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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
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
Adequate Redress & Compensation
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
Adequate Redress & Compensation
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
Adequate Redress & Compensation
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
Recommended