CIVIL AND CRIMINAL PROCEDURE IN SYARIAH COURT LAA 3043

CIVIL AND CRIMINALPROCEDURE IN SYARIAHCOURTLAA 3043

CONTENTS INTRODUCTION GENERAL OVERVIEW OF THECOURSE CONCEPT OF JUSTICE, AL-QADHA’ AND AL-DA’WA. CIVIL AND CRIMINALJURISDICTION

INTRODUCTION To familiarize with the necessary knowledgeof Islamic procedure. To give an overview of the currentapplication of the procedural law in syariahcourt. To equip and educate students withknowledge on the syariah procedurallegislation in Malaysia either on the civil andcriminal procedure; and The differences with substantive laws andprocedural laws.

GENERAL OVERVIEW OFTHE COURSE Part One-syariah civil procedure. Include explanation on the parties to an action;the appointment, functions and duties of aPeguam Syarie, the explanation on the pleadings,subpoenas and affidavits; procedure of service ofdocuments and the process of discovery andinspection; the process of sulh; the process ofhearing and judgments.

Cont…. Part two discusses the syariah criminalprocedure: the students will be taught the nature ofcharge and its ingredients, the processof arrest and the criminal trial; aspectsof bail; the criminal trial and appeal;sentencing in criminal procedure.

CONCEPT OF JUSTICE, AL-QADHA’ AND AL-DADA’WA. Surah Al-Anbiya (21) :78“We also bestowed favors upon Daud andSulayman when the two were judging a caseregarding the field into which the sheep of certainpeople had strayed by night and were watchingthem to arrive at the right decision although wehad given wisdom and knowledge to both ofthem”.

Cont… Surah An-Nisaa (4): 105“ We have revealed to you book with the truthso that you may judge between people inaccordance with the right way which Allahhas shown you so be not an advocate forthose who betray trust, seek Allahforgiveness, surely Allah is forgiving ,Merciful”.

Cont… Hadith Ummu Salamah reported that themessenger of Allah declared;“I’m only a human being and you bring yourdisputes to me Perhaps some of you indulge inlogic to prove your assertions and it may be that Igive my decision or the strength of yourargumentation. Should I therefore give one thatwhich his brother entitled to he should not take it,for it would be as if I am giving him a coal offire.”

Element of justice in the SyariahProcedure Code By giving proper representation to theparties in litigations (ss12, ss14, ss114) The case can be heard by impartialhearing. (ss37, ss115 and ss123). Seeking the truth and do justice (ss76and ss94) Adherence to Islamic law and preventinjustice (ss19, s87 and ss253)

Cont… Al-Qadha’or Judiciary- anything which isrelated with the administration of justice. Itincludes court and officer of the court. Al-Da’wa or Charge- During trial-Wordsaccepted by a judge or qadhi to obtain a knownright from another person or to defend suchright in a legal dispute

CIVIL JURISDICTION Family laws in respect of:(a) marriage, divorce, custody andguardianship, maintenance of children,matrimonial properties, alimony, Laws ofsuccession, Probate and Administration –relating to distribution, Trust Deed – inrespect of gift inter-vivos.

CRIMINAL JURISDICTION Limited and confined to offences in respect of:polygamous marriage, close proximity, indecentdressing and behavior, violation of the "pillars ofIslam” , not fasting during Ramadhan, notattending Friday prayers, desertion by eitherspouse and apostasy. only over persons professing the religion of Islamand it has only such jurisdiction in respect ofoffences as is conferred by Federal law. MuslimCourts (Criminal Jurisdiction) Act,1965 Amendment 1984- Jurisdiction to deal withcases punishable with imprisonment up tothree years, or f ine up to $5,000.00 or whippingup to six strokes or the combination of all these.

CONCLUSION This course is very important for thosewho want to practice in Syariah Court. The student has to know the jurisdictionof the sy. Court before they may learnthe civil and criminal procedure. There were differences and similaritieson the nature of civil and and criminalprocedures.

Thank YouZulkifli Bin HasanLecturer Faculty of Syariah & LawE-mail: zul361977@yahoo.com.Tel. No: 03-42892237H/Phone No: 012-9236107