Clark B. Lombardi & R. Michael Feener
21 Pac. Rim L. & Pol'y J. 1

January 2012

In many countries today, including the Southeast Asian nations ofIndonesia, Malaysia, and Singapore, governments regulate some aspects of Muslim life according to Islamic law. The administration of Islamic law in these states is carried out by modern courts that are structured differently and staffed by different types of figures than were earlier institutions for the implementation of Islamic law. Prior to the modern era, courts tasked with the job of resolving cases according to Shari‛a were staffed by judges with a particular type of training, and litigants appearing before these judges were generally not represented by a specialized class of lawyers. In the modern era, Shari‛a courts have undergone radical changes in many countries. Modern Shari‛a court judges
are trained to find Islamic rules of a decision in ways that differ significantly from that of classical jurists. To varying degrees, these judges are also taught to apply Shari‛a law in a manner similar to that of judges who apply non-religious law outside the Islamic court system. At the same time decisions are rendered in an environment in which litigants who appear before these judges are increasingly coming to be represented by lawyers who advise on questions of law and procedure, advocate for them and appeal cases. These differences in both training and professional practice affect the way in which the court engages with the Islamic tradition and thus affects the way that Islamic law is interpreted and applied. This article argues for new attention to be paid to the educational backgrounds and professional practice of the judges and lawyers who work in Shari‛a courts to further our understanding of the practice of Islamic law in contemporary societies.

Mark E. Cammack & R. Michael Feener
21 Pac. Rim L. & Pol'y J. 13

January 2012

This chapter describes the historical evolution and current structure of Indonesia’s Islamic legal structure. The current system of Islamic courts in Indonesia is traceable to a late nineteenth century Dutch decree establishing a system of Islamic tribunals on the islands of Java and Madura. The decree created collegial courts in which a district-level religious official called the penghulu acted as chair and was assisted by member judges chosen from the local religious elite. The courts were authorized to decide matrimonial and inheritance disputes, but execution of the courts’ decisions required an executory decree from the civil court. The system was expanded to south Kalimantan in the 1930s, but at the same time the jurisdiction over inheritance was transferred to the civil courts. At independence, the Islamic judiciary was placed under the authority of the Ministry of Religion, which used executive powers to expand the system to other parts of the country. It was not until 1989 with the passage of the Religious Judicature Act that the existence of the courts was guaranteed by statute. The 1989 Act also vested the courts with enforcement powers and mandated changes in the organization and staffing of the courts modeled after the parallel system of civil courts. The substantive jurisdiction of the courts has also been expanded to include inheritance cases as well as a so far little-used power to decide cases involving economic transactions based on Islamic law. In 2004, the administrative supervision of the Islamic judiciary was transferred from the Ministry of Religion to the Supreme Court. In 1999, the province of Aceh was granted special autonomy status that included the authority to enforce Islamic law in areas beyond the established jurisdictions of Shari‛a courts in the rest of the country. These developments add a new dimension to the institutional structures for the practice of Islamic law in the country.

Euis Nurlaelawati & Abdurrahman Rahim
21 Pac. Rim L. & Pol'y J. 43

January 2012

This essay discusses the creation and training of Islamic court judges in Indonesia. This includes an examination of the qualifications for appointment as a judge, the recruitment of new judges, the pre-appointment and in-service training provided for Islamic judges, and the substantive and administrative supervision of the Islamic judiciary. The paper shows that significant changes have occurred in the system of recruitment and training of Islamic court judges with the establishment of new educational qualifications and the implementation of broader and more systematic training programs. As a result of these changes, the quality, professionalism, and standing of the Islamic judiciary have been significantly strengthened.

Ratno Lukito
21 Pac. Rim L. & Pol'y J. 65

January 2012

Lawyers who practice before Islamic courts play a crucial role in framing and presenting the issues for decision and in mediating between the courts that apply Islamic law and the public who have recourse to the state’s official Islamic legal institutions, but research on the professional training and governance of these lawyers is almost entirely lacking at present. This article offers a descriptive overview of the training, work, and professional regulation of Islamic lawyers in contemporary Indonesia. This material is presented in a clear format, structured to highlight key aspects of how these lawyers are trained, accredited, and organized. In doing so, this article not only presents new empirical data on an increasingly important class of legal professionals, but also facilitates comparative reflections on their work in relation to that of their colleagues practicing before Shari‛a courts in the neighboring countries of Malaysia and Singapore.

Farid S. Shuaib
21 Pac. Rim L. & Pol'y J. 85

January 2012

This article describes the historical evolution and the current structure of the Islamic legal system in Malaysia. The structure of the modern Malaysian state has its roots in the region’s colonial history. By the end of the nineteenth century the territory that comprises contemporary Malaysia had been subjected to British colonial authority. The British did not, however, rule the region as a single colonial unit. In the directly ruled colonies most matters were governed by English common law, and while Islamic doctrine governed family law, it was applied by colonial courts that were staffed by British or British-trained judges. In the colonies subject to indirect rule an English resident exercised authority over matters of British interest while Malay sultans retained their hereditary titles, and local courts exercised the sultan’s authority in matters of Malay adat (custom) and Islam. When the state of Malaysia was created in 1957, the constitution established a federal structure that reflected the pluralistic colonial system. Malaysia is currently comprised of 13 states and three federal territories. Under the constitution, most areas of life are governed by a uniform body of federal law applied by a system of national courts. However, the constitution grants the states the power to apply a version of Islamic law on certain topics enumerated in the constitution, and to create Shari‛a courts to adjudicate disputes involving Muslims relating to matters of Islamic law. The subjects included within the states’ legislative power include, in addition to personal law and matters related to religious practice, offenses deemed to be against the precepts of Islam. All of the states have exercised the powers granted by the constitution to legislate on matters related to Islam, and every state has established Shari‛a courts to adjudicate disputes based on Islamic legislation. A constitutional amendment approved in 1988 eliminated the power of civil courts to hear appeals from decisions of the Syariah courts. At the same time that they are achieving greater autonomy, the Shari‛a courts are also seeking to “upgrade” in ways that emulate the civil courts.

Najibah M. Zin
21 Pac. Rim L. & Pol'y J. 115

January 2012

Shari‛a court judges and the decisions they make clearly have an effect on the interpretation and application of Islamic law in contemporary Muslim societies, and the educational background of those who staff these courts obviously informs the way they understand, interpret, and apply the law. To date, however, little research has been done on the educational processes by which judges who serve on Islamic courts are trained to think about Islamic law. Likewise, the means by which Islamic court judges are appointed and regulated has received little scholarly attention. This article offers a descriptive overview of the training, work, and professional regulation of Shari‛a (or “Syariah”) court judges in contemporary Malaysia, presented in a clear format structured to highlight key aspects of how these judges are trained, accredited, and organized. In doing so, this article not only presents new empirical data on an increasingly important class of legal professionals, but also facilitates comparative reflections on their work in relation to that of their colleagues practicing before Shari‛a courts in the neighboring countries of Indonesia and Singapore.

Amanda Whiting
21 Pac. Rim L. & Pol'y J. 133

January 2012

Although much has been written about the place of Islam, as law and as religion, in Malaysia, considerably less attention has been paid to Islamic lawyers (“peguam syarie”). This article undertakes a preliminary examination of a topic that demands closer scrutiny, relying chiefly upon parliamentary acts, state enactments and the rules made pursuant to them, as well as in-depth oral history interviews with Islamic and secular lawyers that were recorded from May through August 2010. It describes the training and practice of Islamic lawyers in one jurisdiction of the federation of Malaysia—the Federal Territories of Kuala Lumpur, Putrajaya and Labuan—making comparisons with other states, particularly the state of Selangor, as appropriate. Comparison is also made with aspects of the training, professional accreditation and ethical regulation of secular lawyers in the parallel civil law system in order to identify the similarities as well as differences between these two forms of legal practice.

Ahmad Nizam bin Abbas
21 Pac. Rim L. & Pol'y J. 163

January 2012

In a country that is staunchly secular, it would appear to be an anomaly that the Muslim minority are free to practice their personal law when it comes to marriage, divorce, and to a certain extent inheritance. This article seeks to provide a general overview of the introduction and applicability of Muslim law in Singapore, from the colonial administration of the British to the contemporary period. The article also examines the infrastructure developed for implementing the Muslim law in Singapore and explores conflicts in jurisdiction between the country’s Syariah Court and the civil courts. Written from the perspective of a lawyer practicing in both the civil and Syariah courts, this article presents the tensions and also the desire for harmonization between the two systems.

Muhammad Haniff Hassan & Sharifah Thuraiya Su‛ad Ahmad Alhabshi
21 Pac. Rim L. & Pol'y J. 189

January 2012

Syariah court judges and the decisions they make clearly have an effect on the interpretation and application of Islamic law in contemporary Muslim societies, and the educational background of those who staff these courts obviously informs the way they understand, interpret, and apply the law. To date, however, little research has been done on the educational processes by which Islamic court judges are trained to think about Islamic law. Likewise, the means by which Islamic court judges are appointed and regulated has received little scholarly attention. This article offers a descriptive overview of the training, work, and professional regulation of Syariah court judges in contemporary Singapore. This material is presented in a clear format structured to highlight key aspects of how these judges are trained, accredited, and organized. In doing so, this article not only presents new empirical data on an increasingly important class of legal professionals, but it also facilitates comparative reflections on their work in relation to that of their colleagues practicing before Syariah courts in the neighboring countries of Malaysia and Indonesia.

Nik Hasyila Bte Nik Ibrahim
21 Pac. Rim L. & Pol'y J. 215

January 2012

This article provides a snapshot of the administration of Muslim law as practiced in Singapore through the prism of the legal profession. In particular, it provides a brief background on the role of the legal profession in the administration of justice at the Syariah Court of Singapore. While it is beyond the scope of this paper to urge for institutional and legal reform, the paper nonetheless highlights the absence of a dedicated and specialized training program that can aid lawyers to be familiar with Muslim law and jurisprudence and provide better representation to their clients at the Syariah Court.

Gregory M. Chiarella
21 Pac. Rim L. & Pol'y J. 223

January 2012

The Code of Muslim Personal Laws of the Philippines (“CMPL”) was established in 1977 as part of an effort to quell longstanding violence between Christians and Muslims in the predominantly Christian country. This codification of Islamic laws in the areas of marriage, divorce, and inheritance provided for a system of Shari‛a courts that would operate within the larger framework of the legal system of the Philippines. Three and a half decades later, the CMPL has had little effect. The Shari‛a courts are understaffed and underutilized, accounting for less than 0.1% of the caseload in the Philippines. The CMPL is plagued by a series of practical and procedural shortcomings. More significantly, it limits the use of customary law and excludes or marginalizes familiar sources of Muslim authority, minimizing its appeal for Muslims who had hoped that the CMPL would provide greater rights and freedoms. In order to revitalize the CMPL and further engage Muslim citizens in the Philippines, this comment argues for a variety of practical and procedural changes to increase knowledge of and access to the CMPL, an increase in the use of customary law, and for the creation of more leadership roles for Muslims.