Forms of document falsification in Malaysia’s Syariah courts

Documents including old and outdated ones have come to be a vital meeans of proving evidence as long as the features are legible and permanent .This opens the door for document forgery or falsification. This article examined the the forms of document falsification in Malaysia’s Syariah courts as perceived by 181randomly and purposeful sampled syarie judges, syarie officers, syarie lawyers, lecturers and syariah and law students, and forensic experts, Syariah and Civil Practitioners practitioners in Selangor, Negeri Sembilan, and Federal Territory of Kuala Lumpur and Putrajaya. The study found signature forgeries and factual alterations of medical certificates to be the most prevalent forms of document falsification. They were unpredictable and vared with time and opportunity. Such incidence of falsification was perceived as moderate by respondents. Interestingly, the Syariah courts had not given much attention to the document falsification when it is clear that this would impair judgements and decisions. It is time that a complete forensic model on document falsification, in line with principles of Islamic law, should be developed for the Syariah courts to serve as guidelines for Syariah legal practitioners and judges

Al-Qarinah: antara kekuatan dan keperluan dalam mensabitkan kesalahan jenayah (zina)

Justice is the ultimate objective of any judiciary system. The absolute justice is only belongs to Islamic judiciary system. However it is highly dependant on the quality of the implementation methodology that man could produce. In the Islamic judiciary system, especially to convict a zina, there are various methods in establishing evidence. Some of the methods are unanimously accepted while some others are not unanimously accepted. Al-qarinah is among those which are not unanimously accepted by the Islamic jurists. The Islamic law is actually dynamic. The dynamism lies on its flexibility, which is the main characteristic of the law itself. It is because the fiqh law is not isolated from reality, but derived from the analysis on the contemporary environments. The development in science and technology has changed the human civilisation and perception towards life. The development of knowledge in producing evidence scientifically such as DNA test, fingerprint etc. coupled with the more complex criminal behaviour, demand us to take a detailed and in-depth study to determine the status of al-qarinah in the contemporary Islamic judiciary system in order to make sure an Islamic law is relevant and effort to give a justice and positive perception among nation toward Islam

PENGETAHUAN MASYARAKAT ISLAM TERHADAP PERCERAIAN LUAR MAHKAMAH DI DAERAH TAMPIN, NEGERI SEMBILAN

According to the Negeri Sembilan Islamic Family Law Enactment 2003 (EUUKINS), every Muslim divorces that occurred in Negeri Sembilan needs to be registered under that law that had been enforced. In fact, divorce that is happening outside the court is a law offense and punishable on conviction by court. Therefore, this research is carried out to identify factors and sources in the context of knowledge of the civilians affecting the occurrence of outside the court divorce in the circle of Muslims’ Couples in Tampin District. This research is a descriptive survey using a questionnaire as an instrument, with a sample of 100 couples which half of the samples attended the consultation session on the marital problems and registered to divorce in Tampin District Islamic Religious Office (PAIDT). Descriptive analysis was carried out with the involvement of min and standard deviation to determine the level of knowledge. The results showed that the knowledge of the Muslim community in Tampin against the law of outside the court divorce (CLM) at a moderate level (min = 3.33 and sp = 0.55). The results of this research possibly will have implications on knowledge of the Muslim community against the law of outside the court divorce (CLM) and can be a reference material for the religious authorities such as the Department of Islamic Affairs, Department of Syariah Judiciary, and District Islamic Religious Office (PAID). Keywords : Divorce, law, Syariah Judiciary, knowledge of the Muslim community ABSTRAK Menurut Enakmen Undang-undang Keluarga Islam Negeri Sembilan 2003 (EUUKINS), setiap perceraian orang Islam yang berlaku di Negeri Sembilan hendaklah didaftarkan di bawah undang-undang yang telah dikuat kuasakan. Malah, penceraian yang berlaku di luar mahkamah merupakan suatu kesalahan undang-undang yang boleh dikenakan hukuman apabila disabitkan oleh Mahkamah Syariah. Oleh itu, kajian ini dijalankan untuk mengetahui faktor-faktor dan punca-punca dari aspek pengetahuan masyarakat sehingga berlakunya perceraian di luar mahkamah (CLM) dalam kalangan pasangan suami isteri yang beragama Islam di Daerah Tampin. Kajian ini merupakan satu kajian tinjauan berbentuk deskriptif dengan menggunakan soal selidik sebagai instrumen kajian dan sampel kajian adalah seramai 100 pasangan. Pasangan tersebut merupakan sebahagian daripada pasangan yang mengikuti sesi runding cara bagi masalah rumah tangga dan yang mendaftar perceraian di Pejabat Agama Islam Daerah Tampin (PAIDT). Analisis deskriptif dijalankan dengan melibatkan min dan sisihan piawai untuk menentukan tahap pengetahuan masyarakat. Hasil kajian menunjukkan bahawa pengetahuan masyarakat Islam Tampin terhadap undang-undang perceraian di luar mahkamah (CLM) berada pada tahap sederhana sederhana (min = 3.33 dan sp = 0.55). Justeru, diharapkan hasil kajian ini mampu memberi implikasi terhadap pengetahuan yang lebih baik masyarakat Islam terhadap undang-undang perceraian di luar mahkamah (CLM) serta menjadi satu bahan untuk rujukan bagi pihak berkuasa agama seperti Jabatan Hal Ehwal Agama Islam, Jabatan Kehakiman Syariah, dan Pejabat Agama Islam Daerah (PAID). Kata Kunci: Perceraian, undang-undang, Mahkamah Syariah, pengetahuan masyaraka

EQUALITY AND CITIZENSHIP FOR WOMEN IN MALAYSIA: WHERE AND WHEN?

Malaysia has agreed that all men and women are accorded equal right to citizenship under the Federal Constitution. Article 14 (1) (b) and Part II of the Second Schedule of the Federal Constitution provide for citizenship by operation of law for every person born outside Malaysia whose father is at the time of the birth a citizen of Malaysia. However, a Malaysian woman can apply for her child to be registered as a citizen under Article 15(2) of the Federal Constitution. In this regard, the Government has enhanced the implementation of Article 15(2) by way of an interim administrative procedure that was implemented on 1 June 2010 and applies to children born overseas after 1 January 2010 to Malaysian women who are married to foreigners. The core analysis in this article is to examine whether Malaysian laws on women and their children’s rights to citizenship is harmonious with the Women’s Convention. We analyse whether Malaysia has taken all appropriate measures, including laws, policies, administrative decisions and programmes, to eliminate women’s disadvantages based on the principal areas of concern and recommendations of the CEDAW in the concluding comments made against Malaysia following the list of issues and questions in relation to the combined third to fifth periodic reports of Malaysia following the Sixty-Ninth Session in Geneva from 19 February to 9 March 2018 and the application of equality informed by the Women’s Convention.

UNDERSTANDING OF SYARIAH PRACTITIONERS IN MALAYSIA ON DOCUMENT FORGERY

Purpose of the study: This article focuses on a few issues namely the most common form of forgery that occurred especially in Syariah Court Islamic judicial institutions (or better known as Syariah courts) in Malaysia and the extent of respondents’ knowledge on the method used in verifying the authenticity of document that meets the Syariah requirement. Methodology: Research information has been obtained through the quantitative method and from respondents consists of 78 lecturers of Syariah law and 103 practitioners who involve directly in the legislation of Syariah Court in Federal Territories (Putrajaya, Kuala Lumpur and Labuan), Selangor and Negeri Sembilan. Main Findings: The result shows that the forms of forgery are changing in accordance with time and facilities. Based on the respondents’ perception, the most common form of document falsification is a forgery of a medical certificate and the least is a forgery of the grant of ownership (property/transportation). Besides, the knowledge of Syariah law practitioners on fraud in a document is at a moderate level. Applications of this study: This study is significant to understand the issue of fraud in documents and eventually suggests the relevant ways to counter the matters in the future. The ability of Islamic judicial institutions to be adaptive for such challenges is essential to reduce the disorderly pile of cases involving fraud, especially in the Syariah courts. Novelty/Originality of this study: The research found that it is crucial for the Syariah law practitioners to raise and upgrade their ability to deal with fraud cases in the document to increase the public confidence towards the Syariah judiciary

مكانة التوقيع الإلكتروني في قانون الإثبات: دراسة تحليلية : The status of electronic signature in the evidence law : An analytical study

This study aims to discuss one of the effects of modern development in the law of evidence, focusing on the status of electronic signature on the occasion of the recent developments of information technology. This is due to the various approaches to the authentication methods exist in the Evidence Act, which relates to the issue of validity. It also needs experts in the said field to verify its validity. Other issue is the lack of knowledge on the Electronic signature among the Judges in courts. Based on the current problems, this study focuses on three main aspects; the definition of Electronic Signature based on Fiqh and the existing laws that support the definitions of Electronic signature. The second is on the terms and characteristics of the electronic signature and the third is the authenticity of the electronic signature in the evidence. This study is based on the method of analytical study of the texts of laws and projects, comparative study and different opinions, based on references and related scientific sources. From this study, we can conclude that an electronic signature is related to a sign, phrase, or procedure concerning letters, numbers, symbols, signs, sounds, or any combination that appears in an electronic form. We also find that there are certain conditions for electronic signature to make it an admissible argument in evidence in many respects in terms of delivery, storage and others. What is more, the laws of evidence have recognized the authenticity of an electronic signature and while the traditional signature is recognized under certain conditionsThis study aims to discuss one of the effects of modern development in the law of evidence, focusing on the status of electronic signature on the occasion of the recent developments of information technology. This is due to the various approaches to the authentication methods exist in the Evidence Act, which relates to the issue of validity. It also needs experts in the said field to verify its validity. Other issue is the lack of knowledge on the Electronic signature among the Judges in courts. Based on the current problems, this study focuses on three main aspects; the definition of Electronic Signature based on Fiqh and the existing laws that support the definitions of Electronic signature. The second is on the terms and characteristics of the electronic signature and the third is the authenticity of the electronic signature in the evidence. This study is based on the method of analytical study of the texts of laws and projects, comparative study and different opinions, based on references and related scientific sources. From this study, we can conclude that an electronic signature is related to a sign, phrase, or procedure concerning letters, numbers, symbols, signs, sounds, or any combination that appears in an electronic form. We also find that there are certain conditions for electronic signature to make it an admissible argument in evidence in many respects in terms of delivery, storage and others. What is more, the laws of evidence have recognized the authenticity of an electronic signature and while the traditional signature is recognized under certain conditions

A COMPARATIVE STUDY OF THE ILLEGITIMATE CHILD TERM FROM SHARIAH AND MALAYSIA LEGAL PERSPECTIVE

Purpose of the study: This article focuses on the definition of ‘illegitimate children’ in Muslim society in Malaysia based on its perspective of Shariah law, Islamic family law, civil law in Malaysia, and the existing perception of the Muslim society in Malaysia. This study also aims to compare the legal terms of ' illegitimate children' from various perspectives with the layman definition of illegitimate children. Methodology: Research information has been obtained through the documentary data collection based on report and annual data from the Malaysian government, non-government agencies and relevant turath scriptures to obtain the best definition of “illegitimate child”. Once data have been collected, the data have been analysed using a content analysis method through deductive or inductive reasoning. Main Findings: The result shows that the term ‘illegitimate children’ is based on the opinions of the Muslim Scholars which is the child conceived from adultery act without a legal marriage. However, the definition of illegitimate children is broad and varies among the existing authoritative bodies in Malaysia, which include a child conceived from an adultery act, unregistered because of lack of proper documentation for registration. Applications of this study: The results of this study are expected to assist the authorities especially Malaysian Islamic Development Office - Jabatan Kemajuan Islam Malaysia (JAKIM), National Registration Department (JPN), Ministry of Health Malaysia (MOH), Islamic State Department of Malaysia, Shariah Courts in Malaysia and other agencies and NGOs in formulating strategies and taking follow-up actions. In addition, this study will become a reference to individuals, researchers, academicians, students, and the public in Malaysia. Novelty/Originality of this study: The misunderstanding about the definition of an illegitimate child according to JPN, added by the fact that JPN does not have the jurisdiction at all to determine the validity of the child that is supposed to be placed under the Shariah Court, has triggered an ongoing polemic in the Muslim community in Malaysia, concerning this child status issue

Faraq Perkahwinan bagi Pasangan Tak Sah Taraf di Negeri Sembilan

Islam stressed on the importance of a valid marriage. If a marriage does not comply its requirement and conditions according to Shariah, it will raise negative implications not only on the status of the marriage, but also it will effect the status of the child. Hence, the marriage must be separated. Generally, the Muslim scholars define faraq as separation or dissolution of marriage through talaq or otherwise. However, according to Islamic law in Malaysia, faraq is not a dissolution of marriage via talaq, but it is an annulment of marriage due to non-fulfillment of terms and conditions which laid down by Shariah. In context of abiding the conditions and terms to marriage, having a wali is one of the conditions in solemnization of a valid marriage. Marriage which is solemnized by a non-qualified wali such as in cases of illegitimate children will cause the marriage to be separated. Data in this article is obtained from the reported cases tried in the Shariah Courts in Negeri Sembilan. Interviews were conducted with those legal practitioners such as syaria lawyers, religious officers, and judges from Shariah Courts in Negeri Sembilan who deal directly with faraq cases

PEMBUKTIAN MELALUI TELEVISYEN/ KAMERA LITAR TERTUTUP (CCTV) DALAM KES-KES JENAYAH: TINJAUAN UMUM BERDASARKAN UNDANG-UNDANG KETERANGAN ISLAM

Televisyen/ Kamera Litar Tertutup (Closed-Circuit Television) atau singkatannya CCTV diklasifikasikan sebagai dokumen elektronik. Sebarang rakaman elektronik, berdasarkan  tafsiran dalam Seksyen 3, Akta Keterangan Mahkamah Syariah (Wilayah-Wilayah Persekutuan) 1997 adalah termasuk dalam kategori dokumen dan diguna pakai sebagai salah satu kaedah pembuktian  termasuk dalam kes-kes jenayah. Pada 12 Julai 2017, satu pindaan telah diluluskan oleh Dewan Undangan Negeri Kelantan terhadap Enakmen Tatacara Jenayah Syariah 2002 (Pindaan 2017) yang memperuntukkan pegawai Penguat kuasa Agama Islam Negeri Kelantan untuk menggunakan gari terhadap suspek dan membenarkan video digunakan sebagai bahan bukti dalam perbicaraan bagi kes-kes jenayah termasuk zina, qazaf dan seumpamanya. Kertas kerja ini akan membincangkan pembuktian melalui CCTV dalam kes-kes jenayah Hudud, Qisas dan Takzir berdasarkan undang-undang Keterangan Islam. Perbincangan juga akan melihat sejauh manakah CCTV ini dapat dijadikan bahan bukti dan apakah Prosedur Operasi Standard (SOP)  yang perlu dilalui oleh pihak tertuduh mahupun pendakwa sebelum ia diterima sebagai bahan bukti bagi mensabitkan pertuduhan yang telah dibuat di dalam mahkamah

Islamic legal maxims analysis on orthognathic surgery and treatment

Medical treatment by Muslim doctors will sometimes be influenced by Islamic law and ethics rather than solely medical consideration. Muslim patient’s sometimes need reassurance that modern medicine that offered to them is also acceptable by Islamic law. Orthognathic deformities are condition which associated with discrepancies of the jaw. These deformities resulted from different rates of growth of the maxilla, the mandible or both. Performing cosmetic surgery seems to change the creation of Allah and the original law of changing Allah’s creation is prohibited. In assessing the orthognathic surgery law for patients with this dentofacial defect, the researcher found that the main issues that need to be investigated are the difficulties existed (Masyaqqah) and the level of patient harm in addition to the intention or purpose of performing orthognathic surgery. However, according to the principles of the Islamic jurisprudence, orthognathic surgery is permitted based on the principles such as ad-darar yuzal, al-musyaqqah tajlibu al-taisir, al-darurat tuqaddiru biqadaruha, irtikab akhaf al-dhararain, al-darurat tubihu mahzurat and al-umur bimaqasidiha. Orthognathic surgery can be done because the purpose is to treat defects and restore function. This objective is very consistent with the fiqh rules that stated, every harm and distress should be eliminated