clear recognition of harta sepencarian both in various States and by the courts, I am prepared to hold that the rules governing it now form part of the general law of the State…
In Roberts Alias Kamaruzzaman v Ummi Kalthom[19]the trial judge viewed that the presumption of harta sepencarian arise if the property was acquired subsequent to the marriage out of the husband and wife joint resources or joint efforts and the presumption is rebuttable by evidence that the property was acquired by the sole efforts or resources of the husband or the wife or by the evidence that it was made a gift by the husband to the wife or vice versa.Since the position of harta sepencarian was acknowledge by the law the concerned for the court in cases involving harta sepencarian is to determine whether the property was acquired during the subsistence of the marriage or that the property was substantially improved during the marriage and what is the share entitled by both parties. To this extend Islam recognized that the customary practices, be it specific or general, forms part of the Islamic legal sources and the customary practices is acceptable when it becomes prevalence and usually applied by all or certain group of people.
However, even though the term harta sepencarian is not expressly mentioned in the Quran, Sunnah and the references for fiqh, Islamrecognises the effort of man and woman and they areentitled to gain, without limitation, to what they have ventured throughout their life and in fact the notion of the right for a man or woman to manage and own properties are not alien in the Shariah. It is mentioned in Surah An Nisa’ verse 32:
Meaning: And in no wise covet Those things in which Allah Hath bestowed His gifts More freely on some of you Than on others: to men is allotted what they earn, And to women what they earn: but ask Allah of his bounty. For Allah hath full knowledge of all things.
At present, what has been regarded as customary practice by the Malay particularly in the subject of harta sepencarian recently was applicable not only to the Malays but was widely applied to the Muslim irrespective of their races. The subject of harta sepencarian too has developed further that the right to claim harta sepencarian is not confined to the dissolution of the marriage or death by either spouse, it has gone futher to cover the situation whereby an application for polygamy was filed by the husband as provided under section 23 of the Islamic Family Law Enactment (State of Selangor) 2003.
By having such provision, the rights of the existing wife or wives to their contribution are now protected under the law and it is in line with the application of the lagal maxims to accomplish the requirement of maqasid as shariah in the protection and preservation of interest of the spouses in their joint effort either direct or indirect throughout the marriage. Moreover, the provision helps the spouses to comply with the commandment in surah al Baqarah verse 188:
Meaning: And do not eat up your property among yourselves for vanities, nor use it as bait for the judges, with intent that ye may eat up wrongfully and knowingly a little of (other) people’s property.
(2) Legal Maxim as supportive evidence
Legal maxims stands as supportive evidence and it must go along with primary sources. It only helps the judges to consider the principles to be applied in their rulings. In the Syariah Court, legal maxim is used to:-
(i) Identify the status of the facts in issue
For example the maxim ofالأصل بقأما كان على ما كانwhich means “originally a matter will remain as it is”. This maxim is part of the major maxim that is what is certain cannot be removed by doubt اليقين لا يزول بالشاكwhich discusses about a fact established by law or proven with evidence will remain so until there is another certainty that removes it. Any doubt that occurs when certainty prevails will have no power to remove the certainty. There are several verses from the Quran and Sunnah which support this maxim. Among others are:
Meaning: “But most of them follow nothing but fancy: truly fancy can be of no avail against truth”
This verse speaks about the state of doubtful in which the believers are in. Surely the doubt that they are in will not prevail over truth or certainty.[20]
The saying of the prophet (pbuh)
Meaning: “If anyone of you feels anything in his or her stomach and then he is confused of whether anything has come out of it or not, he should not go out of the mosque unless he hears any sound or gets any smell (Muslim).”
In the above sunnah what is certain is that a person must be clean to perform prayer and the presumption of clean will remain.
There are instances where the courts refer to the legal maxim الأصل بقأما كان على ما كانto determine the status of the properties which become the facts in issue for example in the case of Ibrahim bin Haji Abu Bakar v Mohd Sah bin Mohd Ali dan lain-lain[21] where the judge applied the principle of certainty to determine whether the property in issue fall under wasiat. The case is about an application by the plaintiff to seek declaration of wasiat. The fact of the case is that plaintiff was the son of the deceased’s relative. The deceased married a woman and has no child. Due to that situation, the plaintiff developed a very good relationship with the deceased and in fact the deceased has died in the Plaintiff’s house. The Plaintiff claimed that a piece of land held under HSD 389 Lot 1885 Kg. Gelang be transferred to him under the reason that the diseased wanted to give the land to him by way of wasiat. The deceased’s beneficiaries objected the claim and wanted the land to be distributed through faraid. The Plaintiff in proving his case produced a statutory declaration attested by him infront of eleven witnesses which was made seven years after the death of the deceased. The plaintiff brought along five witnesses to testify in the trial and four of them were the witnesses to the Plaintiff’s statutory declaration. However only two witnesses testified about the wasiat but did not mentioned when it was made. The court later dismissed the Plaintiff claim on the ground that the Plaintif failed to prove the existence of wasiat. The statutory declaration tendered by the Plaintiff was not made by the deceased and thus it is not a wasiat. The judge in his judgment referred to the maxim لأصل بقأما كان على ما كان “originally a matter will remain as it is” and stated that originally the property is belong to the beneficiaries and since the issue of wasiat was not proven the property should be divided among the beneficiaries according to faraid.
The maxim was applied as well in the case of Noraini binti Mokhtar v Abd. Halim bin Samat.[22] In this case the Appellant filed the application in the Kelantan High Court for hartasepencarian and claim she was entitled to two third share of the properties i.e. the two storey bunglow valued at RM150,000, housing lot at Lot No 727 Mukim Langgar, Jalan Long Yens, Kota Bharu valued at RM80, 000 and a land held under Lot No 4924 Mukim Pasir Genda, Tanah Merah, valued at RM20,000. Her application was dismissed by the Syariah High Court and the appellant appealed to the Syariah Appeal Court. The Appeal Court in hearing the appeal was satisfied that the properties were jointly acquired by the parties during the subsistence of their marriage and the fact that the bungalow was registered under the appellant and respondent name for half share each proved that the bungalow belong to them on equal basis. The Appeal Court while determined the properties as harta sepencarian applied the maxim ofلأصل بقأما كان على ما كان اasto their joint effort since there were no evidence tendered to prove otherwise. Regarding the difference of the debt owed by the parties to acquire the property amounting to RM1000 the judge viewed that it should be borne by the parties equally by referring to the maxim ( الخراخ بالضمن) which means the detriment is as a return for the benefit,[23] that is to say, the person who obtains the benefit of a thing takes upon himself also the loss from it.
(ii) Identify the status of an individual
The maxim normally refers to determine the status of the accused in criminal cases is الاءصل براءة الذمةwhich means “freedom from liability is a fundamental principle”. It connotes a presumption that originally an individual is free and secure from any responsibility and accountability unless it is proven that he is subjected to it.
In Pegawai Pendakwa MUIS v Haji Adib Datuk Said Besar Sigoh[24]the accused was charged for committing zina but he was discharged and acquitted by the court on the ground that the prosecutor failed to prove the case. The prosecutor relied on the iqrar made by the informer who was convicted earlier through her confession in committing zina with the accused and the court by inflicting the maxim was of the opinion that iqrar made by other person could not be used to convict others. The court also refused to accept theiqrar made by the accused as it was made before the prosecutor outside the court.
The maxim also referred to by the trial judge to discharge and acquit the accused persons in Pendakwa Syarie v Jaiman Masta @ Mastah & Jamidah Abdul Majid.[25] The accused were charged under section 29(a) and (b) of the Syariah Criminal Act (FederalTerritories) 1997 with another accused whose whereabouts cannot be traced. The trial judge in his ground judgment stated that the prosecutor failed to prove the case beyond reasonable doubt as the testimony given by the prosecutor’s witnesses were not correspond towards each other. The judge viewed that he should not based his judgment on doubt issues ie the charge to overrule the state of certainty with regard to the presumption of innocent by quoting the maxim .الاءصل براءة الذمةThe normative state with regard to certainty provided by the maxim is that people are not liable, unless it is proven that they are and until proof is forthcoming, to attribute guilt to anyone is treated as doubtful.
(iii)consider the procedures to be applied
The maxim normally used for the court to apply exceptions to the normal procedure is المشقة تجلب التيسير (means hardship beget facility). This maxim indicates that any ruling whose implementation causes hardship to a person or the action is unable to be performed by a particular person or a specific acceptable reason, then there are alternatives and way out that can be resorted to in order to overcome the difficulties and hardship. Hardship in this maxim refers to hardships that surpass the normal limit and ability of a person to perform them.[26]
One of the reported cases where the judge applies this maxim is Haslinda binti Alias vs Johdi Matthew Byrne @ Yahya bin Abdullah.[27]This case is about an application by the Plaintiff for an injunction restraining the defendant father from taking the children out of Malaysia and the Plaintiff asked for the leave of court to hear the application ex-parte. Issues to be determined are firstly, whether the court has jurisdiction to hear and decide the case ex-parte. Secondly, what is the standard of the burden of prove and thirdly, the status of ex-parte order either temporary or permanent in nature. 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 i.e.المشقة تجلب التيسير (means hardship beget facility) and quote surah al-Baqarah verse 185 which means “…Allah intends every facility for you; He does not want to put you in difficulties…” The judge also mentioned the maxim ofالضرر يزال means injury to be repaired and quote surah al-Qasas verse 77 which means “…For Allah loves not those who do mischief The judge was of the view that even though the court is notallowed to decide the case without hearing from both sides, there was an urgent need for theplaintiff to get the order ex-parte due to the reason that 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. The judge quote the civil court cases of Raif v Kamseen [1983] 1 All ER 108 where the court expressed that the ex-parte application was irregular but it is necessary to uphold justice whereas in PNE Siaw Luan v Wong Tui Son Bors [1990] 3 MLJ 340 the court allowed the ex-prate application on real urgency. In this case the urgency was shown in the Certificate of Urgency filed by the Plaintiff’s lawyer to support the Plaintiff’s affidavit.
In such cases the judge viewed that the standard of the burden of proof is ondan al-ghalib based on the Plaintiff’s affidavitand the court was satisfied that the Plaintiff’s affidavit was made according to the law and finally the court believed that the ex-parte given should be confined to the need of the plaintiff that is to restrain the Defendant fromtaking the children outside Malaysia. The court furtherreferred to the maxim الضرورات تقدرNecessities renders prohibited things permissible) and الحاجة تنزل منزلة الضرورة(need, whether of public or private nature, is treated as necessity) and ما احلللضرورة او حاخة يقدر بقدرها يزول بزوالand said that the inter-parte application should be served to the defendant and the ex-parte order would remain until further order given by the court on the inter-parte application. Again in this case the court uses the legal maxims as supporting evidence to determine the issues in question and references were made by the court to the statutes as well.
The concept of legal maxim also has been applied in the Syariah Civil Procedure Enactment (state of Selangor) 2003 for example in section 121 the court may dismiss the action or determine the action in the absence of parties in the proceeding. The concept applied in this section is the maximthat no statement is imputed by to a man who keeps silence, but silence is tentamount to a statement where there is a necessity for speech لا ينسب الي ساكت قول لكن السكوت في معرضالحاجة بيان
In subsection (1) it is provided that the court may:-
(1)dismissed the action if neither parties appears;
(2)hear and determine the action if the defendant does not appear but subject to proof of due service; or
(3)dismiss the action and determine any counterclaim if the plaintiff is absent.
Even the court may proceed with the case , it is to be dealt with due care as provided in subsection (2) that in determining the action in the absence of parties the court shall order the plaintiff or defendant as the case may be to take an oath of istizhar. The court has discretion, however, to order an adjournment.[28]
(iv)prevent forthcoming impairment and destruction
The relevant maxim is لا ضرر و لا ضرارmeans harm shall not be inflicted nor reciprocated. This maxim reveals the importance to remove all kind of harm. This maxim comes in two parts. The first part harm shall not be inflicted (لا ضرر ) indicates that all kind of harms should be avoided and all necessary measures should be taken to prevent it occurrence. Whereas the second part harm shall not be reciprocated (ولا ضرالا ) implies that any harm inflicted should not be responded or revenged by inflicting another harm that will cause further harm.
The concept of harm prevention was adopted by the legislature and it was provided in the statutes as for example in the provisions regarding the dissolution of marriage by way of fasakh and polygamy.
In the case of Ruzaini bin Hassan,[29] the judge dismissed the applicant’s application for polygamy on the ground that the applicant failed to comply the requirements in section 23(3) and (4) of the Family Law Enactment (State of Negeri Sembilan) 1983. In this case the applicant already married to a wife and has two children. The applicant gross earning was RM1717.65 and after deduction he got RM1291.90. His monthly expenses were RM1000.00 leaving balance in hand RM291.90. His wife earned RM700 per month and her balance in hand was RM100. The judge was of the opinion that, even though the applicant’s wife has consented to the proposed marriage, the husband should consider and protect the interest of the existing wife and children. No doubt that there is an advantage in a polygamous marriage but if it is not well planned it should be deferred based on the maxim درء المفاسد اولي من جلب المصالح means repelling an evil is preferable to securing benefit. The judge concluded by having balance in hand RM291.90 the applicant was not afford to maintain another wife and though the applicants alleged that he was physically fit to marry another.
CONCLUSION
Those are among theoccurrencesof the exercise of legal maxims by the Syariah Court and it helps the trial judge, through the application of the general principle laid down in the maxims, to determine the issues of the particular cases brought before him. From the cases above it is to be noted the Syarie judge would employ all the necessary avenues provided by the statute in their decision makings. Unless and until the legal maxim reiterate the ruling of the Quran or Sunnah, the legal maxims would not consider to be binding by the judge and it just provide a persuasive source of influence in the formulation of their decision. The legal maxim exercised would stand as persuasive evidence unless they are supported by other evidences. There are maxims which have been recognized by the law and become part of the law itself as in the case of harta sepencarian. Other than that, the legal maxim, indeed facilitate the Syariah Court to fulfill the مقاصدالشاريعةthrough the implemention justice in securing benefit and preventing harm in any possible ways.
References
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