BER: SR [2017] SLRAU 45

Selangor Syariah Court of Appeal (Shah Alam)

Appeal to Set Aside an Inheritance (Faraid) Order

Facts of the case

1.    The Appellant is the Applicant in a cause of action at the Syariah High Court of Selangor under Application No. 10XXX-XXX-XXXX-XXXX for a Faraid application. The case was concluded on 27 September 2012, and the Syariah High Court of Shah Alam, Selangor issued the Faraid order on 16 November 2015 allocating 16/24 of the estate of the deceased to SR and 8/24 to Baitul Mal. The Faraid order was made in accordance with the Shafi’i school of thought.

2.    Dissatisfied with the Faraid order, The Appellant filed a Notice of Appeal to the Syariah Court of Appeal on the ground that, among others, she followed the Hanafi school of thought.

1.    Whether the Learned Judge of the Syariah High Court erred in fact and law by applying the Shafi’i school of thought in conducting the investigation and delivering the judgment.

Whether the Learned Judge of the Syariah High Court erred in fact and law by applying the Shafi’i school of thought in conducting the investigation and delivering the judgment?

(a) The Court held that the issue of the deceased or the heirs of the deceased following the Hanafi school of thought only arose when the Appellant filed the Notice of Appeal on 16 November 2015, expressing dissatisfaction with the Faraid order issued by the Syariah High Court.

(b) In the Appellant’s Notice of Appeal, the Appellant stated that she was dissatisfied with the Faraid order because she followed the Hanafi school of thought.

(c)  The Court in this case explained the meaning of Hukum Syarak as provided under section 2 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 [Enactment 1 of 2003] are as follows:

““Hukum Syarak” means Hukum Syarak according to Mazhab Shafie or any one of Mazhab Maliki, Hanafi or Hanbali; “

(d) As the statute has provided an interpretation of Hukum Syarak, the Court is bound by the interpretation given by the statute. This is because subsections 2(2) and 2(3) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 [Enactment 1 of 2003] stipulated as follows:

“(2) All words and expressions in this Enactment and not defined in this Enactment but defined in Part I of the Interpretation Acts 1948 and 1967 [Act 388] shall have the meanings assigned to them respectively in that Part to the extend that such meanings do no conflict with Hukum Syarak.

(3) For the avoidance of doubt as to the identity or interpretation of the words and expressions used in this Enactment that are listed in the First Schedule, reference may be made to the Arabic script for those words and expressions as shown against them in the Schedule”.

(e)  The Court held that, in accordance with section 2 of the Enactment, which defines “Hukum Syarak” as Islamic law according to the Shafi’i school or any of the Hanafi, Maliki, or Hanbali schools, with the Shafi’i school being listed first among the other three, the legal opinion based on the Shafi’i school should take precedence and be applied broadly by the Court, except in cases where specific circumstances necessitate the application of a different school of thought.

(f)   The Court further held that it is evident from the provisions of subsection 2(2) of Enactment 1 of 2003 and other provisions within the various enactments that the Shafi’i school of thought is prioritized in matters of Islamic law over the other schools of thought. The only exception to this general preference for the Shafi’i school of thought is when public interest warrants the adoption of a different school, as stated in section 54 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 [Enactment 1 of 2003], as follows:

“ Qaul muktamad to be followed

54. (1) In issuing any Fatwa under section 48, or certifying an opinion under section 53, the Fatwa Committee shall ordinarily follow qaul muktamad (the accepted views) of the Mazhab Syafie.

(2) If the Fatwa Committee is of the opinion that following the qaul muktamad of the Mazhab Syafie will lead to a situation which is repugnant to public interest, the Fatwa Committee may follow the qaul muktamad of the Mazhab Hanafi, Maliki or Hanbali.

(3) If the Fatwa Committee is of the opinion that none of the qaul muktamad of the four Mazhabs may be followed without leading to a situation which is repugnant to public interest, the Fatwa Committee may make the Fatwa according to ijtihad without being bound by the qaul muktamad of any of the four Mazhabs.

(g) What is clear from the legal provisions that establish the Shafi’i school of thought as the priority in matters of Islamic law is to protect the public from exposure to confusion arising from the various schools of thought. Given the deep-rooted presence of the Shafi’i school of thought in their daily lives, it is certain that confusion would arise if other schools of thought were to be widely introduced to the public.

(h)  Therefore, the Court held that since the Learned Judge of the Syariah High Court was unaware of the Appellant’s school of thought during the trial/investigation proceedings, as the Appellant failed to demonstrate that she followed a school of thought other than the Shafi’i school of thought, the Judge’s decision to proceed with the trial/investigation to determine the rightful heirs according to the Shafi’i school of thought, and subsequently making the Faraid distribution based on the same school, was correct in accordance with the law and Hukum Syarak

(i)    Therefore, the determination of the heirs and their respective shares in case No: 10XXX-XXX-XXXX-XXXX, as decided by the Learned Judge of the Syariah High Court of Shah Alam, Selangor, was correct based on the evidence presented by the Applicant and their witnesses during the trial/investigation conducted by the Learned Judge of the Syariah High Court.

2.    The Faraid order of the Syariah High Court of Selangor, case No: 10XXX-XXX-XXXX-2XXX, is maintained.

1.    The ruling in BER: SR [2017] SLRAU 45 underscores the statutory definition of Hukum Syarak under the Enactment 1 of 2003, which explicitly prioritizes the Shafi’i school of thought in the administration of Islamic law in Selangor. This prioritization establishes a clear legal framework within which Syariah courts must operate, ensuring uniformity in the application of Islamic legal principles across the jurisdiction, except in cases where public interest warrants an alternative school of thought.