SHARIAsource

This suit filed before the High Court of Borno State, Nigeria, centered on the question of whether the Borno State legislature can constitutionally extend the jurisdiction of the Sharīʿa Court of Appeal beyond questions of Islamic personal law to other civil and criminal matters. The Court answered in the negative. Because the jurisdiction of the High Court and the Sharia Courts of Appeal is regulated by the Constitution, the Court determined that varying its jurisdiction would require an amendment of the Constitution rather than mere legislation.

The jurisdictional question that formed the basis of this appeal arose out of a paternity suit. In this appeal, the Court of Appeal of Nigeria considered the legality of the establishment of sharia courts in Borno State by the Borno State Sharia Administration of Justice Law (No. 11) of 2000. The Court concluded that the sharia courts were validly established in Borno.

The Sharia Court, Mariga, Nigeria convicted the Appellant for the offense of house trespass and theft under the Penal Code of Nigeria. The Appellant brought this appeal before the High Court of Niger State, challenging his conviction on the basis that the Sharia Court’s jurisdiction was limited to Islamic law and did not extend to the Penal Code, which is based on Common Law. The High Court allowed the appeal and quashed the conviction.

The respondent was charged before the High Court of Kano State for the offense of homicide under the Kano State Sharia Penal Code Law 2000. Arguing that only sharīʿa courts are competent to try offenses arising under the Sharia Penal Code, the respondent challenged the jurisdiction of the High Court to hear the matter. The Court held that it was competent to apply the Sharia Penal Code. Therefore, the jurisdictional challenge failed.

The Appellant challenged his criminal conviction by the Sharia Court of Appeal of Zamfara State, Nigeria on the ground that the Court’s jurisdiction did not extend beyond Islamic personal law [family law]. The Court of Appeal held that the jurisdiction of the Sharia Court of Appeal was limited to personal law. As such, it could not validly exercise criminal jurisdiction. The Court quashed the conviction.

These materials include (i) a compendium of the Sharia Courts Laws enacted by the sharīʿa states, in the form of the Zamfara State Sharia Courts Law annotated section by section to show variations between it and all the rest; (ii) tables correlating the sections of the Zamfara State Sharia Courts Law with the Area Courts laws of 1967-68, from which the Zamfara law was derived; (iii) other statutory materials; (iv) materials on civil procedure in the Sharia Courts; (v) selected decisions by state High Courts and the federal Court of Appeal on matters related to the Sharia Courts, including their jurisdiction and the law applicable in them; (vi) information on the judges of the Sharia Courts, including their numbers, qualifications, and remuneration; (vii) data on caseloads of courts in the sharīʿa states, including the High Courts and Sharia Courts of Appeal, 2011-2015; and (viii) data on numbers of judgments of amputation and stoning to death imposed by Sharia Courts, 2011-2015, and numbers of appeals from such judgments going to High Courts and Sharia Courts of Appeal.

These materials are a part of The Nigeria Papers – a SHARIAsource Special Collection, compiled and edited by Independent Scholar Philip Ostien and others. 

A nine-member panel at the Federal Court of Malaysia led by Chief Justice Tengku Maimun ruled in a unanimous decision that Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment of 2003 was unconstitutional and void as the power of judicial review that it conferred was not a power that the Selangor state legislative assembly was authorized to give. The petition arose out of the High Court consideration of an application for judicial review wherein an organizational petitioner, the SIS Forum (of Malaysia), sought to challenge the validity of a fatwā [advisory Islamic law opinion].The Court stated that it is not concerned with the procedural or substantive validity of the fatwā, and was not asked to determine the courts are authorized to undertake such evaluations in the first place under clause (1A) of Article 121 of Malaysia’s Federal Constitution. The petition concerns only the question whether the Selangor State Legislative Assembly (SSLA) was authorized to enact section 66A of the ARIE 2003, conferring powers of judicial review on syariah (Islamic law) courts. The Court concluded that Selangor, a Malaysian state, cannot grant syariah courts the power to review the rulings of Islamic authorities, which is a power retained exclusively by civil courts. For further context on Islamic law in Malaysia, consult Tamir Moustafa's Constituting Religion: Islam, Liberal Rights, and the Malaysian State (Cambridge University Press, 2018).

The plaintiffs, Sehatno Samiadoen and Tutik Ani Rahmawati, represented, Moses Antonius (complainant), who had filed a complaint with the Kalimantan Consumer Protection Group (Yayasan Lembaga Perlindungan Konsumen Kalimantan) on 30 May 2013, against the defendant's (PT Bank BNI Syariah) Banjarmasin branch. The complainant had entered into a shari’a-style home loan (Murabahah) with the defendant’s Banjarmasin branch for the purchase of a 150m² property on 18 September 2012. The term of the loan was 120 months (10 years), with monthly repayments of IDR 8,638,583, and an initial down-payment of IDR 147.5 million. The complainant also provided the defendant with payment for the first two months (IDR 17,277,166) in a show of good faith. The complainant and defendant also entered into a power of attorney agreement on 28 May 2012, pursuant to which the complainant vested in the defendant the authority to sell, transfer and release all rights over the property to any person, including to the defendant itself.

The complainant then experienced financial hardship and went into arrears. The defendant sent to the complainant three separate written warnings in regards to his default. The plaintiffs, however, told the court that the agreement contravened shari’a principles, as contained in Law No. 21 of 2008 on Shari’a Banking, as well as standard clausal requirements, as regulated in Law No. 8 of 1999 on Consumer Protection. Moreover, that as the complainant had only recently become a Muslim (muallaf), he did not properly understand Islamic shari’a, nor did he properly understand the content of the agreement, or the fact that he could not novate its terms. Consequently, the complainant felt aggrieved by the inclusion of standard clauses, which he believed contravened art 18(1) of Law No. 8 of 1999 on Consumer Protection. Pursuant to art 18(3) of Law No. 8 of 1999, the plaintiffs argued for the agreement to be rendered null and void, and sought to invoke art 62 of Law No. 8 of 1999, which prescribes a penalty of up to five years imprisonment or a fine of up to IDR 2 billion. The plaintiffs also sought to rely on the principle of presumption of liability, thereby compelling the defendant to prove its innocence, as it claimed was supported by art 23 of Law No. 8 of 1999.

The plaintiffs requested that the court grant an interlocutory order precluding the defendant from dealing adversely with the complainant’s property. They also requested that the court declare the defendant’s conduct illegal by rendering the three agreements the complainant had with the defendant null and void.

The defendant lodged an objection in regards to the plaintiffs’ choice of forum, citing art 45(1) of Law No. 8 of 1999, which requires an aggrieved party to lodge an application with either an institution assigned to resolve consumer-related disputes, or a civil court. The defendant also cited art 25(2) of Law No. 48 of 2009, which states that civil courts are authorised to adjudicate civil matters, as further proof that a civil court was the appropriate forum to hear the matter. The defendant further argued that the plaintiffs had erred in submitting their application to the court because, per arts 18 and 19 of their Murabahah agreement, the complainant and defendant had agreed to resolve any disputes in the Registrar’s office of the Banjarmasin Religious Court. The defendant also submitted that the special power of attorney, pursuant to which the plaintiffs were acting on the complainant’s behalf, was invalid due to formulaic irregularities.

In addition, the defendant sought to impugn the fact that the plaintiffs’ statement of claim referred to the complainant as if he were the plaintiff. Moreover, it argued that the plaintiffs’ assertion that the Murabahah agreement contravened shari’a principles, as contained in Law No. 21 of 2008 on Shari’a Banking, as well as clausal standards, per Law No. 8 of 1999 on Consumer Protection, was illogical and lacked legal basis. The defendant also criticised the plaintiffs for seeking to bring a civil action, pursuant to a civil statute (Law No. 8 of 1999), to a religious court.

The court found that, pursuant to Constitutional Court Decision No. 93 of 2012, the elucidation of art 55(2), which prescribed a civil forum as a suitable venue for shari’a banking dispute resolution, was invalid. Moreover, that a 'civil judicature' (Peradilan Umum), per art 45(1) of Law No. 8 of 1999 on Consumer Protection, was to be read and interpreted as a religious court (Pengadilan Agama). Accordingly, the court found that religious courts had absolute jurisdiction over this matter. Crucially, however, the court found that the parties had clearly specified the Banjarmasin Religious Court as the appropriate resolution forum, precluding it from handing down a judgment.

On 30 July 2008, the first plaintiff and his wife, the second plaintiff, entered into a cooperative agreement with the second defendant, the agent of which was the third defendant. Pursuant to the agreement, the term of which was 36 months, the plaintiffs leveraged the deed of title to their property. The parties also agreed that the second defendant would provide monthly income portions from the agreement of IDR 1,616,800 to the plaintiffs. The second defendant agreed to:

1. ensure the security of the plaintiffs' property;
2. not allow the deed of title (original or photocopy) to change hands;
3. not use the deed of title, except for purposes relating to the provision of income portions; and
4. return to the plaintiffs the deed of title if the agreement came to an end.

The plaintiffs agreed to:

1. accept a portion of the profits, as agreed to by both sides;
2. be provided with a security guarantee for the deed of title provided to the second defendant; and
3. have the deed of title returned if the agreement came to an end.

The plaintiffs submitted that the second defendant had fulfilled its obligations to the plaintiffs by providing them with IDR 1,616,800 per month until April 2010, when the second defendant defaulted on this part of the agreement. The plaintiffs then filed a civil claim against the second, third and fourth defendants (as first, second and third defendants), and first defendant (as fourth defendant) with the Sleman State Court on 28 January 2011, with the decision being handed down on 16 August 2011.

Initially, the security guarantee over the second plaintiff's property had been with the first defendant pursuant to a Mudharabah agreement between the second defendant as debtor and the first defendant as creditor (dated: 27 December 2007), with an arrears of IDR 1.5 billion, with security in the form of several other deeds of title. The plaintiffs submitted that, as a result of subterfuge on the part of the first and second defendants, the security over the deed of title of a property belonging to a Prof. Dr Kuswandi was removed by the second defendant, working together with the first defendant, and replaced by the deed of title belonging to the property of the second plaintiff. Moreover, that the first and second defendants then coerced the plaintiffs into assenting to the inclusion of an addendum to the initial agreement, the contents of which were the inclusion of the second plaintiff's property, by threatening that the plaintiffs would not receive any dividends. In actual fact, the plaintiffs never received any dividends, regardless.

On 20 September 2010, the first defendant wrote to the second defendant instructing the second defendant to pay to the first defendant arrears owed pursuant to their original agreement. Failure to make payment would result in the auctioning of the property. The first defendant made an application to auction the property, but a lack of interest from prospective bidders prevented the property from being auctioned. Regardless, the plaintiffs submitted that such conduct on the part of the first plaintiff was illegal.

The Sleman State Court had, on 16 August 2011, ordered the second, third and fourth defendants to pay to the plaintiffs IDR 450 million in damages. The plaintiffs, however, filed an application with the Bantul Religious Court for, what it perceived to be, breaches of shari'a law (muamalat law) on the part of the defendants. The plaintiffs sought orders from the court that:

1. the defendants not auction the second plaintiff's property;
2. declare the Sleman State Court's decision to be legally binding;
3. declare the Mudharabah agreement between the first and second defendants contrary to shari'a law principles and, therefore, null and void;
4. declare the addendum null and void;
5. the defendants pay damages, pursuant to the decision of the Sleman State Court; and
6. declare the first defendant's conduct vis-a-vis the deed of title of the second plaintiff's property unlawful.

The court declined to pass judgment, however, acceding to the first defendant's objection that the parties to the dispute had agreed to resolve all disputes before the National Shari'a Arbitration Body.

The parties were married on 31 August 2004 and had one child. For the first two years of their marriage the parties had lived together in a rental property on a university campus, after which they separated indefinitely. The plaintiff submitted that, since 2007, the marriage had been disharmonious as a result of regular quarrelling, resulting from the defendant:

1. often physically assaulting the plaintiff; and
2. not providing the plaintiff with emotional and financial support since 2011.

After inspecting the plaintiff's claim, however, the court determined that the plaintiff's place of residence was outside the bounds of its jurisdiction and, therefore, dismissed the claim.

The appellant sought to challenge Decision: 0133/Pdt.G/2014/PA.Mgl. of the Magelang Religious Court (lower court).

The court disagreed with the lower court's decision that it was precluded from adjudicating the case, instead finding that:

1. the religious judiciary, pursuant to art 49 of Law No. 7 of 1989 on the Religious Judiciary, as amended by Law No. 3 of 2006 and Law No. 50 of 2009, has the authority to examine shari'a economy cases; and
2. following Constitutional Court Decision No. 93 of 2013 (30 August 2013), the religious judiciary is the only judicial forum authorised to handle shari'a economy cases.

Therefore, the court, pursuant to art 15(2) of Law No. 20 of 1947 on Judicial Review, found that the Magelang Religious Court was authorised to adjudicate the case and ordered that it re-open the case.

In this case, the Texas Court of Appeals affirmed the lower court's decision denying plaintiff Ace's special appearance. Considering the contract between the parties as a whole, the Court of Appeals ruled that the phrase "court of competent jurisdiction," as stipulated in the contract, which had been agreed to by both parties, referred to a court with proper subject-matter jurisdiction, thus rendering Texan courts competent to adjudicate the matter.

A Maryland court ruled that Sharīʿa Court lacked jurisdiction in a custody case since the couple never resided in the jurisdiction of the Sharīʿa Court. 

In TSJ v. SHSR, decided by the High Court of Kenya at Nairobi, the Court found that the Kenya Ismaili Conciliation and Arbitration Board did not have the jurisdiction to adjudicate upon a matter of divorce despite the fact that both husband and wife had initially submitted to its jurisdiction. The Court held that either it, or the Kadhis' Courts, could have exclusive jurisdiction in this matter.  

In 1661, King Charles II of Britain expanded the jurisdiction of the British East India Company to “exercise power and command over its fortresses.” This meant that the Company, beyond having legal jurisdiction, began to function as the de-facto rulers of Company controlled areas in India.

A Muslim worker sued his former employer under Title VII and the Florida Civil Rights Act (FRCA), alleging religious discrimination and breach of contract. Specifically, the plaintiff claimed that he was fired when his employer learned that he was a Muslim. The Court concluded that it did not have jurisdiction to hear the Title VII claim, because the plaintiff failed to establish that an employee-employer relationship existed between himself and the defendant; and that it similarly did not have jurisdiction to hear the contract claim because it was below the requisite amount for diversity jurisdiction. With respect to the FCRA claim, the court granted the defendant’s motion for summary judgment, concluding that the plaintiff did not provide evidence showing that the decision-makers knew he was a Muslim when they decided to terminate his employment.

Nurani v. Nurani was a case adjudicated by the Court of Appeal at Nairobi in 1982. The Court held it had concurrent jurisdiction with the Ismaili Council for Kenya, through its sectarian tribunal. Thus, this tribunal had the first right to issue a decision on issues arising from the couple's divorce since both the husband and wife had submitted to its jurisdiction. In this decision, the Court contextualized the role of the sectarian tribunal within the context of Kenya's pluralist legal system.

This statute regulates the Indonesian Supreme Court (Mahkamah Agung), its standing, personnel and structure, and matters of which it has jurisdiction. With regards to religious court decisions, arts 44 and 77 respectively permit the Supreme Court to hear cassation applications and reconsiderations (peninjauan kembali).

This statute regulates judicial authority. It sets out the standing and obligations of judges and associated court staff, the jurisdiction of the Supreme and Constitutional Courts, and regulates the manner in which all court officials execute their responsibilities.

Superseding Law No. 4 of 2004, this statute regulates the various judiciaries in Indonesia, the judicial power and authority they exercise, and the jurisdiction and matters over which they may exercise that power.