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Islamic Banking In Malaysia: Cases & Commentaries is out now. Order yours today. Contact priority@cljlaw.asia for info.

 

CASES HIGHLIGHTS

INDIRA GANDHI MUTHO v. PENGARAH JABATAN AGAMA ISLAM PERAK & ORS AND OTHER APPEALS
FEDERAL COURT, PUTRAJAYA
ZULKEFLI AHMAD MAKINUDIN PCA; RICHARD MALANJUM CJ (SABAH AND SARAWAK); ZAINUN ALI FCJ; ABU SAMAH NORDIN FCJ; RAMLY ALI FCJ
[CIVIL APPEALS NO: 01(f)-17-06-2016 (A), 01(f)-18-06-2016 (A) & 01(f)-19-06-2016 (A)]
29 JANUARY 2018

ADMINISTRATIVE LAW: Judicial review - Legality of decisions of public authorities - Reviewing approach - Conversion to Islam - Conversion of non-Muslim children to Islam - Legality and constitutionality of administrative action taken by Registrar of Muallafs in exercise of statutory powers - Whether High Court had exclusive jurisdiction to exercise supervisory powers - Whether Syariah courts conferred with power to review administrative decisions of authorities - Whether judicial power could be removed from civil courts - Whether jurisdiction of Syariah court must be expressly conferred by state legislation - Whether relief sought in nature of inherent powers of civil court - Whether Syariah court has no jurisdiction over non-Muslims and non-Muslims had no locus before Syariah court - Whether effect of art. 121(1A) of Federal Constitution to oust jurisdiction of civil courts when subject matter relates to Islamic religion - Whether High Court seised with jurisdiction, to exclusion of Syariah court, to hear matter - Courts of Judicature Act 1964, ss. 23, 24 & 25 - Rules of Court 2012, O. 53

CONSTITUTIONAL LAW: Courts - Civil and Syariah courts - Whether distinct in nature and status - Civil court - Whether established under the Federal Constitution and vested with inherent judicial powers - Syariah court - Whether creatures of state legislation - Whether akin to inferior tribunal - Interpretation of art.121(1A) of Federal Constitution - Whether not to be interpreted in isolation - Whether granting exclusive jurisdiction to Syariah court in all matters of Islamic law

JURISDICTION: Syariah court - Conversion to Islam - Conversion of non-Muslim children to Islam - Certificate of conversion - Issues on conversion - Validity - Whether within jurisdiction of Syariah court - Whether within realm of constitutional and administrative law - Whether should jurisdictionally be triable before civil court - Administration of Religion of Islam (Perak) Enactment 2004, s. 50(3)(b) - Proper interpretation - Whether conferring jurisdiction to Syariah Court to determine validity of a person's conversion to Islam - Federal Constitution, arts. 8(2), 12(4)

ISLAMIC LAW: Conversion to Islam - Conversion of non-Muslim children to Islam - Certificate of conversion - Certificate issued by Registrar of Muallafs - Whether valid - Whether ss. 96 & 106 of Administration of the Religion of Islam (Perak) Enactment 2004 has effect of excluding High Court's power to review issuance of certificate of conversion by Registrar of Muallafs - Requirements in ss. 96 & 106 - Whether cumulative - Language of s. 101(2) - Whether purporting to oust judicial review - Whether precluded High Court from reviewing Registrar of Muallafs' decision

ISLAMIC LAW: Registrar of Muallafs - Statutory power - Conversion to Islam - Issuance of certificate of conversion - Exercise of powers thereof - Legal limits to exercise of legal powers thereof - Validity of Certificate of Conversion - Whether ss. 96 & 106 of Administration of the Religion of Islam (Perak) Enactment 2004 has effect of excluding High Court's power to review issuance of certificate of conversion by Registrar of Muallafs - Requirements in ss. 96 & 106 - Whether cumulative - Language of s. 101(2) - Whether purporting to oust judicial review - Whether precluded High Court from reviewing Registrar of Muallafs' decision

FAMILY LAW: Children - Conversion - Conversion of non-Muslim children to Islam - Whether consent of both parents must be sought - Whether both parents ought to have equal rights in upbringing of children - Whether conversion of one spouse to Islam altered antecedent legal position - Consideration of welfare of child - Equality of parental right - Whether certificate of conversion issued without consent of one parent contravened art. 12(4) of Federal Constitution and Guardianship of Infants Act 1961, ss. 5 & 11

A CHILD & ORS v. JABATAN PENDAFTARAN NEGARA & ORS
COURT OF APPEAL, PUTRAJAYA
TENGKU MAIMUN TUAN MAT JCA, ABDUL RAHMAN SEBLI JCA, ZALEHA YUSOF JCA
[CIVIL APPEAL NO: W-01(A)-365-09-2016]
25 JULY 2017

ADMINISTRATIVE LAW: Exercise of administrative powers - Judicial review - Application for - Whether Director General of National Registration has power under Births and Deaths Registration Act 1957 ('BDRA') to ascribe patronymic surname 'bin Abdullah' to illegitimate Muslim child - Entry of illegitimate child's surname in register pursuant to s. 13 of BDRA - Father applied to use his name as child's surname - Whether requirements under s. 13A(2) of BDRA fulfilled - Whether entry of surname 'Abdullah' in child's birth certificate a clear error of fact and substance within meaning of s. 27(3) of BDRA - Whether a requirement of law that birth certificate of illegitimate child must be endorsed with s. 13 information - Whether Director General's decision to make impugned entries in child's birth certificate unauthorised by law - Whether Director General acted outside scope of power and in excess of his jurisdiction

ADMINISTRATIVE LAW: Remedies - Judicial review - Application for - Whether Director General of National Registration has power under Births and Deaths Registration Act 1957 ('BRDA') to ascribe patronymic surname 'bin Abdullah' to illegitimate Muslim child - Muslim child born less than six months from date of parents' marriage - Whether fatwa stating that illegitimate child cannot be surnamed to the father could be used as a source of legal authority for the purpose of determining an illegitimate child's surname under s. 13A(2) of BDRA - Whether fatwa or religious edict issued by religious body has force of law - Whether there was basis to invoke religious element in decision making process - Whether Director General acted outside scope of power and in excess of his jurisdiction

CHILDREN: Illegitimate child - Ascription - Muslim child born less than six months from date of parents' marriage - Entry of illegitimate child's surname in register pursuant to s. 13 of Births and Deaths Registration Act 1957 ('BDRA') - Father applied to use his name as child's surname - Whether requirements under s. 13A(2) of BDRA fulfilled - Director General of National Registration rejected father's application and ascribed patronymic surname 'bin Abdullah' to child - Whether Director General has power to do so - Whether entry of surname 'Abdullah' in child's birth certificate a clear error of fact and substance within meaning of s. 27(3) of BDRA - Whether a requirement of law that birth certificate of illegitimate child must be endorsed with s. 13 information - Whether fatwa stating that illegitimate child cannot be surnamed to the father could be used as a source of legal authority for the purpose of determining an illegitimate child's surname under s. 13A(2) of BDRA - Whether there was basis to invoke religious element in decision making process - Whether father has statutory right to have his name ascribed as child's surname in birth certificate - Whether Director General acted outside scope of power and in excess of his jurisdiction

ARTICLE

SHAYKH SALEH AL-FAWZAN’S FATWA ON ‘ALL-YOU-CAN EAT’ BUFFETS FROM AN ETHICAL PERSPECTIVE*
by: MOHAMMED FARID ALI

Food is one of the basic needs of people, but the question arises: is it the food which people love, or their eating habits they developed through time? The mixed-reaction of people on social media, when Shaykh Saleh al-Fawzan’s fatwa concerning buffet dining came on Al Arabiyah (13 March, 2014)[1] shows that eating habits have become a matter of great sensitivity. Any type of restriction or limitation to one’s eating habit is tantamount to someone infringing on one’s personal choices.

* Published with kind permission of the International Institute of Advanced Islamic Studies (IAIS) Malaysia. Also published in New Straits Times on 20 May-June 2014. (www.iais.org.my). Read Article →

 


  1. SHAYKH SALEH AL-FAWZAN’S FATWA ON ‘ALL-YOU-CAN EAT’ BUFFETS FROM AN ETHICAL PERSPECTIVE* MOHAMMED FARID ALI
  2. RIGHTS OF PARENTS TO MAINTENANCE UNDER SHARIAH LAW IN MALAYSIA MUHAMMAD NOR BIN ABDURRAHIM, AMILIA BINTI SAIDIN, MOHAMED ISHAK ABDUL HAMID
  3. LANDMARK PERLIS FATWA OKAYS NON-MUSLIM CUSTODY
  4. PRACTISING WELL: THE CRUCIAL ROLE OF EMOTIONS* HUGH NORRISS**
  5. EFFECTIVE PRACTICE: MEANWHILE, ON THE INTERNET… RICHARD SUSSKIND
  6. IN-HOUSE: SWINGING DOORS - THE INCREASING ABILITY TO CHANGE FIELDS* RACHAEL BRECKON
  7. PRACTISING WELL HOW OUR MIND SETS CAN AFFECT OUR MENTAL HEALTH* HUGH NORRISS**
  8. DEPUTY GOVERNORS KEYNOTE ADDRESS AT THE LAUNCH OF ISLAMIC FINANCE COUNTRY REPORT FOR MALAYSIA 2015
  9. POTENTIAL FAIR TRADING ACT LIABILITY FOR WEBSITE MATERIAL* JOHN LAND
  10. LISTENING TO THE OTHER SIDE: LAWYERS IN ADR* RACHAEL BRECKON
  11. SEEKING A JUST AND FAIR SHARE FOR ALL SHAHANAAZ HABIB
  12. THE REALISATION OF THE PRINCIPLE OF MAQASID AL-SHARIAH IN ISLAMIC BANKING AND FINANCIAL SYSTEM JASRI JAMAL, HAIZUM HAMDAN
  13. TRANSGENDERS AND JUSTICE IN ISLAM MOHAMMAD HASHIM KAMALI
  14. ISLAMIC FINANCE GOES GLOBAL, BUT MALAYSIA STILL LEADS THE WAY THECONVERSATION.COM
  15. THE ABSENCE OF ISLAM IN ARAB SPRING MOHAMMAD HASHIM KAMALI
  16. ‘ALLAH’ IN THE QUR’AN AND SCHOLASTIC THEOLOGY MOHAMMAD HASHIM KAMALI
  17. ISLAM PROHIBITS ALL FORMS OF CORRUPTION MOHAMMAD HASHIM KAMALI
  18. FOCUS ON SAVING THE LIFE OF THE FOUNDLING ERIC WINKEL
  19. SCHOLAR FEES TARGETED BY REGULATORS: ISLAMIC FINANCE LIAU Y-SING
  20. WHAT MAKES THE MUSLIM LEADER MOHAMMAD HASHIM KAMALI
  21. WINDS OF CHANGE SWEEP THE ARAB WORLD
    A NEW GENERATION FINDS ITS VOICE & AUTHORITARIAN REGIMES CRUMBLE
    KARIM DOUGLAS CROW
  22. SYARIAH STAND ON ABANDONED CHILDREN MOHAMMAD HASHIM KAMALI
  23. ISLAM’S VIEWS ON SORCERY, BLACK MAGIC MOHAMMAD HASHIM KAMALI
  24. WINDS OF CHANGE SWEEP THE ARAB WORLD
    A NEW GENERATION FINDS ITS VOICE & AUTHORITARIAN REGIMES CRUMBLE
    KARIM DOUGLAS CROW
  25. HUMAN DIGNITY IN ISLAM MOHAMMAD HASHIM KAMALI
  26. OF GOD'S MANY NAMES AND THE USE 'ALLAH' MOHAMMAD HASHIM KAMALI
  27. CIVILIAN AND DEMOCRATIC DIMENSIONS OF GOVERNANCE IN ISLAM MOHAMMAD HASHIM KAMALI
  28. ENVIRONMENTAL HEALTH AND WELFARE AS AN IMPORTANT ASPECT OF CIVILIZATIONAL ISLAM OSMAN BAKAR
LEGISLATION UPDATE