Displaying items by tag: Shariah Law

Tuesday, 13 October 2020 10:35

The priority of preventing harm in society

In principles of Islamic jurisprudence (usul al-fiqh) there are several maxims that talk about the principles related to measures in dealing with harmful matters, including "harm should be eliminated".

Another maxim goes "no harm shall be inflicted or reciprocated", while the third one says "the prevention of harm should be given priority than promoting the benefit".

All three convey one message — the importance of preventing any kind of harmful things from taking place on individuals or society at large.

The third maxim has additional significance as it also emphasises the priority in two conflicting situations. When we face two contradictory options on the same situation, between preventing harm and gaining benefit, we have to prioritise the first one.

Among the reasons is that the failure to prevent harm may destroy even the benefit that we may gain, and not vice versa. This is the most important lesson that we have to learn amid the worrying spike of cases during this dangerous Covid-19 pandemic in the country.

Due to a lack of sensitivity towards others, a wrong action by one person, whoever he is, has led to grave implications for the majority of people.

Every person must be reminded that in a situation where maximum level of vigilance is needed, we have to put aside whatever benefit that we would have enjoyed. As the usul al-fiqh maxim reminds us, the priority has to be the prevention of anything that leads to the spread of the disease.

The following measures take priority:

FIRST, stricter punishment must be taken against offenders of rules and standard operating procedures set by the Health Ministry. Let the offenders learn their lesson the hard way before worst scenarios take place.

The implementation of the law should not discriminate between the status of the offenders since everybody is equal before the law. Similarly, the ignorance of the rule cannot be an excuse for anybody not to be justly punished as the legal principle holds that "ignorantia juris non excusat".

SECOND, there must be a high level of self-discipline among members of society in embracing the new normal in containing the pandemic. A surge of cases taking place every day, as well as the increasing number of people who are being fined and reprimanded due to their heedlessness of SOP only prove that the new normal continues to be new and not yet normal for these offenders.

Some people are still in need of the external factors in the form of strict laws and punishment before they can truly embrace the new normal. It is therefore important that every individual takes charge of their own self.

THIRD, inculcate the value of empathy for others. The country we are living in is like a ship that we share with many other people. Everybody has to take care not only of him or herself, but also other people.

There is a hadith of the Prophet which says, "None of you is a true believer until he loves for his brother what he loves for himself". The proof of this love is realised not only through the fulfilment of others' needs, but also through the prevention of others from doing harm to society.

All these measures must be taken seriously not only by the common people, but more importantly, by leaders who, in some cases, are caught in a dilemma between gaining benefit and political mileage.

There is a beautiful Malay proverb that says, "disebabkan nila setitik, rosak susu sebelanga". It conveys the same message as the English proverb, "one rotten apple spoils the whole barrel". If we don't start being vigilant and take strict measures in prioritising the prevention of harm over personal benefit, we may have to pay a high price and wait a long time to rectify the situation.

The failure to flatten the curve will ultimately lead to other greater harm, such as economic downturn, social disharmony and political instability, which will wipe out all potential benefits for the majority of the people.

The writer is director of Centre of the Study of Syari'ah Law and Politics at Institute of Islamic Understanding

Published in: The New Straits Times, 10 October 2020

Source: https://www.nst.com.my/opinion/columnists/2020/10/631030/priority-preventing-harm-society

Monday, 05 October 2020 11:10

PM: Use new technology for Shariah courts

SHARIAH courts in the country must prioritise the use of new technology in the time of Covid-19 to provide services and serve justice effectively as required by the religion, Prime Minister (PM) Tan Sri Muhyiddin Yassin (picture; centre) said.

“I believe continuous improvements will boost the image of Shariah judicial and legal institutions in dealing with cases that are increasingly complex and challenging, as well as fulfilling the needs of the Muslim community as a whole,” Muhyiddin said at the 2020 Nusantara Syariah Law and Judiciary Conference launch in Sepang, Selangor, yesterday.

He added that the Perikatan Nasional government is committed to supporting efforts to uphold the dignity of the Shariah law and judiciary in Malaysia, including enhancing Shariah courts’ jurisdiction and appointment of Syarie judges.

According to Shariah Judiciary Department (JKSM) DG and Syarie Chief Judge Datuk Dr Mohd Na’im Mokhtar, cases in Shariah courts have consistently increased over 100,000 cases in every five years.

From 2014 to 2018, 616,707 cases were filed in Shariah courts, said Mohd Na’im during his opening remark at the conference.

He said JKSM has recommended several measures to enhance the status of the Syarie chief judge and Syarie judges across the country as stated in a proposal paper presented on Feb 6 this year.

Among the recommendations are a JKSM restructuring through an establishment of a Shariah judicial commission to separate the power between the judiciary, legislature and executive; coordination and standardisation of laws throughout Malaysia; establishment of Court of Appeal at the federal level; and extension of the jurisdiction in criminal and civil.

Meanwhile, the PM said efforts rolled out by the government to fight the Covid-19 pandemic is guided by the “Maqasid Shariah”, or objectives of Shariah principles.

This concept provides a framework in finding solutions to protect human interests, while complying with God’s will, mainly to protect the five elements namely faith or religion (hifzu al-din), life (hifzu al-nafs), lineage (hifzu al-nasb), intellect (hifzu al-aql) and property (hifzu al-mal).

For example, Muhyiddin said the decision to implement the Movement Control Order (MCO) to curb the spread of Covid-19 is in tandem with the protection of life principle.

He added that the need to reopen mosques and surau, as well as allowing congregational prayers under new norms, is balanced between the protection of faith and protection of life principles.

“In the spirit of ‘Malaysia Prihatin’ (Malaysia Cares), the government has taken proactive measures to implement several phases of the MCO.

“To date, we are still in the Recovery MCO to preserve the protection of safety and lives of the people from Covid-19 threats,” he said.

The 2020 Nusantara Shariah Law and Judiciary Conference was attended by some 580 participants among Shariah officers in Malaysia, Brunei, Indonesia and Singapore.

With a theme to cultivate Maqasid Shariah applications in Shariah judicial and legal systems under the new normal, the conference seeked to improve Shariah judicial services delivery amid the pandemic based on experiences gathered by regional countries.

Published in: The Malaysian Reserver, 30 September 2020

Source: https://themalaysianreserve.com/2020/09/30/pm-use-new-technology-for-shariah-courts/

The Syariah Court, which is a syariah judicial and legal institution that upholds Islamic teachings, will continue to be strengthened and empowered from time to time, said Prime Minister Tan Sri Muhyiddin Yassin.

He said the government is constantly making improvements to the jurisdiction of the Syariah Courts, the appointment of syariah judges and professionalism of court officials.

Speaking at the opening of the 2020 Nusantara Syariah Judicial and Legal Conference (PKPSN 2020) here today, Muhyiddin said the Perikatan Nasional (PN) government is committed to supporting efforts that could contribute towards raising the status of syariah judicial and legal institutions in Malaysia.

“These continuous improvements will be able to boost the image of the syariah judiciary and law in dealing with the increasingly complex and challenging cases, as well as meet the needs of the Muslim community as a whole," he added.

Muhyiddin said the use of new technology must be given priority by the administration of the Syariah Courts because without technology, the administration of the Islamic judicial system could be hampered and thus obstruct the implementation of justice, which is demanded in Islam.

He said the implementation of the movement control order (MCO) to curb the spread of the Covid-19 pandemic had a significant impact on the lives of the people and the country’s administration, including that of the Syariah Courts.

“This included the closure of courts, requiring the judicial system to function under the new normal circumstances, such as conducting the court proceedings online,” he added.

The prime minister expressed his hope that the Malaysian Syariah Judiciary Department (JKSM) could take the initiative to create a forum to serve as a medium for exchange of information and best practices for syariah judicial institutions that can be shared with countries in the region, such as Brunei, Singapore and Indonesia.

Through the forum, he said, academic discussions on the function of maqasid syariah among countries in the region could be held continuously in helping the government and state religious authorities to seek clarification for Islamic issues.

The PKPSN 2020 involved 580 participants, including syariah judges, court registrars, prosecution officers and syariah officers from Brunei, Indonesia and Singapore.

The conference, themed "Application of Maqasid Al-Syariyyah: Towards Cultivating New Norms in the Syariah Judicial and Legal System", was also attended by Minister in the Prime Minister’s Department (Religious Affairs) Datuk Dr Zulkifli Mohamad Al-Bakri.

Published in: The Edge Markets, 29 September 2020

Source: https://www.theedgemarkets.com/article/syariah-judiciary-legal-institution-continues-be-strengthened-empowered-%E2%80%94-pm

Prime Minister Tan Sri Muhyiddin Yassin has urged the Syariah Judiciary Department to introduce a forum that could serve as a platform for countries in the region to identify the best practices for Syariah judiciary institutions.

Such a forum, said Muhyiddin, would enable extensive discussions on how the concept of the Maqasid Syariah (paramount objectives in Islamic Law) could assist governments and religious authorities in seeking clarification on Islamic issues that could at times be complex.

"At the regional level, I hope that the department will take initiative by conducting a forum that can serve as a platform for information-sharing between Malaysia and other countries in the region such as Brunei, Singapore and Indonesia to identify the best Syariah judiciary institution practices.

"Through this forum, experts can continuously deliberate and discuss the functions of Maqasid Syariah in helping governments and religious authorities in the respective countries to seek clarification on issues related to the 'syarak', which on some occasions may appear complex if it was only addressed alone (by a single country).

"At the same time, I am aware that Syariah judges have a key duty and responsibility to uphold and enforce Islamic laws," he said at the opening of the Syariah Nusantara Law and Judiciary Conference 2020 here today.

Present were Minister in the Prime Minister's Department (Religious Affairs) Datuk Seri Dr Zulkifli Mohamad Al-Balkri, his deputy Ahmad Marzuk Shaary, Public Service Department director-general Tan Sri Mohd Khairul Adib Abd Rahman and Syariah Judiciary Department director Datuk Dr Mohd Na'im Mokhtar, who is also Chief Judge at the department.

The three-day conference, themed "The Application of Maqasid Al-Syariah Towards Embracing the New Norms in the Syariah Legal and Judiciary System", ends on Wednesday.

Meanwhile, on the home front, Muhyiddin said the Perikatan Nasional government is committed and will continue to support efforts towards elevating Syariah legal and judiciary institutions in the country.

He added that the present administration will continue to protect and empower the Syariah Court.

"Other efforts include continuously improving the jurisdiction of the Syariah Court, the appointment Syariah judges and the professionalism of court officers.

"I believe this continuous improvement will help boost the image of the Syariah judiciary and laws in dealing with increasingly complex and challenging cases apart from meeting the aspirations of the country's Muslim community," he said.

Published in: New Straits Times, Wednesday, 30 September 2020

Source: https://www.nst.com.my/news/nation/2020/09/628263/pm-forum-needed-discuss-best-syariah-practices-region

One could also argue that there was ‘no pure Islamic law’ in the sense that the application of Islamic law was largely influenced by the Malay customary laws, namely the Adat Perpatih and Adat Temenggong.

Historically, Islamic law was the law of the land before the arrival of the British.

But one could also argue that there was ‘no pure Islamic law’ in the sense that the application of Islamic law was largely influenced by the Malay customary laws, namely the Adat Perpatih and Adat Temenggong. Nevertheless, the British presence in Malaya had rapidly eroded the status and influence of Islamic law.

The Malay Rulers, who previously have sovereign power, were compelled to adhere to the advice of British residents in all matters except limited aspects of Islamic law and Malay customs.

The British not only managed to control and rule Malaya but in the process, had introduced their own laws in order to maintain power. The British intervention in Malaya has left behind a great deal of influence in the way laws are administrated.

The colonial legacy laws that are still applicable include the Penal Code, the Evidence Act, the Contract Act, the Civil Procedure Code, the Criminal Procedure Code and the Land Code. It must be noted that except the Land Code, the other laws are similar to the Indian ones.

When the British finally left, Islamic law was only confined to family matters that involved marriage, divorce and matters related to the precept of that religion of Islam. This dual legal system was preserved even after Malaya gained its independence in 1957.

The jurisdiction of Islamic law, as given to the Syariah Court, is limited to Schedule Nine, List 2, State List of the Federal Constitution. In effect, the Syariah courts are subordinate to the Civil Courts which have a wider and more superior status.

While some have argued that both courts could run in parallel, conflict of jurisdiction remains a complicated issue especially when two different parties, one a Muslim and the other a non-Muslim, seek their rights at two separate courts.

The recent amendment to Act 164, in regard to Marriage laws, is a welcomed development. It is hoped that this amendment will provide the required remedy for both parties to seek dissolution of marriage at the Civil Court.

Beyond personal and family laws, there have been calls by several Muslim quarters to adopt a comprehensive implementation of Islamic law that would even encompass the criminal law and the penal code.

It is argued that as long as the implementation of Islamic law does not infringe the Federal Constitution provisions and other federal laws, Islamic law can be implemented among the Muslims within its scope of jurisdiction. However, certain matters that involve aspects of Islamic law, like Islamic banking, finance, Islamic capital market and takaful are placed under the Civil Courts.

Problems often arise, for instance, when there is a dispute concerning a contract made under the Islamic banking system, which calls for knowledge, skills and expertise in shariah law. Likewise, in the case of Islamic inheritance, the Syariah Court holds the jurisdiction in determining its distribution but probate matters remain under the Civil Court. Hence, Muslims seeking their inheritance would have to go to the Civil Court instead of the Syariah Courts.

Addressing the issue of overlapping or conflicting jurisdictions between the Syariah Court and the Civil Court would certainly require a framework that can link the rich Islamic tradition with contemporary realities.

In this regard, the Islamic discipline of establishing priority, or fiqh al-awlawiyyat (fiqh of priorities), is seen as a highly potential framework towards harmonising the two laws. The more pragmatic and contemporary approach governed by fiqh al-awlawiyyat promises a more nuanced and balanced decision in the pursuit of implementing Islamic law in Malaysia.

Focusing on Malaysia, this book deals with contemporary issues, developments and challenges concerning Islamic laws covering hudud, apostasy, hijab, polygamy, child maintenance, custodial rights and the complexities arising from interfaith marriages. It also covers takaful, hibah, inheritance and Islamic banking and finance. Other matters touched upon are the Malaysian Syariah Courts as an institution, general discourse on Islamic criminal law, and the perspectives of Islam and human rights.

We must thank all 14 contributors for making this important book a reality. Likewise, a big thank to CLJ for its kindness to co-publish this book with IAIS Malaysia.


Dr Mohamed Azam Mohamed Adil is associate professor and deputy chief executive officer, International Institute of Advanced Islamic Studies (IAIS) Malaysia.

Published in: Bebas News, Friday 9 August 2019

Wednesday, 20 February 2019 09:09

The true visage of Islam

Islam is again at the forefront of public scrutiny as a result of several issues among which are the LGBT cases, the caning of two women accused of lesbianism, the incarceration and caning of a prostitute and child marriages in Kelantan and Terengganu. And last year the so called Islamic political party, PAS, introduced a Private Member's Bill, RUU 355, to increase punishment for syariah-related offences. It gives the impression that Islam is mainly concerned with punitive issues, rituals and sermonising through religious lectures by celebrity preachers and that it is a restrictive and repressive religion. It displays its calcified stance in adherence to syariah regulatory injunctions in the case of child marriages without taking into account the social implications of such marriages.

But those propagating the Islamic way of life through the implementation of syariah laws and other formal and informal regulatory measures are bent on impressing the punitive rather than the compassionate aspects of Islam that emphasise harmony, forgiveness, sharing and caring. 
Most of such people emphasise the afterlife rather than the current one and that this life is ephemeral, a brief existence in preparation for eternal life. As such these people place spiritual needs over materialistic ones and neglect economic viability and discount secular education and other elements such as shelter, health, connectivity that formulate the fabric of living. A good example is Kelantan under PAS rule, which has remained the poorest state in Malaysia because the state government is more concerned about the ritualistic and punitive aspects of Islam instead of seeing to the worldly needs of the people. 

In actual fact, Islam requires us to attend to both the needs of the present life and the preparation for the afterlife. While we must fulfil the prescribed Islamic practices such as prayers, fasting, and payment of zakat the social deeds to fellow men and women in meeting their economic, marital and educational needs form a significant part of the ibadah for consideration in the hereafter. The giving of alms and mandatory payment of zakat testifies to the importance of the social and economic aspects in the well-being of the ummah. Thus, Islam requires its adherents to strive for prosperity so that they could share it with those who are less fortunate. It encourages people to seek knowledge from all sources to be intellectually and technologically proficient to uplift the image of Islam.

Above all, Islam espouses the quest for knowledge, justice and truth and to view all syariah transgressions through the prismatic light of mercy and compassion. It is far from meting out punishments for syariah transgressions to flaunt authoritarian and dictatorial political stance as was the case of the single mother who turned to prostitution to support her child as she did not receive financial support from either her ex-husband or the state. Likewise, such unyielding authoritarian stance was also displayed in the case of the two women who were accused of lesbianism.

Syariah laws are not so much individualised as it is communal for the administration of syariah laws involving the community, that is, the state. The state is responsible for the wellbeing of the ummah by way of ensuring the availability of physical comfort – food, shelter, health, security – and intellectual competence (education) through the various state and private sectors, economic initiatives as well as other support facilities to ensure a decent living that would prevent them from committing crimes to meet their physical needs. Thus, the state is culpable, in the case of the single mother who turned to prostitution to support herself and her child. 

It is not that the state should provide everything but it must create opportunities for employment through sound education and economic planning and practice. Thus, each to his/her own ability to eke out a decent living and those mired in poverty because of circumstances beyond their control should be helped by the Baitulmal.

Other religious institutions, besides the Baitulmal, especially the mosques, are also required to augment the state efforts in helping their needy khariah (people living within the mosque's jurisdiction) through their collection and donation. 
Instead of being a centre for monitoring and providing help to the people within its jurisdiction, the mosques have been downgraded to a place for prayers and religious lectures. Worse, the monies collected are not disbursed to the community but accumulates in the mosques' bank accounts. This social responsibility and public advocacy is seldom practised. But the current trend in Malaysia is that the Islamic authorities are more concerned about meting out punishment without doing much to alleviate the poor and destitute, and without any initiative to counter unnatural sexual orientations or counselling to prevent child marriages. They only act on the symptoms rather than the cause.

In this case the state is only concerned with the syariah enactment on child marriages, instead of dealing with the factors that prompted such marriages. It chooses to ignore the negative social and financial implications of such a marriage. Thus, such punitive actions meted out by the Terengganu religious authorities do not represent the true teachings of Islam. This is the problem when looking at Islam by piecemeal, disengaging it from its holistic perspectives, which also include the role of the Ulul Amri or leaders as role models of piety and selflessness in the service of the ummah. There is much more to be done to reflect the true teachings of Islam beyond the prescribed rituals and outward appearance and behaviour.

One needs to create a positive and enlightened image of Islam as a progressive religion that is economically and technologically resilient that combines the spiritual and material to serve humanity underlined by compassion, forgiveness and mercy. 
Thus, submission to Allah is not only through spiritual enlightenment of the self but also through worldly engagement to serve humanity as ordained and enshrined in the Quran and the Sunnah.

Datuk Dr Mohamed Ghouse Nasuruddin is an honorary fellow at the Centre for Policy Research and International Studies at Universiti Sains Malaysia. Comments: This email address is being protected from spambots. You need JavaScript enabled to view it.

Published in: The Sun Daily, 2 October 2018

Source : https://www.thesundaily.my/archive/true-visage-islam-GUARCH581616

Usaha untuk mengharmonikan undang-undang syariah dan sivil bukanlah sesuatu yang baharu. Cuma, usaha itu sering kali dibayangi konflik perundangan antara kedua-dua undang-undang berkenaan. Konflik tersebut menjadikan usaha berkenaan seolah-olah sesuatu yang sia-sia. Aspek perbezaan bidang kuasa dan amalan perundangan, antara hujah yang sering digunakan.......................Download the full article in pdf attachment (below)



Sebuah institusi pengajian Islam hari ini mencadangkan pertikaian hak penjagaan anak melibatkan pasangan Islam dan bukan Islam diselesaikan oleh tribunal khas dan bukan di mahkamah sama ada syariah atau sivil. Insitut Kajian Tinggi Islam Antarabangsa Malaysia (IAIS) berkata cara itu dapat memberikan keadilan kepada kedua-dua pihak serta merungkai polemik yang berlaku dalam kes seumpama itu, ekoran percanggahan antara mahkamah syariah dan sivil....................Download the full article in pdf attachment (below)



Friday, 24 February 2017 15:49

Organ, blood donation acts of great merit

The permissibility in Islam of organ and tissue transplant and blood donation is supposed to be a settled issue here in Malaysia and elsewhere in the Muslim world, yet questions keep arising on whether this is also permissible between Muslims and non-Muslims.......................Download the full article in pdf attachment (below)

PADA 26 Mei lalu, Presiden Pas, Datuk Seri Abdul Hadi Awang membentangkan Rang Undang-undang Persendirian bagi meminda seksyen 2 Akta Mahkamah Syariah (Bidang Kuasa Jenayah) 1965 (Pindaan 1984). Tujuannya bagi meningkatkan bidang kuasa mahkamah syariah yang terhad iaitu denda RM5,000 sahaja, atau tiga tahun penjara atau/dan sebat enam kali kepada bidang kuasa yang lebih mengikut syariah kecuali hukuman bunuh....................Download the full article in pdf attachment (below)



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