GROUNDS OF JUDGMENT

LECTURE LAD5022 Civil & Criminal Procedure in the Syariah Court

INTRODUCTION
Grounds of judgment refers to the evaluation of evidence supported by nas (hukum syarak) and authorities (consisting of Acts of Parliament, Enactments and decided cases) made by a judge presiding in a particular case upon hearing of submissions from the litigants. It is a duty on the part of a Syariah judge upon hearing of submissions to review the notes of evidence in the proceeding before delivering his judgement.

 Grounds of judgment in cases (though do not form as part of the trial) is the most important record to be relied upon when a particular case is brought to the higher court for appeal. As such, all ground of judgment must be based upon evidence recorded or taken down by the court during the trial.

 Section 145 of the Syariah Court Civil Procedure (State of Selangor) Enactment 2003 states The Court hearing the appeal shall state the grounds of its judgment in writing. There are basically many techniques in writing of grounds of judment and the styles may vary from one judge to the other.

 It was suggested by YAA Dato Aria Diraja Hj Daud bin Mohammad, Chief Syariah Judge of Kelantan that grounds of judgment should contain the following: 1.Facts of the case stating the nature of plaintiffs claim. 2. The undisputed and disputed issues in the case.

 3.Evidences taken from witnesses in support of the plaintiffs claim which includes evidences taken from expert witnesses (if any) in the particular case. Evidence taken to be deliberated by the judge prudently. 4. Rebuttals made by the defendants in answer to the plaintiffs claim- duty of the Syariah judge to state whether the rebuttals or answers made in response to plaintiffs claim by the defendant is acceptable or in conformity with law or hukum syarak.

 5.Submissions made by both adversary parties and considerations made by the judge against both submission. 6. View of the court upon issue raised based on nas or authorities.

 According to Prof. Salleh Buang it is pertinent for syariah judges in writing of grounds of judgment to ensure the following matters: 1. that the court has jurisdiction to conduct the trial for the particular case. Only then will the judgment be validly enforced. 2. Ensuring that all procedures prior and during the trial has been complied with by the parties such requirements of pleading, service, cause of action, determination of parties, wakalah and others has been complied with.

 According to Practice Direction No.6 Year 2001 grounds of judgment shall consist of: a. issues raised by parties b. application of law and hukum syarak to the issue at hand c.deliberation by the court towards submission made by the parties d. authorities referred to with regards to the issue e. proper use of writing manner is adopted.

 It must be noted however that reliance to enactment per se in not encouraged, that hukum syarak must be given priority. Hamzah bin Zainuddin v Noraini Abdul Rashid (2005) 1CLJ (Sya) 399 Syariah Judges were reminded that total reliance to enactments only without looking at the hukum syarak when making judgment could lead to errors in decision. Basis of decision must adhere to hukum syarak. End of lecture.