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JRI Resources Sdn Bhd v Kuwait Finance House (Malaysia) Berhad; President…
JRI Resources Sdn Bhd v Kuwait Finance House (Malaysia) Berhad; President of Association of of Islamic Banking Institutions Malaysia & Anor (intervenes) [2019] 3 MLRA 87
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Legal Issue
Whether ss 56 & 57 of the CBMA 2009 encroach the judicial power of courts and contravened Part IX of the FC?
Decision
Appeal dismissed, S56 & S57 of CBMA 2009 were not breach of the FC and are not unconstitutional.
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Rationale III
- It is more practical for the court to refer to SAC in any Shariah issue as expert evidence provided by the parties will require the civil court judge to make a decision.
- Ss 56&57 of the Act has taken the rights of party for a fair trial to provide expert evidence including cross-examination.
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Comparatively, the SAC has a body of eminent jurists and is qualified in Islamic finances which are more reliable to be dealing with Shariah related questions.
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Due to this, art 8 of FC has been infringed as they are not considered equal before the law.
- The contention made by cv. court for not being well equipped in deciding complex issue of Islamic jurisprudence cannot be accepted.
Because the party will lead expert evidence and cross-examination which may be brought to appellate division to ensure correct decision.
Rationale I
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- Ruling of SAC is made binding but it is not to determine the liability of the parties but only to ascertain arising issues.
SAC does not have judicial power and has limited scope of responsibility which is Shariah issue only.
- The ruling of SAC becomes the ruling of the judge.
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- Ss 56 & 57 of the Act violated doctrine of separation because has given a judicial power to a non-judicial body.
- S56(1) of 2009 Act states that the court or arbitrator has option to whether to apply SAC ruling or to refer the Shariah issue to the SAC.
Hence, the decision to apply such ruling is upon the court or the arbitrator & not the other way around.
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Hence, the judge is prohibited to determine a substantial issue of dispute between the parties.
Rationale II
- Manual for Reference to SAC by the Civil Court and Arbitrator has limited the authority of SAC to not have any judicial power.
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- The Manual and 2009 Act has allowed the SAC ruling to be binding on the HC.
s 57 of CBMA 2009 has contravened art 121 of FC as it binds the HC to the ruling of SAC pursuant to reference made.
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- The HC is excluded from its judicial power in Shariah matters.
Commentary
- The power of SAC to make ruling is limited to only ascertain on issues of shariah specifically Islamic finances.
- Therefore, it is not a matter to be compared with complex medical negligence or construction issues as mentioned by Judge David. This is due to the divine nature of Shariah unlike other fields of law.
- Therefore, it is crucial to point out that the authority of SAC does carry a power which is more dominant than ordinary expert evidence due to its bindingness.
Islamic finance is field of shariah law which requires knowledge on the religion of Islam and the principles establish therein.
However, it is important to note that the dissenting judges' reasoning is understandable and coherent.
The underlying religious ideology contained in the purpose of ss56 & 57 of the Act can certainly be challenged by individuals of different religious than Islam.
However, it does not affect the authority of the court to exercise its judicial power provided by the FC.
The liability of the parties will definitely be determined by the court even with the rulings from SAC.
Holding
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The authority of SAC to make ruling is limited to the scope of Islamic finance and it only serves to ascertain the issue of the case.