Umar A. Oseni*
Abstract
Being one of the
most progressive Muslim countries in the 21st century, Malaysia has
remained the cynosure of all eyes in the Muslim world. One of the major
institutions in governance is the administration of justice system, which
generally promotes access to justice as the last hope for the less privileged. To
this end, this paper attempts to reconstruct the need to build on existing initiatives
in the administration of justice mechanism of the Sharī‘ah judiciary in
Malaysia with special reference to disputes involving waqf, hibah and wasiyyah
issues. It is therefore argued that rather than waiting for emerging issues
such as cases involving waqf survey to emerge before coming with up with
sustainable mechanisms, which are fundamentally Sharī'ah-based, it is always more
fitting to be proactive in a fast-growing economy such as Malaysia.
1. Introduction
In
furtherance of the objective of becoming an industrialized nation in the Year
2020, it is imperative for the stakeholders to identify key areas that are
necessary for immediate action in order to lay a sound footing for positive
transformation of the Malaysian economy.
While one may not need to
argue that the economy of the country does not operate on its own, there are
significant legal and regulatory mechanisms that do support such aspirations in
the drive towards an industrialized nation. Access to justice to all,
particularly the less privileged, is a fundamental feature of developed
nations. According to Lord Woolf, M.R.
in his report “Access to Justice”, a civil justice system should meet the
following principles: “(1) be just in the results it delivers; (2) be fair in the way it treats litigants; (3) offer appropriate procedures at a
reasonable cost; (4) deal
with cases with reasonable speed;
(5) be understandable to those who use it; (6) be responsive to the needs of those who use it; (7) provide
as much certainty as the nature of particular cases
allows; and (80 be effective:
adequately resourced and organised.”[1]These are all meant to create an enviable
justice system in the increasingly competitive world. In fact, a glimpse at the 2013 Budget of
Malaysia reflects this trend of undaunted attention to issues involving legal
aid in the administration of justice system in the country.[2]Fortunately, the Sharī'ah Judiciary in
Malaysia has constantly pursued these goals in its unrelenting reforms over the
years. One may ask whether there are
rooms for further improvement? This paper seeks to answer this question.
There has been much focus on matrimonial
cases in the Sharī'ah Court in Malaysia while less attention has been paid to
emerging trends in Islamic property law, which statutorily fall under the
jurisdiction of the court. The case studies
for Islamic property law in this study, as conspicuously delineated in the
title, involve three major issues: waqf(charitable
endowment), hibah(gift), and wasiyyah (bequest) cases. Though these
cases are of special status when considering their impact on the larger
society, the Sharī'ah Court is often seized with the jurisdiction to hear and
determine the rights and liabilities of parties in respect of them. More often than not, most families end up
washing their dirty laundry in the public in these kinds of cases. Therefore, in order to avoid such
circumstances where the parties are compelled to spill the beans, some other
alternative measures may be introduced to ensure the sustainability of any
decision arrived at either through amicable settlement or an enforceable court
judgment. While we shall discuss the
jurisprudential issues relevant to the administration of justice system, this
study does not intend to discuss the juristic opinions of the Muslim jurists on
the validity, extent or limitations of each of these instances of disposition
of property whether through waqf, hibah or wasiyyah. The study focuses
on some case law and the imperativeness of applying sustainable mechanisms for
dispute management in related cases.
This paper is organized into four major
sections. First, the paper gives a general overview of effective dispute
management in Sharī'ah Court adjudication with special reference to
Malaysia. Second, the nature of waqf, hibah, andwasiyyah cases
as major mechanisms for the disposition of property is examined. Third, the paper presents some case studies,
which were mined from a careful selection of some reported cases involving waqf, hibah and wasiyyah
issues. Fourth, a proposed framework is
presented for Sharī'ahcourt-annexed dispute management system that would cater
for the needs of all parties from different spheres of life in Malaysia.
2. Importance
of Effective Dispute Management in Sharī'ah Court Adjudication
There
is no doubt that judges occupy a significant position in the governance of any
state. Islam gives a high degree of
recognition to the role and functions of the judiciary under a constituted
government. During the classical era of
Islam, there was no clear delineation between the functions of the qadi and arbitrators or even sulhofficers. However, with the gradual crystallization of
the administration of justice system in Islam, there was tremendous
transformation in the theory and practice of judicial functions.During the formative
stages of Islamic jurisprudence, the role of judges transcended adjudication of
disputes. The judges were proactive in
effectively managing disputes within the society. The mere fact that the classical
understanding of the judiciary as identified by Muslim jurists (such as
Al-Mawardi and Abu Ya’la) in their writings encompasses three major analogous
components – qada, mazalim and hisbah – lay credence to the argument that the functions of judges were
all-encompassing. These practically
involve active engagement in effective dispute management to ensure social
cohesion and promote reconciliatory attitude among the people. Malaysia, being
a melting pot of disparate cultures and religious affiliations, mirrors the
nature of the first Islamic State in Medina.
The
main thrust of dispute management is judicial case management with a view to
promoting settlement of disputes that are amenable to amicable resolution in
order to avoid the usual inexorable rancorous enmity associated with litigation
or opening up a can of worms.[3] This section therefore focuses on three
related areas – Sharī'ah basis for dispute management as part of the duties of
judges in Islam, the increasing prominence of dispute management in modern
court adjudication, and finally the current practice of dispute management in
the Malaysian judicial milieu.
2.1 The Sharī'ah Basis for Dispute
Management as Part of the Functions of Judges
As
hinted above, there is preponderance evidence in the classical sources
supporting dispute management in the adjudication of disputes in Islamic legal
history. Most of the prophetictraditions
on adjudication of disputes, amicable settlement of disputes, or negotiated
settlement collectively form epoch-making precedents for modern practice of
dispute management. Islamic law considers a number of effective dispute
resolution mechanisms as part of the case management role of a judge.[4]In
explaining the case management role of the qāÌī within the court
system, Al-KhaÎÎāf gives a
detailed commentary on the code of conduct of judges before and during the
pendency of a case.[5] Though the thrust of the book majorly relates
to the procedural rules in normal court adjudication, nevertheless, similar
procedures with certain modifications where necessary may also be applicable in
mediation and arbitral proceedings.
The duties of the judge in Islamic law are generally
considered as part of the case management responsibility of the court. Court-annexed ADR is considered part and
parcel of the Sharī‘ah court; it cannot be bifurcated from the adjudicatory
role of the judges. The court as a system has many other responsibilities
placed on it by the Islamic State. The same thing is expected to be replicated
in Muslim communities across the world since there is no longer an Islamic
State similar to that during the flourishing era of Islam. In essence, ADR processes in Islamic law
include naÎÊÍah(counselling), ÎulÍ (mediation/conciliation or compromise of
action), taÍkÊm
(arbitration), Med-Arb (combination of mediation and arbitration), muÍtasib
(Ombudsman Judge), fatwa of muftÊ (Expert Determination), and walī al-maÐālim
(Chancellor).[6]
While explaining the code of conduct for judicial
officers, ‘Umar ibn Al-KhaÏÏāb, the second
rightly-guided Caliph, unequivocally restated the position of Islam regarding
adjudication of disputes in Islamic courts. This is contained in a letter he
sent to one of the assigned judges, AbūMūsā Al-Ash‘ārÊ, where he observed that part of the case management technique of a
judge is to encourage the parties to compromise between each other by resolving
the dispute amicably.[7] This is a pre-trial procedure which should be adhered
to before proceeding for adjudication if such need still arises. IbnQayyim
further emphasized, after reproducing Caliph ‘Umar’s historic letter, that
judges and jurisconsults regard the letter as authoritative in judicial process
while attempting to resolve a dispute.[8]A
striking aspect of the letter which he emphasized upon is: “Compromise (through
ÎulÍ) among the
Muslims is lawful; except that which makes a lawful prohibited, and render the
prohibited thing, lawful”[9]. As earlier accentuated, this is a clear
indication to the fact that the foremost duty of the judges is case management
by creating a propitious atmosphere for the amicable settlement of a dispute
where applicable.
Therefore, the duty of a qāÌÊis all-encompassing and should be treated as such when
it comes to the issue of dispute management.
One of the most important etiquettes of adjudication as widely
pronounced in books on the Code of Conduct for Judges (adab al-qāÌÊ) in Islamic law is that even if the judge proceeds
with the trail of the case, he should still consider the possibilities of
reconciliation before giving the final decision.[10] The judge
should strive to get the parties to reconcile their differences and resolve the
dispute amicably based on certain terms of agreement.[11] This is
considered as part of the case management role of the judge which should be
given effect as a matter of procedure. The reason for this procedural
prescription is that the human mind is unpredictable –parties
may shift grounds anytime. This is why it is still expedient to negotiate even
in a situation of power imbalance. The parties may abruptly decide to resolve
the dispute themselves on their own volition and bury the hatchet. So, even in marginal cases such as domestic
violence,ÎulÍ should first be
employed to reach an amicable settlement and this may involve adequate
compensation where applicable. It must be quickly
added that the facilitative roles such as ÎulÍand taÍkÊm are sometimes
delegated to some other court officials depending on the prevailing practice in
a particular locality. Islamic law recognizes the unparalleled role of the
court in social transformation, dispute management, and dispute avoidance.
Jennings corroborated this point where he observed:
Muslihun(those who help negotiate compromise and
reconciliation) were regular features of the court. Often, litigants reported
to the court that Muslihunhad negotiated ÎulÍbetween them, indicating that a compromise had been
accomplished away from the Court.[12]
This was the nature of the Sharī‘ah courts right from
the period of the Prophet Muhammad and this golden trend was upheld during the
Ottoman Empire.
The
Islamic law processes of ADR have assumed significance relevance in the modern
world. The thrust of case management and dispute resolution in Islamic law is
premised on amicable resolution of disputes based on good faith negotiation or
mediation. The unique factor here is the
spiritual element which drives the parties towards an amicable settlement. A number of these processes were introduced
over 1400 years ago with the advent of Islam.
Unfortunately, with the passage of time, some of the processes disappeared
into the thin air and the ones that were still in use were not developed to
meet the challenges of the time.
However, with the paradigm shift in the modern world towards amicable
resolution of disputes, scholars have perked up these long forgotten processes
which are deep-rooted in the prime sources of Islamic law – the Qur’an and
Sunnah. The court in a Muslim society is a multipurpose centre
for case management. Its role goes
beyond court adjudication. As earlier
observed, the case management role of the court includes appropriate court
referral of a dispute to the relevant dispute resolution process.
2.2
Islamic
Dispute Management – The Malaysian Judicial Milieu
Through
different policies and succeeding legislative reforms, the Sharī'ah judiciary
in Malaysia has consistently built and sustained a court-annexed ADR programme.
Parties seem to have great confidence in the judges and SulhOfficers. There is no doubt that religion, and by extension,
religious judges or qadis play an
important role in dispute management. To
this end, Said and Fund reveal that:
One
of the most important findings of cross-cultural conflict resolution research
isthat religion is a perennial and perhaps inevitable factor in both conflict
and conflictresolution. Religion, after all, is a powerful constituent of
cultural norms and values,and because it addresses the most profound
existential issues of human life (e.g.,freedom and inevitability, fear and
faith, security and insecurity, right and wrong,sacred and profane), religion
is deeply implicated in individual and social conceptions of peace.[13]
One
cannot agree more with this view. Being a powerful constituent of Islamic
cultural norms, litigants generally respect qadis
and display the tendency to resolve a dispute amicably, particularly when the
judge in a private settlement gives a preliminary assessment of the subject
matter of the dispute. Such high regard
the Muslim community has for the qadis
is similar to the way it respects the Imams or muftis which is borne out of religious convictions and values
associated with ideological leanings.
In
Malaysia, Islamic law matters fall within the scope of the legislative powers
of the states.[14] Art.
121 (1A) of the Federal Constitution of Malaysia provides that the Sharī‘ah
Courts have exclusive jurisdiction over Islamic law matters.[15] Hence, different states, including the
Federal Territories, in Malaysia have their respective enactments on the
jurisdiction of the Sharī‘ah Courts. As
a consequence of that, the Sharī‘ah Courts of different States have their own
respective Sharī‘ah Court Rules made pursuant to the enabling enactments.
The
ØulÍ Officers
compliment the duties of the qadis, as
they are given the former’s mandate in the absence of the latter. This is considered as part of the case
management role of Sharī'ah adjudication (qaÌÉ) in Islamic law.[16]Islamic law lays emphasis on amicable resolution of
disputes, as ÎulÍ is considered the basis of
other dispute resolution processes. Even though the term “Alternative Dispute
Resolution” is predominately used nowadays, Islamic law does not consider
amicable resolution of disputes as an alternative to court process; rather, it
is considered as part of the case management role of the court. This is the
reason why the basic dispute resolution process in Islamic law, ÎulÍ, is considered as an in-built mechanism within the
court process and a qÉÌÊis required to
adopt such process wherever applicable.
3. Nature
of Waqf, Hibahand WasiyyahCases in Islamic Law
Rather
than focusing only on family-related disputes and divorce cases in the
application of sulhand tahkim, there is ample evidence in
Islamic jurisprudence for the application of these dispute management processes
to property cases. In fact, they are
often the preferred processes for dispute resolution owing to the nature of
property cases. In this section, hibahand wasiyyah are grouped together because most cases coming before the
Sharī'ah Courts in Malaysia involving hibahare
related to wasiyyah. So, it is most convenient to discuss them
together while waqf is discussed
separately.
3.1
Hibah and Wasiyyah Cases
The
nature of cases involving gifts and bequest seems to be closely related; hence,
the need to classify the two classes of property disposition under the same
subheading. These two methods of disposing or transferring one’s property inter vivos involves the transfer of
property from one person to another in a unilateral contract, generally
considered binding, without the beneficiary necessarily providing any form of
consideration in the contract. Though a
gift is generally made inter vivos, a
bequest in most cases takes effect after the demise of the testator. But at the
time of concluding the latter contract, the contract is inter vivos but its legal effect is delayed till the demise of the
testator. While there are glaring
differences in the jurisprudential rules applicable to gifts and bequest under
Islamic law and common law as practiced in Malaysia, this study specifically
focuses on the principles and practice under the former whose law is applied in
the Sharī'ah Courts.
The nature of hibah cases in Malaysia generally involve steps to revoke a gift
earlier given to someone or the questioning of the validity of a gift awarded
to a third party after the donor’s demise.[17] Usually, when there is no proper
documentation of the transfer of a property from one person to another, there
is always the tendency of someone from nowhere to challenge the validity of
such disposition of property. There is
no doubt that the Sharī'ah Court, in a country like Malaysia where Muslims
prefer to subject themselves to the Islamic law in cases involving testamentary
dispositions, hear and determine many cases involving hibah and some of the cases are not clear cut issues that can be
disposed of easily. From the reading of
a number of related law reports, the courts often apply ijtihad through the contextual application of Islamic legal rules
in the contemporary Malaysian society.
Though
cases of hartasepencarian (jointly
acquired property) is beyond the scope of this study, such cases also
constitute the bulk of the hibahcases
going before the Sharī'ah Courts, especially in cases where the either of the
spouse had promised to (or practically)transferred the matrimonial home or any other
jointly acquire property to the other.
In cases where there is no proper legal documentation to support such symbolic
transfer of property, problems often arise in the event of a divorce. Apart
from gifts made inter vivos, another
dimension to the nature of such disputes is gifts made inter vivos by a testator who either intends the donee to
immediately take the ownership of the property involved or delay the transfer
until his or her demise. It is not
uncommon for parents to intentionally bestow some gifts to some of their
children to circumvent the Islamic law of inheritance by bridging the ratio 2:1
principle of male and female heirs. In some other cases, a person may decide to
transfer some properties to the son or daughter through hibahwith a view to enjoying a reciprocal care in old age. Given the fact that some people get
disappointed in their wards later in life after initially transferring a large
portion of their properties to them, they might decide to approach the Sharī'ah
Court to revoke such gifts.So, whether revocation of gifts is allowed or not,
depending on the juristic opinion adduced to support one’s position, it
suffices to observe that revocation of gifts is the main cause of hibahcases coming before the Sharī'ah
Court.
On the other hand, wasiyyah cases are testamentary disposition of property, which
ordinarily takes effect after the demise of the testator. When properties are bequeathed to another
person, such disposition of property has its restrictions, as it must comply
with the mandatory one-third limit of Islamic law of inheritance. This is meant to protect the rights of the
legal heirs whose rights are generally protected by the operation of law.[18] The
nature of wasiyyahcases comes in
different dimensions. As a testamentary
gift, wasiyyahcases have also
appeared in the law reports. There are
situations where legal heirs challenge the validity of certain bequests made by
their deceased relation. This means the
legal heirs may insist that the bequest should be declared void and of no
effect. It is also possible for legal
heirs to challenge a bequest, which transcends the mandatory one-third limit by
seeking the court to declare such excess null and void and of no effect.[19]
3.2
Nature ofWaqf Cases
Though
not common yet in the Malaysian courts, waqfdisputes
are always very controversial in countries that are proliferated with both
family and general awqaf such as
India. While there are pockets of individual waqfin Malaysia, the government (both at the state and national
levels) seems to be at the forefront to create waqf for the people’s benefit.
However, one major thing that is lacking in the awqaf sector is the survey of existing waqf. Even though JAWHAR has
strived to track the number of awqafin
the states across the country, since there has not been a proper survey of
existing waqfproperties, proper
monitoring and consolidation for sustainable development might not be achieved
as successfully carried out in Singapore.According to Syed Khalid Rashid “[f]or
a sound waqf administration it is
necessary to know the details of every waqf. This is possible only by conducting a survey
of awqaf in the country.”[20]Once a
survey of all awqaf properties in all
the Malaysian states is carried out, the stakeholders will be able to formulate
an appropriate policy for the development of such properties to maximally
benefit from their economic potentials.[21]
Table
1: Selected Waqf Cases Decided by the Courts Between 1994 and 2011
|
Name |
Citation |
Subject matter |
Court |
Judgment |
|
Bakhtiar Adnan v. MohdFawziNahrawi& 6 Ors |
[2006] XXI(I) JH 19 |
Interim Application on Waqf
Land [Land] |
MahkamahTinggiSyariahW.P.Kuala Lumpur |
The Ex-parte Application is Rejected and MAIWP is supposed to be
Present as Respondent. |
|
Ismail Bin Wahab v. Majlis Agama Islam Melaka & 3 Ors |
[2008] 25
(1) JH 123 |
Claim of Waqf Property [Property] |
MahkamahTinggiSyariah Melaka |
Court accepts and allows the Application to alter Waqf Order. |
|
Majlis Agama Islam Dan AdatMelayu Terengganu v. Tis’ata
‘AsharSdn. Bhd. |
[2008] 27
(1) JH 137 |
Claim for Declaration of Waqf
Land [Land] |
MahkamahTinggiSyariahNegeri Terengganu |
Court gives Judgment as agreed by the Parties – Consent Judgment |
|
Tengku Abdul Kadir Bin TengkuChik Dan SeorangLagi v.
Majlis Agama Islam, Kelantan |
[1995] X
(I) JH 34 |
Claim of Special Waqf/Conflict of Jurisdiction [Land] |
MahkamahRayuan Negeri Kelantan |
In 1956, an Originating Motion failed before Kelantan Civil High Court
in which the High Court Judge made his Decision Concerning Waqf. In 1987, the
Appellants brought the matter to Syariah Court. Court held the Syariah Court
does not have jurisdiction to reverse the High Court Judgment made in 1956. |
|
Isa Abdul Rahman Dan Lain-Lain v. Majlis Agama Islam
Pulau Pinang |
[1995] X
(I) JH 222 |
Waqf/Objection on action to
demolish a Mosque that was erected on a piece of Waqf Land (Since 1889) |
MahkamahTinggiPulau Pinang |
Plaintiffs have a valid Locus Standi; Defendant ordered to re-consider
the action to demolish the Mosque. Latest Fatwa From Majlis Fatwa Kebangsaan
should be sought. |
|
G. Rethinsamy v. MajlisUgama Islam, Pulau Pinang &Ors |
[1994] IX
(I) JH 75 |
Waqf/Land Law-National Land Code |
MahkamahTinggiPulau Pinang |
Plaintiff is not a bona fide Purchaser without notice. He is a bare
Trustee for Defendant. |
|
TegasSepakatSdn. Bhd. v. Mohamed Faizal Tan |
[1994] IX
(I) JH 225 |
Waqf |
MahkamahTinggi Johor Bharu |
High Court must follow the decision of Federal Court based on Stare
Decisis. |
Source: Author’s research. Data mined from
JurnalHukum (1994-2011)
However,
most waqfcases highlighted in Table 1
relate to management issues, demolition ofproperty erected on a waqf land, declaration of waqfland, and payment of returns to the
beneficiaries. Lack of proper management
has been the bane of the waqfsector
in India for so many years and this has led to series of amendments of the WaqfAct of India, the latest being the
1995 Act.[22]This is
seen in a string of cases involving waqfin
India. Apart from this, waqfproperties,
particularly land, have been the subject of litigated cases in issues involving
title to the land itself. Ordinarily,
the survey of waqfproperties triggers
numerous disputes involving title to the endowed land. Some of the lands, whichhave become the
subject of litigation,were endowed so many decades or even centuries ago.
4. Case
Studies: The Practical Side of Dispute Management
It
might not practically possible, owing to the time and space limitation of this
study, to re-examine virtually all relevant cases involving waqf, hibah, and wasiyyah already decided by the Sharī'ah Court previously. Hence, this study focuses on selected cases.More
focus is placed on some cases involving hibahand
wasiyyah.
Waqfcases have not been so common in the Sharī'ah Courts to all
intents and purposes for obvious reasons.
In Malaysia, waqfremains an
emerging concept, which is gradually creeping into the mainstream Islamic
finance industry as well as the philanthropic sector of the Malaysian
economy. In spite of the government’s
commitment in developing waqfproperties
and even create new awqaf,
fortunately, the number of litigated cases involving related properties is yet
to be ascertained because most of the awaqf
are presumably created by the government –not private individuals. Unlike countries like Singapore who actively
undertook what is generally called a planned istibdal for the development of awqafproperties,
the Malaysian government at both the state and national levels, created
numerous charitable endowments for the benefit of the masses.[23]
4.1 Managing Hibah and Wasiyyah Cases
A
number of cases have come before the Sharī'ah Court involving hibah- and wasiyyah-related cases. Most of these cases involve family
relations. The nature of the cases,
which naturally involves family ties, makes them more amenable to amicable
settlement. Family ties are highly revered in Islam and Muslims generally avoid
dispositions that will severe such ties.
This itself may form the basis of family dispute resolution,
particularly in cases that do not fall under the general scope of divorce. Managing hibahand
wasiyyahcases appears to be more
sustainable than other forms of disputes. In fact, during the pendency of such
cases before the court, the judge may refer the parties for out-of-court
settlement which should begin with a psychotherapy procedure purposefully meant
to remind the parties of their family ties and the ephemeral nature of
properties and the worldly life in general.
This should go a long way in getting into the heads of the disputants.
While
psychotherapy involves the treatment of a sick person by influencing his or her
mental life[24], it
has a strong nexus with sulh. A
preliminary step in the sulh process is the procedure of influencing the
mental state or frame of mind of the parties and getting them to start
talking. Sometime, this may be a
Herculean task in serious matrimonial disputes but with some pre-settlement
psychotherapeutic procedures, the mental state of the parties might have been
greatly influenced which prepares their minds for fruitful discussions that will
eventually lead to settlement. A spirit
of compromise is instilled in the minds of the parties and when the
conciliation phase of the process commences, they tend to adopt practical
approach to the settlement of the dispute.
In practice, nasihahis a party-centredtherapy which is used to reduce
friction between two disputing parties.
In Islamic law, counselling involves a wide range of psycho-spiritual
processes which are primarily meant to facilitate the resolution of personal
and interpersonal problems or disputes.
As a dispute avoidance-cum- resolution process, nasīhahis both
facilitative and advisory in nature. It
lacks the determinative aura even if such is conducted by a highly-respectable
person in the society. In some cases,
the counsellor may engage in what may be referred to as Shuttle Counselling
which involves facilitative resolution of a dispute by interacting with the
parties separately without the need of bringing them together at a session. Shuttle Counselling may be relevant during
the caucus sessions in mediation.
The Islamic law mechanism for mediation provides for
psycho-spiritual methods in handling disputes.
For this reason, mediators attached to the Sharī‘ah Courts in Malaysia and
Singapore are well-trained in this direction to offer appropriate palliative
services to parties. This seemingly new
dimension has been the kernel of dispute resolution in Islamic law since about
1,400 years ago. But there is ample room
for improvement in the current practice.
It is apposite to examine some related cases. In EshahBt
Abdul Rahman v. Azuhar v. Ismail[25] a person gave a gift to her adopted child and later
wanted to repossess the gift. The court
held that even though hibahgiven by a
parent to a child, can be revoked, the circumstances of this case does not
warrant such revocation of the gift since the gift has been developed and its
nature has changed overtime and the donee is an adopted child.[26]Without the fear of being contradicted, this case
would have been reasonably resolved through amicable settlement where the
parties would arrive at a win-win settlement. The adopted child would have been able to
reach a negotiated settlement with the mother by agreeing to compensate her for
transferring and registering the land in his name. financial compensation will suffice in this
situation, particularly if the plaintiff is really in need of such compensation.
This could have been easily worked out. Though
one may argue that this analysis is easily said than done when the Pandora’s
box is laid bare, it is still better to create an avenue for the parties to
cool of and commence a meaning conversation which may result in a win-win
settlement with the aid of a third party neutral.
4.2 Managing WaqfCases: The Case Study of the Chenderong Concession Case
Throughout
the ages, Muslim communities have resorted to waqf for delivering public goods.
In some cases, Muslim governments have actively created waqf as an alternative means of ensuring
social and economic security of the state.
Though initially, most awqaf
were privately created for certain purposes – religious or family welfare – the
state later embraced this practice to bring public goods to the doors of the
citizens.[27]Rather
than focusing on the historical development of waqfin Malaysia, it is pertinent to examine a recent case which is
still pending in the Terengganu Sharī'ah Court.
In
TengkuZainalAkmalTengkuBesar and
TengkuHidayahTengkuHabib v. Majlis Agama Islam Dan AdatMelayu Terengganu[28]there
is a dispute over a waqf land in
Chenderongbetween the royal family and the State Islamic Religious Council in
Terengganu. The subject matter of the dispute, which is a land measuring 25,000
hectares, was granted to TengkuNikMaimunah and TengkuNgah Omar Abdul Rahim (her
husband) by the former Ruler of Terengganu, Sultan ZainalAbidin III in 1906.
The large expanse of land was later converted into a waqfland, which changed its nature from a private gift granted to
an individual family to a family endowment of the descendants of TengkuNgah
Omar.This award of land is generally called the Chenderong Concession
Endowments. Given the fact that awqaf
properties are statutorily managed by the Terengganu Islamic and Malay Custom
Council (State Religious Council), the descendants of Tengku Omar were unhappy
about the administration of the land as well as the annual payout received by
the 462 beneficiaries.
To
this end, the two claimants, while acting in a representative capacity on
behalf of 460 families who were the beneficiaries, filed an application on 14thDecember
2008 at the Syariah High Court in Terengganu. Since the bone of contention, according to the
applicants, was the unilateral action taken by the State Religious Council to
lease the land in an unfair manner thatmay result in a loss of income, they
were seeking compensation for loss of income resulting from such lease and a
court declaration that all leases in respect of the waqfland are null and void and of no effect since they were
detrimental to the economic interest of the beneficiaries of the land. Finally, for the purpose of joint
administration of the waqfland in a
prudent manner, the applicants also sought that the court compels the State
Religious Council to set up a body that is composed of both the State Religious
Council and the representatives of family members who are the beneficiaries.
From
the available records of proceedings, the court has had the opportunity to hear
the parties and make some interlocutory rulings in about 40 court sessions from
14th December 2008 to 8th January 2012. Owing to the nature of the dispute and the
parties involved, the presiding judge introduced some case management
techniques through the persuasion of parties to consider amicable settlement of
the dispute, which for all intents and purposes is most appropriate for the
nature of the case.Precisely on the 27th July 2009, the court ordered
the parties to proceed to majlis al-sulh
for amicable settlement of the dispute to avoid unnecessary publicity,
particularly on the part of the media, and the overall image of Islam in the
country. Both parties agreed to proceed
for sulh while the case was adjourned
for three months to give them ample time to resolve all the relevant issues in
a more harmonious and private session.
On
the next adjournment date, 4thOctober, 2009, though the applicants preferred
to continue the sulhsession in the
overall interest of the parties as rightly advised by the court, the defendant
objected. Since this initial attempt to mediate the dispute failed for whatever
reason, the case had to proceed for hearing. But the presiding judge again
cautioned the parties not to entertain unnecessary media publicity in respect
of the case. Although the judge made this attempt to advice the parties to
avoid media fuss about the case, any case heard in the open court is no longer
a private dispute settlement session. Such proceedings are subject to public
scrutiny and reportage.
There
was another attempt to resolve the dispute amicably and this was at the
instance of the plaintiffs. The court
immediately agreed and ruled that the parties proceed for sulh for the next three months. While the parties agreed in
principle to explore out-of-court settlement, negotiations were later on the
rocks and the parties had to return to the open court after three months on 11th
September 2011. It is pertinent to note
that there was another interlocutory application brought by SPPTDevelopment
Sdn. Bhd. to be joined as parties to the suit since its interest is likely to
be affected by the decision of the court as a legal entity that has concluded a
number of legal contracts with the defendant in the past 20 years.
The
presiding judge, in his wisdom, knew quite well that cases involving important
personalities, particularly the royal family –an institution highly revered in
Malaysia – should not be brought to the public domain with its attendant media
publicity. Such disputes are better
resolved through private negotiations presided over by third party neutrals in
a mediation session. Cases involving the proper management of awqaf properties are better resolved
through sulh rather than a formal
court declaration. Though one may not be
apprised of what transpired during the sulhsession
but the fact remains that the plaintiffs would have abandoned their initial
application for the declaration that all leases in respect of the Chenderong
Concession to be declared null and void if the State Religious Council have
come forward with a proposal to henceforward constitute a special body composed
of both representatives of the beneficiaries and the Council. Mediation in
Islamic law involves compromise of action, which is a practical demonstration
of give-and-take initiative. It is
hoped the parties will again consider the option of sulh but it is always difficult when the circle keeps expanding,
i.e. when joinder of parties takes place during the pendency of a case.
5. Proposed
Reforms for Sharī'ah court-annexed Dispute Management
In the
drive towards attaining the developed nation status in Year 2020, the Sharī'ah
judiciary may provide necessary guidelines for enhancing the existing Sharī'ah-court
annex dispute resolution mechanism. Some
of the proposed reforms for enhancing the Sharī'ah court-annexed dispute
management process include court referrals at the appellate Sharī'ah Courts, encouraging
the parties to embrace dispute avoidance mechanisms such as proper legal
documentation in hibahand wasiyyahdeeds, andestablishment of waqfdispute tribunals.
5.1 The Need to
Encourage Court Referrals at the Appellate Sharī'ah Courts
The
court must be proactive in this regard to encourage parties on the possibility
of a negotiated settlement rather than engaging in litigious adversarial
fireworks in the court.Before we examine the legality of court referrals at the
appellate courts from the Islamic legal standpoint, it is important to consider
the practice in other jurisdictions which one may consider as being
Sharī'ah-compliant. To this end, Lord Woolf observed that “[w]here there is a
satisfactory alternative to the resolution of disputes in court, use for which
would be an advantage to the litigants, then the courts should encourage the use
of this alternative”[29].
As
a consequence of the recommendations made by Lord Woolf in his final report on Access
to Justice, some landmark amendments were introduced into the Civil
Procedure Rules (CPR) in May 2000.[30] The
CPR provides a wide support for ADR processes through court referrals. “The driving
force behind the reforms was a combination of the lawyers involved in
commercial litigation, a handful of academics, and the courts.”[31] Rule 1.4
provides inter alia:
(1) The court must further the overriding objective by
actively managing cases.
(2) Active case
management includes —
(e) encouraging
the parties to use an alternative dispute resolution procedure if the court
considers that appropriate and facilitating the use of such procedure;
…
(f) helping the
parties to settle the whole or part of the case.[32]
This provision obliges the judge, as part of the case management role,
to encourage
the parties in a dispute to consider the use of an ADR process, and the court
should facilitate the use of such procedure.[33] Rule 26.4 CPR also enables the judge, either
of its own initiative or with the agreement of both parties, to stay
proceedings where they consider the dispute to be better suited to solution by
alternative dispute resolution or other means.
It is therefore the duty of the claimant to inform the court when
settlement is reached.[34] With this, ADR has been inducted into the
courts in England as a procedural rule allowing the court to order parties to
mediation.[35] When the court advises the parties that the
case can be effectively settled through an alternative mechanism and such is
brought to the attention of the parties, if one of the parties still insists
that the case be brought before the court, such a party may be penalized
through a reduction in cost or denial of cost should he win the case.
Accordingly, if a party refuse to take to the court directions regarding ADR as
the best mechanism for the resolution of a case, eventually there may be costs
sanctions when ultimately accessing the costs.[36] It is
important to reiterate the fact that the courts that are required to apply
these mandatory rules include the appellate courts.
The far-reaching
effects of these reforms in the civil justice system were felt in a long line
of cases where the court actually gave effect to the overriding objective of
the rules by making the necessary referrals to ADR options. In Robert Alan Dyson v Leeds City Council[37], the Court of Appeal practically invoked the
provisions of Rule 1.4(2)(e) of the CPR by persuading the parties to adopt
alternative dispute resolution to bring the protracted matter to the much
desired end. Lord Justice Ward read the lead judgment, and in the concurring
judgments of the other two learned justices (Lord Justice Laws and Lord Woolf,
MR), both particular associated themselves with the remarks made by Lord
Justice Ward as to the desirability of resolving the matter through alternative
dispute resolution. It seems this was
the first case where the case management role of the court was actually
implemented following the post-Woolf reforms.
In a similar vein, in R (Cowl) v. Plymouth City Council[38], the
Court of Appeal was again faced with another case where Lord Woolf, reading the
lead judgment, observed that “[w]ithout the need for the vast costs which must
have been incurred in this case already being incurred, the parties should have
been able to come to a sensible conclusion as to how to dispose the issues
which divided them.”[39] He
further added that if the parties could not resolve the issues, they should
have recruited an independent mediator to assist. While dismissing the appeal
from the Queens Bench Division, the Court of Appeal referred the parties to
amicable settlement by scheduling the terms agreed by the parties as prepared
by Buxton LJ which was appended to the judgment of the court.
Similarly,
in Dunnett v Railtrack[40], the Court of Appeal penalized the successful
litigant by refusing to award costs since it refused to mediate when the court
proposed it at an early stage of the proceedings. Lord Justice Brooke, reading
the lead judgment, emphatically observed:
It is to be hoped that any publicity given to this
part of the judgment of the court will draw the attention of lawyers to their
duties to further the overriding objective in the way that is set out in Part 1
of the Rules and to the possibility that, if they turn down out of hand the
chance of alternative dispute resolution when suggested by the court, as
happened on this occasion, they may have to face uncomfortable costs
consequence.[41]
The two other
justices agreed with Lord Brooke’s reasoning and no costs were awarded due to
the failure of the successful litigant to initially agree to mediate as advised
by the court.[42] This is first case in England where the court
has utterly withheld costs from a successful litigant on account of the refusal
to mediate when directed to do so.[43] Other
cases where the court practically expressed its strong support for ADR and
mediation in particular include Hurst v Leeming[44], Cable
& Wireless Plc v IBM United Kingdom Ltd.[45], and Shirayama
Shokusan Co Ltd &OrsvDanovo Ltd (No.1)[46].
The
latest reforms in the civil justice system in England and Wales is the Review
of Civil Litigation Costs –Final Report by the Right HonourableLord Justice Jackson whose terms of reference
include “to review the rules and principles governing the costs of civil
litigation and to make recommendations in order to promote access to justice at
proportionate cost.”[47]
From the Islamic legal perspective, the principle is
in line with the rule in Qur’an: “Verily! Allah commands
that you should render back the trusts to those to whom they are due; and that
when you judge between men, you judge with justice....”[48] So,
the judges are reminded by the Supreme Lawgiver to render back the trusts
reposed in them by the general public by making mandatory court referrals where
applicable even if a case is on appeal.
If such referral is in the best interest of the parties and the public
at large, the principle of Islamic public policy, al-siyāsah al-shar’iyyah,
permits that under the law. This has
been discussed in more detail in section 6.2 of this chapter where instances
were given from the classical period of Islam.
For the sake of emphasis, one may reiterate the fact that the famous
letter written by ‘Umar b. Al-KhaÏÏāb as the Caliph to AbūMūsā al-Ash‘ārÊ
consists of express provisions on the need for judges to effectively manage
cases before them. In the said letter,
judges are advised to avoid rancorous litigation through possible amicable
settlement of the disputes which should be adopted as a pre-trial
procedure.
In fact, during the subsequent period, it has been indicated that ÎulÍofficers were regular features of the court who were actively
engaged in out-of-court settlement[49]. This continued up to the flourishing era of the
Ottoman Empire where available records show that muÎliÍūn (mediators or ØulÍ officers) worked with the Sharī‘ah courts “who often
intervened or were assigned to assist litigants in reconciling and arriving at
mutual settlement. The mediators effectively assisted in resolving a large
number of cases both civil and criminal in nature.”[50] Apart from this, the qāÌÊin administration of Islamic law “is endowed with
multiple roles with a largely inquisitorial justice system, and the roles of
mediator and conciliator are included amongst them.”[51]In addition, provisions for recognition and
enforcement of awards in Islamic law clearly require that for the purpose of
enforcement, an award should be referred to the qāÌÊ.The implication of this is that the qāÌÊ is involved in the process.[52] It is either
the qāÌÊ earlier referred such a case for arbitration or the
disputing parties independently appointed a third party neutral as an
arbitrator to resolve the matter. Therefore, there is no reason why the learned
justices at the Court of Appeal and Supreme Court, who hear and determine
appeals on Islamic personal law matters, will not invoke this inherent
jurisdiction conferred on them by the principles of Islamic law to give effect
to amicable resolution of disputes when the situation demands such.
It is interesting to observe that the reforms
introduced in the United States of America through the enactment of the
Alternative Dispute Resolution Act of 1998 and the 1998 post-Woolf reforms
introduced in the CPR in England and Wales with regard to court referrals to
alternative dispute resolution have been an essential part of the Sharī‘ah
adjudication since about 1,400 years ago.
It is unfortunate that the wave of colonization which penetrated the
legal systems of most Muslim countries across the world affected their legal
systems, and consequently, the jurisdiction of the Sharī‘ah courts in all the
colonies was reduced to Islamic personal law, and the procedural rules, to a
large extent, further drifted away from the Sharī‘ah system to the English law. The principles of English common gradually
replaced the substantive Islamic rules which tamed the practice and procedure
of Islamic law in the country.[53]
From
the foregoing discussion, it is clear that court referral at the appellate
stage is a practice known to both the English law and Islamic law. It is
definitely the best way to reduce backlog of cases at the appellate
courts. It is argued that since the
Islamic personal law panel in the superior courts apply the substantive aspects
of Islamic law, the procedural aspects should also be applied to validate court
referrals to the appropriate dispute resolution mechanisms. The out-of-court settlement does not, in any
way, have effect on the jurisdiction of the superior courts, and this should
not be taken as an erosion of powers of the justices of such courts because
they still have the final say.[54] Once the parties reach a settlement outside
the court, they must submit the terms of settlement to the court for
endorsement and that will be regarded as a res judicata on the
subject-matter of the dispute between the parties. Thus, amicable resolution of disputes through
faster means of dispensation of justice is encouraged by the court. However, there are exceptions to this rule of
court referral. When an appeal touches
on issues that affect public interest and a policy judgement is required, there
cannot be court referral. The appellate
courts have to hear and determine such a case in accordance with Islamic law. But most Islamic personal law issues do not
fall under this exception.
In
a recent survey conducted by the researcher among Sharī'ah Court judges in
Nigeria, all the judges in separate interviews agreed that their original duty
as established under the Sharī‘ah is principally that of case management.
Meanwhile, it is argued that case management includes all forms of effective
dispute resolution. It is not only
limited to court adjudication.[55]
5.2 Ensuring
Dispute Avoidance Through Proper Legal Documentation
In
respect of cases involving hibahand wasiyyah cases, the Sharī'ah Court
should provide standard documents for proper legal documentation to avoid cases
of undocumented gift granted to certain persons. It is always difficult to deny the award of a
gift or a bequeathed property when there is proper legal documentation signed
by witnesses and notarized by a designated Sharī'ah Court officer. This process is more of dispute avoidance
mechanisms as opposed to the often-pronounced dispute resolution. The Sharī'ah Courts, as a matter of practice,
should embrace dispute avoidance mechanisms through such proactive measures to
drastically reduce cases coming before them.
5.3 The
Imperativeness of Waqf Dispute Tribunals
With
the growing interest in waqf, theemerging
incidences of waqfcases going before
the Sharī'ah Court, and the likelihood of the proposed waqfsurvey triggering a plethora of cases involving title to waqflands and other properties, one may
propose the establishment of Waqf Dispute Tribunals. This body should be empowered to hear and
determine waqf-related cases
exclusively. The tribunal should be
composed of judicial officers from the Sharī'ah judiciary and some learned
members of the academia who should sit on ad hoc basis. The tribunal should be required to utilize
all available dispute settlement processes such as sulh and tahkim and its
decisions or awards should be enforceable by the Sharī'ah Court.
Moreover,
it is more practicable to resolve waqf
cases involving so many parties through mediation or arbitration, particularly
when the parties concerned prefer to maintain their privacy to avoid
unnecessary publicity.
6. Conclusion
The
three classes of disputes briefly examined in this study relate to the family
with the exception of waqf, which
sometimes transcends the family net.
Therefore, in order to avoid opening up family issues to public
scrutiny, particularly in high profile cases, parties should be encouraged to
adopt amicable settlement procedures through sulh. Being the
representative of the state in charge of settling disputes, judges should go
the extra mile to encourage litigants to settle out of court. This is part of the original value
proposition of the administration of justice system in Islamic law and it
replicates the practice of maslahah. To this end, one may rightly conclude that
the duties of Sharī'ah court judges is more of dispute management than dispute
resolution since they are required to actively engage in dispute avoidance as
well.
APPENDIX 1
SELECTED
CASES ON HIBAHDECIDED BY THE COURTS
BETWEEN 1994 AND 2011
|
No. |
Name |
Citation |
Subject matter |
Court |
Judgment |
|
1 |
Eshah Abdullah & 5 Ors v. CheAminah
Abdul Razak& 2 Ors |
[2004] XVIII(I) JH 47 |
Appeal/Validity of Hibah [Land] |
MahkamahRayuan Terengganu |
Claim of Hibah is valid and granted to the
Respondent. |
|
2 |
MekSom Ibrahim v. AwangHamatAwang |
[2004]
XVIII(I) JH 107 |
Appeal/ Giving of Hibah [Land] |
MahkamahRayuanSyariahNegeri Kelantan |
Appeal allowed and judgment of Special Qadi
nullified. Re-Trial Ordered. |
|
3 |
PermohonanPengesahanHibahAllahyarham
Ismail SiakKepada Wan Ismariza Bt. Wan Ismail |
[2004]
XVIII(I) JH 163 |
Case/Validity of Hibah [Land] |
MahkamahTinggiSyarianN.Sembilan |
Hibah from the deceased Father to his Daughter is
held to be valid. |
|
4 |
Ibrahim Yusoff v. Eshah Haji Ishak&
4 Ors |
[2006]
XXI(II) JH 158 |
Appeal/Hibah (Alang Hayat) [Land] |
MahkamahRayuanSyariahNegeri Kelantan |
Hibah is valid and in accordance to Sharī‘ah.
There is no sufficient evidence for the revocation of the Hibah. |
|
5 |
Marina BintiMohdArif&Anor v. Mai
BintiJantan |
[2006]
XXI(II) JH 178 |
Application for validity of Hibah [Land] |
MahkamahTinggiSyariahN.Sembilan |
Court accepted the Plaintiffs’ contentions and
treated the Memorandum of Transfer in Land (Form 14A) as Hibah |
|
6 |
Mai BintiJantan v. Marina
BintiMohdArif&Anor |
[2006]
XXI(II) JH 183 |
Appeal against the validity of Hibah Application
[Land] |
MahkamahRayuanSyariahN.Sembilan |
Hibah is valid and granted to the Respondents
based on Memorandum of Transfer In Land (Form 14A) |
|
7 |
Mohd. MokhtarHj. Abdullah v.
FadshilahHj. Abdullah & 4 Ors |
[2005] XX
(I) JH 138 |
Appeal on the application to annul Hibah [Land] |
MahkamahRayuanSyariahNegeri Kelantan |
Hibah is valid and in accordance to Sharī'ah.
There is no such requirement that Hibah must be made justly or in an
equitable manner. Hibah remains valid even though the deceased mother
excluded her son from the Hibah Gift. |
|
8 |
Wan Mahmud Wan Abdul Rahman& 3 Ors
v. AminahHj. Taib& 2 Ors |
[2004]
XVIII (II) JH 331 |
Application for the validity of Hibah [Land] |
MahkamahRayuanSyariahNegeri Kelantan |
Appeal denied and Syariah High Court’s Judgment
confirmed. |
|
9 |
PoolimaheeRajeswary v. MeahHussain |
[2005]
XIX (I) JH 164 |
Hibah [House-Land-Compensation] |
MahkamahTinggiSyariah Wilayah Persekutuan |
A house and the Land on which it is built are
valid Hibah to an adopted Daughter (Plaintiff). In the event of acquisition
of the said property, the compensation belongs exclusively to the Plaintiff. |
|
10 |
Ibrahim Bin Salleh v. Zainudddin Bin
Idris& 5 Ors |
[2008] 25
(1) JH 113 |
Appeal on the validity of Hibah [Land] |
MahkamahRayuanSyariahNegeri Kelantan |
Appeal is denied and Syariah High Court’s
Judgement affirmed. |
|
11 |
PengesahanHibahSiti Noor
AseeraBintiAwang |
[2007]
XXIII (I) JH 119 |
Hibah [Land] |
MahkamahTinggiSyariahNegeri Pahang |
The Hibah of Land is valid and in accordance to
Sharī'ah. The rest of the deceased’s property must be divided based on
Fara’id. |
|
12 |
Abu Talib @ Musa Bin Muda v. Che Alias
Bin CheMuda |
[2006]
XXII (II) JH 161 |
Application on the validity of Hibah [Land-House] |
MahkamahTinggiSyariahNegeri Terengganu |
Hibah is valid in accordance to Sharī'ah. |
|
13 |
Che Alias Bin CheMuda v. Abdul Talib @
Musa Bin Muda |
[2008] 25
(2) JH 191 |
Appeal on validity of Hibah [Land-House] |
MahkamahRayuanSyariahNegeri Terengganu |
Appeal allowed. |
|
14 |
KamsiahBintiYusof v.
LatifahBintiYusof& 3 Ors |
[2009] 27
(II) JH 225 |
Application on the validity of Hibah [Land-House] |
MahkamahTinggiSyariahN.Sembilan |
The Hibah is valid for certain property, but not
according to the Plaintiff’s claim due to lack of sufficient evidential
proof. |
|
15 |
Saharain Bin Nordin v.
NoraidahBintiNordin |
[2008] 26
(1) JH 73 |
Appeal/ Claim of Hibah [Land-House] |
MahkamahRayuanSyariahNegeri Selangor |
Appeal is allowed and re-trial ordered. |
|
16 |
JariahBintiYahya& 3 Ors v. Nor
HasiahBintiHarun |
[2010] 31
(1) JH 81 |
Validity of Hibah [Moveable & Immovable
Property] |
MahkamahRayuanSyariahN.Sembilan |
Appeal denied and the Syariah High Court Judge’s
Order affirmed. |
|
17 |
ShabnamBtSamsad v. Samsad B Mohd Islam
& 7 Ors |
[2011] 33
(2) JH 249 |
Validity of Hibah [House-Car] |
MahkamahTinggiSyariahNegeri Kedah |
Hibah is valid and in accordance to Islamic law. |
|
18 |
TehBintiNgah v. LimahBinti Ismail &
6 Ors |
[2011] 33
(2) JH 259 |
Application On the validity of Hibah [Land] |
MahkamahTinggiSyariahNegeri Terengganu |
Hibah is valid. |
|
19 |
Tuan BidahBinti Tuan Kundor v. Jusoh Bin
Saman |
[2011] 33
(2) JH 277 |
Dispute concerning gift of Alang Hayat [Movable &
Immovable Property] |
MahkamahTinggiSyariahNegeri Kelantan |
Court allowed the division of property based on
concept of HartaSepencarian |
|
20 |
ZananiBintiMohd Noor v. Awang Bin
Merah&Anor |
[2008] 26
(2) JH 241 |
Appeal on the validity of Hibah [Land] |
MahkamahRayuanSyariahNegeriKelantan |
Appeal allowed and Hibah declared valid according
to Sharī'ah. |
|
21 |
RaihanahBintiMohd Ali v. Kamarudin Bin
Mohd Nor & 3 Ors |
[2008] 26
(2) JH 253 |
Appeal on the validity of Hibah [Land-Family
Insurance] |
MahkamahTinggiSyariahNegeri Terengganu |
Ordered accordingly. |
|
22 |
Ibrahim Bin Haji Abu Bakar v. Mohd. She
Bin Mohd Ali & Abdul Razak Bin Mohamad |
[2003]
XVI (II) JH 189 |
Appeal on the validity of wasiyyah and Hibah
[Land] |
MahkamahRayuanSyariah Pahang |
Appeal denied and the Syariah High Court Judge’s
Order affirmed. |
|
23 |
Alias B. Ismail v. Fatimah Bt.
Awang&Ors |
[1991]
VII (II) JH 47 |
Claim of Alang Hayat [Land] |
MahkamahSyariahTumpat, Kelantan |
Court has no jurisdiction on the subject matter of
the claim since it involves debts and not Hibah |
|
24 |
PengesahanHibahNorizah Bt. Mansor |
[2004]
XVII (I) JH 69 |
Validity of Hibah Property [Land] |
MahkamahTinggiSyariah N. Pulau Pinang |
Price of sale of Land is Hibah and must be given
to the Plaintiff. |
|
25 |
PengesahanHibahFathilah Bt. Sidik |
[2004]
XVII (I) JH 75 |
Validity of Hibah Property [Shares] |
MahkamahTinggiSyariah N. Pulau Pinang |
The shares are Hibah and given to the Plaintiff |
|
26 |
Nik Salma ZaidahBinti Haji Wan Zaid v.
NikHasnahBintiNik Din &Anor |
[2002] XV
(II) JH 143 |
Claim of Hibah/ Alteration of wasiyyah
[House-Land] |
MahkamahRayuanSyariah Kota Bharu |
Appeal allowed. |
|
27 |
SalmiahBintiChe Hat v. Zakaria Bin
Hashim |
[2001]
XIV (II) JH 79 |
Validity of Hibah [Land] |
MahkamahRendahSyariahPulau Pinang |
The Land is Hibahproperty whichfulfills all the
requirements of Hibah under the Sharī'ah. |
|
28 |
Muhammad Bin Awang&Ors v. Awang Bin
Deraman&Ors |
[2001]
XIV (II) JH 165 |
Appeal on the application for annulment of Hibah
[Land] |
MahkamahRayuanSyariah Kota Bharu |
Appeal denied and the Judgment by
MahkamahQadiBesar Kelantan affirmed. |
|
29 |
Harun Bin Muda&Ors v.
MandakBintiMamat&Ors |
[1999]
XIII (I) JH 63 |
Claim of Hibah [Land] |
MahkamahTinggiSyariah Terengganu |
Hibah is Valid. Ordered Accordingly. |
|
30 |
Awang Bin Abdul Rahman v. Shamsuddin Bin
Awang&Anor |
[1997] XI
(II) JH 193 |
Claim of Hibah [Land] |
MahkamahTinggiSyariah Terengganu |
There is no existence of Hibah. The Claim for
HartaSepencarian is rejected. |
Source: Author’s research. Data mined from
JurnalHukum (1994-2011)
APPENDIX 2
SELECTED
CASES ON WASIYYAHDECIDED BY THE
COURTS BETWEEN 1994 AND 2011
|
No. |
Name |
Citation |
Subject matter |
Court |
Judgment |
|
1 |
Wan Abdullah Wan Muda&Anor v. Wan
PuziahAwang |
[2005]
XIX (II) JH 295 |
Appeal on the validity of wasiyyah |
MahkamahRayuanSyariahNegeri Terengganu |
The wasiyyah is valid and fulfilled all the
requirements and pillars of wasiyyah. The plaintiff is ordered to take oath (nafyuilmi) to uphold the judgment made
by honorable judge on trial. |
|
2 |
RosmahBintiSuly&Anor v. Ismail Bin
Mohamad&Anor |
[2011] 32
(2) JH 249 |
Application on the denial of existence of wasiyyah |
MahkamahTinggiSyariahW.P. Kuala Lumpur |
The property belongs to the 2nddefendant
which is held as amanah (trust) by the 1st defendant. |
|
3 |
RosmahBintiSuly&Anor v. Ismail Bin
Mohamad&Anor |
[2011] 32
(2) JH 223 |
Appeal on denial of existence of wasiyyah |
MahkamahRayuanSyariahW.P. Kuala Lumpur |
Appeal is denied and the Syariah High Court
Judge’s order is sustained. |
|
4 |
Wan PuziahBinti Wan Awang v. Wan
Abdullah Bin Muda&Anor |
[2001]
XIV (II) JH 235 |
Claim of validity of wasiyyah |
MahkamahTinggiSyariah Kuala Terengganu |
Ordered accordingly. |
|
5 |
Ibrahim Bin Hj. Abu Bakar v. MohdSah Bin
Mohd. Ali &Ors |
[2001]
XIV (I) JH 279 |
Application on validity of wasiyyah and hibah |
MahkamahTinggiSyariah Pahang |
Unsubstantiated evidence for the existence of
wasiyyah. The land ordered to be divided based on Fara’id. |
|
6 |
PengarahJabatan Hal Ehwal Agama Islam
Negeri Sembilan v. Faridah Chin &Anor |
[1996] X
(II) JH 195 |
Application to cancel a wasiyyah |
MahkamahTinggiSyariahNegeri Sembilan |
The deceased person made a wasiyyah for his body
to be cremated. The wasiyyah is invalid and he was ordered to be buried as a
Muslim. |
Source: Author’s research. Data mined from
JurnalHukum (1994-2011)
§I would like to acknowledge the
useful comments of Prof. Dr. Syed Khalid Rashid, Assoc. Prof. Dr. Nora Abdul
Hak and my research assistant, Nor RazinahBintiMumtaz for her valuable
assistance in mining the relevant data from JurnalHukum.This paper draws
significantly from the unpublished doctoral dissertation of the author. See Umar A. Oseni, “The Legal Framework of
Alternative Dispute Resolution in Courts with Sharī'ah Jurisdiction in Nigeria,
Malaysia and Singapore”, PhD Thesis: International Islamic University Malaysia,
2011.
*LL.B. Common Law & Sharī'ah (Nig.); B.L. (NLS); MCL (IIUM);
Ph.D. (IIUM); Former Visiting Fellow, Islamic Legal Studies Program of the
Harvard Law School; Currently, Assistant Professor, Ahmad Ibrahim Kulliyyah of
Laws, International Islamic University Malaysia. The author can be reached at umaroseni@iium.edu.my / umaroseni@gmail.com
[1]Lord Woolf MR, Access to Justice: Interim Report to the Lord
Chancellor on the Civil Justice System in
England
and Wales (HMSO) (1995), p. 1.
[2] “The
Government is committed to ensuring that every rakyat who is accused in a court
receives a fair trial in accordance with their rights guaranteed by the
Constitution. The Government has provided a launching grant of RM14 million to
National Legal Aid Foundation for those who cannot afford legal representation.
For 2013, an additional allocation of RM20 million is provided.” See “The 2013
Budget Speech – Prospering The Nation, Enhancing Well-Being Of The Rakyat: A
Promise Fulfilled”, at http://1malaysia.com.my/speeches/the-2013-budget-speech-prospering-the-nation-enhancing-well-being-of-the-rakyat-a-promise-fulfilled/”
[3]Robert F. Peckham, “A Judicial Response to the
Cost of Litigation: Case Management, Two-Stage Discovery Planning and
Alternative Dispute Resolution”, 37Rutgers L. Rev. (1984-1985): 253.
[4] Muslims in the West have repeatedly called
for the introduction of Sharī‘ah ADR processes within their local communities
for their members. Many have taken giant steps to introduce Muslim Arbitration
Panels in London and Canada. While the
Muslim Arbitration Tribunal was established in London, the Islamic Institute
for Civil Justice (IICJ) established Sharī‘ah Arbitration in Canada. These
initiatives are not free from legal and regulatory challenges. For instance, the Sharī‘ah Arbitration
introduced by the IICJ in Ontario was defeated by legislative amendments to the
enforceability of awards emanating from such arbitral institutions. The
amendments to the Arbitration Act render all arbitral proceedings that are not
based on the Ontario law unenforceable in a court of law. See Ori Aronson, “Out of Many: Military
Commissions, Religious Tribunals, and the Democratic Virtues of Court
Specialization”, 51 Va. J. Int'l L. (Winter 2011), 231, 240- 242; Michael
C. Grossman, “Is This Arbitration?: Religious Tribunals, Judicial Review, and
Due Process”, 107 Colum. L. Rev. (2007), 169; Dieter Grimm, “Religion
and Constitutional Adjudication: Conflicts Between General Laws and Religious
Norms”, 30 Cardozo L. Rev. (2009), 2369, 2377, 2381; Donald Brown, “A
Destruction of Muslim Identity: Ontario’s Decision to Stop Shari'a-Based
Arbitration”, 32 N.C.J. Int'l L.
& Com. Reg.(2007), 495;JehanAslam, “Judicial Oversight of
Islamic Family Law Arbitration in Ontario: Ensuring Meaningful Consent and
Promoting Multicultural Citizenship”, 38 N.Y.U.J. Int'l
L. & Pol. (2006), 841; Trevor C. W. Farrow, “Re-Framing the
Sharia Arbitration Debate”, 15 Const, Forum
Constitutionnel,(2006), 79; Caryn Litt Wolfe, “Faith-Based Arbitration:
Friend or Foe? An Evaluation of Religious Arbitration Systems and Their
Interaction with Secular Courts”, 75 Fordham L. Rev. (2006), 427, 441.
Despite the non-recognition of the arbitral awards of the Sharī‘ah arbitration,
one soothing aspect of the whole issue is the willingness of many Muslims to
accept the decision of the panel.
Similar challenges have been experienced in Nigeria despite the fact
that it has a large Muslim population.
[5]See generally, Ahmad
ibn ‘Umar Al-KhaÎÎÉf, Adab al-QÉÌÊ (Commentary by ‘Umar b. ‘Abd al-AzÊz). Edited by
FarhatZiyadeh. Cairo: American University in Cairo, 1978.
[6]See generally, Syed
Khalid Rashid, “Alternative Dispute Resolution in the Context of Islamic Law”,
The Vindobona Journal of International Commercial Law and Arbitration
(2004) 8 VJ (1) 95-118.
[7]IbnQayyim Al-Jawziy, I’lamal-Muwaqi’in
‘an rabi al-‘alamin, Cairo: Dar al-Hadith, 2002,
vol. 1.For
the reforms made by Caliph ‘Umar during his reign see generally Shadi Hamid, "An Islamic Alternative? Equality,
Redistributive Justice, and the Welfare State in the Caliphate of Umar", Renaissance:
Monthly Islamic Journal (August 2003) 13 (8). Also see ShibliNu‘mani,
‘Umar the Great: the Second Caliph of Islam.Trans. Muhammad Saleem.
Lahore, Pakistan: Ashraf Press, 1957; M. Chapra ‘Umar, The Islamic
Welfare State and its Role in the Economy. Leicester, U.K: The Islamic
Foundation, 1979;Ahmad Ibn Jabir Al-Biladhuri, KitabFutuhu’l-Buldan,
trans. Philip KhuriHitti. New York: AMS Press, 1969; Jalal ad-Din al-Suyuti, The
History of the Khalifahs who took the right way, being a portion of
as-Suyuti’starikh al-Khulafah, translated by: A. Clarke, TaHa
Publishers, London, 1995; GhalibA.K. Al-Qarashi, Awliyat al-Farooq fi
al-Idarawal-Qada (Firsts of the Faruq in Administration and Judicial
affairs), being a Ph.D. thesis, Muasast al-Kutub al-Thaqafiyah, Beirut, 1990;
D. S. Margolith, “Omar’s Instuctions to the Qadi”, Journal of Royal Asiatic
Society, (1910), 307 at 311-312; A.A.A. Fyzee, A Modern Approach to
Islam, Lahore: Universal Books, 1978, at 41-46.
[8] Abdul
KarÊmZaidÉn, NiÐÉm al-QaÌÉ fi al-Sharī‘ah
al-IslÉmiyyah, 3rdedn.
Beirut: Mu’asasat al-RisÉlah,
2007/1427, at 63. An aspect of this
letter which deals with mediation as part of the case management apparatus of
the court is the text of the hadith narrated by Amr bin Auf who narrated that
the Prophet Muhammad (S.A.W.) said: “Conciliation is permissible among Muslims
except the one which makes permissible what has been forbidden or forbids what
has beenpermitted.” This hadith was
related by al-Tirmidhi, Abu Dawud, Ahmad and IbnMajah.
[9]×asanMūsā
al-×ājMūsā, Al-QaÌā’ al-Shar‘Ê al-SunnÊTanzÊmihiwaIkhtiÎāÎātihi: DirāsahMuqāranah, Beirut: Manshūrāt
al-×alabÊ al-×uqūqiyah,
2008, at 27.
[10]Ahmad Ibrahim and
Mahmud SaedonAwang, “Judges and Lawyers under the Shariah”, in Proceedings
of the Conference on Islam and Justice, organised by InstitutKefahaman
Islam Malaysia (IKIM) (Institute of Islamic Understanding Malaysia), held from
3rd – 4th June 1993, Paper 9, at 9.
[11] This is based on the often-quoted verse of
the Qur’an which provides: “Amicable settlement is the best”. (Qur’an, al-Nisā’:
128).
[12]Ronald C. Jennings, “Kadi, Court, and Legal Procedure in
Seventeenth-century Ottoman Kayseri”, 48 StudiaIslamica (1978), 133.
[13]Abdul Aziz Said and Nathan C. Funk, “The Role of Faith
in Cross-Cultural Conflict Resolution” (presented at the European Parliament
for the European Centre for Common Ground, September 2001), 1.
[14]Article 74, Federal Constitution and
section 1, Second List, Ninth Schedule to the Federal Constitution. Section 1
of the Second List in the Ninth Schedule provides in relation to the exclusive
powers of State Legislature: “Except
with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law
and personal and family law of persons professing the religion of Islam,
including the Islamic law relating to succession, testate and intestate,
betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy
guardianship, gifts, partitions and non-charitable trusts; Wakafs and the
definition and regulation of charitable and religious endowments, institutions,
trusts, charities and charitable institutions operating wholly within the
State; Malay customs. Zakat, Fitrah and Baitulmal or similar Islamic religious
revenue, mosques or any Islamic public places of worship, creation and
punishment of offences by persons professing the religion of Islam against
precepts of that religion, except in regard to matters included in the Federal
List; the constitution, organisation and procedure of Syariah courts, which
shall have jurisdiction only over person professing the religion of Islam and
in respect only of any of the matters included in this paragraph, but shall not
have jurisdiction in respect of offences except in so far as conferred by
federal law, the control of propagating doctrines and beliefs among persons
professing the religion of Islam; the determination of matters of Islamic law
and doctrine Malay custom.”
Also see the Malaysian Supreme Court decision in Mamat bin Daud
v. Government of Malaysia [1988]
1 MLJ 119 (SC) where the apex court held in its majority
decision that only the State Legislature will have the exclusive powers to
enact laws on Islamic matters. Also, see
Mohamed Ismail bin Mohamed Shariff, “The Legislative Jurisdiction of the
Federal Parliament in Matters Involving Islamic Law”,[2005] 3 MLJcv.
[15] See FaridSufianShuaib,
“Constitutional Restatement of Parallel Jurisdiction Between Civil Courts and
Syariah Courts in Malaysia: Twenty Years On (1988-2008)”, [2008] 5 MLJ xxxiii;
[2008] 5 MLJA 33.
[16]Ramizah Wan Muhammad,
“Sulh (Mediation) in the Malaysian Syariah Courts”, in Mohammad
NaqibIshan Jan and Ashgar Ali Ali Mohamed (eds.), Mediation in Malaysia: The
Law and Practice, Malaysia: LexisNexis Malaysian SdnBhd, 2010, at 415-428.
[17]See Appendix 1for selected cases on hibahdecided by the courts between 1994
and 2011 reported in JurnalHukum.
[18] See AkmalHidayahHalim, “The Legality of a Living Trust as an
Instrument for Islamic Wealth Management: A Malaysian Perspective”, (2011) 19
IIUMLJ 35-50.
[19]See Appendix 2 for selected cases on
wasiyyahdecided by the courts between
1994 and 2011 reported in JurnalHukum.
[20] Syed Khalid Rashid, Waqf
Management in India: An Overview of the Past, Present and Future Administrative
and Statutory Control on Awqaf, New Delhi: Institute of Objective Studies,
2006, 80.
[21]Hajah Mustafa MohdHanefah, et al,
“Financing the Development of Waqf Property: The Experience of Malaysia and
Singapore”, in Syed Khalid Rashid &Arif Hassan (eds.), Waqf: Laws & Management with Special Reference to Malaysia, New
Delhi: Institute of Objective Studies, 2012,299-313.
[22]Act No. 43 of 1995 of India. See Syed Khalid Rashid, “Awqaf Legislation in South Asia: A
Comparative Study”, in Syed Khalid Rashid (ed.), Awqaf Experiences in South Asia, New Delhi: Institute of Objective
Studies, 2002, 70.
[23]For the case study of the
development and management of awqaf
properties in Singapore, see ShamsiahBte Abdul Karim, “Contemporary Shari’a
Compliance Structuring for the Development and Management of Waqf Assets in
Singapore”, Kyoto Bulletin of Islamic
Area Studies, 3-2 (March 2010), pp. 143–164.
[24] Hugo Munsterberg, Psychotherapy,
Montana, USA: Kessinger Publishing, 2010, at1.
[25][1997] 2 JH 219.
[26]Zulkifly bin Muda, “Flexibility of the Application of Various
Islamic Schools of Thought in Some Issues Relating to Hibah: Study on Provisions in Malaysian Law and Other Countries”, JurnalFiqh:
No. 3 (2006),
96-97.
[27]TimurKuran, “The Provision of Public Goods under Islamic Law:
Origins, Impact, and Limitations of the
Waqf System”, Law & Society Review, Vol. 35, No. 4 (2001), pp. 841-898.
[28]Summons No: 11200-099-0400-2008 (Property Claim Relating to Waqf).Syariah
High Court, Kuala Terengganu. The record of proceedings between 2008 and 2012
of this case is available at the court’s portal at http://syariah.terengganu.gov.my/doc/harta%20wakaf.doc
(accessed on 31st October 2012).
[29]Id., at
Recommendation No. 302.
[30]Civil Procedure
(Amendment)Rules 2000 (SI 221 of 2000). It should be observed that the Civil
Procedure Rules are the rules of civil procedure used by the Court of Appeal,
High Court of Justice, and County Courts in civil cases in the whole of England
and Wales. The new rules came into force
on 26 April 1999. The Rules were
actually made in 1998. So, reference to the rules may sometimes read “Civil
Procedure Rules 1998 (L17 No. 3132 of 1998). Some amendments were incorporated
into it in 2000.
[31]LoukasMistelis, “ADR
in England and Wales: a successful case of public private partnership’, ADR
Bulletin, Vol. 6, No. 3 [2003], Art. 6, at 1.
[32]Rule 1.4(1) and (2)
(e) - (f) CPR.
[33] See MiryanaNesic,
“Mediation –On the rise in the United Kingdom?”,Bond Law Review, (2001),
vol. 13, No. 2, 20 available at
http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1214&context=blr
[34] See Rule 26.4 (1)-(4) CPR.
[35] See generally, District Judge Trent “ADR and
the new Civil Procedure Rules”. New Law Journal (March 19, 1999) 410.
[36]Rule 44.5(3) CPR.
[37]C.A 22.11.99.
15; [1999] ADR.L.R. 11/22.
[38][2001] EWCACiv 1935;
[2002] 1 WLR 803.
[39]Id., at para. 25.
[40][2002] EWCACiv 302;
[2002] 2 All ER 850; [2002] 1 WLR 2434.
[41]Id., para 15.
[42] For an
instance where the Court of Appeal dismissed an appeal of an unsuccessful party
who claimed the successful party in the lower court refused to mediate when the
court rightly directed them to do so, and therefore, no costs should be awarded
to such a party, see Halsey v Milton Keynes General NHS Trust; Steel v Joy
and another[2004] EWCACiv 576, [2004] 4 All ER 920, [2004] 1 WLR
3002, 81 BMLR 108.
[43]MiryanaNesic, n. 97.
[44] [2001] EWHC 1051 (Ch), [2003] 1 Lloyd's Rep
379.
[45][2003] EWHC 316
(Comm.).
[46][2003] EWHC 3306
(Ch).
[47]Review of Civil Litigation Costs: Final Report by the Right Honourable Lord Justice Jackson, Norwich: TSO with the permission of the
Ministry of Justice on behalf of the Controller of Her Majesty’s Stationery
Office, 2010, atxvi.
[48] Qur’an, al-Nisā’:
58.
[49]Jennings, n. 7 at 133.
[50] Aida Othman, “And Sulh is Best:
Amicable Settlement and Dispute Resolution in Islamic Law”, Ph.D. Thesis:
Harvard University, 2005, at 2-3. For this point, Aida Othman cited a number of
studies on Ottoman court records and these include: R. C. Jennings, “Kadi,
court and Legal procedure in 17th Century Kayseri,” StudiaIslamicaxlviii
(1978), at 133-172; R. C. Jennings, “Limitations of the Judicial Powers of the Kadi
in 17th Century Ottoman Kayseri,”,StudiaIslamica, 50 (1979),
at 157; Haim Gerber, “Sharia, Kanun and Custom in the Ottoman Law: The Court
Records of 17th Century Bursa”, International Journal of Turkish
Studies, 2 (1981), pp.131-147 at
133.
[51] Aida Othman, n. 114 at 7.
[52] See Al-KhaÎÎÉf, Ahmad b. ‘Umar, Adab
al-QÉdÊ. Commentary by ‘Umar b. ‘Abdul-Aziz, edited by Abu al-Wafā’
al-Afghānī and AbūBakr Muhammad
al-Hāshimī,Beirut,
Lebanon: Dār al-Kutub al-‘Ilmiyyah, 1414/1994, at 481-486.
[53] For a detailed account of how the English
Common law was superimposed on the existing Sharī‘ah legal system, particularly
the aspect of the Sharī‘ah adjudication in Nigeria, see Auwalu H. Yadudu,
“Colonialism and the Transformation of Islamic Law”, Journal of Legal
Pluralism, (1992), nr. 32:103-139.
[54] The powers of court cannot be ousted in any
situation whatsoever. This was the
position in Scott v. Avery [1856] 5 HLC 811 (HL), where it was held that
any agreement that entirely ousts the jurisdiction of the court on any issue is
contrary to public policy and therefore void.
[55]Umar A. Oseni “The Legal Framework
of Alternative Dispute Resolution in Courts with Sharī'ah Jurisdiction in
Nigeria, Malaysia and Singapore”, PhD Thesis: International Islamic University
Malaysia, 2011.
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