Satu lagi negara bukan Islam adalah Thailand. Untuk
melihat peruntukan mahupun perlaksanaan hukum Islam di negara Thailand kita
boleh merujuk kepada kedudukan serta perlaksanaan perundangan Islam secara amnya
di Selatan Thailand. Untuk itu saya postkan disini sebuah artikal oleh Dr
Sulaiman Dorloh yang dapat menerangkan perkara ini.
Selamat membaca.
***************************
THE POSITION OF ISLAMIC LAW IN THE
FOUR SOUTHERN BORDER PROVINCES OF THAILAND*
Sulaiman Dorloh**
Abstrak
Kertas
kerja ini membahaskan pelaksanaan undang-undang Islam di Thailand, khususnya di
empat wilayah Melayu Selatan Thailand, melalui institusi Qadi yang lebih
dikenali sebagai institusi Dato' Yuthitham. Beberapa persoalan dasar
dikemukakan dalam kajian ini yang mendapati bahawa bidang kuasa yang diberikan
kepada institusi Qadi ini hanya terbatas kepada pelaksanaan undang-undang
keluarga dan pusaka Islam di kalangan penduduk Islam di selatan Thailand. Isu
perlantikan dan kelayakan seseorang Qadi juga dikemukakan dalam kajian ini.
INTRODUCTION
Thailand is a democratic country with the king as
Head of the State.1 There are many provisions in the revised
Constitution of the Kingdom of Thailand, 1997 that provides the principles of democracy
such as the protection of rights and liberties of the people,2 public
participation in government, decentralization and local government. The
National laws of the country are applied to the Muslims in Thailand in addition
to the fact that the government considers Islamic law as a special law for the
Muslims in the southern part of the country. This paper attempts to investigate
the position of Islamic Law (Shari'ah) in Thailand legal system in order to
reveal the extent to which the Thai government has recognized the law of the
Muslims in the dominated southern provinces known as the four southern border
provinces of Thailand.
HISTORICAL OVERVIEW
Thailand legal system is based on various legal
systems. Each with its own patterns: the traditional legal system and the
western legal system.
With regard to the Islamic legal system, it has
been applied in Thailand since the first arrival of the Muslim traders from
Persia, India, and the Malay Peninsula during the Ayuthaya dynasty.3
It is reported that Pracau Songtham (1602-1627) of Ayuthaya Dynasty who
impressed with the achievements of the Persian traders, had appointed Shaykh
Ahmad, a Persian Muslim trader to become the king's adviser4 with
regard to the Muslims affairs in Ayuthaya.5
The administration of the Muslims affairs in
Ayuthaya was regulated by these mostly foreign Persian traders. When there was
a dispute amongst the Muslims, Shaykh Ahmad, acted on behalf of the king,
became an Islamic arbitrator in sarn krom tha kwa.6 Another
important area of arbitration was marriage. When a Muslim trader Ayuthaya was
considered as the second dynasty in the history of Siam (now Thailand) intended
to marry with a local girl, the latter had to convert into Islam. Thus the
marriage would then be conducted according to the Islamic law. The products of
such unions became part of the new and expanding Muslim communities in ThaiIand.
From these examples, it can be inferred that the Islamic
law existed independently as a regulating force within the Muslim community. It
grew and developed side by side with the culture of the Thai Buddhist people
who lived in the city of Ayuthaya.
The position of the Islamic law in the Patani7
Kingdom can be explained in the following manner.
Historically, Patani is reported to adopt Islam since
the end of the 15th century. Prior to Islam, Hinduism and Buddhism were the
religions of the Patani inhabitants.
The Islamization of Patani was carried out by the
Pasai Muslims who came to Patani to conduct trade in the Patani seaport. Shaykh
Sa'id, from Pasai was asked by the Patani King, Phraya Tu Nakpa to cure his
skin disease. The King promised, in the present of his ministers, officers and
subjects, that he would embrace Islam if his skin disease was cured. However,
the King failed to keep his promise after the disease was cured. When he was
afflicted by the same disease for the third time, he had later on embraced
Islam after he was cured and was renamed by Shaykh Sa'id as Sultan Isma'il Shah
Zillullah Fil-Alam.8
After the conquest of the Muslim Pattani by the
Siamese Monarch in 1789, Muslim communities had organized themselves as the
administrative units of the Thai Kingdom while retaining the Muslim character
of Patani. It was reported that there was a hierarchy of reIigious authority
that played a significant role in preaching and preserving Islam. As the
ecclesiastical head, the Sultan of Patani appointed a mufti as his religious
counselor. Under the supervision of, the mufti, there was a qadi who acts as an
Islamic judge of the district as well as the reIigious adviser to the district
head. At the district level, there were the imam, khatib and bilal of the
various mosques in the districts. This classification demonstrated the
differences in the responsibilities and the functions of the sultan, mufti,
qadi, imam, khatib, and bilal in the implementation of lslamic law in the
kingdom.9
At the district level, there were imams whose
function as judges in solving and settling certain disputes, as they conducted
sessions on the verandah of the mosque or in their homes. If they could not
settle the problem, they would refer to the Islamic Religious Committee Council
(IRCC). This practice can still be seen until today. Below is the
organizational structure of the Narathiwat Islamic Religious Committee Council
(NIRCC).
Figure I
The Organizational Structure of
the Narathiwat Islamic Religious
Committee Council (NIRCC)
Source:
Report on the Narathiwat Islamic Religious Committee Council (NIRCC)
THE SHARI'AH COURT IN THE LEGAL SYSTEM
OF THAILAND
The Shari'ah court in Thailand is the symbol of
the position of Islamic law and the power of the Muslims in Thailand. It has a
long history in the Thai legal system.
Talking about Shari'ah court in Thailand, one must
trace it back to the position of the Muslim arbitration in the Court of the
Department of the Right Harbor during the reign of the Pracau Songtham
(1602-1627). Whenever there arose a dispute amongst the Muslims, the case would
be entrusted to the person who has had a special knowledge on Islamic law. As a
result, Pracau Songtham allowed the establishment of Sam Krom Tha Kwa in order
to try and hear cases including matrimonial cases of the Muslims who lived in
the city of Ayuthaya and in the seven principalities of Southern Thailand, such
as Pattani, Nongchick, Yaring, Saiburi, Yala, Raman and Ragae.10
During the reign of King Chulalongkorn or Rama V
(1868-1910), the Rule of Administration in the Seven Principalities 1902 was
enacted and a special court for the Muslims was set up as part of the
Provincial Court. This rule remains until today and section 32 of the rule
provides that:
The
Criminal Code and the Civil Code shall be applied to Thai citizens except in
civil cases concerning husbands and wives, and inheritance cases in which both
parties are the Muslims or a Muslim is a defendant, in such cases, the Islamic
law shall be applied.
Having the special courts existed alongside the
Provincial Courts, it was criticized by many Muslim intellectuals in the past.
According to them, the special court should be independent and the Muslim
judges should be given full authority to hear and try Muslims' cases. In 1909,
the Anglo-Siamese Treaty was signed. By virtue of this treaty, the Siamese form
of administration was gradually integrated in the Kingdom of Patani. The
Kingdom of Patani was incorporated as part of the Thai Buddhist state.
Following the incorporation of Patani as part of
the Thai Buddhist country, the Thai government then issued the Royal Decree
which, inter alia, stated that:
No law shall be passed unless
by specific royal consent 11
In 1938, the Islamic law and the special court
were abolished by the autocratic Prime Minister Field Marshall Phibul Songkhram
who ruled Thailand from 1938-1944 by replacing with the Emergency Decree
Amending.12 This emergency decree provides, inter alia, all citizens
are subjected to the Thai civil law irrespective of their origins or religions.
The following Phibul Songkram's rise to power, the Shari'ah law governing
Muslim marriage and inheritance rights was set aside in favour of the Thai
Buddhist law of marriage and inheritance.13
In fact, the abolition of the Islamic law in
Thailand had no doubt created a confrontation between the Muslim leaders and
the government and it contradicts with the Thai Constitution.14 ln
order to appease this volatile situation, the government has introduced the new
act on the application of the Islamic law in the four Muslim dominated
provinces of Pattani, Narathiwat, Yala and Satul. This act was enacted in 2486
B.E. (1946).15
Section 3 of the act provides that:
Islamic
family law and inheritance shall be applied in the Court of the First Instance
in Pattani, Narathiwat, Yala, and Satul where Muslims are both the plaintiff
and the defendants or a Muslims files the request in non-contentious cases.
Hence, by virtue of this act, the Muslims who
lived in the four border provinces of Thailand were once more again allowed to
apply Islamic law as previously practiced.
THE ROLES AND QUALIFICATIONS OF THE
DATO' YUTHITHAM IN THE PROVINCIAL COURTS
In order to further assimilate the Muslims into
the Thai polity, the office of the Dato' Yuthilham was introduced. According to
the Rule of the Administration in the seven principalities of 1902, the title of
the Muslim judge was called "tok kadi".16 This title was
first employed by the Thai government to refer to a Muslim judge. In 1917 the
Ministry of justice has changed the title of the 'tok kadi' to Dato' Yuthitham.17
The term "Yuthitham" is a Thai word which means justice whereas the
word "Dato'" is a Malay word which is referring to a honorable
person. However, the Malay Muslims in the south usually call the Muslim judges
as "tok kadi"
The common duty of the Dato’ Yuthitham is to give
advice to the Thai civil judges on family and inheritance cases involving
Muslims, but the final judgment would be delivered by the Thai judges. The
qualifications of the Dato’ Yuthitham are as follows:
1.
He must be well-versed in the Quran particularly the verses dealing with marriage
and inheritance.18
2.
He must be able to converse in the Thai language fluently and received
education at least the secondary school level.19
3. He
shall not be less than 30 years old.20
Those qualifications as proposed by the government
suggested that the Dato’ Yuthitham could not carry out their function as an
ordinary judge for it does not reflect the ability of becoming a judge. As a
result, the applicants had lost their confidence if their cases were tried by
the Dato’ Yuthithams since those qualifications as stated above do not meet
with the actual qualification that has been set in the Holy Qur'an. Besides,
the Dato’ Yuthithams had received a different treatment in term of appointment,
dismissal, promotion of position and their salary. The appointment and
dismissal of a judge is usually made by His Majesty King,21
subjected to the consent by the judicial committee.22 However the
appointment and the dismissal of the Dato’ Yuthithams are made by the Minister
of Justice23 since the title of the Dato’ Yuthithamis less important
as compared to the Thai civil judge.
With regard to the Role of the Dato' Yuthitham, as
explained above, it is provided in section 32 of the Rule of Administration in
the Seven Principalities 1902, which, inter alia, stated that:
The
Criminal Code and the Civil Code shall be applied except in civil cases
concerning husbands and wives, and inheritance in which Muslim are both the
plaintiff and the defendant, or only a defendant, in such a case, the Islamic
law shall be applied and decided by the Dato' Yuthitham who has knowledge of
the Qur'an and enjoys the respect of the people.
While the salary and the promotion of an ordinary
judge are subjected to the approval by the Judicial Committee,24 the
salary and the promotion of the Dato' Yuthitham depend on the consent by the
Ministry of Justice.25 This is due to the fact that the Dato'
Yuthitham does not really qualify to be a judge whereby the qualifications for
the Dato' Yuthitham are lower than the civil judge. The Thai civil judge, for
example, has to pass the examination set by the Thai Bar Council whereas it is
not required for the Dato' Yuthitham.
From what we can see above, it is proven that
there is no proper Islamic Judicial system in the four southern border
provinces of Thailand. Though there existed Dato' Yuthitham, but he is actually
not a judge but an adviser to the judge. In other words, the Dato' Yuthitham is
not a full-fledged judge. As a democratic country, the government of Thailand
must consider these issues in attempting to upgrade the status of the Dato'
Yuthitham in the four southern border provinces of Thailand.
THE HIERARCHY OF THE COURTS IN
THAILAND AND THE PROPOSED SHARl'AH COURT
According to the Law of the Organization of the
Court of Justice 1934, the Thai courts are divided into the Court of the First
Instance, the Court of Appeal and the Supreme Court. There are about 140 Courts
of the First Instance throughout the Kingdom of Thailand. In Bangkok
Metropolis, there are, for example, the Civil Court, the Criminal Court, the
Juvenile and Family Court, the Central Labour Court, and the Central Tax Court,
including Kwaeng Courts which have jurisdiction over minor civil cases and criminal
cases with maximum punishment of imprisonment not exceeding 3 years or fine not
exceeding 60,000 baht.26
Cases on family issues and inheritance of the
Muslims in the four southern border provinces of Thailand are tried by the
Provincial Courts (PC) which is under the jurisdiction of the Court of the
First Instance. The jurisdiction of the Provincial Courts of Pattani,
Narathiwat, Yala and Satul are extended to hear and try Islamic law cases. The
law provides that the Provincial Courts must decide cases by two judges.
However, in the case of Islamic law they are assisted by two Dato' Yuthithams.
According to what has been mentioned above, it
becomes clear that the Shari'ah Court, as understood by many people in the
south is non-existent for the Dato Yuthitham has no liberty to decide the
Muslims' cases. Moreover, it is not proper to establish Shari 'ah Court under
the Provincial courts since it will effect the present hierarchy of the court.
As a matter of fact, the Provincial Courts have already had two more important
courts, the Juvenile and Family Court as well as the Specialized Courts. In
addition to that, there are four Specialized Courts in Thailand, namely the
Labour Court, the Tax Court, the Intellectual Property and International Trade
Court, and the Bankruptcy Court. Judges in the Specialized Courts are appointed
from the judges who possess competent knowledge in their respective matters.
Since the government has recognized the special
courts under the Provincial Courts, the Shari'ah Court for the Muslims in
Thailand can also be categorized as a special court in order to open a room for
a Muslim who possesses a competent knowledge in the Islamic law to become a judge.
More importantly, since Thailand is a Democratic Country, the establishment of
the Shari'ah Court is deemed necessary for the Muslim community in this
country.
Figure 2
MAJLIS UGAMA ISLAM27 AND
THE PROVINCIAL COURTS28
As has been mentioned earlier. he imam of a
respective mosque can hear and try simple cases involving the matrimonial
disputes. When a person passed away, his or her remaining family would rest
assistance from the imam to give advice with regard to the distribution of the inheritance
to the heirs.
When the imam faced difficulty in advising on
certain disputes, he will then propose the case to the IRCC. However, the IRCC
has not apparently set any rules on how to advise. In practice, the advice grew
and developed to fulfill the requests from the Muslim community for assistance.29
Research conducted in 1998 by the local doctorate students revealed that the
IRCC was not only giving advices but also deciding cases on talaq, ta'liq,
faskh, khulu' as well as cases involving real disputes. The IRCC, at the same
time, is also issuing fatwas30 on certain issues.31 This
practice, in fact, can be seen until today.
Statistics of
various cases on matrimonial matters which have been decided by IRCC
from 1992 to 200I are shown in Table 1, 2 and 3 respectively.
Table I
The Patani Islamic Religious Committee
Council (PIRCC)
Type of talaq
|
1992
|
1993
|
1994
|
1995
|
1996
|
1997
|
1998
|
1999
|
2000
|
2001
|
Talaq
|
38
|
45
|
60
|
68
|
75
|
85
|
101
|
120
|
125
|
135
|
Ta’liq
|
84
|
80
|
63
|
89
|
97
|
93
|
131
|
118
|
120
|
130
|
Faskh
|
-
|
-
|
2
|
-
|
-
|
-
|
-
|
3
|
-
|
-
|
Khulu’
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
Total
|
122
|
125
|
125
|
157
|
172
|
178
|
232
|
241
|
245
|
265
|
Source: The Patani Islamic Religious Committee:
Matrimonial Files
Table 2
The Narathiwat Islamic Religious
Committee Council (NIRCC)
Type of talaq
|
1992
|
1993
|
1994
|
1995
|
1996
|
1997
|
1998
|
1999
|
2000
|
2001
|
Talaq
|
45
|
60
|
79
|
84
|
97
|
103
|
120
|
128
|
130
|
150
|
Ta’liq
|
89
|
70
|
56
|
90
|
102
|
106
|
100
|
160
|
159
|
130
|
Faskh
|
6
|
7
|
10
|
9
|
13
|
10
|
17
|
12
|
15
|
19
|
Khulu’
|
1
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
Total
|
141
|
137
|
145
|
183
|
212
|
219
|
237
|
300
|
304
|
299
|
Source: The Narathiwat Islamic
Religious Committee Council: Divorce Files
Table 3
The Yala Islamic Religous Commlttee
Council (YIRCC)
Type of talaq
|
1992
|
1993
|
1994
|
1995
|
1996
|
1997
|
1998
|
1999
|
2000
|
2001
|
Talaq
|
21
|
34
|
45
|
55
|
67
|
71
|
78
|
80
|
92
|
120
|
Ta’liq
|
50
|
60
|
79
|
80
|
90
|
97
|
102
|
134
|
150
|
157
|
Faskh
|
3
|
2
|
5
|
9
|
8
|
10
|
15
|
19
|
19
|
20
|
Khulu’
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
Total
|
74
|
96
|
129
|
144
|
165
|
178
|
195
|
233
|
261
|
297
|
Source: The Yala Islamic Religious
Committee Council: Divorce Files
In 1993, the Patani Islamic Religious Committee
Council has recorded 80 people who filed the ta’liq cases (conditional divorce)
and in 2003, it went up to 130 people. As for faskh case (divorce at the
instance of a wife), 9 people filed faskh cases in 1999. Most of the
matrimonial cases were filed in the NIRC. Beside the cases that were filed by
the Muslims in the Narathiwat, there are also a number of matrimonial cases
filed by Malaysian citizens ranging from talaq (divorce at the instance of a
husband), ta’liq (conditional divorce), faskh (divorce at the instance of a
wife) and khulu' (divorce by redemption), for they want to escape from
unnecessary investigation and strict procedures.
The statistics given above showed that the PIRCC
had already settled a large number of matrimonial cases. Thus, we can infer
that the Muslims who went to the IRCC were not merely to seek advice but also
to seek legal solution regarding to the matrimonial disputes. Normally, the
IRCC would assist the aggravated party and call the witnesses to confirm the
allegation. However, before deciding on any cases, the IRCC often for practical
purpose took on the role of bringing both parties involved to try to make peace
(sulh) instead of seeking legal solution. All these took place even though the
committee did not have power to take legal action in such cases. However, by
providing unofficial legal assistance, the IRCC was able to help in solving all
those matrimonial disputes.
In the ta'liq cases, when the complaint is filed,
the IRCC would inquire into why the complaint was being made and whether the
parties had taken the necessary step to bring about the reconciliation. This
requirement is stipulated explicitly in the Qur'an (4:35). In the case where
the committee satisfied with the answers given by the wife, the committee shall
ask her to fill a complaint in a letter of petition or claimant form provided
by the committee.32 The committee shall serve a notice on the
husband by stating the grounds of the ta'liq that "on a certain date his
wife has made a complaint to the IRCC that the husband had deserted her for
more than four months". In the event where the husband failed to appear
before the IRCC, the committee shall presume that the husband has agreed with
the wife's complaint. The committee will then fix the date for hearing, and the
wife must produce before the committee two reliable witnesses who knew the
circumstances of the case. After that the committee would ask the wife to take
an oath. Once the oath had been recorded, the committee would issue the ta'liq
divorce certificate to the wife.33
In the case of the desertion, the committee shall
grant the divorce to the wife according to the terms and conditions as stated
in the marriage certificate as long as the wife's claims do not appear
doubtful, otherwise the committee may dismiss such claims.
The normal period of desertion which is fixed by
the IRCC is six months; nevertheless if the wife can prove that the husband has
deserted her for at least four months, the Committee will accept the claims. In
the case of Norma Binti Abdullah v Omar Bin Haji Othman,34
after the claim was accepted, the committee found that the defendant had
deserted the plaintiff for 10 months beginning from 24th September, 1991. The
defendant was, therefore, divorced with one talaq.
Ill-treatment of plaintiff by the defendant could
be a ground of divorce ta'liq, as in the Ni-Nab Binti Tuan Muda v Daud Bin
Samat35 The plaintiff made a report to the NIRCC that the
defendant had slapped her face in front ofher children on 18th June 1992. The
defendant came to NIRCC and admitted that he had done so. The Committee,
however, decided that the divorce would be dissolved based on ta'liq agreement
since the husband has breached the condition that had been given by him to his
wife after a marriage contract had been concluded.
A husband is obliged to provide food, clothes and
lodging. If he fails, a wife may claim for the maintenance or ask the IRCC to
dissolve her marriage. In A-edah Binti Abdul Karim v Cik Mamat Bin Safeh36
the plaintiff asked the NIRCC to dissolve her marriage by faskh because the
defendant had deserted her for a period of one year and six months. She told
the Committee that her husband had failed to provide food and clothes for her.
Furthermore, he had not paid a deferred dowry amounting 10,000 Baht. As a
result, the committee ordered the marriage to be dissolved by faskh.37
Where constant quarrels occur, the committee shall
advice the disputed parties to enter into the conciliation process. In Ramlah
Haji Hamid vs. Abdul Rahman Bin Jali38 the plaintiff told the
committee that she had been married with the defendant for four years with
dowry of 25,330.00 baht. After the marriage, the defendant has involved in
gambling and has stolen her money amounting 7,000.00 baht.
The plaintiff asked the committee to dissolve the
marriage. However, the defendant refused to divorce the plaintiff. Finally, the
case was brought to the conciliatory committee which then advised the plaintiff
to live with the defendant but the plaintiff still disagreed with the advice of
the Conciliatory Committee (CC). The plaintiff later on sued the defendant for
divorce by redemption (Khulu') amounting 12,665 baht as proposed by the CC. The
plaintiff agreed to pay that amount on Thursday, 17th August, 1989 on the
condition that the defendant must return her money of 7,000 Baht. The defendant
agreed and the Committee ordered the marriage to be dissolved by redemption as
required by the plaintiff.
In Kiah Ahmad vs. Mat Jusah Abdul Latif,39
the plaintiff in this case has made a report to the NIRCC that the defendant
has beaten her, disallowed her to visit her relatives' house and failed to
provide sufficient money to her. Therefore, the plaintiff asked the committee
to dissolve her marriage by redemption with the amount of money 5,000 baht.
Once the defendant has accepted it, then, the committee can order the marriage
to be dissolved as requested by the plaintiff.
However, there are several instants where the
Muslims had filed their cases directly to the Provincial court. As for the Dato’
Yuthitham, they felt strongly that the authority to decide matrimonial cases
should still be with the Provincial courts since the government has appointed
the Dato’ Yuthitham to hear and try the matrimonial cases in the four southern
border provinces of Thailand.40 Thus, the Dato' Yuthithams were of
the opinion that the IRCC had no authority to deliberate on the matrimonial
disputes of the Muslims in those four provinces.41
With regard to the Dato’ Yuthitham, there are no
set of rules on how the Dato’ Yuthitham should decide on and advise in the
matrimonial cases. In practice whenever a matrimonial case involving Muslims is
filed in the Provincial Courts, the Court registrar will propose the case to the
Dato’ Yuthitham who will then examine the facts of the case and send it to the
Thai civil judge to be brought to the court for deliberation. The advice given
by the Dato’ Yuthitham on Islamic law would cover and deal with all types of inheritance
and divorce, i.e. (talaq, ta'liq, faskh problems that have been put forward by
the parties concerned. In giving advice, the Dato' Yuthithams have always
relied on fiqh books in their own collection as well as on the code of Family
law and law of inheritance code of 1941. The Dato’ Yuthitham must rely on it as
it is stated in the preamble of the codified code which reads:
This
law (the code) was compiled in accordance with the Holy Qur'an and the Islamic
religious books, therefore, when there were family and inheritance disputes the
Dato’ Yuthitham must refer to it. If the code was silent, the Dato’ Yuthitham must
refer to the Thai Civil and Commercial Law Code as well as the Thai Civil
Procedure Code as long as it does not repudiate to the code. This is because
both laws were supreme laws of the Country.
However, in practice, there were some cases where
the Dato’ Yuthitham did not actually rely on the code in deciding the case as
it has beenjustified in the case of Mari-Yea Tayi' @ Manea vs. Hama' Tayi.42
The applicant in this case, Mrs. Mari-Yea had filed a suit against her husband
by alleging that her husband has deserted her and her children for more than
two years. The learned Dato’ Yuthitham of the Yala Provincial Court held that
the applicant had a right to get her marriage dissolved in accordance with
article 1516 (4) of the Thai Civil and Commercial Law Code 1935.43
In fact, the matrimonial cases filed in the
Provincial court are not so many. A statistic from the survey revealed that from
1943 to 1947, there was no single matrimonial case filed at the provincial
courts. However, in 1950, there were not more than five cases per year that had
been decided by the Dato’ Yuthitham.44
There were few reasons why Muslims were reluctant
to file suit at the provincial courts.
Firstly, no appeal is allowed since the decision of
the Dato’ Yuthitham shall be fina1.45 In respect to that, criticism
was made by the secretary of the Central Islamic Committee of Thailand as
follows:
In
fact a person who has been appointed as the Dato’ Yuthitham is only an ordinary
person. Thus, in carrying out his duty as a judge, there shall be a mistake. If
he decides the case wrongly, the plaintiff will be responsible and he will
never be given the right to defend his right. Suppose, if this case is being
tried in the ordinary court, the judge will surely allow the plaintiff to make
an appeal, as such I think the right to make an appeal shall be given to the plaintiff
if it is discovered that the decision of the Dato' Yuthitham is wrongly given.
Thus, the justice is served to the plaintiff.46
Secondly, the Dato’ Yuthitham is not given the
authority to decide the case but he is given the privilege to sit on the bench
and give an advice on the Islamic law only.47
And lastly, the plaintiff has to incur excessive
expenses in hiring lawyers. As for the IRCC, no such expenses are required.
Below is the statistics on the matrimonial cases
filed in the Provincial Courts in the three border provinces of Thailand from
1992 to 2001. The result ofdecided cases in the three dominated Muslim
provinces is shown in Table 4, 5 and 6 respectively.
Table 4
The Yala Provincial Court (YPC)
Type of cases
|
1992
|
1993
|
1994
|
1995
|
1996
|
1997
|
1998
|
1999
|
2000
|
2001
|
Divorce cases
|
5
|
7
|
12
|
15
|
14
|
18
|
19
|
14
|
20
|
25
|
Inheritance
cases
|
3
|
5
|
7
|
9
|
9
|
10
|
12
|
16
|
18
|
19
|
Custody of
Child
|
5
|
8
|
9
|
9
|
12
|
17
|
19
|
20
|
25
|
28
|
Total
|
13
|
20
|
28
|
33
|
35
|
45
|
50
|
50
|
63
|
72
|
Source: The office Director, The Yala
Provincial Court
Table 5
The Narathiwat Provincial Court (NPC)
Type of cases
|
1992
|
1993
|
1994
|
1995
|
1996
|
1997
|
1998
|
1999
|
2000
|
2001
|
Divorce cases
|
6
|
8
|
10
|
15
|
16
|
19
|
25
|
27
|
30
|
35
|
Inheritance
cases
|
4
|
5
|
7
|
6
|
8
|
10
|
12
|
14
|
15
|
16
|
Custody of
Child
|
4
|
5
|
7
|
9
|
10
|
12
|
11
|
12
|
10
|
14
|
Total
|
14
|
18
|
24
|
30
|
34
|
41
|
48
|
53
|
55
|
65
|
Source: The office of the Court
Director, The Narathiwat Provincial Court
Table 6
The Pattani Provincial Court ( PPC )
Type of cases
|
1992
|
1993
|
1994
|
1995
|
1996
|
1997
|
1998
|
1999
|
2000
|
2001
|
Divorce cases
|
5
|
8
|
11
|
10
|
12
|
14
|
18
|
19
|
20
|
21
|
Inheritance
cases
|
2
|
5
|
6
|
7
|
8
|
10
|
11
|
13
|
14
|
16
|
Custody of
Child
|
4
|
6
|
8
|
9
|
9
|
12
|
16
|
17
|
19
|
19
|
Total
|
11
|
19
|
25
|
26
|
29
|
36
|
45
|
49
|
53
|
56
|
Source: The office of Court Director,
The Pattani Provincial Court
Based on the statistics, it is clearly
demonstrated that the Provincial Courts of Narathiwat, Pattani and Yala solved
lesser number of the matrimonial cases of the Muslims in the south as compared
with the IRCC. It should also be pointed out that there was a strong tendency
amongst the Muslims in the south to go to the IRCC to settle their marital
disputes rather than to go to the Provincial Courts.
The matrimonial cases which are frequently decided
by the Provincial Courts fall under the category of the divorce by desertion.
It is observed that the provincial court is not consistent in applying the law,
though it is the Dato' Yuthitham’s duty to apply Islamic law. The example can
be seen in the case of Mariyea Tayi' @ Menea vs. Hama Tayi'.48
In this case, the plaintiff requested her marriage to be dissolved by ta'liq
based on lafz ta'liq which is attached on the marriage certificate, issued by
YIRCC. The wife then filed a suit at YPC by alleging that her husband had
deserted her and her children for over two years. The learned Dato' Yuthitham
granted a divorce by relying section 1516 (3) of the Thai Civil and Commercial
Law Code 1935 which stated to the effect that:
If a
spouse has deserted the other for more than one year or has failed to give
proper maintenance and support the later, she may enter a claim for divorce.
However, in Nuriyah vs. Ma'ripeng Che Leh’s
case,49 the learned Dato' Yuthitham applied Islamic law as it was
embodied in the code of the Muslim Family Law and the Law of Inheritance code
1941. In this case, the plaintiff, Miss Nuriyah, had applied to the Patani Provincial
Court to confirm a ta1aq by ta'liq under article 92 (4) of the Muslim Family
Law and the Law of Inheritance Code 1941, by arguing that the husband had
pronounced the conditional divorce or ta’liq and the defendant had failed to
comply with it, by willfully deserting her for a period of six months.
Moreover, he had not given maintenance to the plaintiff and her children. The
leamed Dato’ Yuthitham of the PPC advised the Thai judge and stated that the plaintiff was
entitled a divorce in accordance to the ta'liq agreement which has been given
before the imam. The court then ruled in favour of the plaintiff.
Whenever the husband has maintained or treated
another woman as his wife, the Plaintiff may file a petition for a divorce from
her husband on the ground of shiqaq50 or disagreement. In Siti
Nuriyah @ Sumaiyah Ma'ding vs. Ibrahim Ma'ding,51 the learned
Dato' Yuthitham, Dato' Ni Wea Ali Ni Loh, who advised the case was of the
opinion that since the defendant had maintained another woman as his wife, the
plaintiff would enter a claim for divorce according to section 1516 (1) of the
Thai Civil and the Commercial Law Code 1935, as grounds for a dissolution of
the marriage. The court then ruled in the favour of the plaintiff.
THE CONCILIATORY BODY
Both institutions, the Provincial Courts and the
Provincial Islamic Religious Committee Council seemed to agree to establish the
conciliatory body in order to prevent the marriage from breaking down and to
maintain the relationship between the plaintiff and the defendant after the
divorce had been granted. From its inception, the main task of the Provincial
Islamic Religious Committee Council has been to compromise disputes concerning
family and inheritance. This noble job was later on recognized by the Patronage
of Islamic Act of 2488 B.E. (1945). This act which was renamed as the Royal Act
Concerning the Administration of Islamic Organization 2540 B.E. (1945) provides
that:
The
Provincial Islamic Religious Committee has the power to compromise disputes concerning
family and inheritance according to the Islamic rules52
It is observed that this act is silent about the
appointment of the arbitrators, its qualifications and the procedures of handling
the conciliation session. As a result, the IRCC has to adopt a conventional
approach wherever the act is silent. In Narathiwat, for example, the normal
practice is that when complaint was lodged, the IRCC shall direct the parties
to enter for reconciliation before the conciliatory committee. If the
Conciliatory Committee is unable to persuade the parties to resume marriage
life together, the committee will ask the husband to pronounce the divorce.53
From this practice, it is observed that the appointment of Hakam or arbitrator
is overlooked by the committee whereas the importance of Hakam is clearly
mentioned in the Holy Qur'an.54
Looking at the importance of this institution, the
Ministry of Justice has issued the rule for the Administration of the Court of Justice
in the matter of conciliation of the disputes B.E. 2544 (2001). According to
this rule, the qualifications of the arbitrator are as follows:
1. He
must have a basic knowledge in Sciences, Economics and Law.
2. He
must be 25 years old.
3. He
must be morally excellent.
4.
He must not become an incompetent person by the judgment of the court.
5.
He has never been sentenced to be imprisonment unless in negligence cases.55
The responsibility of the arbitrator is to
reconcile and to compromise the disputed parties.56 In exercising
his duty, no coercion is allowed.57 This conciliation process is
conducted before the case being brought to the court. If the arbitrator failed
to reconcile or compromise, the arbitrator in charge will send a report to the
court.
From the discussion above, it is noticed that both
institutions are working hard to settle the matrimonial disputes through the
conciliatory process in order to prevent from marriage breakdown. Whether or
not this body can work effectively, it depends on the role played by the
arbitrators during the conciliation session. As for the qualifications of the
arbitrators that have been laid down in the rules, it seems that there is a
possibility in reducing the numbers of the marriage breakdown in the four
southern border provinces of Thailand.
CONCLUSION
From the above discussion, we can conclude that
the Islamic law is considered as the law for the Muslims in Thailand. However,
after 1902, the Islamic law was considered as the law for the Muslims in only
certain provinces by virtue of many acts i. e. the Rule of Administration in
the Seven Principalities of 1902, the Patronage Of Islamic Act of 1945, and the
Application of the Islamic Law in Patani, Narathiwat, Yala and Satul Act of
1946. In other words, the Muslims in Thailand are governed by two different
sets of laws - one is the Islamic law and the other is the secular law.
With regard to the Islamic law, it was administered
by two different institutions, the provincial courts and the Islamic Religious
Councils. In fact, the Muslims are in a complex position, that is when they
want to apply the Islamic law especially in settling their matrimonial
disputes, they always confused as to whether to rely on the state law or the
Islamic law. As for the latter, the decision depends on the Dato' Yuthithams
whereby their decision is absolute and no appeal is allowed. Meanwhile the
decision of the former depends on the Thai civil judges. As a result, the
decision given is totally different from that of the Thai civil judges since
they applies the Thai civil law code though they are assisted by the Dato'
Yuthithams. This problem, from our points ofview, can be solved through the
establishment of the Shari'ah Court and the upgrading of the position of the
Islamic law in the Thai legal system.
@@@@@@@@@@@@@@@@@@@@@
*
This paper is a revised version of the paper
presented in the Seminar on Shari'ah and Democracy: The Southeast Asia
Experience, organized by the Centre for Contemporary Islamic Studies and the
Konrad-Adenaur-Stiftung Foundation, Singapore, March 13-14, 2004. The writer
would like to extend his gratitude and acknowledgement to Mohd. Zain Abd.
Rahman for his interest to comments and edit this paper
**
Senior lecturer at the College of Islamic Studies.
Prince of Songkhla University. Pattani Campus, Thailand. He is currently
pursuing his doctorate study at Ahmad Ibrahim Kulliyyah of Law, International
Islamic University Malaysia (IIUM)
1.
See Section 2,
Constitution ofthe Kingdom of Thailand, 1997.
2.
See Chapter
III, Constitution of the Kingdom of Thailand, 1997.
3.
There were
four dynasties with regard to the history of Thailand namely, Sukhothai Dynasty
(1238-1378), Ayudhya Dynasty (1350-1767), Thonburi Dynasty (1767-1782), and
Rattanakosin Dynasty (1782-till present).
4 This
appointment was lasted until the reign of King Pra Chao Prasat Thong of
Ayuthaya Dynasty (1602-1655). He is the first Chularajmontri of Thailand which
is equivalent to Shaykh al-Islam who carried the title of Chao Phraya Sheikh
Ahmad Rattana Rajesti. At present the Thai king has already appointed 17
persons to be Churajmontri (Shaykh al-Islam}.
They
were considered as the highest leaders of the Muslims in Thailand having its
responsibilities in responding between the government officials and the Muslim
Communities. See Swa Vilaiwan (2001), Chularajmontri. Bangkok: Chareun Phon,
pp. 28 - 29. See also Imtiyaz Yusuf (1998), "Islam and Democracy in
Thailand: Reforming the Office of Chularajmontri/Shaikh al-Islam". Journal
of Islamic studies 9:2, pp. 277-98; Bukhari Bin Raman (1978), Islamic Law.
Bangkok: Ramkhamheang University Press, p. 56.
5 Den Tohmina (1997), Shariah Court. [S.I.]:
[S.n.], p. 7. See also Prayurasak Jalayanateja (1998), Muslim in Thailand
Bangkok: The Foundation of Islamic Center of Thailand, p. 13.
6 It means "Court in the Department of (Right)
Harbor".
7 The word Pattani with double "tt"
is transliterated from the Thai spelling. It is officially referred to a
southern border province of the Thai Kingdom, whereas the word
"Patani" with one "t" is the Malay version indicated the
Malay city-state. In this paper, the word Patani will be employed. See W.K. Che
Man (1990), Muslim Separatism: The Moros of Southern Philippines and the Malay
of Southern Thailand. Singapore: Oxford University Press, pp.40-41 .
8 A. Bangnara (1977), Fatani Dahulu dan Sekarang
Patani: Penal Penyelidikan Angkatan al-Fatani, p. 34.
9 W.K. Che Man (1990), op. cit., pp. 40-41.
10 These seven principalities
known as Khet Jet Huamuang were set up in 1815. However, in 1906, they
were combined into four provinces namely Patani, Yala, Saiburi and Ra-nge. And
again in 1933, these four provinces were recombined into only three provinces
which last long until today. They are, namely, Pattani, Yala and Narathiwat.
See Tej Bunnag (1977). The Provincial Administration of Siam 1892-1915: The
Ministry of the Interior under Prince Damrong Rajanubhab. Kuala Lumpur:
Oxford University Press.
11 Uthai Hirayanto (n.d.), Pandin
Thai: Changwat Chai Daen Paktai (Thailand: Southern Border Provinces. Bangkok:
Local Administration Department of Interior, p. 28. See also Surin Pitsuwan
(1985), Islam and Malay Nationalism: A Case Study of the Malay-Muslim of Southern
Thailand. Bangkok: Thai Kadi Research Institute, Thammasat University.
12 The
Act Promulgating the Provision of Book V and VI of the Civil and Commercial
Code of 1943.
12 For further details on the Thai administration
during Field Marchal Phibul Songkhram, see Kobkua Suwannathat-Pian (1995),
Thailand's Durable Premier: Phibun through Three Decades 1932-1957. Kuala
Lumpur: Oxford University Press.
13 Andrew Forbes (1982),
"Thailand Muslim Minorities: Assimilation, Succession or
Coexistence?" Asia Survey 22: 2, pp. 1056-1073
14 See Sections 5, 9 and section
38 of the Constitution of the Kingdom of Thailand, 1997.
15 This act was issued on 3rd December 2489 B. E.
(1946).
16 A letter issued by the
Ministry of Justice No: 30/4353 dated 24th September 1917.
17 Datok Aziz Benhawan (1988),
"The Education and Training of Shariah Judges and Lawyers". Paper
presented at the 5'1. SEAS Conference, Singapore, 26-28 February, 1988, p. 2.
See also Datok Aziz Benhawan (1990), "Kadhi di Selatan Thai", Shariah
Law Journal, pp. 65-72.
18 See Section 44 (2) of the
Judicial Officer Act 1934.
19 Section 44.
20 Section 44 (I). See also http:www.judiciary.go.th/eng/thejudiciary.htm.
21 See Section 192, Constitution of
the Kingdom of Thailand, 1997.
22 Ibid. First para. of 193.
23 See Section 44 of Judicial
Officer Act 1978.
24 See
Section 193, second para of the Constitution of the Kingdom of Thailand, 1997.
25 See Section 45 Judicial Officer
Act, 1978.
26 See
Government and Politics-Judiciary and Justice Administration, in http:
sunsite.au.ac.th/thai land/government/judi .htmI.
27 This institution was formed in accordance with
the Patronage of the Islamic Act of 2488 B.E. (1945). When General Chavalit
Yongchaiyudh becomes the Prime Minister, this act was replaced by the Royal Act
concerning the Administration of Islamic Organization 2540 B.E. (1997). Under
this act, the Committee for the provincial Court for Islamic Affairs (PCIA) was
formed to give advice and to aid the provincial governor in all matters
relating to Islam.
28 In every province, there is
one provincial Court. However, according to the hierarchy of the Court in
Thailand, the provincial Court was called the Court of the First Instance.
According to the Constitutional Court ofJustice Act, article 14 (2) provides
that the Provincial Courts have its jurisdiction according to the Act on
establishing the provincial Court. Generally speaking, the Provincial Courts
have the authority to hear and try the cases throughout the province.
29 Article
26 (11) of the Royal Act 1997 provides, inter alia, the provincial Islamic
Religious Committee has the power to compromise disputes concerning family and
inheritance according to Islamic rules when there is a request from the
Muslims.
30 It is an Arabic word which means a religious
ruling. Previously a fatwa in Thailand can be issued by the Islamic Religious
Council of the respective province but at present it can only be issued by the Shaykh
aI-Islam (Chularajmontri).
31 See The Narathiwat Islamic
Religious Council, requesting fatwas on lafaz cerai, Thursday 18th
February, 1992.
32 See Surat Pengaduan Ta'liq (a letter of ta'liq
complaint).
33 In this certificate, the
committee shall state the divorce that has been affected based on the complaint
received and the 'iddah commencement date.
34 The Narathiwat Islamic
Religious Committee Council, Ta'liq case, file no: 93/1992.
35 The Narathiwat Islamic
Religious Committee Council, Ta'liq case, file no: 48/1992.
36 The Narathiwat Islamic
Religious Committee Council, Faskh case, file no: 80/1992.
37 The decision, as mentioned in
the document, was made based on the fiqh book entitled Ghayat al-Afrah,
page 28, chapter 5 on Fasakh. However, the name of author of the book
was not mentioned. See the Narathiwat Islamic Religious Council, Divorce by fasakh.
38 The Narathiwat Islamic religious Committee
Council, Divorce by redemption, file no: 36/1989
39 Narathiwat Islamic religious
Council, no citation.
40 Article
3 of Act on the application of lslamic Law in Patani, Narathiwat, Yala and
Satul, Act of 2486 B.E. (1946) which provides, inter alia. that the Dato’
Yuthitham shall have the right to apply Islamic law only.
41 Interview
with Dato' Ismail Che, Dato' Yuthitham, at the Patani Provincial Court,
on 25th July, 1999.
42 Yala
Provincial Court case, Civil Suit No: 215/2544 B.E. (2001). See also a decided
case of Miyea Yamthong @ Masamea v Asi Masamea, Patani provincial Court
case, Civil Suit No: 185/2537 B.E. (1994).
43 It
provides " if one spouse has deserted the other for more than one year or
has failed to give proper maintenance and support, the later may enter a claim
for divorce".
44 See Arong Suthasasna (1987),
"Shari'ah and Codification -Thailand Experience", Shariah Law
Journal, pp. 142-143. See also Ahmad Omar Chapakia (200 I), "Peranan
Ulama' Fatani Dalam Politik: Kajian Kes Haji Sulong Bin Abd. Kadir",
paper presented in the Seminar Nadwah Ulama' Nusantara 1, Kuala Lumpur, 19-20
May 2001 , p. 2.
45 See
article 4 clause 3 of the act on the application of Islamic law in Patani,
Narathiwat, Yala, and Satul, Act of 2489 B.E. (1946)
46 Khacat
Phai Burut Phat (25I9 B.E.), Thai Muslim. Bangkok: Prea Pittaya, pp. 329-330.
47 See Section 4 of the act on the
application of Islamic law in Patani, Narathiwat, Yala, and Satul, 2489 B.E.
(1984).
48 Yala Provincial Court, Civil Suit No: 215/200
I.
49 The Patani Provincial Court, Civil Suit No:
787/1999.
50 The word shiqaq is the Arabic word
which means to break into two. The juristic meaning of shiqaq is discord
and conflict between the spouses. Its principle is derived from the Holy Qur'an
(4: 35).
51 The Narathiwat Provincial Court, Civil Suit
No: 8/1997.
52 See Article 26 (11) of the Royal Act.
53 Ma-Useng Pador Kampong (1993),
Peranan Majelis Ugama Islam Narathiwat Dalam Mengembangkan Islamiyah Di
Propinsi Narathiwat Thailand Selatan. Unpublished M.A Thesis, Institute
Agama Islam Negeri Sunan Kalijaga, Yogyakatya, Indonesia, p. 47. See also a
decided case of Rahimah Haji Hamid, Narathiwat Islamic Religious
Committee Council, No. case: 36/2532 B.E. (1989).
54 See the Holy Qur'an (4: 35).
55 See No. 28 of the rules and regulation for the
administration of the court of justice in the matter of the reconciliation of
the disputes.
56 Ibid. Rule no. 32 (1) (2).
57 Ibid. Rule no. 32 (3).
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