SYARIAH COURT• Lecturer:• Madam Norazla binti Abdul Razak

• Created by:• Nur Atheefa Sufeena binti M.Suaree• 9110547• Ummi Nur Hazirah binti Shahrom• 9110524• Noor Atikah binti Noor Abidin• 9110832• Fatimah Zahra binti Mohd Kamal• 9111114• Ainul Mardhiah binti Mohd Saidi• 9111117

INTRODUCTION

SYARIAH COURTS Established in all the states through Administration of Islamic

Law Enactments and in the federal territories, through federal law.

Except for the Territories of Kuala Lumpur, Labuan and Putrajaya. Which is the constitution, organization and procedure are state

matters. Jurisdiction – conferred by both state and federal law. A three-tiered system, currently used in the Federal Territory of

Kuala Lumpur :– Syariah Subordinate Court– Syariah High Court– Syariah Court of Appeal

That model may be used nationwide.

Syariah Courts in the Federal Territory of Kuala Lumpur

Established by the Yang di-Pertuan Agong under section 40 of the Administration of Islamic Law (Federal Territories) Act1993 (Act 505) and Rules (AIL (FT) Act 1993)

On the advice of the Minister charged with the responsibility for the administration of the religion of Islam in (FT)(the minister)

Hierarchy Of The Syariah Court In The Federal Territory

Syariah Appeal Court

Syariah High Court

Syariah Subordinate

Court

Syariah Appeal CourtConstitution• Constitute by Chief Syariah Judge who will

act as Chairman of S.A.C.• On the advice of the Minister• After consultation with Majlis Agama Islam

Wilayah Persekutuan (MAIWP)• Appointed by YDPAQualification of Chief Syariah Judge:• 1-Malaysian citizen• 2-Person learned in Islamic Law• 3-Have been, for a period of not less than

ten years preceding his appointment

• The Yang di-Pertuan Agong may, on the advice of the minister in consultation with the Majlis,

appoint for a period of 3 years a panel of 7 muslims to constitute a standing panel of judges to form a quarom in the syariah Appeal court in respect of every hearing.

• Every appeal in this court is heard and disposed of by a chairman and 2 judges as determined by the chief syariah judge, in the event that he is unable to, he may appoint the most senior of the judges of the syariah appeal court to act on his behalf.

• If he considerable it desirable, the chief syariah judge may also appoint a judge of the syariah high court to be member of the syariah appeal court.

JurisdictionAppellate Supervisory and revisionaryAppellate JurisdictionMay hear appeals against the

decision of a Syariah High Court or an appeal from a Syariah Subordinate Court

May grant leave to hear any question of law of public interest

An appeal shall be decided by the opinion of the majority

SUPERVISORY AND REVISIONARY JURISDICTION

At any stage of any proceeding in the Syariah High Court, if it appears desirable in the interests of justice, S.A.C. may call for and examine any records in any matter.

Give such direction as justice may require. S.A.C. may do so either of its own motion or at

the instance of any party, whether in a criminal or civil matter.

In such case, all proceedings of Syariah High Court on the matter shall be stayed pending a futher order of the Syariah Appeal Court.

The Syariah High CourtConstitution The Yang di-Pertuan Agong may,on the advice of the

Minister and after consultation with the Majlis Agama,appoint judges of the Syariah High Court.A person qualified for appointment must:

1-be a citizen 2-have been,for a period of not less than ten years

preceding his appointment,a judge of a Syariah Subordinate Court or a kadi or a Registrar or a Syariah

Prosecuter of a state,or sometimes one and sometimes the other

3-be a person learned in Islamic law.

A kadi may continue to hold office as Judge of the Syariah High Court if had previously been appointed a kadi under the Enactment and was performing judicial functions on the commencement of this Act.

JurisdictionThe Syariah High Court has:1. original2. appellate 3. supervisory and revisionary

jurisdiction

ORIGINAL JURISDICTION

• Civil The Syariah High Court in its civil jurisdiction may hear matters of personal and family law,and matrimonial causes where all parties are Muslims.These matters are enumerated under section 46(b)of the AIL (FT) Act 1993.They include:

(i)betrothal,marriage,ruju’,divorce,nullity of marriage(fasakh),nusyuz,or judicial separation(faraq),or other matters relating to the relationship between husband and wife

(ii)any disposition of,or claim to,property arising out of any of the matters set out in subparagraph

(iii)the maintenance of dependants,legitimacy,or guardianship or custody(hadhanah) of infants

(iv)the division of,or claims to,harta sepencarian

(v)wills or death-bed gifts(marad-al-maut)of a deceased Muslim

(vi)gifts inter vivos,or settlements made without adequate consideration in money or money’s worth,by a Muslim

(vii)wakaf or nazar

(viii)division and inheritance of testate or intestate property

(ix)the determination of the persons entitled to share in the estate of a deceased Muslim or of the shares to which such persons are respectively entitled

(x)other matters in respect of which jurisdiction is conferred by any written law.

CRIMINAL The criminal jurisdiction of the Syariah High Court

covers offences committed by Muslims punishable under:

(i)the Selangor Administration of Islamic Law Enactment 1989.

(ii)the Islamic Family Law(Federal Territories)Act 1984;or

(iii)any other written laws prescribing offences against precepts of the religion of Islam for the time being in force.

Criminal matters of a religious nature include offences relating to sex,incest,prostitution,khalwat,and other offences like the consumption of liquor,non-payment of zakat or fitrah,and failure to fast during Ramadan.

• APELLATE JURISDICTIONAn appeal can be made against any decision of a Syariah Subordinate Court to the Syariah High Court.

 • CIVIL

The Syariah High Court may hear an appeal by an aggrieved person in any civil case:

where the amount claimed is not less than RM1000 involving any decision as to personal status or relating to maintenance of dependants;

and where the Syariah High Court has given leave to appeal.

No appeal,however,can be made if the decision was made with the consent of both parties.

The Syariah High Court may confirm,reverse,or vary the decision of the trial court or make any other orders such as the trial court tought to have made.It may also order a retrial.

  

CRIMINAL

In its criminal jurisdiction,the Syariah High Court may hear an appeal by the prosecution or the accused against an acquittal,conviction,or sentence.It may:

dismiss the appealconvict and sentence the appellant inquiryenhance or alter the sentence orreverse any order by a trial court.

SUPERVISORY AND REVISIONARY JURISDICTION

The Syariah High Court has both supervisory and revisionary jurisdiction over civil or criminal proceedings in all Syariah Subordinate Courts.

Section 51 of the AIL(FT)Act 1993 empowers the Syariah High Court,either of its own motion or at the instance of any interested party or person,at any stage of any proceeding,to call for the and examine any records of any Syariah Subordinate Court,and give such directions as justice may require

.Whenever the Syariah High Court calls for the records,all proceedings in the Syariah Subordinate Court on the matter in question shall be stayed,pending a further order of the Syariah High Court.

Syariah Subordinate CourtCONSTITUTION Under section 44 of the AIL(FT)Act 1993,the Yang

di-pertuan Agong may,on the recommendation of the Chief Syariah Judge,appoint from among the members of the general civil service of the Federation,judges of the Syariah Subordinate Courts.

• Such appointments,like all other appointment of judges,must be published in the Gazette.

JURISDICTION• A Syariah Subordinate Court has only original

jurisdiction.

Civil In its jurisdiction,a Subordinate Syariah Court may hear all

matters that the Syariah High Court is authorized to hear.However,its jurisdiction is limited to matters in which:

the amount or value of the subject-matter in dispute does not exceed RM50000 or

where the monetary value cannot be determined.The Yang di-Pertuan Agong may extend the civil jurisdiction from time to time by notification in the Gazette.

   Criminal

The criminal jurisdiction of the Subordinate Syariah Courts covers any offence committed by a Muslim:

under the Administration of Muslim Law Enactment 1989 of Selangor or

any other written law prescribing offences against precepts of the religion of Islam.

  The maximum punishment for such an offence should not exceed RM2000 or imprisonment for a term of one year,or both.

Legislative purpose for adding clause (1A) to Act

121 of Federal Constitution via the constitution

(Amendment) Act 1988

• 121.(1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of Syariah courts.

• “Mahkamah-mahkamah yang disebutkan dalam fasal 1 tidaklah boleh mempunyai bidang kuasa berkenaan dengan apa-apa perkara dalam bidang kuasa mahkamah Syariah.”

Article 121(1A) of the FC, which promulgated and came into force in 1988, pursuasant of the Constitution (Amendment) Act 1988 (Act A704), introduced 2 significant changes of the Syariah Court.

It modified the provision that the judicial power of the federation shall be vested only in the civil court, and ousted the jurisdiction of the civil High Court over matters which fall within the jurisdiction of the Syariah Court.

The words “jurisdiction” however been a matter of controversy. The question arises as to whether “ within jurisdiction” refers to:

1. the wider jurisdiction of the Syariah Court as stipulated in item 1, list II of the 9th schedule to the FC.

2.Whether it is confined to matters within the “express jurisdiction” given by the relevant Islamic Law Administration Enactments.

Civil court have no jurisdiction to preside over claims for Harta Sepencarian among Muslim since Syariah Court have the power to divide the said property by the court consideration and discrection.

The Court have a power to order division of harta sepencarian as it’s stated on section 58 of IFLA 1984. This section provide the power of court to exercising for division of the property.

Clause (4) of the section also give the power to the court to take into consideration the contribution made by the parties during marriage and also the need of the minor children of the marriage.

This section clearly illustrated to us that the Syariah Court have enough jurisdiction to make sure that the harta sepencarian will be devided equally among the both parties.

In article 121 (1) A of Federal Constitution also provide the power of Syariah Court in order to give judgment in the case without any interference from civil court. Since our country have the unique law that consist of two court the jurisdiction of each court should not be have any interference by the other court.

The jurisdiction of Syariah Court is to give a muslim an opportunity to be tried in Islamic law esspecially in family matters. The power of Syariah Court to settle any dispute among Muslim should not be interfere by any other parties.

The amendment of article 121 of Federal Constitution give a big effect to the jurisdiction of Syariah Court to give the judgment. This article avoid the power of Civil Court to re-examined the Syariah Court judgement.

It is also give a rise that the Syariah Judges may make their judgment accordingly to Hukum Syarak without any hesitate that their judgment will be re-examination by the Civil Court judges that is not have a back ground of Islamic Law.

THANK YOU