Perintah Mahkamah Syariah hendaklah diterima sebagai keterangan di Mahkamah Sivil

 MOHD ISHA AWANG v. MOHAMAD IDRIS SERAMAL BARIS [2020] 9 CLJ 760

COURT OF APPEAL, PUTRAJAYA
KAMALUDIN MD SAID JCA; ABU BAKAR JAIS JCA; GUNALAN MUNIANDY JCA
[CIVIL APPEAL NO: P-02(NCVC)(W)-2426-12-2018]
05 AUGUST 2020

An order of the Syariah Court of Appeal adjudicating that a marriage is not valid under the Syarak must be presumed to have been made according to the legitimate powers of the said court and must be taken as valid until proven otherwise; and more, upon the same being properly tendered and marked as an exhibit, its contents must be taken as true and undisputed. This being the case, it is erroneous of the learned Judicial Commissioner, after having admitted the order and marked it as an exhibit, to have then compelled the defendant adducer to prove the authenticity of the document inter alia by calling or examining the maker(s) thereof. Section 114(e) of the Evidence Act 1950 allows the court to presume that such judicial and official act of the Syariah Court of Appeal has been regularly performed with the result that the marriage between the plaintiff and the second defendant herein, on the facts and the evidence, and in consonance with the order of the Syariah Court of Appeal, must be held to be invalid. It follows that the appellant's claim for damages against the first defendant for allegedly enticing his 'wife', the second defendant, must crumble and fail.

TORT
Enticement - Claim for - Plaintiff alleged first defendant enticed his wife from matrimonial home causing breakdown of familial relationship - Whether there was valid marriage between plaintiff and wife - Whether there was order for judicial separation (faraq) from Syariah Court - Whether documents produced in court issued by Government department - Whether documents showed judicial and official acts had been performed - Whether Order of Syariah Court of Appeal adjudicating marriage between plaintiff and wife not valid according to 'syarak' made within court's powers - Whether documents proved marriage between plaintiff and wife dissolved by judicial separation - Whether presumption under s. 114(e) of Evidence Act 1950 applicable to documents - Whether claim for enticement ought to fail

EVIDENCE
Documents - Judicial separation - Order of - Whether there was valid marriage between plaintiff and wife - Whether there was order for judicial separation (faraq) from Syariah Court - Whether documents produced in court issued by Government department - Whether documents showed judicial and official acts had been performed - Whether Order of Syariah Court of Appeal adjudicating marriage between plaintiff and wife not valid according to 'syarak' made within court's powers - Whether documents proved marriage between plaintiff and wife dissolved by judicial separation - Whether presumption under s. 114(e) of Evidence Act 1950 applicable to documents

FAMILY LAW
Judicial separation - Documents - Whether there was an order for judicial separation (faraq) from Syariah Court - Whether documents produced in court issued by Government department - Whether documents showed judicial and official acts had been performed - Whether Order of Syariah Court of Appeal adjudicating marriage between plaintiff and wife not valid according to 'syarak' made within court's powers - Whether presumption under s. 114(e) of Evidence Act 1950 applicable to documents - Whether documents proved marriage between plaintiff and wife dissolved by judicial separation

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Status Tanah Simpanan Melayu

BEBE SAKIMAH MOHD ASROF v. PENDAFTAR HAKMILIK NEGERI PERAK [2020] 10 CLJ 413
HIGH COURT MALAYA, IPOH
SU TIANG JOO JC
[ORIGINATING SUMMONS NO: AA-24NCVC-478-11-2019]
21 OCTOBER 2020

Not all Malay Reservation land is necessarily a Malay holding; it could also be a non-Malay holding. It is insufficient for the document of title of a piece of land to only be endorsed with 'Pengisytiharan Rezab Melayu' without the particulars of the land specified. Sections 6(i) and 2(a) of the Malay Reservation Enactment (FMS Cap. 142) ('MRE') provide three steps that must be complied with for a land to be declared, post the commencement of the MRE, a Malay holding. Under the proviso in s. 2(a), no interest shall be deemed to be a Malay holding until a requisition in the prescribed Form A in the First Schedule has been registered against the register document of title for such land.

LAND LAW

Malay Reservations - Malay holding - Registration of property expressly stated as Malay Reservation Land - Presentations for registration by purchaser rejected by Land Office - Whether purchaser Malay - Whether non-Malay could be registered as proprietor of Malay Reservation Land - Whether prohibitions and restrictions against dealings apply to all Malay Reservation Lands - Whether applied to property in question - Whether property Malay holding - Whether Land Office complied with necessary statutory steps to declare property to be Malay holding - Whether mere endorsement of Malay Reservation Land without particulars sufficient for property to be declared Malay holding - Whether purchaser could be registered as proprietor of property - Malay Reservations Enactment (FMS Cap. 142)

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Kes Iki Putra

IKI PUTRA MUBARRAK v. KERAJAAN NEGERI SELANGOR & ANOR [2021] 3 CLJ 465

FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; ROHANA YUSUF PCA; AZAHAR MOHAMED CJ (MALAYA); ABANG ISKANDAR CJ (SABAH AND SARAWAK); MOHD ZAWAWI SALLEH FCJ; NALLINI PATHMANATHAN FCJ; VERNON ONG LAM KIAT FCJ; ZABARIAH MOHD YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ
[PETITION NO: BKA-3-11-2019(W)]
25 FEBRUARY 2021
[2021] CLJ JT(5)

Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, which criminalises unnatural sex, is in contravention of the State List in the Ninth Schedule of the Federal Constitution. The section, while providing for the offences against the 'precepts of Islam', is limited by the preclusion clause contained in the State List, ie, 'except in regard to matters included in the Federal List'. Criminal law being a federal matter, is exclusively for Parliament to enact; and is beyond the legislative competency of the State Legislature.

CONSTITUTIONAL LAW
Legislation - Validity of legislation - Syariah Criminal Offences (Selangor) Enactment 1995, s. 28 - Offence against 'precepts of Islam' - Challenge against competency of Selangor State Legislature to legislate offences against precepts of Islam - Whether qualified by phrase 'except in regard to matters included in the Federal List' in item 1, List II, Ninth Schedule of Federal Constitution - Whether States restricted from making laws on subjects within domain of Parliament - Whether criminal law within domain of Parliament - Whether s. 28 enacted in contravention of item 1 of State List - Whether s. 28 inconsistent with Federal Constitution - Whether void

ISLAMIC LAW
Legislation - Validity of impugned legislation - Syariah Criminal Offences (Selangor) Enactment 1995, s. 28 - Offence against 'precepts of Islam' - Challenge against competency of Selangor State Legislature to legislate offences against precepts of Islam - Whether qualified by phrase 'except in regard to matters included in the Federal List' in item 1, List II, Ninth Schedule of Federal Constitution - Whether States restricted from making laws on subjects within domain of Parliament - Whether criminal law within domain of Parliament - Whether s. 28 enacted in contravention of item 1 of State List - Whether s. 28 inconsistent with Federal Constitution - Whether void

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BBA bukan bermaksud pindah milik mengikut s.214 KTN

 MAPLE AMALGAMATED SDN BHD & ANOR v. BANK PERTANIAN MALAYSIA BHD [2021] 8 CLJ 409

FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; ROHANA YUSUF PCA; MOHD ZAWAWI SALLEH FCJ; ZABARIAH MOHD YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ
[CIVIL APPEAL NO: 02(f)-54-09-2020(A)]
23 JULY 2021

An agreement for the sale and purchase of an estate land by way of asset sale and purchase agreements pursuant to a Bai Bithamin Ajil financing is not in breach of s. 214A of the National Land Code; it remains so even if no prior approval has been obtained from the Estate Land Board. Taking heed of this court's decision in Gula Perak Berhad v. Datuk Lim Sue Beng & Other Appeals, and reading s. 214A NLC strictly while giving it and its subsections their natural and ordinary meaning in the context of the provisions' object and purpose, it is clear that a Bai Bithamin Ajil financing scheme is not caught by the words 'transfer, convey or dispose of' in s. 214A. The words 'transfer, convey or dispose of', being analogous, should have their meaning confined to Parliament's intention to prevent dispossession of land whether in law or equity. They were only meant to cater to a comprehensively narrow intent of preventing actual or outright transfers and fragmentation. Reading the law this way accords with commercial realities, avoids contravening any law and favours commercial transactions such as the one transacted in this case.

LAND LAW
Agreement - Unconditional agreement - Estate land - Parties entered into sale and purchase agreement - Bai bithamin ajil financing - No prior approval obtained from Estate Land Board before entering into agreements - Whether transfer of estate land could only be done with approval of Estate Land Board - Whether there was intention to 'transfer, convey or dispose of' land - Whether unconditional agreement in breach of s. 214A of National Land Code

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Pihak Berkuasa Agama membuat tindakan kepada pemeluk agama Ahmadiyyah

MAQSOOD AHMAD & ORS v. KETUA PEGAWAI PENGUATKUASA AGAMA & ORS [2022] 2 CLJ 259

HIGH COURT MALAYA, SHAH ALAM
VAZEER ALAM MYDIN MEERA J
[JUDICIAL REVIEW NO: 25-56-10-2015]
25 OCTOBER 2021

Abstract – (i) Members of the Ahmadiyya sect are generally not Muslims and are not to be subjected to the dictates of Islamic law or statute, or any Syariah investigation or prosecution. However, to properly determine their constitutional and legal status, a differentiation must be made between those who were adherents of the faith by origin, and those who were professing the religion of Islam before embracing the doctrinal beliefs of the Ahmadiyya sect. The Civil Court is seized with jurisdiction to deal with those in the first category but not in the second; for the latter category, the tight to determine belongs exclusively to the Syariah Court. (ii) The Ahmadiyya worshippers in this judicial review application are made up of those who were born into Ahmadiyya families and were Ahmadiyya adherents by origin, and Muslims who had subsequently come to adopt the Ahmadiyya faith. Clearly, the applicants in the second category who are Malaysians fall squarely within the ‘renunciation’ cases and would therefore come within the jurisdiction of the Islamic Authorities respondents, and be subject to the two fatwas herein, until and unless they obtain an order from the Syariah Court that they are followers of the Ahmadiyya sect.

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KETUA PEGAWAI PENGUATKUASA AGAMA & ORS v. MAQSOOD AHMAD & ORS AND ANOTHER APPEAL [2020] 10 CLJ 748
COURT OF APPEAL, PUTRAJAYA
BADARIAH SAHAMID JCA; ZABARIAH MOHD YUSOF JCA; NOR BEE ARIFFIN JCA
[CIVIL APPEALS NO: B-01(A)-468-07-2018 & B-01(A)-513-08-2018]
25 AUGUST 2020

The Syariah Court's jurisdiction is circumscribed by law and what is spelt out in s. 74(1) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 is merely a restatement of a trite principle of law that a Syariah Court has no jurisdiction over non-Muslims. This said, the presumption in s. 74(2) thereof has no application to members of the Ahmadiyya Muslim Jama'at religious group ('the Ahmadiyya') in the State of Selangor, because, following the 1953 trial before HRH the Sultan of Selangor and the subsequently gazetted 1998 and 2000 fatwas, an Ahmadiyya in the State of Selangor is not considered a Muslim, and he is also not, constitutionally speaking, a person 'professing the religion of Islam'. Indeed, for that matter, the 1998 and 2000 fatwas themselves have removed the legal status of the Ahmadiyya community as persons 'professing the religion of Islam'. It follows therefore that the actions of the Majlis Agama Islam Selangor in raiding the Ahmadiyya's place of worship and prohibiting them from performing their prayers thereat upon a purported violation of s. 97(2) of the Enactment ought to be subjected to a review before the High Court; and if the respondents herein have, by cogent and credible supporting evidence, showed that they are actually Ahmadiyya, then the High Court has the discretion to grant them the relief sought for, including to prohibit all syariah investigation and prosecution against them.

CONSTITUTIONAL LAW
Fundamental liberties - Freedom of religion - Jurisdiction of Syariah Court - Matters related to Syariah as defined in Item 1, List II of Ninth Schedule of Federal Constitution - Whether confined to persons 'professing the religion of Islam' - Persons of Ahmadiyya religion - Fatwa removing legal status of Ahmadiyya Muslim Jama'at religious group as persons 'professing the religion of Islam' in Selangor - Whether fell within jurisdiction of civil court - Federal Constitution, arts. 11(1) & 121(1A)

JURISDICTION
Courts - Jurisdiction - Offence under s. 97 of Administration of the Religion of Islam (State of Selangor) Enactment 2003 ('ARIE') - Proper forum - Whether Syariah Court or Magistrate's Court - Ahmadiyya Muslim Jama'at religious group - Fatwa removing legal status of Ahmadiyya community as persons 'professing the religion of Islam' in Selangor - Whether s. 74(2) of ARIE applicable to Ahmadiyya in Selangor

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Kuasa Mahkamah Sivil Terhadap Fatwa

 “Naturally, there is a difference between the making of a fatwa (as in the procedure and law to adhere to) and the substantive contents of the fatwa. As regards the procedure, it necessarily requires compliance with written law and the failure to do so might result in the issuance of public law remedies that can only be issued by the civil superior courts. The contents of the fatwa and their interpretation are a different story and a matter purely for the jurisdiction of the Syariah courts to the extent that it relates to “hukum syarak” or personal law and not matters which objectively might be taken to contradict any written law (Federal or State statutes or even the FC for that matter).”

“Thus, simply put, if the vires of any fatwa or the conduct of the Fatwa Committee is challenged purely on the basis of constitutional or statutory compliance, then it is a matter for the civil courts. If the question pertains to the matters of the faith or the validity of the contents of the fatwa tested against the grain of Islamic law, then the appropriate forum for review or compliance is the Syariah courts.” – per Tengku Maimun Tuan Mat CJ in SIS Forum (Malaysia) v. Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener) [2022] 3 CLJ 339

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Mahkamah Syariah tiada kuasa semakan?

SIS FORUM (MALAYSIA) v. KERAJAAN NEGERI SELANGOR; MAJLIS AGAMA ISLAM SELANGOR (INTERVENER) [2022] 3 CLJ 339
FEDERAL COURT OF MALAYSIA
TENGKU MAIMUN TUAN MAT CJ; ROHANA YUSUF PCA; AZAHAR MOHAMED CJ (MALAYA); ABANG ISKANDAR CJ (SABAH AND SARAWAK); MOHD ZAWAWI SALLEH FCJ; VERNON ONG LAM KIAT FCJ; ZALEHA YUSOF FCJ; HARMINDAR SINGH DHALIWAL FCJ; RHODZARIAH BUJANG FCJ
[CASE NO: BKA-1-01-2021(W)]
21 FEBRUARY 2022

Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 which seeks to give the Syariah courts the jurisdiction and power to hear and decide on judicial review, being a provision which the Selangor State Legislature (SSL) has no power or competency to make, is unconstitutional and void. The substantive jurisdiction of the Syariah Courts is strictly defined by Item 1, State List, Ninth Schedule of the Federal Constitution; the issue of the absence of the power of judicial review or the power to grant public law remedies in Item 1 aside, it is plain that none of the limbs in Item 1 can be construed as conferring power on SSL to enact s. 66A or to enable the Syariah Court to engage in judicial review. This said, the judicial power of the Federation, of which the 'constitutional' and 'statutory' judicial review are a specie, is by constitutional design exclusively vested in the Civil Superior Courts, as to clothe them with supervisory jurisdiction over legislation passed by any Legislature, as well as the jurisdiction to decide on constitutional issues or to issue public law remedies; the Syariah Courts, on the other hand, for not sharing the same constitutional guarantees of judicial independence as the Civil Superior Courts, are as a matter of constitutional policy incapable of exercising judicial power.

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“Judicial review is not merely procedural but a substantive and immutable component of judicial power - one which is inherent and which defines the very core function of an independent Judiciary. It is exclusively a judicial power of the civil superior courts.

Reading s. 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 as it stands and upon analysing the basis for judicial review in this country, I find that s. 66A of the ARIE 2003 is unconstitutional and void, as it is a provision which the SSLA has no power to make. I accordingly find that the petitioner has overcome the threshold of the presumption of constitutionality.” – per Tengku Maimun Tuan Mat CJ in SIS Forum (Malaysia) v. Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener) [2022] 3 CLJ 339

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