Syariah Court Research Articles

Tata Kelola Kebijakan Qanun Nomor 13 Tahun 2003 Tentang Maisir (Perjudian) Di Kabupaten Gayo Lues Provinsi Aceh

The concept of regional autonomy and the views from the historical Aceh considered appropriate to enforce Sharia Law kaffah. Qanun No.13 of 2003 about Maisir (Gambling) is one of the five existing Qanun in the implementation Islamic Sharia in Aceh, with the aim of preventing all forms of implementation and support for implementing gambling, to implement Islamic Sharia there are three institutions that run(1) Department of Islamic Sharia, (2) Satpol PP and WH, (3) Syariah Court. Bu tthe reality is still going on various forms of gambling. The above considerations, there view was conducted in order to see how the Governance Policy Qanun No.13 of 2003 about Maisir (Gambling) in Gayo Lues Regencyof Aceh province and Relationships between Implementing Agencies. The method used in answering the review using qualitative descriptive method to obtain aclear description of the public participation, LSM in the implementation of Qanun No.13 of 2003 and the relationship between the executing agency. Therefore, the technique in collecting the data that used is observation technique which is observe the objects condition in the field, interview the performers who involved in implementing Qanun Nomor 13 in 2013 about Maisir (gambling) in regency of GayoLues with record it in a document.

ACCEPTANCE (QABÛL) AND TAKING POSSESSION (QABḌ) OF HIBAH UNDER ISLAMIC LAW AND THE DECISION OF THE SYARIAH COURTS IN MALAYSIA

One of the important components in the creation of contract in Islamic law, apart from the contracting parties (ʿūqidūn) and subject matter of contract (maḥal al-ʿaqd), is formation (ṣîghah). It consists of two essential elements i.e. offer (îjūb) and acceptance (qabûl). The absence of formation will render the contract invalid and imperfect. Nevertheless, in the case of hibah as it is a kind of contract of charity (tabarruʿ), the issue arises as to whether the element of acceptance is required in order to constitute a valid hibah. Added to this is the issue of whether hibah is completed and ownership of property transferred to the recipient as is the case with other types of contract when all of the above three components of contract and their requirements are fulfilled. This study examines issues relating to these two important matters of hibah, since disputes among parties in the Syariah Courts of Malaysia mostly involve these. The examination focuses on the positions of Muslim jurists of the four well-known schools of law, i.e. Shūfiʿî, Ḥanafî, Mūlikî and Ḥanbalî, on the issues. In addition, as the law of hibah for Muslims in Malaysia is mostly uncodified, the study also examines the law that has been applied by various Syariah Courts in Malaysia regarding these issues, especially whether their decisions are solely based on the law according to the school of Shūfiʿî. This is in order to find out an acceptable set of rules that could govern the creation of a valid and perfect hibah.

THE APPLICABILITY OF THE UṢÛL AL-FIQH PRINCIPLE “ISTIṢHŪB” TO THE PRESUMPTION OF DEATH OF A MISSING PERSON IN ISLAMIC LAW OF SUCCESSION AND MALAYSIAN LAW

The rights of inheritance do not arise until and unless the death of the praepositus and the survival of legal heirs are legally established. These two conditions may be easy to ascertain, but are in fact problematic when dealing with the case of uncertainty of death such as a missing person, because the death is not known. The ascertainment of death and the survival of legal heirs in a missing person case is extremely important because it determines whether any rights of inheritance exist or not. This article seeks to examine the principle of Uṣûl al-Fiqh “Istiṣḥūb”and the approaches undertaken by Muslim scholars to ascertain the related rights of succession involving missing persons. The article analyzes the relevant legal aspects of the applicable laws in Malaysia pertaining to the succession involving a missing person either as a praepositus or a legal heir. It also examines the jurisdictional conflict between the civil court and the Syariah court in Malaysia pertaining to the presumption of missing person’s death in relation to Islamic law of succession.

ṢULḤ (MEDIATION) IN THE STATE OF SELANGOR: AN ANALYSIS OF LEGAL PROVISION AND ITS APPLICATION

The first part of the paper seeks to examine the relevant legal provisions of ṣulḥ in the State of Selangor Darul Ehsan. Thus, the provisions of ṣulḥ as provided for under the Islamic Family Law Enactment 2003 will be discussed and analysed. Other provisions under the Administration of Islamic Religious Enactment 2003, the Syariah Court Civil Procedure Enactment 2003 and the Civil procedure (ṣulḥ) Rules 2001 will also be examined to study the procedures and guidelines in conducting Majlis ṣulḥ. The qualification of ṣulḥ officer will be briefly discussed in the last part of the paper. The paper concludes by commending the initiative that has been taken by the Department of Syariah Judiciary of Selangor in introducing ṣulḥ which has been proven to be very effective in reducing excess cases in the State Syariah Courts.

Replicating ‘A Model of Mutual Respect’: Could Singapore’s Legal Pluralism Work in Australia?

Like other western nations with a Muslim minority, Australia too is debating the extent to which our government should recognize and make concessions to our small but growing Muslim population. In 2011, the Australian Federation of Islamic Councils made a submission to the government entitled ‘Embracing Australian Values – Maintaining the Right to be Different’, which advocated legal pluralism as the right of all Australians. It argued amongst other things that conflicts, especially ones involving family and inheritance matters, should be resolved according to the law and traditions of one's own religion. This was contentious in a nation where ‘one law for all’ has been the accepted approach for two centuries. It did however give rise to a debate on whether the nation can, or should, formally recognize certain aspects of Islamic law or support the establishment of a Syariah Court or tribunal. One of the models for legal pluralism often advocated is that of Singapore. Like Australia, Singapore has a minority Muslim population and also inherited the common law system during the era of British colonisation. This paper reflects on the pluralism debate in Australia and assesses the strengths and weaknesses of Singapore’s plural model to determine whether it could, or should, be replicated ‘down under’.

An analysis on the issues of the rights of spouses in the Islamic Family Law in Malaysia

This paper intends to analyze problems regarding mutual rights of Muslims married couple in Malaysia. It has drawn the attention of many researchers to carry out studies on this issue since there have been accusations and complaints on the implementation of the Islamic Family Law (IFL) by the Syariah Court, which is said to have discriminated the wife/women of their rights. The qualitative approach research employed interviews and content analysis as method of study on the Islamic Family Law as well as on the documented cases. The results of the research showed that among the most disputable cases were matters related to polygamy, fasakh, jointly acquired property and children custodian. Conversely, all data were analyzed by using the qualitative data analysis, concluded that the Islamic Family Law in Malaysia has infact implemented the concept of equality.

The administration of Syariah Courts in Malaysia, 1957–2009

This article analyses the development of the administration of Syariah Courts in Malaysia from the pre-colonial to the post-independence periods. The status of Islam as the official religion during the Malacca Sultanate and the application of Islamic law throughout the administration during that period are agreed upon by most historians. The structure of courts consisting of subordinate and superior levels with the Sultan as the head of the judiciary shows the existence of an organized structure which recognized natural justice as one of the rules of law. After Merdeka (independence), the restructuring and restoring of Syariah Courts in Malaysia took more than 40 years. Subsequently, the current Syariah Court acts and state enactments have been amended and improved to bring them into line with the policy of the government, current situations, and legal pluralism in Malaysia. The process of reform of the Syariah Court was slow, but Muslims in Malaysia handled the matter with tolerance, perseverance, and pa...

Asia-Pacific

This article examines trends in Malaysia's civil courts which have, in cases of perceived conflict of jurisdiction with the Syariah courts, conferred jurisdiction on the latter, especially in cases involving would-be apostates from Islam. This trend is examined against the backdrop of the sodomy trial against opposition party leader, Anwar Ibrahim, who has had rejected his appeals to have the accusations made in 2008 heard in the Syariah court, where the evidentiary requirements would likely see the case thrown out. A comparison of these conflicts of jurisdiction points toward the politicisation of religion in Malaysia and its impact on religious minorities.

Language of the legal process: An analysis of interactions in the Syariah court

This study examines interactions from trials in the Syariah court in Malaysia. It focuses on the types of questioning, the choice of language and the linguistic resources employed in this particular context. In the discourse of law, questioning has been a prominent concern particularly in cross-examination and can be considered one of the key communicative practices in legal encounters. Usually based on expectations and assumptions about what the responses are likely to be, an extended question and answer dialogue can allocate or remove blame and make a party appear trustworthy or unreliable. Questions which are supportive of witnesses can simply ask for confirmation, leading witnesses through straightforward narratives and information-seeking questions. On the other hand, questions during cross-examination create a negative evaluation of witnesses and defendants, destroying their credibility and casting doubts on defence statements. Data are collected from a Syariah court in the country and examined for the strategic lexical choices, specific linguistic resources, including code-switching, through which utterances are constructed as questions and how questions are sequenced in this particular context.

The Islamic Divorce Contract and a Flawed Axiom of Masculine Protectionism

AbstractThe Islamic marital contract is based on an ideal of masculine protectionism, with males assuming power over those presumed to be vulnerable, namely, women and children. Greater rights are accorded to males in accordance with their bigger obligation towards the security and prosperity of the family. In illustrating these dynamics, I trace the historical development of the Family Syariah in Malaysia, and analyse the provisions on marital dissolution contained within it. The notion of either protectionist or dominative masculinity is then explored by examining the litigious experiences of men and women, as revealed from case law files on divorce of the various Syariah courts in Malaysia. In these cases, many men do not live up to their religious obligation as family head and provider, but often given the court mandate to imagine that they can. Hence, when they fail to see to their families’ maintenance, despite being religiously entrusted to be the source of women’s and children’s well-being, a social cost to society is exacted. In this situation, the manufacture of the submissive female is seldom successful as material conditions (such as wealth and social safety nets) do not always exist for obedience to be exchanged with protection. The article explores the extent to which an Islamic divorce contract can be sustained given that the axiom of male-protectionism can often be proven false in present day socio-economic context.

COURT-ANNEXED MEDIATION IN RESOLVING DISPUTES RELATING TO FAMILY IN MALAYSIA: WHAT WE NEED TO KNOW BEFORE WE GO FORWARD

This article aims to, firstly, introduce court-annexed mediation in resolving family disputes in Malaysia. Secondly, it will attempt to identify the advantages and disadvantages of court-annexed mediation to resolve disputes relating to family matters, both in the Syariah and Civil Courts in Malaysia. Thirdly, it will provide recommendations to promote CAM. A study was made on the important aspects pertinent to the conduct of mediation in the form of sulh at the Syariah Courts in the State of Selangor which shares uniformed sulh processes used in other syariah courts from other states. Results of the study indicated that the current implementation of CAM in the Syariah Court is guided by a comprehensive set of statutory rules pertaining to sulh whereas the Civil Court is not guided even by a Mediation Act. In addition to that, the study also showed that there are similarities in terms of mediation process practiced in Majlis Sulh with the recommended practices of mediation.

Perlaksanaan Perundangan Islam di Malaysia: Satu Penilaian

This article elaborates the implementation of Islamic law in Malaysia. It includes, inter alia, the British influence in the administration of Islamic law during colonial period, the status and jurisdiction of Shariah Courts before and after Malaysia achieved independence. The article also examines the codification of Islamic Law and the interpretation to article 121 (1A) of the Federal Constitution by the Civil Courts as to whether the Syariah Courts have exclusive jurisdiction in matters which the Shariah Courts have jurisdiction. It also deals with the issue of conversion and which court has jurisdiction on this matter. The objective of the article is to show that Islamic Law was the law of the land since the Malay Sultanate ruled Malacca. The British interference in the administration of Islamic justice has reduced its application to only personal matters. The position of Shariah Courts after the Court Ordinance 1948 came with effect. The purpose of article 121 (1A) of the Federal Constitution is to avoid conflict of jurisdiction between Civil Courts and Syariah Courts. The role of Shariah and Civil laws Technical Committee in drafting new laws for the Shariah Courts. From the overview of the development of Islamic Law in Malaysia there are other areas which need reforms. In the concluding part several recommendations were suggested for consideration.

Islamic State and the Common Law in Malaysia: A Case Study of Lina Joy

``Every person has the right to profess and practise his religion." Article 11 of the Malaysian Constitution could hardly be more explicit. However, Lina Joy was told by the Federal Court that she could not exercise her constitutional right without prior approval by the syariah court. The case of Lina Joy has important consequences for Malaysia's political and constitutional development especially if viewed within the context of Malaysia's increasing Islamization. In this case, syariah law moved beyond the confines of the syariah court to influence the legal outcome of a common law adjudication in the civil court. An analysis of the majority and minority judgments in Lina Joy reveals two conceptions and usages of the common law in the face of Islamization: it can either be a Trojan horse to import syariah law principles into the legal system, or a tool of resistance against the Islamization of the Malaysian legal system.

Kedudukan Mazhab Syafi'i dalam Undang-undang Jenayah Islam di Malaysia

Despite the fact that there is no provision which stipulates the preference of any mazhab or school of fiqh in the implementation of Islamic criminal law in Malaysia, past or present, the use of the views of the Shafit'ie school is always preferred. The reason behind it could be that the school is dominantly practiced in the country by the people as well as the government. The evidence can be clearly seen in the inscriptions on the historic stone of Terengganu, the Canon law of Melaka and other laws that came later. Though there`s no mention of the Shafi'ite school in the laws, their provisions were clearly based on the views of the school. The same can be seen in the current enactments of Islamic Laws of the various states of Malaysia. Judges in the Syariah Courts do not bind themselves to any of the schools including the Shafi`ite school. However, in terms of fatwas, the views of Shafi'ite school are still dominant.

Factors which Influence the Degree of Punishment: The Practice in the Syariah Court of Malaysia

Factors which Influence the Degree of Punishment: The Practice in the Syariah Court of Malaysia

Alternative Dispute Resolution in Brunei Darussalam: The Blending of Imported and Traditional Processes

extract] The parallel, but separate, systems of courts that co-exist today in Brunei are a result of these two distinctive imported influences. The British legacy is manifest in the Civil Court system whilst the Islamic inheritance is apparent in the newly reformed system, of Syariah Courts. Whilst the former was retained postindependence to be the dominant institution in the Sultanate’s legal system, recent reforms to the Islamic courts and to Islamic laws have signalled the Sultan’s commitment to increasing their role and significance for Brunei’s predominantly Malay, Muslim population. This is consistent with the nation’s ideology, Melayu Islam Beraja (MIB), designed to promote and uphold Malay culture, Islam and the institution of the monarchy as indispensable components in Bruneian development. Inevitably, MIB also impacts upon the current priorities for dispute resolution, including those processes other than adjudication employed in courts, whether the secular common law or the religious Syariah court systems. It is two of these ‘alternative’ processes, specifically arbitration and mediation, that are the main focus of this article.

Managing Marital Disputes in Malaysia. Islamic Mediators and Conflict Resolution in the Syariah Courts. By Sharifah Zaleha Syed Hassan and Sven Cederroth. Richmond: Curzon, 1997. Pp. xi, 252. Bibliography, Index.

Managing Marital Disputes in Malaysia. Islamic Mediators and Conflict Resolution in the Syariah Courts. By Sharifah Zaleha Syed Hassan and Sven Cederroth. Richmond: Curzon, 1997. Pp. xi, 252. Bibliography, Index. - Volume 31 Issue 1

Managing Marital Disputes in Malaysia: Islamic Mediators and Conflict Resolution in the Syariah Courts. By Sharifah Zaleha Syed Hassan and Sven Cederroth. Richmond, Surrey: Curzon Press for Nordic Institute of Asian Studies, 1997. ii, 253 pp. Distributed by University of Hawaii Press.

Managing Marital Disputes in Malaysia: Islamic Mediators and Conflict Resolution in the Syariah Courts. By Sharifah Zaleha Syed Hassan and Sven Cederroth. Richmond, Surrey: Curzon Press for Nordic Institute of Asian Studies, 1997. ii, 253 pp. Distributed by University of Hawaii Press. - Volume 57 Issue 1

Feminism and Islamic Family Law Reforms in Malaysia: How Much and to What Extent?

In Malaysia's present climate of Islamization, one issue that has received increasing public attention is reform of the Syariah or Islamic Family Law. The reform process takes on many forms and has varied purposes. Islamic feminists have rallied around this issue in response to the overwhelming and vociferous criticism, by a broad spectrum of Muslim women. These women criticize the inefficacy of the Syariah court system in upholding women's rights and welfare. In this paper an attempt is made to outline some of the justifications, bases and modes underpinning the issue of legal reform, as it is being undertaken by Islamic feminists. The paper concludes by stating that in a multi-religious and multi—ethnic society, the limits and extent of social change can be tempered by many considerations. Given these conditions, Malaysian Islamic Family Law will, in all likelihood, be conserved in its many traditional aspects, even though the court system may appear to be modernized to some extent. Whether or not this form of change is effective in overturning the discourse of constraint and compulsion imposed on women, is an open question, to be answered in the course of the unfolding reform scenario.

2002 Mount Beauty Workshop on Islam in Indonesia: Report

The workshop invited each candidate to present her or his topic to colleagues. There followed debate and discussion about the topics, about conceptual complexities, and about the way in which the research of others shed light on each individual topic. Most of the students were at early stages of research (mostly in the first year of candidature), but three were at final stages (Syafi'i Anwar, Fatimah Husein and Saliy White). One candidate, Mohamad Hafiz, is working on the Syariah Court of Singapore. The discussions were vigorous and of great help to all participants.DOI: 10.15408/sdi.v10i1.642