between formal legal protection and legal redress: an

www.um.edu.mywww.um.edu.my

Between Formal Legal Protection and

Legal Redress: An Overview of Its

Adequacy and Efficiency in Malaysian

Shariah CourtsGeoffrey Mosiol, Jowena John & Lim San Shien

Faculty of Law, Universiti Malaya

www.um.edu.my

Salam Sejahtera

Focuses and Thematic Issues

Efficiency and effectiveness of formal legal protection

Adequacy of redress or compensation through

adjudication

Shariah courts in Malaysia

Personal law of Muslims in Malaysia: Islamic Family

Law

3

Historical Overview

Straits Settlements: Islamic law administered by the

English courts with English trained judges, lack of

judicial appreciation of local customs and practice of

Islam.

Malay States: local rulers given jurisdiction, although

there are formal courts to try matters of adat and Islam,

the matters are appealable to English courts.

4

Shariah Courts

Pre-Reformation in the 1990s: acceptance by the

public is low and perception of it is not good

Post-Reformation: better administration, increases in

trust, E-Shariah Initiative

5

Historical Overview

Malaysia practices Shafi’i school, ijtihad is usually notpracticed

Ijtihad: judicial interpretation, must comply with Shariah,could be done in event of public event for maslahah, non-conclusive text, or there is lacuna

Scholars believe ijtihad is necessary and integral indecision making

There are evidences of cases that applied ijtihad by judges

6

Current State of Shariah Courts

Evident conflict: interest of public policy vs sanctity of

religion

Jabatan Pendaftaran Negara v A Child

Mohd Shafiee bin Arshad v District Officer of Sibu

7

E-Shariah Initiatives

Shariah Court Case Management System (SCCMS)

• Information access to the public at large

• Promotes consistency in the interpretation of Shariah

principles

• Access latest publications of rules and procedures, as well

as keeping track with the status of cases.

8

Adequate Redress & Compensation

Nafsiah v Abdul Majid (No 2)

• Claim against breach of promise to marry, bear child and

claimed to be seduced

• Claim allowed

Aishah bt Mahmud v Jamaluddin b Sulaiman

• Broke promise to marry, spent a sum on household items

• Claim for reimbursement allowed

9


Indastri bin Saion v Sharifalaili bt Hussin

• Wife left the house without husband’s permission, alleged to

commit nusyuz (disobedience)

• Although first element fulfilled, court looked at the bigger

issue: husband’s failure to fix matrimonial issue hence claim

not allowed

10


Dzulfaezah bt Abdul Hamid v Izuddin bin Murshid

• General rule: maintenance is the duty of a husband

• Exception: financial state of husband

Azrina bt Omar v Ghazali bin Sharudin• Also considers husband’s physical ability to procure income

• Amount claimed should be reasonable

• Does not go against fiqhiyyah that reads “harm must beeliminated”

11


Generally, single parents hold sole custody

Shariah courts often grant custody to the mother whilst the non-

custodial parent is accorded with visitation and overnight rights, as

reflected in case laws

Zety Aznin bte Azmi v Abd Mutalib bin Abdullah

• Mothers granted custody due to natural instincts

Noor Azleha v Mohd Zaidi bin Daud

• Mother of the child was granted custody whilst visitation rights

had been given to the father. Act of discontinuation of

connections is prohibited in Islam12

A Review on the Cases

General rule might produce harsh results

Mitigation with the exceptions and other surroundingcircumstances as to ensure justice is duly served

Not a clear indication on the use of ijtihad, itnevertheless demonstrates the similar characteristicsof the implementation of ijtihad.

13

Malaysia’s Demographics

Malaysia is a multiracial country

Bumiputera (69.8%), Chinese (22.4%), Indian (6.8%),Others (1%)

Current landscape of Malaysia can be traced back tothe legal system inherited from colonial times, a blendof common law and Islamic law

14

Future of Shariah Courts

Inclusive Society (Adoption of UN definition)

Sustainable development according to Sustainable DevelopmentGoals 2030

Malaysia's commitments

• 12th Malaysia Plan (2021-2025)

• 13th Malaysia Plan (2026-2030)

• Shared Prosperity Vision 2030

15

Marching Towards Sustainable Future

Harmonisation of common law and shariah law

• Spousal conversion, competent jurisdiction of courts

Indira Gandhi v Pengarah Jabatan Agama Islam Perak

• Shariah courts have jurisdiction in trying Islamic personal

laws or principles by virtue of Art 121(1A) of the Federal

Constitution

16

Harmonisation of Shariah and Common law

Latifah bte Mat Zin v Rosmawati bte Sharibun• The Federal Court ruled that issues concerning Islamic law

in civil court should be tried and resolved in Shariah courtand only the ruling from Shariah court would apply.

Dato’ Kadar bin Tun Sulaiman v Datin Fauziah• It is rather not practical to compartmentalise issues as civil and

Shariah court issues and then having the issues tried in differentcourts.

17

Distinct and Clear Definition of Competent

Jurisdictions of Courts

Doctrine of separation of power

Powers of the legislative branch to define jurisdictionsof courts

Extension of scope of Federal laws in Shariah matterslike:• Field of succession• Testate and Intestate• Probate and Administration

18

Case Law

Jumaaton v Raja Hizaruddin

Civil jurisdiction in Shariah court does not include“probate and administration” matters.

19

Suggestions for Betterment

Constitutional Amendment

• “Probate and administration” matters can fall within the

ambit of State List under “Islamic law relating to succession,

testate and intestate”

• Clear definition of “against precepts of Islam” to prevent

wide interpretations to criminalise people without reasonable

basis

20

Position of Official Religion

Speech of founding father of Malaysia, Tunku AbdulRahman

“I would like to make clear that this country is not an Islamicstate as it is generally understood, we merely provide thatIslam shall be the religion of the State”

Articles 3(1) & 3(4) of the Federal Constitution

Islam is not superior nor independent of rest of Constitution

23

Supremacy of Constitution

Articles 4 of the Federal Constitution

The Constitution is the highest law of the land.

Article 162(6) of the Federal Constitution

Any existing law being applied should be modified toaccord with the provisions of Constitution.

24

Equality before the Law

Article 8 of the Constitution

Issues of polygamy, distribution of estates between

men and women.

• Ensure equality between men and women

• Needs of modern society

25

Shariah Maintenance law

Muslim wife is expected to obey husband to receivemaintenance• Any disobedience of wife will disentitled her from receiving

maintenance (section 59(2) of the Islamic Family Law(Federal Territory) Act 1984.)

26

Shariah Marriage Equality

Polygamy

• One man can marry up to four spouses

• Amendment to section 23 of the Islamic Family LawAct; the wording of “just and necessary” to “just ornecessary”

• Creates leniency for the husband to justify secondmarriage and polygamy

27

Food for Thoughts

Reformations and suggestions• Promotes clear and distinct definitions of law and prioritise

equality

Legal awareness and public education• Strengthen presence in formal education or have the

institutions to held engagement sessions or townhalls

28

Food for Thoughts

International collaboration and partnerships• Collaboration among countries with similar legal systems

within the OIC, or other relevant international organisations

29

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TERIMA KASIH

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