Lecture 1 Introduction to Family Law in Malaysia.pptx

Introduction to Family Law in Malaysia.pptx

1. LECTURE 1: INTRODUCTION TO ISLAMIC FAMILY LAW IN MALAYSIA Family Law I (LAW605) 1

2. Introduction Family is a basic social unit which consist of husband, wife and children. Islam emphasizes marriage and strengthening of family ties. Islam regards marriage as an ibadat . In surah an Nisa : 1 Allah revealed “ O mankind ! Be careful of your duty to your lord ! Who created you from a single person, and created its mate, of the same nature, and spread from these two ( like seeds) countless men and women..” In surah al Nahl : 72 And Allah has made for you mates (and Companions) of your own nature.. 2

3. In a Hadith from Abdullah Ibn Mas’ud , said I hear the Prophet s.a.w . said:   Those of you who can support a wife should marry, for it keeps you from looking at strange women and pressure from unlawful Intercourse, but those who cannot, should devote themselves for fasting for it is a means to suppressing sexual desire. ( Sunan Abu Daud ) 3

4. In Hadith of the Prophet s.a.w ., it is clear that marriage is the sunnah of the Prophet s.a.w . In one of his Hadith, the Prophet s.a.w . said: “ By Allah I am more submissive to Allah, and more afraid of him than you yet I fast and break my fast, I do sleep and also marry. So, he who does not follow m y sunnah is not one of my followers.” Sahih Bukhari Kitab an Nikah 4

5. Islam also regards marriage as a solemn covenant . It is stated in an Nisa : 21 “ And how could ye take it when ye have gone in unto each other,   And they have taken from you a solemn covenant?” 5

6. During the Haji Wida ’ the Prophet s.a.w . has instructed the Muslim to the above effect. He said : “ Fear Allah concerning women, verily you have taken them on the s ecurity of Allah and intercourse with them has been made lawful by the word of Allah.”   6

7. ADMINISTRATION OF ISLAMIC LAW IN MALAYSIA 7

8. 8 The Islamic law which applies in Malaysia is of the Shafii School of jurisprudence, as modified by Malay adat (customary) law. The sources of Islamic law as applied in Malaysia fall into two main categories:

9. 9 1. Primary sources (a) al-Qur’an: the word of Allah; (b) as-Sunnah: the saying or conduct of Prophet Muhammad (saw)

10. 10 2. Secondary sources (which are not sources, but rather the means for discovering the law) a ) Ijma : consensus of jurists of any particular era on a juridical rule; and b) Qiyas : deduction from reasoning by ijtihad or analogy

11. DOCTRINE OF JUDICIAL PRECEDENT The doctrine of judicial precedent has no significant value in the Syariah Court system. It is neither permitted nor prohibited. Qadhis / Judges must decide according to their own merit or give their own decisions based on their personal interpretation. They are neither prevented nor bound by their previous decisions. The first decision may be taken as guidance. Negative effects : instability of legal rulings, closing the door of ijtihad, feeling inferiority of subordinate courts and continuation of erroneous judgment which leads to injustice. syuhaeda aeni mat ali 11

12. 12 JURISDICTION OF SYARIAH COURT IN MALAYSIA Introduction Before the arrival of British, Islamic Law and the local custom were followed in Malay states. Islamic Law was compiled and codified and serve as terms of reference and enforced and implemented. These laws were known as Hukum Kanun Melaka or Undang-Undang Negeri . Case: Ramah v Laton (1927) 6 FMSLR 128

13. 13 However, the position changed when the British arrived. They introduced English Law as the basic law. In Penang & Melaka through Charter of Justice. With this introduction, the scope and application of Islamic Law is limited to personal law of Muslim only, i.e. family matters and inheritance. After independence, matters concerning Islamic Law is within the jurisdiction of each state. All legislations passed or its amendment are subject to the provision of Federal Constitution. Power given by Federal Constitution under the State List para 1 of List II 9 th Schedule.

14. STRUCTURE OF SYARIAH COURT Syariah Court are established based on Administration of Muslim law enactment of each state. 3-tier system comprises of Syariah Subordinate Court, Syariah High Court and Syariah Court of Appeal. 14

15. The Perak State Assembly had approved the proposed amendment to Section 44 of the Islamic Religious Administration (Perak) Enactment 2004 to enable the creation of a supreme court in the state on 5 December 2018,   On 16 July 2020. the Perak Syariah Supreme Court begins hearing its first case after being established through a gazette dated August 26, 2019 involving a matrimonial property case. The first hearing by a three-judge panel was chaired by Perak Syariah Chief Judge Datuk Asa’ari Mohd Yazid, Court of Appeal former President Tan Sri Zulkefli Ahmad Makinudin , and Malaysian Syariah Judiciary Department Syariah Chief Judge Datuk Mohd Na’im Mokhtar. 15 STRUCTURE OF SYARIAH COURT (cont..)

16. 16 JURISDICTION OF SYARIAH COURT Civil Jurisdiction State Enactments provides that Syariah Court has the following jurisdictions:- ( 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 ( 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 death-bed gifts ( marad -al- maut ) of a deceased Muslim;

17. 17 JURISDICTION OF SYARIAH COURT (cont..) Criminal Jurisdiction There are six general categories of criminal jurisdiction:- Matrimonial offence eg : wife abuse Offences relating to decency eg : Zina, Khalwat , prostitution Offences relating to intoxication offences relating to sanctity of the religion of Islam and its institution eg : failure to perform Friday prayers, Zakat and disrespect for Ramadhan. Offences relating to aqidah other offences not provided above: eg : qazaf , enticing a married woman etc.

18. 18 JURISDICTION OF SYARIAH COURT (cont..) Under Syariah Court (Criminal Jurisdiction) Act, jurisdiction of syariah court is imprisonment up to three years or fine up to RM5000 or whipping up to six strokes From the above subject matters, it is clear that Syariah Court has a limited jurisdiction compared to Civil Court.

19. 19 Position of Syariah Court Before Amendment of Article 121(1A) of Federal Constitution Before amendment of Article 121(1A) of FC, there was a conflict of jurisdiction between Civil Court and Syariah Court where matters relating to the jurisdiction of Syariah Court was interfered by Civil Court.

20. 20 1) High Court claims jurisdiction in matter falling within the jurisdiction of Syariah Court Ainan b Mahmud v Syed Abu Bakar [1939] MLJ 163 (Legitimacy of child) Held: High Court decided that a child born to Muslim woman 4 month after her marriage to a Muslim man is a legitimate child based on Section 112 of Evidence Enactment. This is contrary to Islamic Law. It was held that Evidence Enactment is statute of general application and all inhabitants in Federated Malay state are subject to its provision irrespective their race or religion Boto Taha v Jaafar Mohamad [1985] 2 MLJ 98 Held: Civil Court has jurisdiction to hear the case of Harta Sepencarian involving Muslim couples.

21. 21 2. Where High Court interfere with the decision of Syariah Court by reversing the decision and by claiming their superiority Myriam v Ariff [1971] 1 MLJ 265 (Custody case) Fact: A divorce between parties before a Qadhi . Qadhi made a consent order that custody of the children (a girl age 8 and a boy age 4) to their father. Subsequently, the mother filed application to High Court to claim custody of the children High Court held: The order made by the Qadhi does not prevent the mother from making the application to High Court. The son was ordered to be given to mother and the daughter remain to the father.

22. 22 Article 121 (1A) But after 1988 amendment of Article 121(1A) the Syariah Court has exclusive jurisdiction whereby Civil court cannot interfere. The Constitution (Amendment) Act 1988, among others added a new clause to article 121 which provides that: “ the High Courts and inferior courts established by federal law shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Court.”

23. 23 In effect it removes the jurisdiction of the civil court in respect of the matters specified in the State List as set out in paragraph 1 List II of the Ninth schedule of the Federal Constitution. However it should be noted that parties before the Syariah Court must be Muslims. The Syariah Court has no jurisdiction where one of the parties involved is a non-Muslim.

24. Approach on Determining the Jurisdiction Express Jurisdiction : jurisdiction confers in the state legislation i.e state list. Only then the matter fall under the jurisdiction of the Syariah Court. Implied jurisdiction : jurisdiction given by implication. The Syariah court has a jurisdiction as long as it involves the personal matter of the Muslim. Current approach: the latter approach as applicable in the case of Lina Joy. syuhaeda aeni mat ali 24

25. 25 LINA JOY V MAJLIS AGAMA ISLAM WILAYAH PERSEKUTUAN & YANG LAIN [2007] 3 CLJ 557 Fact: Lina Joy, who was born Azalina Jailani , claimed to have converted from Islam to Christianity, arguing that it came under her right to freedom of religion under Article 11 of the Constitution of Malaysia. She first approached the National Registration Department (NRD) seeking permission to change her name to Lina Joy, and also her religious status. In 1998, the NRD allowed the name change, but refused to change the religious status on her identity card. Joy appealed against this decision in the High Court, arguing that she should not be subject to shariah law, having converted to Christianity.

26. 26 In April 2001, High Court Judge Datuk Faiza Tamby Chik ruled that she could not change her religious identity, because ethnic Malays are defined as Muslims under the Constitution. Joy then took her case to the Court of Appeal. On 19 September 2005, the court ruled in a 2-1 majority decision against Joy. Justice Abdul Aziz and Justice Arifin Zakaria agreed that the NRD was correct in rejecting Joy’s application and said it was up to the Syariah Court to settle the issue by virtue of Article 121(1A) of Fed Constitution. Joy further appealed to the Federal Court.

27. 27 On May 30, 2007, the Federal Court, in a 2-1 decision, dismissed Joy's appeal. The Federal Court ruled that only the Syariah Court had the power to allow Joy to remove her religious designation of Islam from her national identity card. Chief Justice Ahmad Fairuz Sheikh Abdul Halim and Federal Court judge Justice Alauddin Mohd Sheriff delivered the majority decision dismissing her appeal. Chief Judge of Sabah and Sarawak Justice Richard Malanjum dissented.

28. HJ RAIMI BIN ABDULLAH V SITI HASNAH VANGARAMA BT ABDULLAH AND ANOTHER APPEAL  [2014] 3 MLJ 757 T he Federal Court held that, pursuant to the State List which provides for Islamic law, personal and family law of a person professing the religion of  Islam , the question of whether a person is a Muslim or not is a matter falling under the exclusive jurisdiction of the Shariah Court. syuhaeda aeni mat ali 28

29. 29 Family dispute between a Muslim and non-Muslim Family dispute between a Muslim (converted) and Non-Muslim, conflict of law resolved/ settled with passing of a Bill (Act 164) on 10 August 2017 The Law Reform (Marriage and Divorce)(Amendment) Act 2017 which came into force on 15 December 2018.

30. Unilateral Conversion of Child Government has withdrawn the controversial Law Reform (Marriage and Divorce) (Amendment) Bill 2016 which would have barred the unilateral conversion of children by any one parent. Among the amendments made to the act was the insertion of Section 88A, a new section which makes clear that both parents in a civil marriage must agree to the conversion of a minor into Islam. C ase : Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 30

31. 31 JURISDICTION OF SYARIAH COURT

32. 32 SYARIAH SUBORDINATE COURT Section 47(2) Administration of Islamic law (Federal Territories) Act 1993 :- “ Syariah Subordinate Court :- (b) in its civil jurisdiction, hear and determine all such actions and proceedings as the Syariah High Court is authorized to hear and determine in which the amount or value of the subject-matter in dispute does not exceed FIFTY THOUSAND RINGGIT or is not capable of estimation in terms of money (it does not include claim for hadhanah or harta sepencarian )….”

33. 33 SYARIAH HIGH COURT Seksyen 46(2)(b) Administration of Islamic law (Federal Territories) Act 1993 :- “A Syariah High Court shall: ( 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 ( 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 death-bed gifts ( marad -al- maut ) of a deceased Muslim;

34. 34 Practice Direction Practice Direction No. 2, Year 2002 “Cases which involve claim for hadhanah , Harta Sepencarian which includes movable and immovable property and ex-parte application shall commence in Syariah High Court.”

35. 35 Practice Direction No. 14, Year 2006 “..that the jurisdiction to hear the cases of polygamy and declaration of division of harta sepencarian and other related matter under Section 23 of Islamic Family Law Act/Enactment/Ordinance in all states shall be heard in Syariah High Court”.

36. 36 SYARIAH COURT OF APPEAL Section 52(1) Administration of Islamic law (Federal Territories) Act 1993 “( i ) The Syariah Appeal Court shall have jurisdiction to hear and determine any appeal against any decision made by the Syariah High Court in the exercise of its original jurisdiction. ”

37. 37 SPECIFIC JURISDICTION Maintenance ( Nafkah ) Divorce Custody ( Hadhanah ) Polygamy Harta Sepencarian Inheritance

38. 38 MAINTENANCE (NAFKAH) NAFKAH IS WITHIN JURISDICTION OF SYARIAH SUBORDINATE COURT Claim/application to be made in court where the Plaintiff lives and resides. Section 2 of Islamic Family Law (Federal Territories) Act 1984 " anak kariah " means a person who is permanently or habitually resident in the  kariah masjid ; ”

39. 39 DIVORCE DIVORCE IS WITHIN JURISDICTION OF SYARIAH SUBORDINATE COURT Claim/application to be filed at the place where the Plaintiff resides. If the address is different from his IC, letter of confirmation from kariah is to be attached.

40. 40 Practice Direction No. 11, Year 2005 Jurisdiction of Syariah Subordinate Court to record sulh and Joint Agreement (Divorce by mutual consent) “…that Syariah Subordinate court to record any terms of joint agreement and/or sulh but shall not endorse cases which is within the jurisdiction of Syariah High Court.”

41. 41 HADHANAH (CUSTODY OF CHILDREN) HADHANAH IS WITHIN JURISDICTION OF SYARIAH HIGH COURT Practice Direction No. 2, Year 2002 Cases of Hadhanah , Harta Sepencarian and Ex-Parte are to be filed in Syariah High Court

42. 42 POLYGAMY Practice Direction No. 5, Year 2007 Court that has jurisdiction to hear cases related to polygamous offences and effects of the application to verify and confirm the status of marriage “….all polygamous offences, effects of verification of the status of marriage is to be made in Syariah Subordinate Court or according to the jurisdiction of court as stipulated under the law”

43. 43 Harta Sepencarian HARTA SEPENCARIAN IS WITHIN JURISDICTION OF SYARIAH HIGH COURT Pre 1988: Civil Court and Syariah Court has jurisdiction to hear dispute on harta sepencarian of muslim couple. Eg : Robert v Umi Kalthum [1961] 1 MLJ 163, Bato Bt Taha v Jaafar Bin Muhammad [1985] 2MLJ 98 Claim for harta sepencarian is to be filed at the court where the case for divorce was decided. Place where the property ( harta sepencarian ) situated is irrelevant.

44. 44 Noh bin Atan @ Khamis lwn Shakila Binti Mohamed [1998] 6MLJ 631 Facts: Noh dan Shakila divorced in state of Selangor in 1991 and their divorce was confirmed by Syariah Subordinate Court in 1994. The court did not made any order as regard to nafkah iddah, mut’ah or harta sepencarian . At the time of the divorce, both parties reside at Selangor. Subsequently, Noh transferred to Federal Territory in 1997. He filed an application for Harta Sepencarian in Kuala Lumpur Syariah High Court. Kuala Lumpur Syariah Court of Appeal held that Kuala Lumpur High Court has no jurisdiction to hear Noh’s claim since the divorce take place outside Kuala Lumpur.

45. 45 Inheritance HARTA PUSAKA IS WITHIN JURISDICTION OF SYARIAH SUBORDINATE COURT Syariah court has a limited jurisdiction in the administration of Muslim estate in Malaysia It can only verify the deceased’s heir who is entitled to inherit the said property and to divide the property according to hukum fara’id . (by issuing fara’id certificate) and to verify the validity of wasiah or hibah whether it is in compliance with hukum syarak or not.

46. 46 Cont … Effect:- A muslim has to deal with 2 court to distribute inheritance property:- Syariah Court –to verify the deceased’s heir who is entitled to inherit the said property and to divide the property according to hukum fara’id . (by issuing fara’id certificate) Civil Court- administration of the said property if the value is more than RM2M (after amendment in 2008 and enforced in 1.9.2009) or the deceased’s asset is movable property only.

47. 47 Conflict of jurisdiction Latifah Bt Mat Zin lwn Rosmawati Bt Sharibun & 1 lagi [2007] 5MLJ 101. Federal Court held that Syariah Court and Civil Court has jurisdiction to determine issue related to deceased’s estate. Civil Court- to issue Letter of Administration (Surat Kuasa mentadbir ) and order of distribution ( perintah pembahagian ) Syariah Court- to determine syariah legal issues arise in the petition for LA on the validity of hibah which was raised by the deceased’s third wife as regard to a joint account . She alleged that the said joint account was hibah and therefore not to be part of the deceased estate which could be distributed accordingly among this legal heirs

48. 48 TYPES OF CLAIMS Claims prior to marriage Claims during marriage Claims for divorce/ Annulment of marriage Claims after divorce Other Claims after divorce Interim application/Interlocutory application Claims relating to inheritance property

49. 49 MARRIAGE Cause of action in relation to marriage is divided into 2 :- (I) Claim Prior to marriage such as a) breach of betrothal ( claim for damages for breach of promise to marry) b) Application for consent for marriage –under age c) Application for consent of a marriage for a woman who is divorced without iddah ( janda berhias ) d) Application for wali hakim/ am, wali refused,) Claim for mahr (mas kahwin ) e) Application for consent of polygamy

50. 50 (ii) Claim During the subsisting of marriage: Application to verify the marriage / Application to annul the marriage( faraq nikah ) Application to verify the marriage which involves polygamy (application to register polygamous marriage), Application to declare the wife nusyuz , Maintenance of children, maintenance of wife, temporary custody, custody of children. (iii) Claim after divorce Includes enforcement of orders after divorce such as Judgment Debtor Summons, Committal and Enforcement of Order.

51. 51 Claim in relation to inheritance property Cause of action in Syariah court in relation to application to verify the status of wasiyyah , application for sijil fara’id , application to verify the status of hibah during maradul maut .

52. THANK YOU 52