Shariah Court Research Articles

THE REALITY ON APPLICATION AND CHALLENGES OF CLOSED-CIRCUIT TELEVISION (CCTV) IMAGES AS EVIDENCE IN SHARIAH CRIMINAL CASES IN MALAYSIA

Purpose of the study: This study analyses the evidencing procedure via Closed-Circuit Television (CCTV) images in criminal cases of hudud, qisas, and takzir based on the Islamic Law of Evidence in Malaysia.
 Methodology: The method used to analyze data is content analysis on primary and secondary data sources gained from various sources.
 Main Findings: Closed-Circuit Television (CCTV) images are classified under the definition of an electronic document in Malaysia’s Shariah law.
 Applications of this study: This study proved the admission of video as evidence in cases including zina (adultery), qazaf (offense of making an accusation of zina) and other criminal offenses.
 Novelty/Originality of this study: This study discovers how far Closed-Circuit Television (CCTV) images are being used as evidence and challenges faced in convicting charges in Shariah court using this evidence.

Can Non-Muslim Courts Bring Legal Change in Sharia Laws?

The transformative and regulatory accommodation model addresses practical challenges to accommodate religious laws and courts in the secular and democratic regimes. There is a strong evidence against the jurisdictional competition between secular and religious courts under defined conditions. There is no concern regarding the Shariah courts in the non-Muslim democracies, as majority of the country’s ethno-religious groups control the civil and rabbinical courts. In this regard, there is a need to mitigate the negative impact of Muslim Family Laws (MFLs) by the civil courts in non-Muslim majority countries because MFLs imply certain disabilities and limitations upon the displayed rights of women and children. To address these issues, the present study aims to discuss the possibilities and challenges faced by the multicultural and pluri-legal accommodations by focusing on the Islamic law and institutions within the non-Muslim democracies. The results have shown that the reformation of rules and procedures internalize certain principles and discourses due to increased compliance of religious courts with the high court rulings. Increase in the number of Muslim judges on civil courts would help to overcome lack of legitimacy in the perspectives of the Muslim minority that is the main reason of shortcomings of both ex post and ex ante oversight mechanisms.

DO FATWAS HAMPER MUSLIM WOMEN’S SOCIO-ECONOMIC PARTICIPATION IN MALAYSIA?

A number of studies show that, in Malaysia, women continue to make significant contributions to the country’s economic and social development. Moreover, women’s access to health and education has increased rapidly over the years. However, some studies claim that socio-economic discrimination against Muslim women persists. Although several factors contribute to this discrimination, fatwas (a legal opinion of Muslim jurists on Muslim affairs) are accused of discriminating against Muslim women in Malaysia such as prohibiting the appointment of female judges in shariah courts, employment of women for night shifts i.e. in the electronic factories, police force, and hospitals. Women’s socio-economic participation is important as it empowers them and creates gender equality. This paper reviews 16 fatwas on five topics relevant to women’s socio-economic participation in Malaysia issued by 11 state muftis (who issue fatwa) during the period of 1970 to 2012 in order to realize whether they hamper their participation. Using a qualitative content analysis approach, this paper concludes that fatwas had neither affected their socio-economic participation nor shaped their life negatively. This paper is hoped to positively shape the society’s impression of fatwas and help Muslim women in Malaysia abide to Islamic teachings by realizing the good impacts of fatwas issued. Keywords: Fatwa, Muslim, women, socio-economic participation, Malaysia. Cite as: Mohammad Monawer, A. T., Grine, F., Abdullah, M. F., & Mohd Nor, M. R. (2019). Do fatwas hamper Muslim women’s socio-economic participation in Malaysia? Journal of Nusantara Studies, 4(1), 232-245. http://dx.doi.org/10.24200/jonus.vol4iss1pp232-245

PELAKSANAAN ṢULḤ DALAM KES MELIBATKAN TUNTUTAN HARTANAH ORANG-ORANG ISLAM DI MAHKAMAH SYARIAH DI MALAYSIA: TINJAUAN TERHADAP KAJIAN LEPAS

Shariah Court’s jurisdiction in Malaysia is limited in resolving dispute in matters relating Muslim personal and family law. When it comes to the decision and delivering judgement regarding Muslim’s real estate, most of it will be placed under the jurisdiction of Federal Court and Civil High Court. This article discusses issues related to the implementation of ṣulḥ in the Shariah Court in Malaysia, especially in cases involving real estate claims of Muslims. This article will identify previous studies and related researches with regard to ṣulḥ as one of the alternative disputes resolution (ADR) as an effective role to end the dispute and save the court’s time and fulfil the needs of the parties. Numbers of researches have been done regarding the implementation of ṣulḥ, however only matter regarding Muslim family cases were covered while the study in resolving disputes on Muslim’s real estate is insufficient or rarely been studied. The study found that ṣulḥ plays an important roles as quick resolution based on sufficient statutory basis. Nevertheless few recommendations and suggestions should be imposed in order to solve legal conflicts and administrative of agencies related to Muslims real estate in Malaysia.

HARTA SEPENCARIAN/ASET PERKAHWINAN BAGI PEMBUBARAN PERKAHWINAN DI BAWAH SEKSYEN 51 AKTA MEMBAHARUI UNDANGUNDANG (PERKAHWINAN DAN PERCERAIAN) 1976 SERTA AKTA UNDANG-UNDANG KELUARGA ISLAM (WILAYAH-WILAYAH PERSEKUTUAN) 1984

The marriage between non-Muslim couple where one spouse later converted to Muslim results in the dissolution of marriage under the Shariah law. However as they had gotten married under the  Law Reform (Marriage and Divorce) Act 1976 (LRA), thus the dissolution of marriage shall fall under the jurisdiction of section 51 of the Act. This writing discusses the issue attach to such dissolution of marriage with specific reference to the division of matrimonial asset. This study adopts qualitative approach that utilised doctrinal study and semi-structured interview with experts of this area. The Islamic Family Law (Federal Teritories) 1984 was analysed this issue within the context of Shariah law in Malaysia. The summarized of findings to this study uncovered that both Civil and Shariah Court consider similar principles in division of matrimonial asset for couple to the dissolution of marriage under section 51 of LRA.

PROCEDURE FOR APPOINTMENT OF A QĀḌĪ IN NIGERIA: A HINDRANCE TO THE PRACTICE OF ISLAMIC THEOCRACY

Nigeria is made up of different religions and this is recognized by the constitution which provides for the freedom of religion. For the actualization of this freedom, the constitution permits the establishment of Shariah Courts in the country where needed. Muslims need Islamic Theocracy which will interpret to mean governing in accordance with the rules of Allah to enjoy their right. The proper dispensation of justice starts from the procedure for the appointment of a Qāḍī which is to be done by the leader of the Muslim under the Shariah. The Constitution of Nigeria and the rules of Judicial Council stipulate the procedures which run afoul the Shariah. Doctrinal and exegetical research methods were used which helped in realizing the lacunas of the extant law in appointment procedure. It is consequently recommended that the extant law be amended to properly portray the provisions of the Shariah by placing the power to appoint on the leader of the Muslims among others. This will not only sanitize and sanctify the position alone, it will also pave way for enthronement Islamic theocracy strictly for the Muslims and help in fulfillment of the fundamental right to freedom of religion.

Women Quazi in a Minority Context: An Overview of Sri Lankan Experience

A woman’s eligibility to be appointed as a judge in Shariah courts in Muslim societies has been a debated issue for decades. Although some Muslim majority countries, including Arab countries, have allowed women judges (Qudath) in Shariah courts, the Muslim Religious Leadership in Sri Lanka, namely All Ceylon Jamiyathul Ulama (ACJU) is opposed to such appointment to administrate Muslim matrimonial law on the basis of classical Muslim scholars’ discussion on the qualification of a judge (Qadi in Arabic), particularly referring to their debate on gender; however, women activists in Sri Lanka argue for women Quazi on the basis of women’s privacy and fair hearing. This article, therefore, explores the Islamic standpoint regarding women Quazi in Sri Lanka. Hence, this research studies the classical scholars’ discussions on the qualification of a judge (Qadi) critically and uses textual and document analysis to bring out the dynamic interpretations of the verses of the Quran and Hadiths that they used for their arguments. The contextual analysis was carried out to understand the various applications of these verses of the Quran and Hadiths in history, particularly in connection with the present situation for women in Sri Lanka. This research found no explicit verses of the Quran and Hadiths to allow or deny women Quazi. The positive and negative approach to women judges (Qudath) has been founded throughout history on the basis of Islamic scholars’ understanding of a few verses of the Quran and Hadith that are related to women leadership. This study recommends women Quazi for Sri Lankan Quazi courts by highlighting differences of context and insignificance of classical Muslim scholars’ debate on gender as a qualification of a judge (Qadi).

PERCEPTION OF PEOPLE TOWARDS RUU355: A STUDY ON IIUM STUDENTS

The objective of the study is to know the perceptions of people towards recent introduction of Act 355 Shariah Courts (Criminal Jurisdiction) Act 1965, (RUU355). This study also seeks to construct factors influencing people’s perceptions towards RUU355. Besides, the present study aims also to discover whether there are relationship between political affiliations, religious background, and legal understanding with their perceptions towards RUU355. The survey was conducted by distributing questionnaire among 309 IIUM students. The data analyzed by descriptive statistics, factor analysis, and cross-tabulation analysis using SPSS software. The results suggested that there are three factors that influence people’s perceptions, namely, state religion factor, political environment, and knowledge. It is also worth to note that religious background becomes an important characteristic that shapes the perception towards RUU355. Besides, people who have inclination towards PAS have more tendency to agree with RUU355 implementation. It is also suggested that people with more knowledge about RUU355 will have more tendecy to support RUU355

Law on Khamr Under Qanun Jinayat in Aceh and Brunei Darussalam: A Comparative Study

Drinking khamr (liquor) is an offence under the Criminal Act (Qanun Jinayat) in Aceh and Brunei Darussalam. This paper aims at comparing the law relating to khamr in both jurisdictions. The study was made through content analysis using comparative approach. It is found that both in Aceh and Brunei Darussalam, drinking khamr is subjected to penalty in the form of whipping not exceeding 40 times. The sentence that was adopted from Shariah to be imposed within a trial held by the Shariah Court. Beside similarity, there are some differences especially in relation to the applicability, enforcement and proceedings. The law on khamr in Aceh as stipulated in its Qanun Jinayat is enforced by the Shariah Judge, while the prosecution of drinking khamr in Brunei Darussalam requires the role of prosecutor. Keywords: Drinking Khamr, Criminal Act, Qanun Jinayat and Shariah Court.

KEJAYAAN MODAL INSAN DAN INOVASI DALAM PENTADBIRAN MAHKAMAH SYARIAH: MEMBINA MODEL ANTARABANGSA: Achievements of Human Capital and Innovation in the Administration of Shariah Court: Aiming for An International Model

This article highlights the achievements of Shariah Courts in Malaysia in administering Islamic law especially on the issues of human capital as well as innovations which were introduced by the Department of Shariah Judiciary, Malaysia (JKSM) and the State Department of Shariah Judiciary (JKSN). This study also aims at fending off some negative notions against the Shariah Court as the second-class court in terms of power and achievements in administering and implementing Islamic law in Malaysia. The study uses qualitative approach and refers as well to the primary and secondary sources, which includes statutory provisions, monograf, articles, website information and interview with Tuan Haji Mohammad Syakir Abdul Hamid, the Registrar, JKSM at that time. The study found that the efforts made by JKSM/JKSN have, in the above-mentioned areas, achieved the goal and received recognition at the international level.

KEJAYAAN MODAL INSAN DAN INOVASI DALAM PENTADBIRAN MAHKAMAH SYARIAH: MEMBINA MODEL ANTARABANGSA

This article highlights the achievements of Shariah Courts in Malaysia in administering Islamic law especially on the issues of human capital as well as innovations which were introduced by the Department of Shariah Judiciary, Malaysia (JKSM) and the State Department of Shariah Judiciary (JKSN). This study also aims at fending off some negative notions against the Shariah Court as the second-class court in terms of power and achievements in administering and implementing Islamic law in Malaysia. The study uses qualitative approach and refers as well to the primary and secondary sources, which includes statutory provisions, monograf, articles, website information and interview with Tuan Haji Mohammad Syakir Abdul Hamid, the Registrar, JKSM at that time. The study found that the efforts made by JKSM/JKSN have, in the above-mentioned areas, achieved the goal and received recognition at the international level.

Undang-Undang Tatacara Mal Mahkamah Syariah – Prinsip dan Amalan

In principle, civil procedure consists of court rules with the overriding purpose of enabling the court to process a civil case right from the process of commencement of action to its disposal in an efficient and expeditious manner. At this point in time, however, there is a scarcity of publications in Malaysia on the subject of civil procedure (tatacara mal) of the Shariah courts. In comparison, there are sufficient texts on the subject of civil procedure of the civil courts and also on the substantive aspects of Syariah laws. Such a situation demands serious attention especially when Syarie lawyers and undergraduate students enrolled for courses relating to Syariah or Law (or a double-degree programme of Syariah and Law) are in need of a book on civil procedure in the Syariah Court that incorporates the substantive aspects of civil litigation and drafting skills.

Undang-Undang Tatacara Mal Mahkamah Syariah – Prinsip dan Amalan

In principle, civil procedure consists of court rules with the overriding purpose of enabling the court to process a civil case right from the process of commencement of action to its disposal in an efficient and expeditious manner. At this point in time, however, there is a scarcity of publications in Malaysia on the subject of civil procedure (tatacara mal) of the Shariah courts. In comparison, there are sufficient texts on the subject of civil procedure of the civil courts and also on the substantive aspects of Syariah laws. Such a situation demands serious attention especially when Syarie lawyers and undergraduate students enrolled for courses relating to Syariah or Law (or a double-degree programme of Syariah and Law) are in need of a book on civil procedure in the Syariah Court that incorporates the substantive aspects of civil litigation and drafting skills.

The Development of Whipping Punishment in the State of Kelantan: Historical Exploration and Recent Implementation in the Shariah Jurisdiction

Whipping is a part of hudud punishment in the Islamic criminal law, for the offence of adultery, accusing of adultery and intoxicating liquor. In recent progress, whipping sentence in the Shariah Court has attract intention of public as well as the Federal Government when the State of Kelantan has tabled a regulation to increase the amount of whipping from six stroke to hundred and to execute the law before the public. The issue arise as the additional volume has contradict to the jurisdiction that was given by the Federal Constitution. It also against the rule that was provided in the Ninth Schedule of the Second List and the Shariah Court Jurisdiction Act 1965. The study will be conducted in a qualitative way by refering to books, manuscripts, journals, law reports and interview. Meanwhile, the method of investigation is using a content analysis by studying every document that related to the topic. It is a research technique used to make replicable and valid inferences by interpreting and coding textual material of the said subject matter. The research found out that the jurisdiction of shariah court on whipping was so far left behind compared to civil court. The Federal Government should accept proposals for renewal by the state of Kelantan. In the end, the power given is for the benefit of the implementation of the shariah law in Kelantan and can be expanded to the whole country.

Application of Private International Law Instruments in the Recognition of Marriages by Shariah Court in Malaysia

In recent years, the phenomenon of cross-border marriage has provoked an increase of international disputes in family relationship. In Malaysia, due to growing cross-border marriage, the Shariah Court in Malaysia cannot avoid and they have been forced to react to this situation. Patterns and characteristics of cross-border marriage have varied widely among world regions and races and therefore need theoretical enlightenments. The ideals of marriage which may reflect in husbands and wives thinking of living happily ever after may easily be stumped by the realities of life when problems arise. Due to the increasing number of cross-border marriage and very limited research on the international dimensions of the law regulating peculiar aspects of marriages, this paper aims to discuss the application of rules of private international law in the Malaysian Shariah courts affecting recognition of cross-border marriage. In this study, data was obtained from materials consisting of textbooks, legal cases, legislation, journals, magazines, newsletters, newspapers, seminar and conference papers and unpublished writings (dissertations and theses). This paper involves investigation and analysis of the materials available in the library. Hence, it uses the historical, analytical and comparative methods. This article is a preamble to a more detailed study of the International marriages which the result will be useful for further improvement of the existing legal provisions in Malaysia.

Running water for the officials, rainwater for the poor: symbolic use and control of water in early modern Ottoman Crete

This paper deals with the issue of water management on the island of Crete from the beginning of the Ottoman–Venetian war in 1645 to the beginning of its Egyptian administration in 1830. Based primarily on information given by Kandiye’s (mod. Herakleion) Shariah court records, but also on a variety of published and unpublished archival material from Turkey, Greece, and France, it explores the socioeconomic aspects of water-resource exploitation in the island’s urban centers, analyzes the involvement of various local and imperial actors in water management, and locates the struggles created in the above-mentioned processes. Through a detailed analysis of the challenges faced by the administration and the population of an insular area with limited water resources, such as Crete, the article tries to take a fresh look at water management on the Ottoman periphery: It redirects the researchers’ focus from heavily-populated cities and large cultivated plains to the examination of smaller regions with no major hydraulic and irrigation networks and puts emphasis on the symbolic use of water in the socioeconomic context of the Ottoman Empire.

Faraq Perkahwinan bagi Pasangan Tak Sah Taraf di Negeri Sembilan

Islam stressed on the importance of a valid marriage. If a marriage does not comply its requirement and conditions according to Shariah, it will raise negative implications not only on the status of the marriage, but also it will effect the status of the child. Hence, the marriage must be separated. Generally, the Muslim scholars define faraq as separation or dissolution of marriage through talaq or otherwise. However, according to Islamic law in Malaysia, faraq is not a dissolution of marriage via talaq, but it is an annulment of marriage due to non-fulfillment of terms and conditions which laid down by Shariah. In context of abiding the conditions and terms to marriage, having a wali is one of the conditions in solemnization of a valid marriage. Marriage which is solemnized by a non-qualified wali such as in cases of illegitimate children will cause the marriage to be separated. Data in this article is obtained from the reported cases tried in the Shariah Courts in Negeri Sembilan. Interviews were conducted with those legal practitioners such as syaria lawyers, religious officers, and judges from Shariah Courts in Negeri Sembilan who deal directly with faraq cases.

The Development and Obstacles in Applying the Islamic Criminal Law in the State of Kelantan, Malaysia

The record of Kelantan history proved that Islamic law had been executed in the state before the colonial age. However, the development had been intervened by British colonial in 1920s that resulted jurisdiction of the Islamic criminal law turn out to be narrower according to the British administration. After independence of Tanah Melayu, status quo jurisdiction in the field ofIslamic jurisprudence stay similar and not much improve hitherto. At the same time, there is no comprehensive study was carried out pertaining to the development of Islamic law in Kelantan especially before the the Sharia Criminal Codes II Hudud and Qisas was tabled in 1992. Hence, this paper is trying to initiate an effort to elaborate positive development of the above issue until the proposed 355 Act. This study is done by implementing a qualitative research and content analysis on literatures, manuscripts,journals, legislative reports and interviews. The study is significant in revealing the development of Islamic jurisdiction in Kelantan from historical perspective in order to understand the acceptance of Malaysian government towards the law. The study also to motivate a step in implementing the Islamic criminal law in the State through amendments in the Federal Constitution as well as in related Federal Act. The findings showed that law ofhudud and qisashave been excluded since colonial era and the remaining law only takzir which cover in every aspect of penalty in the Enactment. Kelantan Government had put an effort in executing hudud and qisassince 1991 but was casted-off by the Federal Government as it is contravene to theFederal Constitution. There are options in solving the conflicts either by amending the Federal Constitution under the state list or by adding jurisdiction in criminal punishment for the Shariah Court under Federal Act.

PENGLIBATAN NON MUSLIM SEBAGAI PEGUAM SYARIE DI MALAYSIA: SATU ANALISIS

The issue of the involvement of non-Muslims as Syarie counsel in the Shariah Court has triggered a debate among the public, especially involving Muslim scholars and Shariah and Civil legal practitioners in Malaysia. This is due to the actions of a non-Muslim woman lawyer who has filing an appeal challenging the ban issued by the High Court to stop the practice as a Syarie counsel. This study aims to identify the background of the issue and its evaluation from the Islamic law perspective and the contemporary legislation provisions in Malaysia. This issue has been analyzed with regard to the debate on Muslim scholars regarding the involvement of non-Muslims as Syarie counsels and its evaluation based on the legal context and current reality in Malaysia. The prohibition of the involvement was seen as crucial in preserving the relationship between religion in Malaysia and preventing any controversial disputes arising from the issue.

PENGLIBATAN NON MUSLIM SEBAGAI PEGUAM SYARIE DI MALAYSIA: SATU ANALISIS: The Involvement of Non-Muslims As Syarie Counsel in Malaysia: An Analysis

The issue of the involvement of non-Muslims as Syarie counsel in the Shariah Court has triggered a debate among the public, especially involving Muslim scholars and Shariah and Civil legal practitioners in Malaysia. This is due to the actions of a non-Muslim woman lawyer who has filing an appeal challenging the ban issued by the High Court to stop the practice as a Syarie counsel. This study aims to identify the background of the issue and its evaluation from the Islamic law perspective and the contemporary legislation provisions in Malaysia. This issue has been analyzed with regard to the debate on Muslim scholars regarding the involvement of non-Muslims as Syarie counsels and its evaluation based on the legal context and current reality in Malaysia. The prohibition of the involvement was seen as crucial in preserving the relationship between religion in Malaysia and preventing any controversial disputes arising from the issue.