Civil and criminal procedure in syariah court

1. ADMINISTRATIO
N OF JUSTICE
IN THE SYARIAH
COURT
Defining justice
Attaining Justice
(wakalah
bilkhusumah)
What constitute mal&
criminal matters
(Jurisdiction of court)

2. PRINCIPLES OF AL-QADA’ AND
DEVELOPMENT OF ISLAMIC CIVIL
PROCEDURE OF SYARIAH COURT
•The procedural aspects of the administration of justice
are regulated under the general heading of adab al-qada
and muhakamat.
•The role of court procedure is ~
1. to facilitate efficiency and ensure that adequate time
and attention is given to the material aspects of
disputes,
2. to establish objectivity and coherence in trial
proceedings,
3. To ensure a calm and peaceful environment in the
courtroom, which is conducive to scrutiny and
impartial assessment from unfair and haphazard
practices that compromise the ideals of JUSTICE.

3. DEVELOPMENT OF
PROCEDURE
•Court procedures in every legal system reflect the
standard of care and refinement in the system, and the
necessary safeguards that are taken against distortion
and abuse.
•The simple and direct trial procedures that were
adequate for earlier communities are no longer sufficient
for more complex societies, where progress in various
fields has opened new avenues for more sophisticated
levels of abuse.
•Hence the integrity of a procedural system is tested by
its openness to development and growth.
•Since procedural matters in the Islamic judiciary are open
to considerations of public policy, (siyasah syariyyah),
the process must remain open to adjustment and reform.

4. EG RULES OF FAIR TRIAL DURING PROPHETIC
REIGN
•In a hadith when the Prophet saw instructed Ali ibn Abi
Talib, upon sending the latter as judge to Yemen:
‘When the litigants appear before you, do not decide for one until you hear
the other. It is more likely that by doing so the reasons of a judgment will
become clear to you.’
•Although ex parte judgment or qada ala al-ghaib has
been felt to be permissible in exceptional situations,
many jurists have quoted the above hadith as an
authority to overrule the validity of ex-parte judgment.
•This is definitely ultra vires in cases where the defendant
is present in the locality or within reach.

5. CURRENT APPROACH?
The Hanafis have proscribed
judgment in absentia except in
situations of necessity, whereas the
Maliki, Shafii and Hanbali schools
permit it when the claimant has
decisive evidence and long
distance presents a problem to the
other party.
•But this applies only to civil claims,
and not to criminal disputes
wherein ex parte judgment is
generally not valid.

6. WAKALAH
BIL
KHUSUM
AH
•The disputing parties are entitled to
represent themselves before the
court, or to appoint representatives to
act on their behalf.
•The counsel in this case acts in the
capacity of a wakil who is basically
answerable to his principal.
•Dalil:
‫و‬ُ‫ث‬َ‫ع‬ْ‫ب‬‫ا‬َ‫ف‬ ‫ا‬َ‫م‬ِ‫ه‬ِ‫ن‬ْ‫ي‬َ‫ب‬ َ‫اق‬َ‫ق‬ِ‫ش‬ ْ‫م‬ُ‫ت‬ْ‫ف‬ ِ‫خ‬ ْ‫ن‬ِ‫إ‬ َ‫و‬
ْ‫ن‬ِ‫م‬ ‫ا‬ً‫م‬َ‫ك‬َ‫ح‬ َ‫و‬ ِ‫ه‬ِ‫ل‬ْ‫ه‬َ‫أ‬ ْ‫ن‬ِ‫م‬ ‫ا‬ً‫م‬َ‫ك‬َ‫ح‬ ‫ا‬
‫ا‬َ‫ه‬ِ‫ل‬ْ‫ه‬َ‫أ‬
َ‫ن‬ْ‫ي‬َ‫ب‬ ُ ‫ه‬
‫اَّلل‬ ِ‫ق‬ِ‫ف‬ َ‫و‬ُ‫ي‬ ‫ا‬ً‫ح‬ َ
‫َل‬ْ‫ص‬ِ‫إ‬ ‫ا‬َ‫د‬‫ي‬ ِ
‫ر‬ُ‫ي‬ ‫ن‬ِ‫إ‬
َ‫خ‬ ‫ا‬ً‫م‬‫ي‬ِ‫ل‬َ‫ع‬ َ‫ان‬َ‫ك‬ َ ‫ه‬
‫اَّلل‬ ‫ه‬‫ن‬ِ‫إ‬ ۗ ‫ا‬َ‫م‬ُ‫ه‬
‫ا‬ً‫ير‬ِ‫ب‬
–
4:35
{And if you fear dissension between
the two, send an arbitrator from his
people and an arbitrator from her
people. If they both desire
reconciliation, Allah will cause it
between them. Indeed, Allah is ever
Knowing and Acquainted [with all
things].}

7. PEGUAM
SYARIE
S 34 Wakalah of Peguam Syarie
 (1) The wakalah of a Peguam Syarie shall be
pronounced by the person who appoints,
and accepted by the Peguam Syarie so
appointed, before the Court or the
Registrar.
 (2) Where a Peguam Syarie has accepted his
appointment under subsection (1), he shall,
before taking any step in the proceedings,
file a wakalah in Form MS 5.

8. SERVICE
ON
PEGUAM
SYARIE
35. Where a Peguam Syarie
represents more than one party in
any proceedings, service of a single
copy of any document on the
Peguam Syarie shall be sufficient
service on all such parties

9. CHANGE
OF
PEGUAM
SYARIE
S 36 (1) Where a party desires to
change his Peguam Syarie, he shall
file a notice of change in Form MS 6
and serve a copy of the notice on all
parties.
S 36 (2) Section 34 shall apply in
relation to a change of Peguam
Syarie as it applies in relation to the
appointment of the Peguam Syarie

10. DISCHAR
GE OF
PEGUAM
SYARIE
S 37. Where a party desires to
discharge his Peguam Syarie, he
shall file a notice of change in Form
MS 7 and serve a copy of the notice
on all parties.

11. DISCHAR
GE ON
APPLICAT
ION OF
PEGUAM
SYARIE
S 38. Where a Peguam Syarie
representing a party applies to be
discharged, he shall file a notice of
withdrawal in form MS 8 and serve a
copy of the notice on the party he
represented
 Zakarian bin Saman v Pendakwa Hal Ehwal
Agama Islam Terengganu JH (1416) 106
 Siti Norhayati binti Mohd Daud v Dato’
Zaidi bin Mohd Zain (2007) JH XIII/I 131
(court’s order)
 Azura binti Izham v Hezli bin Mohammad
(Mahkamah Tinggi Syariah Seremban, Kes
Mal No 05100-028-01322 Tahun 2007)
unreported case

12. DEATH
S 39. The wakalah of a Peguam
Syarie shall determine on the death
of the Peguam Syarie or the party he
represented.

13. IN A NUTSHELL:
Judges & lawyers play an
important role in the
administration of justice by
adhering to the court
procedure
to materialize the
objective of the
Islamic Judicial
System
•settling the disputes of
parties,
•to ensure any manner of
oppression is denied and
•the giving of rights to the
rightful.

14. JURISDICTION OF SYARIAH
COURT
Syariah Courts are established by state law except in the Federal Territories
In Federal Territories and Selangor, Syariah Courts are established by the
Administration of Islamic Law (Federal Territories) 1993 and the Administration of
the Religion of Islam (State of Selangor) Enactment 2003 respectively
Syariah Courts have jurisdictions only over persons professing the religion of Islam.
 List II Item 1 Federal Constitution
 S 74 Administration of the Religion of Islam (State of Selangor) Enactment 2003 :
No decision of the Syariah Appeal Court, Syariah High Court or Syariah
Subordinate Court may involve the right or the property of a non-Muslim.
In most states, there is a three-tier structure of Syariah Court.
Syariah Appeal
Court
Syariah High Court
Syariah Subordinate
Court

15. The court system may be illustrated as follows:
HIERARCHY OF CIVIL COURT

16. JURISDICTION OF SYARIAH
COURT
Civil jurisdictions
The civil jurisdictions of
Syariah Courts is limited to
matters in Item 1 of List 11
(State List) under the Ninth
Schedule to the Federal
Constitution
Eg: family & matrimonial
matters
Criminal jurisdictions
The SC has jurisdiction in
respect of offences
committed by Muslims
against the precepts of
Islam (List II Item 1 Federal
Constitution)
Syariah Courts (Criminal
Jurisdiction) Act 1965 (Act
355) has conferred a limited
criminal jurisdictions upon
Syariah Courts.
ie offences punishable with
imprisonment up to 3 years;
fine up to RM5000;
whipping up to 6 strokes

17. SYARIAH SUBORDINATE
COURT - CIVIL JURISDICTION
s62(2)(b) of ARIS 2003-
to hear and determine all
such actions &
proceedings as the
Syariah High Court is
authorized to hear &
determine
in which the amount or
value of the subject-
matter in dispute does
not exceed RM300,000
or;
or is not capable of
estimation in terms of
money (not including
claims of hadhanah or
harta sepencarian)

18. CRIMINAL JURISDICTION
s62(2)(a)
to try any offence committed by a
Muslim under the Syariah Criminal
Offences Enactment (Selangor) 1995
or any other written law prescribing
offences against precepts of the
religion of Islam;

19. PUNISHMENT:
the maximum punishment provided by
the law does not exceed
• RM3000 or
• imprisonment for a term of 2 years, or both, and
may impose any punishment provided
thereof;

20. SYARIAH
HIGH
COURT
CIVIL
JURISDICT
ION
S61(3)(b)-
To hear and determine all actions &
proceedings if all the parties are
Muslims, which relate to —
 (i) betrothal, marriage, wali, ruju’, divorce,
annulment of marriage (fasakh), nusyuz, or
judicial separation (faraq) or other matters
relating to the relationship between
husband & wife;

21. (ii) any disposition of, or claim to,
property arising out of any of the
matters set out in subparagraph (i);
(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 gifts made while in the
state of marad-al-maut (death-bed
gifts) of a deceased Muslim;

22. (vi) gifts inter vivos, or settlements
made without adequate
consideration in money or money’s
worth, by a Muslim;
(vii) wakaf or nazr;
(viii) division & 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;

23. (x) a declaration that a person is no
longer a Muslim;
(xi) a declaration that a deceased
person was a Muslim or otherwise
at the time of his death;
(xii) administration of mosques; and
(xiii) other matters in respect of
which jurisdiction is conferred by
any written law.

24. SYARIAH
HIGH
COURT -
CRIMINAL
JURISDICT
ION
S61(3)(a)-
try any offence committed by a
Muslim and punishable under the
Syariah Criminal Offences
Enactment (Selangor) 1995) or
under any other written law for the
time being in force which prescribes
offences against precepts of the
religion of Islam; and
may impose any punishment
provided for the offence;

25. ACT 355
SYARIAH
COURTS
(CRIMINAL
JURISDICT
ION) ACT
1965
(REVISED
– 1988
•Section 2. Criminal Jurisdiction of Syariah
Courts.
•The Syariah Courts duly constituted under any
law in a State and invested with jurisdiction over
persons professing the religion of Islam and in
respect of any of the matters enumerated in List
II of the State List of the Ninth Schedule to the
Federal Constitution are hereby conferred
jurisdiction in respect of offences against
precepts of the religion of Islam by persons
professing that religion which may be prescribed
under any written law:
•Provided that such jurisdiction shall not be
exercised in respect of any offence punishable
with imprisonment for a term exceeding three
years or with any fine exceeding five thousand
ringgit or with whipping exceeding six strokes or
with any combination thereof.

26. JURISDICTION:
SYARIAH APPPEAL COURT
s67
The Syariah Appeal Court shall
have jurisdiction to hear &
determine any appeal against any
decision made by the Syariah
High Court in the exercise of its
original jurisdiction.

27. S67(2)
When an appeal from a decision of a Syariah
Subordinate Court has been determined by the
Syariah High Court, the Syariah Appeal Court
may, on the application of any party, grant
leave for the determination by itself of any
question of law of public interest which has
arisen in the course of the appeal, and the
determination of which by the Syariah High
Court has affected the result of the appeal.

28. S67(3)
When leave has been granted by the
Syariah Appeal Court, it shall hear &
determine the question allowed to
be referred for its determination
and make such order as the Syariah
High Court might have made & as it
considers just for the disposal of
the appeal.