Procedural law on judicial disposal of divorce cases on ta`liq and fasakh in the Malaysian syariah courts

Abstract

This thesis appraises the overall procedural law in disposal of divorce cases on the grounds of ta’liq and fasakh in the Syariah Court in Malaysia. The study works on the premise that despite the presence of the provisions in current relevant Enactments, there are still loopholes and drawbacks in implementing the procedural law that cause delay in disposing divorce cases on the grounds of ta’liq and fasakh. In appraising the efficacy of the existing laws and implementation of it, an empirical research was conducted utilizing a qualitative method apart from conducting library research. The data obtained from several interviews with few personnel such as Chief Syarie Judge, Syarie Judge of the Lower Court, Syarie Lawyers and Assistant Registrar to identify the issues and problems in implementing procedural law in disposing divorce cases under the grounds of ta’liq and fasakh in the Syariah Court. The unreported files from five (5) Syariah Courts representing five (5) states were examined to identify the implementation of procedural law in disposing ta’liq and fasakh cases. To further support the data obtained from interviews and content analysis of the unreported files, the observation was also conducted to see the actual proceedings in court for ta’liq and fasakh. The comparative study is adopted namely Singapore and Morocco on the procedural law relating to the application of ta’liq and fasakh. The purpose is to see the contemporary practices and to observe best practices in disposing divorce cases under the grounds of ta’liq and fasakh. The study proves that Syariah Court procedures in disposal of divorce cases under the ground of ta’liq and fasakh are comprehensive as far as the substantive and procedural law is concerned. However, there are rooms for improvement in the context of implementation of certain provisions such as service of summons where there are inconsistencies in actual practice especially in the absence of standard operating procedure. These inconsistencies contribute to the delay in the proceeding for ta’liq and fasakh cases in the Syariah Court in Malaysia.