20th

BANYAK GILA SALAH

ADMINISTRATION OF JUSTICE IN MALAYSIA: SYARIAH COURT

Amirah Atiqah binti Adrein (166036),

Kauthar binti Hafidz Rahimi (166),

Latifah binti Husaini (166043),

Nur Amirah Zakirah binti Shazlen (166050) ,

Nurul Shafinaz binti Mohd Adnan (166073)

LSA 0114 Introduction to Law

Mr. Ridhwan Salleh

Semester 3, 2016/2017

Centre For Foundation Studies

International Islamic University Malaysia

1. Introduction

The Syariah Court framework is one of the two separate arrangement of courts which exists in Malaysian lawful framework. There is a parallel arrangement of state Syariah Court, which has restricted locale over matters of state Islamic law (Shariah). The Syariah Courts have locale just over Muslim in the matters of family law and religious observances, and can for the most part just pass sentences of not over three years detainment, a fine of up to RM5,000, or potentially up to six strokes of the stick.(1)

There are three levels of the courts: Appeal, High and Subordinate.(2)

Dissimilar to the common courts in Malaysia, which is a federalised court framework, the Syariah Court is basically settled out of state law. Thus Shariah or Islamic law involves state law, except for the Federal Territories of Malaysia, as gave in Article 3 of the Constitution. Therefore syariah law in one state may contrast to that of another state. There are 13 state syariah law divisions and 1 syariah law office for the Federal Territories.

2. The establishment of the court

ENACTMENT NO. 1 OF 2003

ADMINISTRATION OF THE RELIGION OF ISLAM (STATE OF SELANGOR) ENACTMENT 2003

PART IV

SYARIAH COURTS

Section 55. Establishment of Syariah Courts.

(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.

(4) His Royal Highness the Sultan, on the recommendation of the Chief Syarie Judge, may prescribe a code of ethics which must be observed by all Syarie Judges and Syariah Appeal Court Judges.

3. The Jurisdiction of Syariah Court

3.1 The Syariah Court an inferior court

The Syariah Court has been associated to the Magistrates’ Court and the Sessions Court which in Federal Constitution, are called inferior courts unlike the High Court, the Court of Appeal and the Federal Court. The Syariah Courts does not possess the same status and powers as the High Court and are rarely considered as “State Courts”. Syariah courts as well as the other subsidiary courts such as Industrial Court are supervised by the High Court.

It is evident that the Syariah Court can never be taken as a court that is higher than any of the inferior courts as it has already been stated that the the Syariah Court is only established by State Law, Article 121 (1A) whereas the Sessions Court and the Magistrates’ Court is established by the Subordinate Courts Act 1948, which is a federal law. Federal Law is considered as the supreme law which explains the superiority of the Session Court and the Magistrates’ Court over the other inferior courts. The superiority of the courts over the Syariah Court can also be seen in the comparison of their criminal jurisdictions.  For the Magistrates’ Court, the sentence of imprisonment can be imposed up to 5 years, a maximum fine of RM10,000 and whipping up to twelve strokes, or a combination thereof, the so called “5:10:12 Rule” while for the Syariah Court, it is subjected to the restrictions inflicted by Federal Law of a maximum sentence of three years imprisonment. Maximum fine of RM5000 and whipping up to six strokes, the so-called “3:5:6 Rule”

3.2 No exclusive jurisdiction on Islamic Law

The presumption of the Syariah Court having any absolute jurisdiction on matters revolving the Islamic Law is incorrect as the State Law has created Syariah Court with no power or clarification on any matters under the domain of the High Court and the other subordinate courts, including issues on the clarification of the federal Law and State Law.

In 2008, an issue emerged as to whether the Syariah Court had jurisdiction to enter upon the interpretation of the term “tenets of Islam” and thereby determine whether the provisions in the State Enactment creating the offences were in the consonance with the provisions of the Federal Constitution.This issue appeared due to the several offences made by Abdul Kahar. He was charged in the Syariah Court for abnormal teachings contrary (opposing) to a State Enactment. He imposed the constitutionality of the State Enactment on the grounds that the subject matter of the offences fell outside the term "tenets of Islam" in the State List within the legislative power of the State.

The Federal Court held that the Syariah court had no such power and that State Law could possibly confer such power because the determination of Islamic Law and other personal laws for purpose of federal law is a federal matter and if there is any question raised about whether a law made by a State is within the power of a state, and the interpretation of the Federal Constitution is a matter for the High Court. In 2012, one Siti Hasnah applied to the High Court to affirm her conversion to Islam when she was a year old to be unfounded. The Court of Appeal held that the jurisdiction of the civil court was not expelled merely because the subject matter of a claim or complaint has an Islamic law element in it.

3.3 No overlapping jurisdiction

Another basic misconception is that the Syariah court is a parallel system established under Article 121(1A) of the Federal Constitution. Article 121 establishes the High Court, the Court of Appeal and the Federal Court and perceived such inferior courts as may be prescribed by law. Article 121(1A), however, merely excludes the jurisdiction of the High Court in respect of any matter within the jurisdiction of the Syariah court. Quite clearly, Article 121(1A) neither establishes nor confers jurisdiction on the Syariah court.84 It is only when some jurisdiction is expressly conferred by State law on the Syariah court that Article 121(1A) would apply to exclude the jurisdiction of the High Court and the subordinate courts on that matter.

It has been stated above that the Syariah court can only have jurisdiction if expressly conferred by State law within the limitations of the Islamic law matters mentioned in the State List. In the absence of jurisdiction being conferred on the Syariah court in respect of any matter, such matter would fall within the jurisdiction of the High Court and the subordinate courts, unfettered by the operation of Article 121(1A).85 In any case, Article 121(1A) does not take away the jurisdiction of the High Court to interpret any State law enacted for the administration of Islamic law,86 such jurisdiction being outside the scope of State law, although concerning Islamic law. Article 121(1A) was introduced to prevent conflict of jurisdiction between the civil court and the Syariah court.87

If federal laws and State laws are made in strict compliance with the Federal List and State List, there should not be a situation where both the civil court and the Syariah court have jurisdiction over the same matter or issue.88 If an issue were to arise on whether State law infringes on the Federal List, Article 121(1A) cannot be an argument for ousting the jurisdiction of the civil court.89 In such a situation the question to be asked is whether such State law is constitutional in the first place, which is a matter for the Federal Court to decide.90 In spite of the fact that there might be unmistakable issues falling within the jurisdiction of the civil court and the Syariah court at the same time as in Latifah Mat Zain,91 it does not follow that there is an overlapping jurisdiction or assisting jurisdiction between the two nor are they considered double proceedings.

3.4 Conclusion For Jurisdiction

Quite clearly, the idea of a "dual" legal system in Malaysia of civil law and Syariah law is misconceived. Syariah law is only applicable to Muslims and only as personal law, with provision for certain offences against the precepts of Islam. Nothing in the Federal Constitution suggests that the Syariah court is to compete with or be parallel to the civil court on the same subject matter, and this is supported by judicial authority.

This issue is of vital importance to the peoples of Malaysia, with their multicultural, multi-ethnic and multi-religious history. The nation called "Malaysia" has no existence outside of the Federal Constitution, which is the supreme law of the country. A united and functional Malaysia can only exist when legal issues are determined in accordance with principle, in well-reasoned judgments by the courts, with a willingness to grapple with difficult issues without glossing over or avoidance or oversimplification or a giving way to sentiment. The authorities reviewed in this article have in the main avoided these dangers and provided guidance and a path to the future, although with some anomalies that need in due course to be resolved.

4. Cases dealt with by the Syariah Court

Adultery: Malaysia cane women for adultery
Parties	Public prosecutor: Datuk Seri Hishammuddin Hussein Defendant: Kartika Sari Dewi Shukarno
Court	Syariah Court
Material facts	Any women who commit adultery have to be whipped in a seated position by a female prison guard and be fully clothed.
Decision by the court	Court has decided the defendant was caned under Islamic law in Malaysia and been released after received the punishment.

   

Khalwat: Young imam jailed for khalwat
Parties	Judge: Shaiful Azli Jamaludin Defendants: Mohd Noruddin Salam Naluwi and Siti Khadijah Md Ghazali Enforcement officer: Selangor Islamic Religious Department (Jais)
Court	Gombak Timur District Syariah Lower Court.
Material facts	Mohd Noruddin Salam Naluwi, 29, and Siti Khadijah Md Ghazali, 27, admitted committing khalwat at a house in Taman Melawati at 3.30am on July 30.
Decision by the court	Mohd Noruddin Salam Naluwi and Siti Khadijah Md Ghazali sentenced to 14 days’ jail and fined RM2900.

Divorce: Actress Fasha Sandha and hubby divorce
Parties	The Syarie Judge: Muhamad Abdul Karim Wahab The plaintiff: Fasha Sandha The defendant: Rizal Ashram Ramli
Court	Wilayah Persekutuan Kuala Lumpur Syariah High Court20
Material facts	The case has been filed by Fasha Sandha on 18th January 2016. Fasha Sandha and Rizal Ashram Ramli have been married since 27th April 2012 and have two children together, Putra Rayfal, 2 and Putri Raysha Jemyma, 1.
Decision by the court	The court decided, the plaintiff, Fasha Sandha and the defendant, Rizal Ashram Ramli have divorced after the defendant pronounced the talak satu (divorce pronouncement) at the Wilayah Persekutuan Kuala Lumpur Syariah High Court on 20th January 2016.

Child custody: Hadhanah case filed by a mother towards the custody of her children
Parties	Syarie Judge: Mohamad Zakian Applicant: Nurul Wahida bt Mohd Nor Respondent: Shamsul Anwar bin Mohd Radzi
Court	Shah Alam Syariah High Court
Material facts	Case filed by the applicant, Nurul Wahida bt Mohd Nor (mother) on 17th March 2014 with reference to Saman No 10200-028-0151 of 2014. When the application was filed, the children, Nur Alya Amani bt Shamsul Anwar and Nur Aimi Adlina bt Shamsul Anwar were under the respondent Shamsul Anwar bin Mohd Radzi (father)’s custody. Affidavits of both applicant and respondent did not disclose any obvious repercussions if the circumstances are varied. Therefore, the court was satisfied that the status quo of the children must be maintained until the disposal of the main hadhanah case.
Decision by the court	Application applied by applicant was approved under section 201 (diluluskan) under section 201 Syariah Court Procedure Enactment Selangor year 2003 as the interim custody of both Nur Alya Amani bt Shamsul Anwar and Nur Aimi Adlina bt Shamsul (children) was given to the plaintiff, Nurul Wahida bt Mohd Nor (mother). Shamsul Anwar bin Mohd Radzi (father) was given visiting rights and rights to have the children stay with him for every weekend within a time period from Friday evening until the Sunday evening or during the father’s free days or anytime as long as both parties have mutual agreement. As for the respondent, during the time of picking up the children and sending them back to the applicant, the children need to be sent to the house or the place where the children are staying with the applicant. For the applicant, the children is needed to live in the same place as the applicant where it should be located in the state of Selangor in order for the respondent to be given the rights for visiting the children. For anyone that is responsible in making any actions with the intention of obstructing the process will be ordered a restraining order against them by the court on behalf of the two parties.This order will be operating fully until the hadhanah case Mal No 10200–028–0151 year 2014  is decided.

Sabah Syariah Court Declare Woman Non-Muslim
Parties	The Syarie Judge: Nawawi Diman Plaintiff: Ervinna Chua Soo Kea @ Ervinna Abdullah Counsel: Hamid Ismail
Court	Sabah Syariah High Court
Material facts	Ervinna Chua Soo Kea @ Ervinna Abdullah filed an application in the Shariah High Court seeking a declaration that she was not a Muslim. The National Registration Department (NRD) issued her a Temporary Identity Document because it is clearly stated that her religion is Christian. However, NRD asked her to check with the Religious Affair Department (JHEAINS) about her religious status because her dad is a Muslim. JHEAINS stated that she is not a Muslim but then NRD still issued her issued a new Temporary Identity Document with the religious status as “Tiada Maklumat” (No information).
Decision by the court	The court decided that Ervinna Chua Soo Kea @ Ervinna Abdullah did not fall within the meaning of “Orang Islam” under Section 2 of the Majlis Ugama Islam Negeri Sabah 2004 Enactment.

5. Conclusion

Unlike the High Court which is established by the Federal Constitution, the Syariah court is a creature of State law. It is a common misconception that once established, a Syariah court has jurisdiction over all matters relating to Islamic law and Malay customs set out in the State List. The Syariah courts are mere "State courts" and do not enjoy the same status and powers as the High Court.

It is also inaccurate to hold that the Syariah court has exclusive jurisdiction on all matters related to Islamic law. Given that the Syariah court is a creature of State law, it has no power of interpretation on any matter which is the province of the High Court and the subordinate courts, including issues on the interpretation of federal law and State law. It has been stated above that the Syariah court can only have jurisdiction if expressly conferred by State law within the constraints of the Islamic law matters mentioned in the State List.

In conclusion, Syariah law is only applicable to Muslims and only as personal law, with provision for certain offences against the precepts of Islam. Nothing in the Federal Constitution suggests that the Syariah court is to compete with or be parallel to the civil court on the same subject matter, and this is supported by judicial authority. This issue is of vital importance to the peoples of Malaysia, with their multicultural, multi-ethnic and multi-religious history.

6. Attachments

Malaysia canes women for adultery

Muslim authorities order punishment under Islamic law in first such case in the country. "It was carried out perfectly," Hishamuddin said in a statement. "Even though the caning did not injure them [the women], they said it caused pain within them."

Two of the women were whipped six times while the third received four strokes of the rotan (cane). He said one woman was released from prison on Sunday, another will be freed in the next few days while the third will go free in June.

Controversy

The women, and four men, were caned following a decision in the religious courts in December, Hishamuddin said.

His comments are being seen as a signal that the authorities could be preparing to cane another Muslim woman, Kartika Sari Dewi Shukarno, who was arrested last year for drinking beer and sentenced to six strokes of the cane.

Kartika's case, which was to have been the first time a woman was caned under Islamic law in Malaysia, is under review following widespread publicity and international criticism.

The case, when first reported, raised concerns that the nation's secular status is under threat, eroding the rights of some 40-45 per cent of the country's ethnic minorities.

Hishammuddin said Kartika's case had flagged concerns about how women should be flogged and that the recent canings demonstrated that the prisons department can carry out punishments in accordance with Islamic law. Under the sharia, the women have to be whipped in a seated position by a female prison guard and be fully clothed.

"I hope this will not be misunderstood so much that it defiles the purity of Islam," Hishammuddin said, according to state media. "The punishment is to teach and give a chance to those who have fallen off the path to return and build a better life in future."

New questions

The caning, however, has raised new questions about whether a state religious court can sentence women to be caned when federal law precludes women from such a punishment, while men below 50 can be punished by caning.

Malaysia has a dual-track legal system with Islamic criminal and family laws, which are applicable only to Muslims, running alongside civil laws.

News of the women's caning sparked public outrage, with lawyers and rights groups on Thursday blaming the government for allowing it.

Ragunath Kesavan, president of the Malaysian Bar, said it was worrying that the punishment had gone ahead even as the caning issue was being hotly debated by Muslim scholars, religious groups and human rights activists.

"The impression was that Kartika's case would be the first so I've got no idea what has happened," he said. "It's not as if this is the Middle East... it's not a good signal that they're [the government] sending out."

"We are against any form of corporal punishment, for men or women," Kesavan said. "The fact is that any form of whipping is barbaric."

The case is expected to fuel a debate over rising "Islamisation" in Malaysia, where religious courts have been clamping down on moral offences, as well as a ban on Muslims consuming alcohol that had been rarely enforced.

Caning 'epidemic'

London-based human rights watchdog Amnesty International on Wednesday urged Malaysia to end a caning "epidemic", saying the women's case was "just the tip of the iceberg".

Donna Guest, the group's deputy Asia-Pacific director, said in a statement that Malaysian authorities caned more than 35,000 mostly foreigners since 2002. "The government needs to abolish this cruel and degrading punishment, no matter what the offense," she said.

Sisters in Islam, a local group of Muslim women activists, said the caning "constitutes further discrimination against Muslim women in Malaysia".

Sabah Shariah Court declares woman a non-Muslim

FMT Reporters

| June 30, 2016

Judge finds that the woman had never been converted to Islam by her father and that she had lived all her life as a Christian.

KOTA KINABALU: The Shariah High Court here has allowed a Roman Catholic woman’s application declaring she is not a Muslim.

Judge Nawawi Diman said he was satisfied that Ervinna Chua Soo Kea @ Ervinna Abdullah, 39, did not fall within the meaning of “Orang Islam” under Section 2 of the Majlis Ugama Islam Negeri Sabah 2004 Enactment.

In deciding whether the plaintiff was a Muslim under Section 2 of the Enactment, the judge referred to Article 12(4) of the Federal Constitution and the Federal Court’s decision in Subashini A/P Rajasingam v Saravanan a/l Thangathoray and other appeals.

The Borneo Post reported that the judge held that based on the evidence, Ervinna’s religion followed her mother’s as her father had not taken her with him when he converted to Islam. This, Nawawi said, was enough to prove that her father wanted her to remain in her Christian religion.

During the trial, which commenced on March 29, 2016, her father had testified that Ervinna had not been converted to Islam and that she was at all times taken care of by her non-Muslim mother and grandmother.

Nawawi further held, according to the Borneo Post report, that there was no evidence that Ervinna’s Muslim father, when he was living with her prior to the divorce, had raised her as a Muslim by teaching her prayers, fasting or other Islamic practices.

The judge took into account the fact that she had not practiced the life of a Muslim throughout her life, said the report.

In arguing her case, Ervinna, who was born on June 1, 1976, pleaded that she was born to a Christian family and that her father had converted to Islam on March 9, 1977, and he did so alone without taking her or her mother for the same purpose.

Ervinna , who was represented by counsel Hamid Ismail, also said after her parents divorced, she stayed with her mother and grandmother who are non-Muslims. She said her problems started when she lost her identity card in 2008.

Ervinna said the National Registration Department (NRD) issued her a Temporary Identity Document in which her religion was clearly stated as Christian. When the said document’s period expired, the plaintiff went to renew it at the NRD.

However, the NRD requested her to check with the Sabah Islamic Religious Affairs Department (JHEAINS) about her religious status because her father’s name was Abdullah.

Ervinna said the NRD had written a letter to JHEAINS about the matter and that the latter had confirmed that her name was not listed as a Muslim.

Nevertheless, the NRD issued a new Temporary Identity Document with the religious status as “Tiada Maklumat” (No information).

On August 12, 2009, Ervinna filed an application in the Shariah High Court seeking a declaration that she was not a Muslim. The application was dismissed and the Shariah High Court declared that she was a Muslim.

After failing in another bid to have her religion reinstated as “Christian” at the Shariah High Court, Ervinna appealed to the Shariah Court of Appeal, said the Borneo Post report.

On December 2, 2014, the appeal was allowed and the appellate court ordered that the application be tried before a different judge and the earlier order be set aside.

Nation

Home > News > Nation

Thursday, 21 January 2016

Actress Fasha and hubby divorce

KUALA LUMPUR: Actress Fasha Sandha and her husband Rizal Ashram Ramli have divorced after less than four years of marriage.

The union ended after Rizal, also known as Jejai, pronounced the talak satu (divorce pronouncement) at the Syariah High Court here yesterday.

Fasha, 31, had on Jan 18 filed for divorce in the same court.

The couple, who married on April 27, 2012, have two children together – two-year-old Putra Rayfal and Putri Raysha Jemyma, aged one.

According to mStar Online, Rizal, a businessman, was accompanied by a friend and was seen sobbing when he exited Syarie judge Muhamad Abdul Karim Wahab’s chambers before leaving the court grounds.

She added that she had tried to save the marriage.

“I am reda (agreeable) with the divorce, and will move on with my two children,” she said.

Earlier, Fasha arrived at the court at around 2.15pm with actress-singer Farahdhiya and friend Rita Sosilawati, the director of beauty products company Nouvelles Visages, while Rizal arrived 10 minutes later.

Rizal, the son of a former Perak mentri besar, was previously married to actress Nora Danish, 33, but they divorced in July 2008, two years after they tied the knot.

He has a son from that marriage – seven-year-old Putra Rayqal.