Shariah Court Research Articles

POLIGAMI DI PERLIS: SATU TINJAUAN

Marriage with a number of spouses is called polygamy. The meaning of this phrase runs against to the idea of monogamous marriage. Because a polygamous application in Shariah courts is officially rejected, polygamous marriages that are forbidden by Sharia law may also spontaneously become polygamous without authorization. Polygamy has emerged as a contentious topic in today's culture that elicits strong feelings from people. Nevertheless, there have to be causes for polygamy to occur. This article seeks to shed light on the aspects of polygamy in this nation, particularly in the state of Perlis. Both content analysis and qualitative approaches are used to analyse this paper writing process. Since Perlis is a small state in comparison to other states, an increase in polygamy cases occasionally adds to a bad image regarding the state's society. Therefore, in order to better understand the community, it is important to identify what the factors contributing to the incidence of polygamy instances in this nation's society?

Child Maintenance after Divorce: Review on the practices in Malaysian Shariah Courts

This paper reviews the practices of the Shariah courts in Malaysia in determining child maintenance applications. It adopts the qualitative legal research methodology, where data was collected from international treaties, legislation, and child maintenance cases decided by the courts and analyzed descriptively and thematically. The study reveals the existence of non-standardization practices related to the assessment of the needs of the child and the father's ability due to the general provisions and the absence of guidelines for judges. This study highlights the need for establishing guidelines to ensure children can enjoy a better quality of life even after divorce.

Rights To Access Justice for Persons with Disabilities in Malaysian Shariah Courts: A Case Study in The Shariah Courts of Malacca

Rights To Access Justice for Persons with Disabilities in Malaysian Shariah Courts: A Case Study in The Shariah Courts of Malacca

THE CONCEPT AND IMPLEMENTATION OF SUBSTITUTE HEIRS AT THE SHARIA COURT OF ACEH PROVINCE, INDONESIA

The Quran and Hadiths specify rightful recipients of Zawil Furudl inheritance, creating a loophole for substitute heirs. Islamic scholars debate the concept of successor inheritance. This study explores substitute heirs and their status as alternate beneficiaries in Aceh's Sharia Court. The Aceh community rejects substitute heirs due to classical philosophy requiring the successor to be alive at the original heir's death. Despite not being present in fiqh and adat literature, substitute heirs are recognized in the Shariah Court under Article 185 of the Indonesian Compilation of Islamic Law. This recognition aligns with the objectives of Islamic law for justice and benefit. Legal pluralism allows for this practice, emphasizing harmonization between legal systems

THE CHALLENGES OF ISLAMIC CRIMINAL LAW IMPLEMENTATION IN ACEH SHARIAH COURT

This paper explores the reconstruction of Islamic criminal law within the Aceh Shariah Court, highlighting its historical, socio-cultural, and legal context. Aceh, recognized for its special autonomy and predominantly Muslim population, has enacted various qanuns (regional Islamic laws) since 2001 to implement Islamic Sharia, encompassing both civil and criminal law. The study employs non doctrinal research to analyze the framework and challenges of implementing Islamic criminal law in Aceh. The legal substance, including Law No. 11 of 2006 and various qanuns, facilitates public participation and supports the integration of Islamic principles into regional governance. The research discusses the pluralistic legal system in Aceh, incorporating state law, customary law, and Islamic law, and examines the role of the Sharia Court in adjudicating cases under Islamic law. The study identifies two main issues: the enforceability of the qanun concerning non-Muslims and human rights, and the proportionality of punishments. Despite criticisms, the qanuns aim to enhance justice and prosperity in Aceh, reflecting the strong religious and cultural identity of the region. The paper concludes by emphasizing the necessity of ongoing adaptation and refinement in the application of Islamic criminal law to address societal needs and uphold human rights.

Outside the Court: Decoding Divorce Challenges and Solutions at Shariah Court of Baling, Kedah

Outside the Court: Decoding Divorce Challenges and Solutions at Shariah Court of Baling, Kedah

Jurisdiction of Appeals Hearing in The Shariah Court

Jurisdiction of Appeals Hearing in The Shariah Court

The Unseen Effects: Assessing Zia's Socio-Economic Policies in Pakistan

Most of Pakistani society is segregated by ethnicity and driven by sectarian warfare. The problem harms society economically, politically, and socially. Pakistan is plagued by religious extremism. The issue has become the toughest. Pakistani Islam was deeply ingrained, but power politics, radical militarization, and political use of Islam fostered its militant expression. Zia-ul-Haq radicalized Pakistani society to build his dictatorial dictatorship. This study investigates the multiple repercussions of Zia ul Haq's socio-economic and political developments in Pakistan, focusing on Islamization. Nizam-i-Mustafa, Shariah legislation, and the Federal Shariah Court's role in reconciling Pakistan's diverse populace are examined in the study. The paper explores how these measures affect women, ethnic groups, and the judiciary. Zia's economic initiatives, including interest-free banking, Zakat, and Ushr Ordinance, are examined for Islamicity and economic impact. The study also explores political effects, highlighting public discontent in sectarian violence-affected areas. It also investigates how extremism claims have affected Pakistan's global standing. The study illuminates how religion and politics affected Pakistan's socio-political climate during Zia ul Haq.

APPLICATION OF PRINCIPLES OF CHAIN OF EVIDENCE AND CHAIN OF CUSTODY DURING STORAGE AND FORENSIC EXAMINATION OF ELECTRONIC DOCUMENTARY EVIDENCE IN SHARIAH CRIMINAL CASES IN MALAYSIA

Electronic documentary evidence is submitted to prove the facts of the case and to assist the court in making a good judgment. Nevertheless, the admissibility of such evidence in Shariah criminal cases depends on the competence of religious enforcement officers in preserving the integrity of electronic documents during the process of storage and forensic examination at the investigation stage. Religious enforcement officers must ensure that both the chain of custody and chain of evidence remain intact during the conduct of both processes, so that both amply support the admissibility of the document during the trial later. However, Shariah texts make no reference to the processes of storage and forensic examination of electronic documentary evidence in ascertaining proof and strength of qarinah evidence. In addition, legal provisions in the enactment do not appear to make any reference to these principles and processes. Such a scenario has caused some confusion regarding their acknowledgment in determining the admissibility of electronic documentary evidence in the Shariah court. This article uses a legal research framework developed qualitatively, with library research method used in data and information collection. These data and information are subsequently analysed using content analysis and critical analytical methods. The article aims to identify the principles of Islamic evidence and legal provisions under the Shariah Criminal Procedure Enactment and analyses existing problems relating to the process of storage and forensic examination of electronic documents. It suggests that a standard operating procedure on the processes of storage and forensic examination of electronic documentary evidence be developed in addressing issues relating to the integrity and admissibility of electronic documentary evidence in Shariah criminal trials.

Effectiveness of Tahkim in Selangor Shariah Courts Based on Organizational Effectiveness Goal Approach

Effectiveness of Tahkim in Selangor Shariah Courts Based on Organizational Effectiveness Goal Approach

The Challenges and Potential of Economy-Wide Islamic Finance - The Case of Pakistan

Efforts for transforming the interest based to interest free financial system at national levels were made in the early 1980s in Pakistan, Iran and Sudan. In Pakistan, a gigantic move for Islamization of economy culminating into a system based generally on ‘bai‘al‘inah and sale and purchase of debt instruments. That system was declared un-Islamic by the country’s Shariah Court. As from 2002, the government switched to the dual system of conventional and Islamic banking, leaving other areas of finance, almost unattended. Since then, Islamic banking in Pakistan evolved in faith-sensitive market in terms of deposits, assets, financing and profitability. Of course, this growth was coupled with an increasing identity gap as Islamic banks replicated almost all products that conventional banks used under lesser regulatory requirements, particularly on deposits side. At global level as well, focus during last three decades had been at promoting Islamic banking operating parallel with the conventional banking. A little research has been conducted on the possibility, potential and implication of economy-wide introduction of Islamic finance, also including the money creation and monetary policy. This qualitative paper is aimed at discussing the potential of expanding the scope of Islamic banking and finance to the economy-wide operations / at national levels in the backdrop of the Judgment of the Federal Shariat Court, Pakistan (April 28, 2022). It presents an evaluation of the progress made in terms of achieving the objectives of introducing Islamic finance, taking Pakistan as a case study. It then suggests some major policy and regulatory steps and strategy to be implemented if the objective of transformation of the system is to be achieved. The suggested strategy can be used for other OIC member countries, with some changes specific to every economy, particularly the countries that have gained sufficient experience and have visible presence of Islamic banking and finance.

The Fast-Track Divorce Method Used in Selangor Shariah Courts: Achievements and Challenges

The Selangor Shariah Justice Department’s (JAKESS) data shows that the state of Selangor has recorded the highest percentage of divorce applications compared to other states in Malaysia. Thus, delays in resolving divorce cases in Selangor Shariah Courts is nothing new to this state and this had led to an increase in backlogged cases that are being resolved at a sluggish phase. Therefore, JAKESS introduced the Fast-Track Divorce Method, or better known as fast-track divorce, at the end of 2014 as an alternative solution to this issue. Preliminary research found that the State of Selangor was the first state to adopt this method into its Shariah Judicial Administration system. Fast-track divorce is an innovation or improvement to the existing divorce settlement by mutual agreement process under Section 47 of the Selangor Islamic Family Law Enactment 2003. This study intended to identify the implementation of the fast-track divorce method practiced by the Selangor State Shariah Courts, challenges faced after this system was implemented as well as the reception received throughout the six years since its inception. This qualitative study adopted the document analysis and semi-structured interview methods for acquiring data, which were later analysed using descriptive methods. Findings show that the fast-track divorce method is a relevant and effective method in the Selangor State Shariah Subordinate Courts’ administrative system. JAKESS has several challenges, namely the negative perception of some parties regarding the Fast-Track Divorce Project, especially in the early stages of its introduction, customers’ non-compliance with the stipulated conditions and lastly, empowering the fast-track divorce method. However, this method has received recognition from various parties. Findings can also contribute towards enriching the academic literature for better public reading or act as a scientific reference since there is a lack of studies related to the fast-track divorce method.

Comparative Analysis of Reconciliation Procedures in Syariah and Civil Courts

Reconciliation in divorce proceedings has been introduced in family courts in dealing with application for divorce. This study focuses on the functions, the appointment of committees, and the procedures of reconciliation in Shariah courts and Civil courts to compare the practice of laws between Section 47(5) to (17) of the Islamic Family Law (State of Selangor) Enactment 2003 (IFLSE 2003) and Section 106 of the Law Reform (Marriage and Divorce) Act 1976 (LRA 1976). This study was conducted through doctrinal and comparative legal research of the existing literature, including academic articles, statutes, and case laws relating to reconciliation. The findings establish the similarities and differences of both statutes. This study suggests that a reconciliation before a legal proceeding may employ a subtler approach for out-of-court negotiation leading to potentially better results.

POTENTIAL OF CREATING INHERITENCE COURT IN MALAYSIA: A LITERATURE REVIEW

Jurisdiction conflict between the Shariah and Civil Courts which prolongs even after the existence of Article 121 (1A) gives a negative impact to the Shariah Court particularly in matters concerning inheritance property management and administration of Muslims. Implicitly, this situation can cause a surge of unclaimed properties to occur and disputes among heirs in seizing of the properties. From this onset, the objective of this article is to study and examine gaps in previous research works in relation to the potential of creating Inheritance Court in Malaysia. Methodology of this literature review employed a qualitative approach and the design of this study is based upon content analysis. Data gathering was made through document analysis and a method of data analysis was carried out descriptively. Findings of this review reveal that discussion on Inheritance Court in literatures is few in numbers and is limited to only suggestions of its establishment without a more detailed explanation. Hence, this study proposed a more comprehensive study in the context of the potential of creating Inheritance Court being realised and being able to contribute in confronting the occurring conflicts while directly solve the problems of Muslim inheritance in Malaysia.

Islamic Right for Women to Claim their Husband’s EPF Contribution according to Maqasid Sharia

A wife has the right to claim the property jointly acquired (harta sepencarian) during the marriage period. Claims can be made during the marriage (polygamy), divorce, after death or apostasy. Among the property that is often claimed as property jointly acquired is the Employees' Provident Fund (EPF) contribution money, although the claim is often rejected by the Shariah Court due to legal constraints, especially the EPF Act 1991 (Act 452). Hence, the question arises as to the position of the husband's EPF contribution; whether it can be claimed by the wife on the basis of the property or is there another basis? Hence, the objective of this article is to discuss the position of this claim, whether considered as 'wife's rights in accordance with Islamic law’ as opposed to 'property rights' in the Shariah Court. This qualitative study applied a content analysis approach for data collection and the analysis was presented descriptively. The results of the study found that the claim on the husband's EPF is more appropriate in the context of the 'claim of the wife's rights in accordance with Islamic law' than the 'claim of property rights' in the Shariah Court and in accordance with the maqasid syaria.

The Nigerian Criminal Justice and the Belligerence of Blasphemy: Societal, Judicial and Islamic Law Perspectives

Introduction to the Problem: Blasphemy in religion undoubtedly jeopardises the universal human right of freedom of religion in any society. Considering that it is ethno-religiously linked and sensitive in multi-religious environments, the offence is proscribed under the Nigerian laws. With the re-emergence of democracy in Nigeria, the Criminal Justice System became expanded with the birth of a fully-fledged Shariah practice in some areas in Nigeria. The recent death sentence passed on a musician, Aminu, for the alleged offence of blasphemy by a Shariah Court in Kano State attracted the attention of the masses, particularly prompting the question of the propriety or otherwise of the punishment. Purpose/Objective Study: This work examined the societal, judicial and Islamic law perspectives on blasphemy with a view to proffering viable options as punishment for the offence. Design/Methodology/Approach: Doctrinal legal research methodology was adopted, and it involves primary sourcing materials from Quran, Sunnah , Acts and Cases. Secondary sources include journal articles, textbooks, official documents online and in newspaper. Findings: The findings revealed that the death penalty for the offence is incompatible with the most convincing opinion of scholars, the reality of Nigeria and the international best practices. It is consequently suggested that offence and punishments for blasphemy should be treated as a ta’zir, and the punishment should be less than death. Paper Type: Research Article

Ahmad Ibrahim and the Islamization of law in Malaysia

This article aims to explore the work and contribution of Ahmad Ibrahim (1916-1999) in his effort to Islamize law in Malaysia. It discusses in depth his method to apply Islamic law as set forth in his works and the consistent effort in striving to espouse and bring about harmonization of Islamic and civil law of the British colonies. The study is based on qualitative method using primary and secondary sources. The data was systematically analyzed in a descriptive, historical and comparative manner. The finding shows that Ahmad Ibrahim has bring about unprecedented reform in the administration of Islamic law in Malaysia and espoused instructive ways for the realization of the maqasid and shariahization spirit in contemporary context. He had constructed and formulated comprehensive and unprecedented structure of instructive and highly possible method to Islamize law and to bring about harmonization of Islam and civil law in Malaya by espousing for independent legal and criminal administration of Islamic law and formation of the highly anticipated Shariah court in Malaya.

Keperluan Rang Undang-Undang 355: Analisis Terhadap Usul Persendirian Yang Berhormat Ahli Parlimen Marang

This qualitative study is conducted to analyze the need for Bill 355 in order to empower the Shariah Courts (Criminal Jurisdiction) Act 1965 (Act 355), by referring to a private member's motion tabled by the Parliament of Marang on April 6th, 2017. This study is pertained by the current situation of shariah cases which are prevalently raised, and still, yet the punishments are incapable of being a thorough settlement mechanism. In this study, the author has identified whether the existing legal framework is still relevant in solving the issues surrounding our community by analyzing the motion brought by the Parliament of Marang, namely Shariah Courts (Criminal Jurisdiction) (Amendment) Bill 2016 with a proposal to increase the limit level of punishment to higher and appropriate enforcement. Also in this study, the literature review methods have been used through the analysis of documents including the statut of law, various articles from high impact journals, as well as case references within 2015 till 2020. The field study is also conducted by interviewing legal practitioners of the prosecution division. In conclusion, the author found that an improvement on shariah criminal law should be made in order to put the position of the Malaysian shariah legal system to a better level. In addition, the jurisdiction conflicts between both civil and Shariah Courts specifically on the handling of shariah criminal cases will be somewhat resolved and justice can be given for the benefit of the global community, particularly for the Muslims.

Sole Matrimonial Property Division Through Joint Tenancy From Shariah Perspective

Currently the division of matrimonial property after death of spouse is proportionated according to spouse’s contribution in acquiring the property. The share of deceased then be distributed to deceased heirs according to the legal portion provided by faraid law. This practice apparently could affect the interest of deceased spouse in the circumstance where the property of the spouse is only one asset particularly matrimonial home. The wife might lose the ownership of the home which resulted to the deceased wife lose her home to live. Moreover, the existing methods of distributions seem rigid and might take longer period to be settled. Thus, this study aims to examine the position of joint tenancy as a distribution of sole matrimonial property after spouse death from Shariah perspective and its practices in Malaysia. The study adopts qualitative methods where the data is collected from library resources including fiqh books, legal provisions and reported cases. The data was analysed using content analysis methods. The finding showed that joint tenancy is one of the instruments of estate planning for Muslims objectively to safeguard the interests of deceased spouse after the death of the spouse. The process of ownership and transfer of property will be implemented through the right of survivorship principle as well as facilitate the process of claims in shariah courts. It seems in line with the principles of maqasid syariah which prioritizes the maslahah of couples and children as well as avoiding disputes on the property between the deceased's heirs and the surviving co-owners.

Hibah as Alternative to Resolve Inheritance Issue among New Muslim Converts (Muallaf) in Malaysia: An Analysis

In Malaysia, Muslim converts (Muallaf) face certain difficulties including restrictions in inheritance. In this regard, Islam provides that the property of Muslims shall be inherited by Muslim heirs only. In other words, the general principle provides that non-Muslim heirs have no right in inheritance to property that belonging to Muslims. By taking into consideration the status and rights of family members of Muallaf in Malaysia, hibah is categorized as an alternative method of distribution, in addition to wasiat and other methods. In recent years, there has been an increasing interest in studying and promoting hibah (inter vivos gift) as one of the alternatives in distributing someone’s wealth, in addition to other methods. This paper applies a doctrinal legal research methodology where data collection involves primary and secondary sources which include Al-Quran, hadith, journal articles, constitution, statutes and case law. This study seeks to identify the extent hibah applies as an alternative to resolve the inheritance issue among the Muallaf and to provide some recommendations in proposing hibah law to be enacted in resolving this issue in Malaysia. To date, none of the authors has studied in detail drafting of hibah law to be enacted for resolving the inheritance issue concerning Muallaf in this country. This study discovers that a specific law on hibah could clarify its position and application in Malaysia where it can further be used as an alternative to resolve inheritance conflict affecting the heirs, especially non-Muslim, of Muallaf. Furthermore, it may also benefit various agencies such as religious departments, Shariah Court and other relevant agencies to preserve the rights of Muallaf in regard to their inheritance issues.