Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Jurisdiction of Shariah Courts over Refugees and Asylum Seekers: Shariah courts in Malaysia have jurisdiction primarily over Muslim individuals and Islamic personal law matters, such as custody and religious status. For example, The Shariah courts were established with jurisdiction regarding custody of Muslim children, pursuant to the provision of the State List ["JRI RESOURCES SDN BHD vs KUWAIT FINANCE HOUSE (MALAYSIA) BERHAD; PRESIDENT OF ASSOCIATION OF ISLAMIC.... - Federal Court"], and the assumption that a non-Muslim is barred from suing in the Shariah Court, arises from the provision that the Syariah Court has no jurisdiction over non-Muslims ["Kaliammal ap Sinnasamy vs Majlis Agama Islam Wilayah Persekutuan (JAWI) & Ors - Court Of Appeal"]. The Federal Constitution, particularly Item 1 of List II (Ninth Schedule), limits Shariah courts to Muslim persons, and civil courts retain jurisdiction over non-Muslims and broader matters ["Kaliammal ap Sinnasamy vs Majlis Agama Islam Wilayah Persekutuan (JAWI) & Ors - Court Of Appeal"], ["TUN NAING OO vs PP - 2009 MarsdenLR 2109"].
Referrals to Shariah Advisory Council (SAC): Many cases involving Islamic financial transactions or Shariah compliance issues require referral to the SAC of Bank Negara Malaysia for rulings. The opinions of experts when dealing with matters involving or concerning Islamic law... Rujukan mahkamah kepada Majlis Penasihat Shariah Bank Negara Malaysia ["KUWAIT FINANCE HOUSE (MALAYSIA) BERHAD vs JRI RESOURCES SDN BHD & ORS - High Court"]. Courts often rely on SAC decisions for Islamic finance issues, such as Islamic banking transactions, with its decisions shall generally be binding on Islamic financial institutions ["Maybank Islamic Bhd lwn vs Paka Petroleum Sdn Bhd dan lain-lain - High Court"]. The court may also invoke s 56 of the Central Bank of Malaysia Act 2009 to seek SAC's opinion on Shariah matters ["KUWAIT FINANCE HOUSE (MALAYSIA) BERHAD vs JRI RESOURCES SDN BHD & ORS - High Court"].
Decisions on Refugee and Asylum Seekers: Malaysian courts recognize that asylum seekers and refugees are still subject to domestic laws. The legal position for asylum seekers or refugees in Malaysia is that they are still subject to our domestic laws, including the Act ["TUN NAING OO vs PP - 2009 MarsdenLR 2109"], [](https://supremetoday.ai/doc/judgement/MY_MLRH_2009_1_MLRH_867). Courts have emphasized that refugees should not be punished with whipping if they have not committed violent acts, and documentary proof of registration with UNHCR or community groups can influence judicial decisions ["TUN NAING OO vs PP - 2009 MarsdenLR 2109"], ["MYS_MLRH_2009_1_MLRH_867"].
Role of Shariah in Financial and Personal Law Cases: Shariah courts handle Islamic personal and family law, such as custody and religious status, but financial disputes related to Islamic banking are overseen by the SAC and civil courts. The matters that fall within the jurisdiction of the Shariah Court were as provided under art 74 of the Constitution, inter alia, matters falling within the State List in the Ninth Schedule which were Islamic law, personal and family law ["Karambunai Corp Bhd & Ors vs Ag Damit bin Ag Tengah"], ["Av Mahkamah Rayuan vs Syariah Wilayah Persekutuan & Ors - High Court"]. Court decisions involving Islamic finance transactions prior to SAC rulings were often non-binding, but recent jurisprudence recognizes SAC's authority as the highest Shariah authority in Islamic finance ["Maybank Islamic Bhd lwn vs Paka Petroleum Sdn Bhd dan lain-lain - High Court"], ["Mohd Alias bin Ibrahim vs RHB Bank Bhd & Anor"].
Shariah courts in Malaysia primarily have jurisdiction over Muslim individuals and Islamic personal law issues, such as custody of Muslim children and religious status. They do not have jurisdiction over non-Muslims or general civil matters, including asylum seekers and refugees, unless related to Islamic law. Decisions involving Islamic banking and finance are increasingly guided by the SAC, which is considered the highest authority on Shariah compliance, and courts often seek its opinions for consistency with Islamic principles.
Refugees and asylum seekers in Malaysia are subject to domestic laws, and their cases are not typically within the jurisdiction of Shariah courts. However, their religious status and related personal law issues may be addressed by Shariah courts if they are Muslim. Courts recognize the importance of SAC rulings in Islamic financial matters, but the enforcement of Shariah principles in civil and financial disputes remains a complex interplay between civil courts, Shariah courts, and SAC guidance.
References:
Malaysia hosts a significant number of refugees and asylum seekers, particularly from Myanmar's Rohingya community, amid ongoing regional humanitarian challenges. As a non-signatory to the 1951 Refugee Convention, the country relies on ad hoc measures, including UNHCR registration, for protection. But what about Syariah (Shariah) courts? Do they play a role in adjudicating cases involving these vulnerable groups?
List Syariah or Shariah court decisions in Malaysia involving asylum-seekers or refugees. This question arises frequently in discussions of Islamic law's intersection with migration issues. Unfortunately, a thorough review of available legal documents reveals no such decisions. This blog post delves into the reasons, drawing from Malaysian court materials, constitutional principles, and jurisdictional boundaries to provide clarity.
Syariah courts in Malaysia handle matters of Islamic personal law for Muslims, such as family, inheritance, and religious offenses, under state jurisdiction as per the Ninth Schedule of the Federal Constitution. However, their scope is strictly limited and does not typically extend to immigration or refugee status determination.
For instance, discussions on Syariah jurisdiction often focus on unrelated areas like Islamic banking. In one case, the court examined whether civil courts or Syariah bodies oversee Islamic banking transactions, affirming that such matters fall under federal civil jurisdiction. MAYBANK ISLAMIC BERHAD LWN. XYBASE SDN BHD & YANG LAIN (LAMP 29 & 36) - 2021 MarsdenLR 676MOHD ALIAS IBRAHIM vs RHB BANK BHD & ANOR The ruling emphasized: Syariah courts handle Islamic law generally, but civil courts have jurisdiction over Islamic banking transactions under the Federal List (Ninth Schedule). This highlights clear delineations, with no migration to refugee-related forums. MAYBANK ISLAMIC BERHAD LWN. XYBASE SDN BHD & YANG LAIN (LAMP 29 & 36) - 2021 MarsdenLR 676
Another document reinforces this: Legislative provisions mandating Shariah Advisory Council decisions are valid; their binding nature does not infringe on judicial power. MOHD ALIAS IBRAHIM vs RHB BANK BHD & ANOR Yet, these cases underscore that Syariah influence remains confined to specific Islamic financial matters, not broader humanitarian issues like asylum.
Malaysia grapples with refugee protections outside formal international treaties. Key documents note:- UNHCR's pivotal role in registering asylum seekers, such as Rohingya, with courts giving evidentiary weight to UNHCR determinations in civil proceedings. TUN NAING OO vs PP - 2009 MarsdenLR 2109NOOR KAYES HASHIM ULLAH @ NOOR KAYES HASMULLAH vs TIMBALAN MENTERI DALAM NEGERI MALAYSIA & ORS - 2025 MarsdenLR 2069- Malaysia's non-signatory status to the 1951 Refugee Convention leads to ad hoc handling, primarily in civil courts. TUN NAING OO vs PP - 2009 MarsdenLR 2109
Refugee-related litigation typically occurs in civil or constitutional courts. For example, freedom of religion under Article 11 of the Federal Constitution extends to asylum seekers and refugees as persons, not just citizens. MAQSOOD AHMAD & ORS vs KETUA PEGAWAI PENGUATKUASA AGAMA & ORS - 2018 MarsdenLR 2457 This constitutional interpretation provides protections like religious practice rights, but it stems from civil benches, not Syariah courts.
In Rohingya cases, courts defer to UNHCR status without invoking Syariah jurisdiction: UNHCR's role in registering asylum seekers (e.g., Rohingya) is noted... evidence from UNHCR is given weight in civil proceedings. NOOR KAYES HASHIM ULLAH @ NOOR KAYES HASMULLAH vs TIMBALAN MENTERI DALAM NEGERI MALAYSIA & ORS - 2025 MarsdenLR 2069
A detailed scan of legal materials confirms no Syariah or Shariah court decisions involving asylum seekers or refugees. Here's why:
While Malaysian documents are silent on Syariah-refugee links, regional parallels (e.g., Indian cases) illustrate civil court trends. In India, refugee protections invoke Articles 14 and 21 of the Constitution, with UNHCR consultations before deportation. DONGH LIAN KHAM VS Union of India - 2015 Supreme(Del) 3031Nandita Haksar VS State of Manipur, Rep. by the Chief Secretary - 2021 Supreme(Manipur) 3 These emphasize non-refoulement and fair hearings, mirroring Malaysia's civil approaches without Shariah elements.
Domestically, Syariah discussions pivot to banking: Whether a party who entered into Islamic banking transactions prior to the said date can be forced to be bound by the Syariah Advisory Council's decision... the court can abdicate its jurisdiction. Courts ruled no abdication occurs, upholding civil oversight. MOHD ALIAS IBRAHIM vs RHB BANK BHD & ANORMOHD ALIAS IBRAHIM vs RHB BANK BHD & ANOR This reinforces that refugee issues stay outside Syariah purview.
Recommendations include consulting Malaysian legal databases like e-Syariah portals or civil precedents invoking UNHCR. For protections, civil courts remain key, leveraging Article 11 or UNHCR evidence. MAQSOOD AHMAD & ORS vs KETUA PEGAWAI PENGUATKUASA AGAMA & ORS - 2018 MarsdenLR 2457NOOR KAYES HASHIM ULLAH @ NOOR KAYES HASMULLAH vs TIMBALAN MENTERI DALAM NEGERI MALAYSIA & ORS - 2025 MarsdenLR 2069
This analysis is for informational purposes only and does not constitute legal advice. Consult qualified Malaysian legal professionals for specific cases, as laws and interpretations may evolve.
References:1. TUN NAING OO vs PP - 2009 MarsdenLR 2109: Refugee policy and UNHCR in criminal contexts.2. MAQSOOD AHMAD & ORS vs KETUA PEGAWAI PENGUATKUASA AGAMA & ORS - 2018 MarsdenLR 2457: Article 11 for refugees.3. NOOR KAYES HASHIM ULLAH @ NOOR KAYES HASMULLAH vs TIMBALAN MENTERI DALAM NEGERI MALAYSIA & ORS - 2025 MarsdenLR 2069: Rohingya UNHCR evidence.4. MAYBANK ISLAMIC BERHAD LWN. XYBASE SDN BHD & YANG LAIN (LAMP 29 & 36) - 2021 MarsdenLR 676: Syariah jurisdiction limits.5. MOHD ALIAS IBRAHIM vs RHB BANK BHD & ANOR, MOHD ALIAS IBRAHIM vs RHB BANK BHD & ANOR: Islamic banking jurisdiction.
#SyariahCourts #MalaysiaRefugees #AsylumSeekers
Cases involving the former are within the jurisdiction of the civil courts, while those involving the latter, but only so far as it concerns the matters in para [1] of the states list in Schedule 9, are within the jurisdiction of the Shariah Courts. ... reference on Shariah question should be channeled to the Shariah Advisory Council (SAC) of Bank Negara Malaysia (BNM) under Central Bank Act of Malaysia 2009 (CBMA). ... [18] Furthermore, the 2nd def....
Therefore, Malaysia has no obligations towards making local laws for the protection of refugees. However, Malaysia has permitted the UNHCR to maintain an office here for registering asylum seekers. ... [29] The legal position for asylum seekers or refugees in Malaysia is that they are still subject to our domestic laws, including the Act (see Subramaniyam Subakaran v. PP court, [2007] 1 CLJ 470 ). ... [34] This ....
Therefore, Malaysia has no obligations towards making local laws for the protection of refugees. However, Malaysia has permitted the UNHCR to maintain an office here for registering asylum seekers. ... [29] The legal position for asylum seekers or refugees in Malaysia is that they are still subject to our domestic laws, including the Act (see ; [2007] 1 CLJ 470 ). ... [34] This court is therefore of the firm opin....
Whether a party who entered into Islamic banking transactions prior to the said date can be forced to be bound by the Syariah Advisory Councils decision when at the time they entered into such Islamic banking transaction, decisions of Syariah Advisory Council was not binding in court and therefore, the ... making power of the court relating to matters of Islamic financial business to the Syariah Advisory Council, or in the alternative, whether the court can abdicate i....
Whether a party who entered into Islamic banking transactions prior to the said date can be forced to be bound by the Syariah Advisory Councils decision when at the time they entered into such Islamic banking transaction, decisions of Syariah Advisory Council was not binding in court and therefore, the ... the alternative, whether the court can abdicate its jurisdiction to make a decision to the Syariah Advisory Council. ... (65) Abdul Hamid JCA (as he then was) in the case of Bank ....
Patuh Syariah adalah asas utama operasi institusi perbankan islam di Malaysia. ... [33]Mahkamah berpendapat kemudahan-kemudahan pinjaman yang diberikan oleh Plaintif adalah patuh Syariah selari dengan perinsip Syariah yang digariskan oleh Majlis Penasihat Syariah Bank Negara Malaysia. ... [74] The Shariah governance of IFIs in Malaysia consists of two components: Shariah advisors appointed by the respective institution (....
Courts of Judicature Act 1964 s 23 Federal Constitutionart 121, 121(1A), State List, List II Penal Codes 377D Sabah Land Ordinance (Cap 68) s 120 Syariah ... (3)Article 121(1A) of the Federal Constitution would prevent the civil courts from granting any relief declaring Shariah Court decisions as non-binding only if the Shariah
Court can abdicate its jurisdiction to make a decision to the Syariah Advisory Council. ... following para. 1, List II, Ninth Schedule to the Constitution (State List).
Whether a party who entered into Islamic banking transactions prior to the said date can be forced to be bound by the Syariah Advisory Council's decision when at the time they entered into such Islamic banking transaction, decisions of Syariah Advisory Council were not binding in Court and ... The Court, will have to assume that the Syariah advisory body of the individual bank and now the Syariah Advisory Council under the aegis of Bank Negara Malaysia#HL_EN....
is within the jurisdiction of the Shariah Court. ... of the Shariah courts. ... Then the Shariah courts were established with jurisdiction regarding custody of Muslim children, pursuant to the provision of the State List. However, in Myriam v. ... (List II of the Ninth Schedule). ... But, these are two distinct issues, one falls within the jurisdiction of the civil Court and the other falls within the jurisdiction of the Shariah Court#HL_EN....
The Refugee Convention defines a ‘refugee’ as one who may possess “…[a] well-founded fear of being persecuted for membership of a particular social group or political opinion, and is unwilling or unable to avail themselves of the protection of the country of habitual residence.” In any case, Article 253 of the Constitution of India provides that the Parliament can only implement international treaties or conventions by making laws to that effect. Thus, they may take recourse to low-income jobs, be the subject of various forms of discrimination, and be unable to enjoy even a subsistence-quali....
They did not enter our country with the clear-cut and deliberate intention of breaking and violating our domestic laws. 8. Though India’s policy on ‘refugees’ remains rather opaque, if not obscure, and asylum seekers are straightaway branded as ‘foreigners’ if not worse, certain protections are guaranteed under Articles 14 and 21 of our Constitution even to those who are not Indian citizens. State of Arunachal Pradesh and Another, (1996) 1 SCC 742, the Supreme Court observed thus: The aforestated arguments of the learned counsel for the State and the Central Governments pro....
However, they are not afforded the same mental health treatment as citizens of that country. This violates Article 12 of the ICESCR, which “recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. In some countries, refugees and asylum seekers often receive inappropriate treatment that causes or exacerbates mental disorders.
UKHL 66 (HL) the asylum seekers have assailed the municipal law that, among other things, revoked the authority of the Secretary of State to provide support for asylum seekers under certain conditions. The House of Lords has referred to the Human Rights Act, 1998, and, in particular, Article 3 of ECHR. It has, then, held that where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish, it may be characterized as degrading, falling within the prohibition of article 3. 43. In ....
Despite this, Indian Government has received accolades worldwide for their general policy of giving shelter to refugees. On behalf of the respondent No.1 i.e. Union of India, it has been submitted that India is not a signatory to the 1951 UN Conventions on the status of refugees and the 1967 protocol. No national law has also been enacted till date regarding refugees and asylum seekers.
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