[2019] CLJ JT (5)
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JRI RESOURCES SDN BHD v. KUWAIT FINANCE HOUSE (MALAYSIA) BHD;
PRESIDENT OF ASSOCIATION OF ISLAMIC BANKING INSTITUTIONS MALAYSIA & ANOR (INTERVENERS)
FEDERAL COURT, PUTRAJAYA
RICHARD MALANJUM CJ, AHMAD MAAROP PCA, ZAHARAH IBRAHIM CJ (MALAYA),
DAVID WONG DAK WAH CJ (SABAH & SARAWAK), RAMLY ALI FCJ, AZAHAR MOHAMED FCJ,
ALIZATUL KHAIR OSMAN FCJ, MOHD ZAWAWI SALLEH FCJ, IDRUS HARUN FCJ
[CIVIL APPEAL NO: 06(i)-06-07-2017(B)]
10 APRIL 2019

CONSTITUTIONAL LAW: Courts – Judicial power – Whether exercised in accordance with judicial process of the Judicature – Whether non-judicial personage could exercise judicial power – Whether Shariah Advisory Council (‘SAC’) has characteristics of judicial power – Whether vested only in persons appointed to hold judicial office – Whether ruling by SAC was solely confined to Shariah issue – Whether ‘ascertainment’ of Islamic law which results in a ‘ruling’ not a ‘determination’ which results in final decision – Whether ‘take into consideration’ in s. 56 of Central Bank of Malaysia Act 2009 implies that only court or arbitrator has exclusive judicial power to decide on case by applying the ruling of the SAC – Whether SAC usurps judicial power of court – Central Bank of Malaysia Act 2009, ss. 56 & 57 – Federal Constitution, arts. 8 & 74

CONSTITUTIONAL LAW: Jurisdiction – Civil court – Matters pertaining to Islamic banking – Ascertainment of Islamic law for the purposes of Islamic financial business – Reference made to Shariah Advisory Council (‘SAC’) – Whether sole authority for ascertainment of Islamic law for purposes of Islamic financial business – Ruling of SAC under ss. 56 & 57 of Central Bank of Malaysia Act 2009 – Whether binding on court

CONSTITUTIONAL LAW: Legislation – Validity and constitutionality – Matters pertaining to Islamic banking – Reference made to Shariah Advisory Council (‘SAC’) – Ruling of SAC under ss. 56 & 57 of Central Bank of Malaysia Act 2009 – Whether SAC did not ‘determine’ liability of borrower under Islamic facility – Whether ‘ascertainment’ of Islamic law by SAC results in a ‘ruling’ not a ‘determination’ which results in final decision – Whether binding on court – Whether ruling constitutionally valid – Central Bank of Malaysia Act 2009, ss. 56 & 57 – Federal Constitution, arts. 8 & 74

CONSTITUTIONAL LAW: Supremacy of constitution – Doctrine of separation of powers – Exercise of judicial power – Establishment of Shariah Advisory Council (‘SAC’) – Whether sole authority for ascertainment of Islamic law for purposes of Islamic financial business – Whether SAC has characteristics of judicial power – Whether ‘ascertainment’ of Islamic law by SAC results in a ‘ruling’ and not a ‘determination’ which results in final decision – Whether ruling solely confined to Shariah issues – Whether SAC usurps judicial power of court - Central Bank of Malaysia Act 2009, ss. 56 & 57 – Federal Constitution, arts. 8 & 74

BANKING: Bank and banking business – Islamic banking – Compliance with Shariah principles and rulings – Establishment of Shariah Advisory Council (‘SAC’) as Shariah supervisory board – Whether sole authority for ascertainment of Islamic law for purposes of Islamic financial business – Whether every Islamic financial institution required to observe advice from SAC – Whether ruling of SAC solely confined to Shariah issues – Whether ruling did not ‘determine’ liability of borrower under Islamic facility – Whether SAC’s ruling binding on court – Central Bank of Malaysia Act 2009, ss. 56 & 57

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