Khamis, 4 November 2010

Bidangkuasa Mahkamah Syariah Wajar Di Kaji Semula

salam,

Baru sesuai pencen hakim 66 tahun...............hehehe


JURISDICTION OF THE SYARIAH COURT AND
POWER OF THE SHARIAH JUDGE



INTRODUCTION

Syariah Court is one of the two separate systems of courts which exist in Malaysian legal system. Syariah refers to shariah law in Islamic religious laws, having jurisdiction upon every muslims in Malaysia. This dual system of law in Malaysia is provided for in Article 12 of the Federal Constitution.

Unlike the civil courts in Malaysia, which is federalised court system, the Syariah Court is a creature of State law. Similarly, Syariah or Islamic law is a matter of State law, with the exception of the Federal Territories of Malaysia. Thus, syariah law in one state might differ to that of another State. There are 13 States Syariah law.

CONSTITUTION OF SYARIAH COURT

Article 74 of the Federal Constitution and read together with List II of the Ninth Schedule of the Federal Constitution provide matters over which the State Legislatures (there are 13 of them) and the Federal Parliament (in respect only of the Federal Territories), may make laws. It was under the said List II which provides for “…the constitution, organisation and procedure of Syariah courts…” that State Legislatures made laws (called “Enactments”) creating the syariah courts in their respective States. Article 74 of the Constitution provides:

(1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).

(2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

By virtue of these enabling provisions, there are numerous State laws been enacted for the establishment or constitution of Syariah courts. For an example, the Administration of the Religion of Islam (State of Selangor) Enactment 2003 [Selangor Enactment No. 1 of 2003] established the Syariah courts in the State of Selangor, from the highest, the Syariah Appeal Court, the Syariah High Court and the Syariah Subordinate Court. Section 55 of the Enactment provides:

“(1) His Royal Highness the Sultan, on the advice of the Majlis, may by notification in the Gazette constitute Syariah Subordinate Courts for the State of Selangor at such places as he considers fit.

(2) His Royal Highness the Sultan, on the advice of the Majlis, may by notification in the Gazette constitute a Syariah High Court for the State of Selangor.

(3) His Royal Highness the Sultan, on the advice of the Majlis, may by notification in the Gazette constitutes a Syariah Appeal Court for the State of Selangor.”

Whereas for Federal Territories, the Administration of Islamic Law (Federal Territories) Act 1993 [Act 505] provides for the establishment of Syariah Subordinate Court, Syariah High Court and Syariah Court of Appeal.

At present, there are other States laws constituting the Syariah courts in their respective States (Kedah, Kelantan and Sarawak not included):

1. Administration of the Religion of Islam (Perlis) Enactment 2006 [No.4 of 2006];
2. Administration of the Religion of Islam (Negeri Johor) Enactment 2003 [No.16 of 2006];
3. Administration of the Religion of Islam (State of Malacca) Enactment 2002 [No.7 of 2002];
4. Administration of the Religion of Islam (Negeri Sembilan) Enactment 2003 [No.10 of 2003];
5. Administration of the Religion of Islam (State of Penang) Enactment 2004 [No.4 of 2004];
6. Administration of the Religion of Islam (Perak) Enactment 2004 [No.4 of 2004];
7. Administration of Islamic Law (Pahang) Enactment 1991 [No.3 of 1991];
8. Administration of Islamic Religious Affairs (Terengganu) Enactment 1422H / 2001M [No.2 of 2001]; and
9. Administration of Islamic Law Enactment (Sabah) 1992.

JURISDICTION OF THE SYARIAH COURT

In Islam, the judicial institution is known as “wilayah al-qada’”. The Court’s jurisdiction covers a wide area including all types of civil and criminal cases like hudud, qisas, diat, ta’zir, family law, muamalat and other cases whether in relation to Allah’s rights or the people’s rights or the mixture of both rights. Briefly, there are eight (8) types of jurisdiction, namely:

(i) Al-Ikhtisas al-Nauie;
A qadi can only hear and decide on certain types of cases. It is determined during or after the appointment.
(ii) Al-Ikhtisas al-qadi bi-miqdar muaiyyan;
A qadi is determined to hear cases on specific amount.
(iii) Al-Ikhtisas bi-qadiyyah muaiyyanah;
A qadi’s jurisdiction is confined to one type of cases only.
(iv) Al-Istithna ba’da al-waqaie wa al-hawadith;
A qadi has general jurisdiction with some exception
(v) Al-Ikhtisas al-makani;
Jurisdiction is conferred on certain areas and designated place only.
(vi) Al-Ikhtisas al-qadi bi zaman muaiyyan;
A qadi is only authorized to hear cases on certain days and time only.
(vii) Al-Ikhtisas al-qadi inda taaduddihim; and
Several qadis are appointed and are given jurisdiction in a place.
(viii) Al-Ikhtisas al-qadi bi madhab muaiyyan.
The judge is appointed to judge in accordance with a particular mazhab’s opinion.


JURISDICTION OF SYARIAH COURT IN MALAYSIA

Generally, Syariah courts acquire its authority from the Federal Constitution which allows the states to administer Islamic law in a very limited scope as a personal law of the Muslim. The Constitution treats Islamic law as a personal law and thus only applicable to the Muslims and also on very limited matters. The words “personal law” is clearly explained in the Ninth Schedule, List II as:

“Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law and personal and family law of persons professing the religion of Islam, including Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce…, creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in the paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law…..”

Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988) [Act 355] is one of the Federal law that limits the prescription of offences under any written law by States legislature to offences punishable with imprisonment for a term not exceeding three years or with fine not exceeding five thousand ringgit or with whipping not exceeding six strokes or any combination thereof.

As a matter of discussion, there are 4 types of jurisdiction, namely:

i. local/ territorial jurisdiction;
Since the Syariah Court is a creature of State law, its territorial jurisdiction is limited to that particular States only. For example, under the Selangor Enactment, section 62 provides that a Syariah Subordinate Court shall have jurisdiction throughout the State of Selangor only. Similarly to the territorial jurisdiction of Syariah High Court which is throughout that particular State as provided for under section 61 of the Enactment.

ii. original jurisdiction ( either civil or criminal);

Besides the territorial jurisdiction, other jurisdictions of the Syariah courts are specifically mentioned in the State Enactments respectively. For the purpose of this presentation, discussion will be on the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (hereinafter referred to as the “Enactment”). The courts which have the original jurisdiction are the Subordinate Court and the High court.

i. Jurisdiction of Syariah Subordinate Court:
As for the original jurisdiction, section 62 of the Enactment provides that a Syariah Subordinate Court shall have jurisdiction-

(a) in its criminal jurisdiction, try any offence committed by a Muslim under Syariah Criminal Offences Enactment (Selangor) 1995 or any other written law which prescribes offences against the precepts of the religion of Islam for which the punishment provided by such Enactment or other written law does not exceed three thousand ringgit, or imprisonment for a term of two years or both, and may impose any punishment provided for such offences; and

(b) in its civil jurisdiction, hear and determine all such actions and proceedings as a Syariah High Court is authorised to hear and determine, if the amount or value of the subject-matter in dispute does not exceed one hundred thousand ringgit or is not capable of estimation in terms of moneys (not including claims of hadhanah or harta sepencarian).

A Syariah Subordinate Court does not have the appellate or supervisory jurisdiction.

ii. Jurisdiction of Syariah High Court:

With regards to the original jurisdiction, section 61 of the Enactment provides that a Syariah High Court shall-

(a) in its criminal jurisdiction, try any offence committed by a Muslim and punishable under the Syariah Criminal Offences Enactment (Selangor) 1995 [En.No. 9/ 1995] or under any other written law for the time being in force which prescribes offences; and

(b) in its civil jurisdiction, hear and determine all actions and proceedings if all the parties to the actions or proceedings are muslims and the actions or proceedings relate to-

(i) betrothal, marriage, ruju’, divorce, annulment of marriage (fasakh), nusyuz, or judicial separation (faraq) or any other matter relating 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 of marad-al-maut;
(vi) gifts inter vivos, or settlements made without adequate consideration in money or money’s worth by a Muslim;
(vii) wakaf or nazr;
(viii) division and inheritance of testate or intestate property;
(ix) the determination of the persons 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.

iii. Jurisdiction of Syariah Appeal Court :
The Syariah Appeal Court does not possess original jurisdiction. It has appellate jurisdiction as well as supervisory and revisionary jurisdiction.
Section 67 of the Enactment provides for the appellate jurisdiction of Syariah Appeal Court to hear and determine any appeal against any decision made by the Syariah High Court in exercise of its original jurisdiction or determining the appeal from a decision of a Syariah Subordinate Court.

iv. appellate jurisdiction

The Syariah High Court has appellate and revisionary or supervisory jurisdiction as well.

Section 63 of the Enactment provides for its power to hear appeal from Syariah Subordinate Court. In a criminal appeal, the Syariah High Court may dismiss the appeal, convict and sentence the appellant, order the trial Court to call for the defence or make further inquiry, enhance or alter the nature of the sentence, order a retrial, or alter or reverse any order of the trial Court.

Whereas in civil appeal, the Syariah High Court may confirm, reverse or vary the decision of the trial Court, exercise any such powers as the trial Court could have exercised, make such order as the trial Court ought to have made, or order a retrial.

Section 66 of the Enactment provides for the supervisory and revisionary jurisdiction of the Syariah High Court over all Syariah Subordinate Courts and may even call for and examine any records of proceeding either civil or criminal matters in any Syariah Subordinate Court.

iv- supervisory or revisionary jurisdiction

Whereas section 68 of the Enactment provides for the Syariah Appeal Court’s supervisory and revisionary jurisdiction over the Syariah High Court and may even call for and examine any records of proceeding either civil or criminal matters in any Syariah High Court.

POWER OF THE SYARIAH COURT JUDGE

The jurisdiction of the Syariah Court is expressly provided or under the Federal Constitution Ninth Schedule List 1. Art 121(A) is only mentioned about jurisdiction but not power of the Syariah Court. The question is wether the Syariah Court has the power to grant the relief sought if it does not have jurisdictioin the subject matter.

The situation in the civil court is that the term jurisdiction is distinct from the term ‘powers’. It is considered in the Court of Appeal case in Lee Lee Cheng v Seow Peng Kwang, where the Court found that the meaning of the words ‘jurisdiction’ and ‘powers’ used in the Courts Ordinance 1948 were different as there were different provisions relating to jurisdiction and powers in that Ordinance. The court explained that ‘jurisdiction’ referred to the authority of the court to hear and decide a dispute brought before it, while ‘powers’ referred to the court’s capacity to give effect to its judgment by making or giving the order or the relief sought.

In respect of the Syariah Court, the word used in Aticle 121(A) is ‘jurisdicton’ and not ‘power’. The question is whether it is a correct approach to consider the powers of the Syariah courts in determining their jurisdiction. The previous approach requiring the Syariah Courts to have powers to grant the remedy sought before civil jurisdiction is excluded. The Supreme Court case in Majlis Agama Islam Pulau Pinang lwn Isa Abdul Samad & Satu Yang Lain dismised the preliminary objection against the jurisdiction of the High Court to determine the questions regarding wakaf. In this case, the land owner had made the land and the mosque on it a wakaf am and the Respondent was a beneficiary of thelandowner. The Appellant intended to demolish the mosque and to build in its a commercial bulding (incorporating a mosque). The Respondent sought a declaration that the Applellant’s plan was against the law and hukm Shara’ and an injunction to prevent the appellant or its agent fro demolishing the mosque.

Eusoff Chin SCJ (as he then was) in delivering his judgment acknowledge that eventhough the issues of will and wakaf were within the urisdiction of the Syariah court, the real and the main issue was not the construction of a will and wakaf but on the injuctive relief. The court found that the Syariah court have no power to grant a perpetual injuction as it was not expressly provided under the Penang Administration of muslim Law Enactment 1959. The court noted that according to section 51(2) of the Specific Relief Act 1950, such a injunction could oly be granted by the High Court and thus article 121(A) of the Federal Constitution does not exclude the jurisdiction of the High Court.

The case was followed by Barkath Ali bin Abu Backer lwn Anwar Kabir bin Abu Backer & Ors, where the court found that the Syariah Court in Penang have no power to grant a declaration on the status of the assets of the settlor in Malaysia and Singapore as sought by the Palintiff on the ground that according to the Specific Relief Act 1950 and Order 15 and 6 of the Rules of the High ourt 980, the power to grant a declaratory decree is undoubtedly that of the High Court’.

The issue was settled in the Federal Court’s decision in Soon Seng a/l Bikaar Singh lwn Pertubuhan Kebaikan Islam Malaysia (PERKIM) Kedah, where the Federal Court did not consider the power os Syariah court to grant the declaration in determining their jurisdiction but it considered the existence of jurisdiction on the subject matter of apostacy, expressly or impledly. This decision is later followed in Abdul Shaik bin Md Ibrahim & ANor lwn Hussein bin Ibrahm & Ors, where Abdul Hamid Mohamad J (as he then was) pointed out to adopt the ‘remedy prayed for’ approach would negate the application of Article 121(A) by inserting a declarative relief in the prayer in a suit and the appraoach that should be adopted is to consider whether the subject matter is wihin the jurisdiction of Syariah Court. The Federal Court in Majlis Agama Islam Pulau Pinang dan Seberang Perai lw Shaikh Zolkaffily in Shaik Natar & Ors, agreed with Abdul Haid Mohamad J in Abdul Shak regarding the ‘subject matter’ approach and disapproved the ‘remedy prayed for’ approach.

Thus it can be differenciate between the power of civil court is provided for under the Specific Relief Act 1950 and the Court of Judicature Act 964. The power cannot be extended to the Syariah Court as the Parliment is not competent to do so under the Federal List. Thus, impliedly, by looking at the text and structure of the Federal Constitution, item 1 of the State List should be construed as giving the competency to State Legislative assemblies to grant powers to Syariah Court. At present, the Syariah Court Judge has an implied power to grant relief sought by the parties as long as it has the jurisdiction in the subject matter as long as it is not against the Hukum Syarak. It is provided under the statute. For instance, section 244 of the Syariah Court Civil Procedure (State of Selangor) Enactment 2003 provides:

Nothing in this Enactment shall be deemed to limit or offect 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.

The discretion given to the Syarie Judge above, in using their inherent power to decide, is so significant to ensure that the jurisdiction granted or protected under the relevant law would not be meaningless and parties would not be left without adequate remedy. One of the example is the declaration and division of harta sepencarian against the deceased estate. The Islamic Family Law (State Kedah) Enactment provides only the provisions for harta sepencarian on the application for polygamy under section 23 and the claim for harta sepencarian after a marriage has been dissolved under section 122. Section 23(10) provides that:-

Every Court that grants the permission or orders the marriage tobe registered under this section shall have the power on the applicationby any party to the marriage—
(a) to require a man to pay maintenance to his existing wife orwives; or
(b) to order the division between the parties of the marriage of any
assets acquired by them during the marriage by their joint
efforts or the sale of any such assets and the division of the
proceeds of the sale.

While section 122 provides that :-

(1) The Court shall have power, when permitting the pronouncementof talaq or when making an order of divorce, to order the divisionbetween the parties of any assets acquired by them during their marriageby their joint efforts or the sale of any such assets and the divisionbetween the parties of the proceeds of sale.

There are situations where the declaration of harta sepencarian is made over the deceased property by the surviving spouse against the other beneficiaries. The court will hear and decide the case based on its inherent power as provided so under section 244 of the Syariah Court Civil Procedure (State of Selangor) Enactment 2003. To clear the predicament, the Arahan Amalan (Practise Direction) No. 5/2003 that was issued by the Jabatan Kehakiman Syariah Malaysia to be applied by all the Syariah Courts allowing the court to hear such claim.

It is the nature of the law that the decision of cases cannot be deviated from hukum syarak and the subject of hukum will be different depending on the facts and circumstances of the case eventhough the cause of action is the same. For example in the case of a claim of nafkah eddah, section 60 of the Islamic Family Law Enactment (State of Pahang) Enactment 2005 provides for the power of Court to order maintenance of wife, and the effect of nusyuz.

60. (1) The court may, subject to Hukum Syarak, order a man to pay maintenance to his wife or former wife.

From the above section, the court has power to make an order for the maintenance during the eddah period of the former wife on the same cause of action ie divorce. However, the provision is general as it does not state the situations that entitle the former wife to the nafkah eddah and it cannot be found in the Enactment as well. Thus, the court have to apply its inherent power to make the order based on hukum syarak as they are different types of eddah and those are:
i- eddah for those who menstruate i.e 3 quru’
ii- eddah for those who does not menstruate i.e 3 months
iii- eddah due to the death of the husband i.e. 4 month and 10 days
iv- no eddah before the consummation of the marriage
(please insert the quranic references)
However, the inherent power provision, in criminal jurisdiction, does not included in the Syariah Criminal Procedure Enactment. The Enactment only provides, for example in section 233 of the Syariah Criminal Procedure (Negeri Sembilan) Enactment 2003 that :

(1) Any provision or interpretation of the provisions under this Enactment which is inconsistent with Hukum Syarak shall, to the extent of inconsistency, be void.
(2) In the event of a lacuna or where any matter is not expressly provided by this Enactment, the court shall apply Hukum Syarak.

The power of the Syariah Court in criminal matters is subjected to the (Criminal Jurisdiction) Act 1965 which provides that the Syariah Courts duly constituted under any law in a state and invested with jurisdiction over persons professing the religion of Islam and in respect of any of the maters enumerated in List II of the State List of the Ninth Schedule to the Federal Constitution are hearby conferred jurisdiction in respect of offences against precepts of the religion of Islam by persons professing that religion which may be prescribed under any written law provided that such jurisdiction shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding five thousand ringgit or with whipping exceeding six strokes or with any combination thereof.




CONCLUSION

Jurisdiction and power of the Syariah Court, which is distinct from the civil court, cannot be set apart. The jurisdiction and power of the civil court are expressly provided for under the Federal Constitution and other laws such as the Specific Relief Act and the Rules of High Court whereas in the Syriah Court, the provision regarding power of the judge to to award relief prayed for is silent. This can be considered as an advantage to the Syarie judges as they shall apply their individual reasoning in deciding cases.

Disediakan Oleh:

HA/AB/H-TQVM


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