Fenomena Blogging telah melanda negara kita sejak tahun 2004.Hampir separuh pengguna internet di Asia mempunyai blog hasil kajian yang dibuat oleh Microsoft.Apakah yang dimaksudkan dengan blog? Blog merupakan singkatan dari “web log” biasanya di selenggara oleh individu dan mengandungi komen-komen, penerangan sesuatu acara atau bahan-bahan seperti gambar-gambar atau video.Terdapat beberapa jenis blog dan setiap jenis adalah berbeza dari segi kandungan,cara penyampaian dan cara penulisan oleh setiap individu.Bloggers telah dianggap sebagai satu cara alternatif penyebaran maklumat atau berita yang tidak diperolehi di dalam media-media mainstream .Sesetengah blog juga dicipta untuk membalas atau memberi penjelasan terhadap bahan-bahan yang telah terdapat didalam suratkhabar mainstream,tv dan juga radio.Di Malaysia,blog berunsurkan politik telah menjadi tumpuan utama tidak seperti negara-negara asia lain yang hanya mempunyai peratusan sebanyak 14% sahaja.56% dari bloggers di negara kita mencipta blog untuk menyatakan dan meluahkan perasaan serta pendapat mereka,manakala selebihnya untuk menceritakan tentang perkembangan diri buat kawan-kawan dan juga keluarga.
Pilihanraya umum ke-12 yang lalu,telah menyaksikan tsunami politik dan menyebabkan perubahan yang ketara dimana pengaruh kerajaan semakin merosot dikalangan rakyat.Antara faktor utama kekalahan teruk kerajaan adalah disebabkan wujudnya blog-blog sebagai sumber alternatif maklumat kepada rakyat.Ini kerana rakyat sudah bosan serta muak dengan sumber maklumat dari media-media utama yang tidak terbuka serta melaporkan secara berat sebelah.Ekoran dari perkembangan yang membimbangkan,kerajaan telah mengguna pakai beberapa undang-undang sedia ada untuk mengaitkan mereka dengan kesalahan-kesalahan berhubung blog.Mereka berpendapat,implikasi undang-undang tidak dihiraukan oleh bloggers dan tindakan harus di ambil di bawah kes jenayah dan kes sivil untuk menyekat para bloggers tersebut.Setakat ini sebanyak 7 kes berhubung dengan kesalahan blog telah didakwa di mahkamah.Undang-undang berkaitan kesalahan-kesalahan blog adalah seperti berikut:
1. Akta Komunikasi dan Multimedia(1998) 2. Akta Hasutan 1948 3. Kanun Keseksaan 4. Akta Keselamatan Dalam Negeri 1960 5. Akta Rahsia Rasmi 1972 6. Akta kesalahan-kesalahan di Luar Negeri 1976
Di bawah Akta Hasutan sekyen 3, bloggers boleh di dakwa atas kesalahan menghasut dengan menimbulkan rasa benci terhadap kerajaan,Raja-raja,Institusi Kehakiman,kaum-kaum serta hak-hak istimewa orang Melayu. Kanun Keseksaan sekyen 298A membolehkan seseorang bloggers didakwa jika menimbulkan kekacauan atas nama agama,manakala sekyen 499 dan 500 memperuntukkan bagi kesalahan fitnah(Defamation).Sekyen 28 Akta Keselamatan Dalam Negeri membolehkan dakwaan dilakukan di atas penyebaran laporan palsu oleh bloggers dan di bawah Akta Komunikasi dan Multimedia sekyen 233 bloggers boleh di dakwa atas kesalahan penyalahgunaan kemudahan network.Ini merangkumi sebarang komen,artikel yang mempunyai sifat yang salah,mengganggu, atau mengugut orang lain.
Kerajaan mengisytiharkan akan menangani gejala blog ini secara serius antaranya dengan mewujudkan program bersama bloggers di RTM dan juga menubuhkan pasukan khas respon terhadap blog yang di anggotai oleh unit khas pihak polis bagi memantau gejala blog ini.Jika dikesan terdapat unsur-unsur kesalahan berhubung blog, pasukan ini akan menangkap bloggers berkenaan dan akan memaksa mereka menutup blog tersebut atau akan didakwa.Ramai yang membantah tindakan ini kerana di bawah Rang Jaminan MSC Malaysia (MSC Malaysia Bill of Guarantees), kerajaan Malaysia berikrar tidak akan menapis Internet.Sekyen 3(3) Akta Komunikasi dan Multimedia 1998 [REPRINT 2002] menyatakan (Nothing in this Act shall be construed as permitting the censorship of the Internet.)
Man as a species is a natural being, which develops in the course of world history. Man is primarily a creative being, with desires and powers, faculties, creative abilities, which have their outcome in production. Mankind in its history has transformed the objects of the natural world and has created the entire world of culture. The vast historical and natural accumulation of the material and cultural objects mankind has produced are the manifestations or externalizations or embodiments of man's creative powers. Man actualizes himself in the world. In Marx's own powerful; language:
The whole so-called world history is nothing other than the production of man through human labor [sic]...
Marx firmly believes that the history of the world is the developing process in which human beings have created the great totality of objects in nature and in human culture, and in this process, the human species will find itself objectified and achieve self-realization. So, for example, the whole of modern industry is man's product - industrial mechanization is the externalization of human hands, ears, eyes, brains. Mills, mines, factories and their expanding technologies, have all been produced by human beings and are externalizations of their creative powers. But the n human species does not realize that it is the creator of the world of natural objects and of culture. What man sees when he looks at these objects which he has produced are alien things in "an alien hostile world standing over against him." This is so because man's productive activity is done in servitude to the God money, rather than in spontaneous self-determination. The result has been that the history of human creative production has been a history of man's alienation from his own productive nature.
.:. Alienation
Human alienation takes four main form, according to Marx in the 1844 Manuscripts: Man is alienated from the product of his own work, from the act of producing, from his own social nature, and from his fellow men. First, the worker in industrialized capitalism is alienated from his product, which "exists outside him, independently, as something alien to him...the life which he has conferred on the object confronts him as something hostile and alien." His product is not his own but is utilized by strangers as their private property. And the more the worker produces, the less is his productivity valued. "The worker becomes an even cheaper commodity, the more cheap commodity he creates." The worker's wages are just sufficient to maintain him with what is necessary to keep him working. Second, the capitalist system alienates man from his productive activity. His activity is not determined by his personal interest or his creativity, but is something which he is compelled to do in order to remain alive. "His labor [sic]...is forced labor [sic]." As a result, in Marx's words, "The worker only feels himself outside his work, and in his work he feels outside himself." The more he works the less human he becomes. He finally feels at home only in the animalian functions of eating, drinking, and sexuality.
Third, capitalist society alienates the worker from the essential qualities of the human species. Unlike animals, says Marx, who produce only for their immediate needs, human produce knowledge and culture (such as art, science, technology) for the whole human race. Humans produce as universal beings for universal ends. But the capitalist system degrades man's urge to produce for all mankind into animal labour, into a mere means to satisfy his personal physical needs. The fourth form of alienation is the "estrangement of man from man." His fellow man is a stranger competing with him as a worker and for the products of their labour. Moreover, both are estranged from "man's essential nature."
.:. Capitalist System and Exploitation
Capitalism: Definition: What is capitalism? A capitalist mode of production is one in which a few humans own and control the major forces or means of production as their private property and they employ as workers those who have nothing to sell but their own labor power.
Labour theory of value: The commodities that the workers produce have a value equivalent to the amount of labour needed to produce them.
Surplus value: Directly related to Marx's theory of value is his crucial concept of surplus value. This is the concept which explains both the profit of the capitalist and the exploitation of the worker. Marx defines surplus value as the differences between the value of the wages received by the worker and the value of what he has produced. That difference, the difference between what the capitalist must pay the worker as wages and what the capitalist can sell the worker's product for, makes up the capitalist's profit.
Exploitation: The working class is forced into the position of selling on the market its labour power for the going rate of wages; the capitalist exploits the worker by selling the goods the worker produces form more money than he pays to the workers in wages. Capitalism is a system of exploitation, Marx argues, in which capitalists profiteer by paying the workers only the existing rate of wages in place of the full market value of the products the workers produce.
Historical materialism is the central theory in Marx's later writings. Materialism is the name conventionally given in philosophy to any metaphysical theory which claims that theory is material.
Marx believed that his materialism is different from all previous types of materialism (such as mechanistic materialism of Rene Descartes) in its awareness that the reality of material objects is not independent of human beings, but is actually a reality that has been transformed by human labour in the course of history. Marx presents his own conception of historical materialism, as a radically new materialism and as a new way of understanding history.
Society: Economic Base
Marx's historical materialism explains the whole sweep of history by taking man's material production as the base of history and by viewing mental production, man's intellectual and cultural life, as its effect. Marx insists that "in the whole conception of history up to the present this real basis of history" in material production has never before been understood.
The first historical act is thus the production of means to satisfy these needs ['eating and drinking, a habitation, clothing, and many other things'], the production of material life itself. And indeed this is an historical act, a fundamental condition of all history, - which today, as thousand of years ago, must daily and hourly be fulfilled in order to sustain human .life.
What does Marx mean by his view that material production is the real basis of history and that human thought and culture are only its effect? Like Hegel before him, Marx is trying to find a key which will explain the characteristics of individual human societies and also the changes which have taken place in human societies in the course of history. First, with respect to explaining the characteristics of individual human societies, … Marx [points out that] every individual society is an interrelated organic totality, in which no part can be understood in isolation. But for the idealistic philosopher, Hegel, the explanation of the organic unity of a particular society lies in the spirit of the people, which embodies the spirit of the Absolute. In opposition to Hegel's idealism, for Marx's materialism the explanation of the organic unity of a particular society lies in its material economic foundation.
The concept of the economic structure, or economic foundation, of society is crucial to Marx's view of society and history. Marx begins with a fundamental point about the history of human production. Whereas animals satisfy their needs with what nature provides, human beings must themselves produce the foods and clothing and shelter, which will meet basic human needs. Thus, human must produce the means to change what nature provides into things suitable for human needs. And as soon as man's basic needs are satisfied he develops new needs, which he is also increasingly able to satisfy by his productive activity.
Marx's point is that man is thus the producer of his own expanding material life. Man the producer is limitless in the needs he has the power to create and in the instruments he can produce to satisfy those needs. Human nature is expressed in this ongoing productive activity and its creative power, by which man continually transforms the material world and transforms himself.
In Marx's analysis, this process of man's material production consists of three components or factors. Human production is linked, first of all, to the existing conditions of production in the particular society. By the terms conditions of productions Marx means such basic conditions affecting human production as the existing climate, the geography of the society's physical location, the supply of raw materials, the total population. The second component of production Marx calls the forces of production, and by this term he means the types of skills, tools, instruments, and technology as well as the type and size of the labour supply which are available to the society. The third and crucial component Marx calls the relations of production and by this he means the property relations within a society – specifically, the existing social relations according to which the society organizes its conditions and forces of production and distributes the product among the members of society.
In the process of production, human beings do not only enter into relation with nature. They produce only by working together in a specific manner and by reciprocally exchanging their activities. In order to produce, they enter into definite connections and relations with one another, and only within these social connections and relations does their connection with nature, i.e. production, takes place.
The "sum total" of these three components of production in any particular society Marx calls the economic foundation or economic substructure of society and sometimes the mode of production.
Division of labour and Social Classes
The division of labour is a concept which Marx found in his reading of Adam Smith and other economic theorists, for whom it meant that labour becomes specialized in order to perform efficiently the many different skills required in production. But for Marx, the division of labour into specialized jobs has dehumanizing and evil results. It enslaves the worker to a limited and restricting sphere of activity, from which there is no escape. As a result the worker is denied the fulfillment of the totality of his human creative powers, which can never develop under the division of labour. Marx makes this point in a striking way in The German Ideology:
For as soon as labour is distributed, each man has a particular exclusive sphere of activity which is forced upon him and from which he cannot escape. He is a hunter, a fisherman, a shepherd, or a critical critic, and must remain so if he does not want to lose his means of livelihood.
The division of labour chains everyone – labourer, layer, businessman – for life to their respective confining special activities. But the division of labour is responsible for additional evils. It brings into being a slave like state of affairs in which no one any longer controls the means by which he provides for his own subsistence, his own livelihood. Moreover, the relations of production take place of human relations in social life. Individual humans no longer appear to one another as persons but as economic units within the impersonal process of the relations of production in society. Furthermore the division of labour alienates the individual worker from is fellow workers, and sets one against the other, since each is working for increased personal gain and not for a social or human benefit.
Most important, Marx says that "the division of labour implies … the division between capital and labour, and the different forms of property itself." This is the division of labour which occurs in the production process between the producers and the owners of the materials and forces of production. It leads to a situation in which what one man produces, another man appropriates the greater part of as his own private property. Where there is a division of labour between producer and owner, the product of labour no longer belongs to the one who produced it, says Marx, but to the non-productive owner. Thus the division of labour is the source of the institution of private property, and it leads to class division between the class of owners and the class of producers. These two classes are in a master-slave relationship – the class of producers are in the position of slaves to those who own the raw materials and the mills, mines, and factories and are able to appropriate the major share of what the workers produce. Class struggle is the inevitable result of this relationship.
Society: Ideological Superstructure
From his account of the economic foundation, Marx moves on to his explanation of the cultural life of a society. His claim is that the economic foundation of society conditions or determines the entire realm of culture. In a famous passage in the preface to the critique of Political Economy (1850) Marx says:
In the social production of their life, humans enter into definite relations that are indispensable and independent of their will, relations of production which correspond to a definite stage of development of their material productive forces. The sum total of these relations of production constitutes the economic structure of society, the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness. The mode of production in material life determines then general character of the social, political and spiritual processes of life.
Here we have the most Marx's most celebrated formulation of his view that human culture is not governed by ideas, by philosophic or older religious beliefs, as it was for Hegel; it is instead a mere superstructure determined by the existing substructure, the economic mode of production. In Marx's famous words concluded the quotation above:
It is not the consciousness of man that determines their existence, but on the contrary, their social existence determines their consciousness.
All ideas – all human thought in the realms of religion, philosophy, politics, law, and ethics – are conditioned by the economic foundation of society, and specifically by the class division within it. The dominant views in morals, politics, religion, law, philosophy, and art of any society are the ideas of the dominant economic class. Here are Marx’s stinging words from The German Ideology:
The ideas of the ruling class are in every epoch the ruling ideas: i.e., the class, which is the ruling material force of society, is at the same time its ruling intellectual force. The class which has the means of material production at its disposal, has control over the means of mental production … The ruling ideas are nothing more than the ideal expression of the dominant material relationships …
Marx believes that it must be immediately obvious to anyone that what he has discovered is true – that human mental life is nothing but a superstructure which is determined by the real (economic) basis of society, and that in every society in which there is class conflict, the dominant ideas and values of culture are those which reflect the economic interests of the dominant class. He asks:
Does it require deep intuition to comprehend that man's ideas, views, and conceptions, in own word, man's consciousness, changes with every change in the conditions of his material existence, in his social relations, and in his social life?
This conception of the cultural superstructure – religion, philosophy, law, political thought, morality, art – as falsifying and distorting the truth about social reality in the interests of a particular social class is the basis of Marx's tremendously influential concept of ideology.
Ideology
For Marx an ideology may be defined as a system of ideas which is determined by class conflict and which reflects and promotes the interests of the dominant class. Ideologies are thus portrayed as distorting types of consciousness, ways of perceiving the human world which falsify the true reality in order to defend and promoted the economic interests of a social class. All of the claims to truth which philosophies, religions, legal systems, political theories, moral systems have made in history are branded by Marx as ideologies; throughout the historical epochs in which there has been a division of labour and class conflict the dominant cultural beliefs have served the dominant class.
Marx exposes the history of human culture as a history of ideology, of persuasive religions, philosophies, and legal systems which have presented themselves as universal and eternal truths for all mankind, while actually representing the ruling class and legitimating its authority and power. So, for example, the political theory of the rising French bourgeoisie called for freedom and equality, which appeared to be for the benefit of mankind, but in fact served primarily to give the bourgeois class the political power which they lacked. So also Christianity called upon the faithful to obey the word of God and to follow the life of Christ as their model; these ideals which appear to serve only spiritual ends in fact served to promote political quietism and passive obedience to all secular rulers, who are seen to be sanctified by God. All the principal ideas and values of history can be shown, according to Marx, to have functioned defensively to protect class interests, and to have functioned deceptively to keep the truth of the exploitative injustices and the dehumanizing aspects of civil society from being recognized by the exploited class.
The Marxian doctrine of ideology soon entered into the mainstream of twentieth-century thought, and produced anew way of looking at any theory by asking the questions "What class interest does the theory represent?" How is it distorting, twisting, misrepresenting reality in order to defend, protect, promote the interests of some identifiable social group? As one contemporary philosopher has said, since Marx developed the concept of ideology, theory has never recovered from this ideological way of looking at it, this suspicion that all philosophizing, all theorizing is less pure, less universal, less detached, less true than it presents itself as being. The Marxian ideological way of looking at theory has pervaded twentieth-century intellectual life and has been extended to all elements of culture – novels, films, magazines, the mass media, social organizations, academia, scholarly and technical publications. All such cultural elements are now commonly regarded as potentially bound to the interests of some identifiable social group. For example, when you are solicited to subscribe to a magazine, do you not immediately wonder what social class viewpoint the magazine represents?
Is there no escape from this ideological trap or "false consciousness"? Marx's reply is that the inexorable laws of history offer the only way to overcome the falsifying ideologies of the ruling class. In the coming, inevitable worldwide revolution waged by the proletariat, the economic foundation of world capitalism and its class conflict will be destroyed, and along with it, the cultural superstructure which it conditioned. As Marx says in the Communist Manifesto: "The Communist revolution is the most radical rapture with traditional property relations: no wonder that its development involves the most radical rapture with traditional ideas."
After the totality of Western culture will have been destroyed as capitalist ideology, the proletariat will by stages move toward a classless society in which ideologies with their defenses and deceptions on behalf of a dominant class will have no function and will disappear.
Theory of Historical Change
Marx's theory of history is constructed on the model which Hegel's philosophy of history provided. History is a meaningful single, developmental process; history is a rational structure which unfolds in time according to the laws of dialectic. But whereas for Hegel the individual units of the dialectical historical process were the great nation-stats, each embodying a stage in the progressing consciousness of freedom, for Marx, in contrast, the individual units of the dialectic of history are the economic modes of production.
Like Hegel, Marx is committed to historicism: He believes that one cannot understand economic modes of production abstractly, but only in terms of their historical situation and historical development. Hegel had accounted for the structure of society and for the dialectical process of historical change by the Cunning of Reason, the agency of the Absolute, which used human passions, the nation-state, and the world historical individuals to change ideas, to bring finite spirits to a full consciousness of their freedom. But Marx angrily rejects Hegel's idealistic theory of historical change as the dialectical development of the idea of freedom. For Marx, ideas can explain nothing; ideas are themselves only the effect of the economic basis of society; ideas are only a superstructure which collapses as soon as the economic foundation of society begins to crack up. For Marx, only economic forces are powerful enough to bring about historical change. How does Marx's materialist dialectic of history explain historical change? Marx explains historical change by a conflict or contradiction which takes place within the triad of the economic foundation of society and shatters it. It is the conflict that develops between the constantly growing forces of production (skills, technology, and inventions) and the existing relations of production, or property relations.
Theory of Revolution
Marx explains this explosive conflict between the constantly developing forces of production and the static relations of production in this way. As man the creative producer works upon nature he transforms production by developing new methods or instruments or technologies of production. In the early stage of a mode of production, the relations of production and their distribution of property aid in the development of these new and improved productive skills and technology. But at a certain point in the latter stages of a mode of production, the growing new forces of production come into conflict with the existing relations of production come into conflict with the existing relations of production and their distribution of property. The interests of the ruling class lead them to resist change and to keep the existing property distribution unchanged, since their dominant position in society depends upon this. The ruling class, which had earlier helped to develop new technologies and forces of production, now fetters them and chains them down from developing further to prevent overproduction and thus to protect their profits and investments.
These relations of production must be "burst asunder" by a revolution to let man's productive forces continue to grow.
From forms of development of the productive forces these relations turn into their fetters. Then comes the period of social revolution.
Why does a social revolution follow this conflict between the forces and the relations of production? It is the producer class, labour, which suffers, through unemployment, underemployment, loss of new types of work, from the fettering, the chaining of the new forces of production. Acting as a class, the producers break the power of the dominant class by a revolution and they themselves become for a time the new dominant class, seizing political power and generating their own mode of production, which will then determine their own forms of thought.
Sebelum mencapai kemerdekaan, cuma ada satu sistem mahkamah di negara kita. Ia melaksanakan undang-undang yang dibuat di sini yang berasaskan undang-undang di England di samping memakai 'the common law of England' dan 'the rules of equity'. Mahkamah syariah belum wujud.
Susulan daripada peruntukan Perlembagaan Persekutuan, Jadual Kesembilan, Senarai Kedua, mahkamah-mahkamah syariah ditubuhkan. Maka untuk membezakan mahkamah yang sedia ada daripada mahkamah syariah yang baru ditubuhkan itu, mahkamah yang sedia ada itu mula dipanggil 'mahkamah sivil',
Pada mulanya, bidangkuasa mahkamah syariah hanya terhad kepada undang-undang keluarga.Maka untuk beberapa dekad mahkamah sivil terus menjadi mahkamah utama.
Pindaan Perlembagaan 1988:
Pelbagai konflik telah mula kelihatan.Antaranya ialah wujudnya percanggahan bidangkuasa antara kedua-dua sistem mahkamah itu. Kes yang paling ketara ialah kes Myriam v Mohamed Ariff [1]. Dalam kes itu, hakim mahkamah sivil yang selama ini mempunyai bidangkuasa dalam hal jagaan anak, tidak kira Islam atau bukan Islam, berpendapat bahawa mahkamah sivil masih mempunyai bidangkuasa itu walaupun bidangkuasa itu, mengenai orang-orang Islam, telah diberi kepada mahkamah syariah.Disamping itu juga, Hakim-hakim mahkamah syariah dan pegawai-pegawai syariah mula merasai bahawa kedudukan mahkamah syariah adalah lebih rendah dari kedudukan mahkamah sivil, kedudukan mereka sendiri lebih rendah dari kedudukan hakim-hakim mahkamah sivil. Bidangkuasa mahkamah syariah terhad. Maka mereka mahu kedudukan yang sama, dan tidak kurang pentingnya, gaji yang sama[2]. Untuk menyelesaikan masalah-masalah ini, kerajaan telah mengambil satu inisiatif untuk menaikkan kedudukan mahkamah syariah di mana pada tahun 1988 Perlembagaan Persekutuan telah dipinda di mana Per 121(1A) telah dimasukkan. Peruntukan ini berbunyi:"Mahkamah-mahkamah yang disebut dalam fasal (1) tidaklah mempunyai bidangkuasa berkenaan dengan apa-apa perkara dalam bidangkuasa Mahkamah Syariah".Mahkamah yang dimaksudkan dalam fasal (1) ialah Mahkamah Tinggi dan semua mahkamah di bawahnya iaitu mahkamah majistret dan mahkamah sesyen. Dengan demikian secara automatik, semua perkara yang mahkamah syariah ada bidangkuasa, Mahkamah Tinggi dan semua mahkamah di bawahnya tidak boleh campurtangan dan tiada bidangkuasa[3].
Tafsiran pindaan ini dapat dilihat dalam kes Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib[4] apabila Mahkamah Agung memutuskan bahawa Mahkamah Tinggi tiada bidangkuasa untuk mendengar dan membicarakan suatu permohonan perintah tegahan dari seorang wanita Islam terhadap suaminya yang juga beragama Islam dari menyerang dan mengganggu beliau dan keluarganya. Kes ini menjelaskan bahawa Mahkamah sivil tiada bidangkuasa terhadap perkara-perkara di bawah bidangkuasa Mahkamah Syariah.
Konflik selepas pindaan:
Memang benar pindaan diatas telah menjelaskan beberapa kekeliruan yang terjadi. Walaubagaimanapun, pindaan itu sendiri tidak dapat menyelesaikan beberapa masalah yang lainnya dan telah mengakibatkan beberapa konflik terjadi.
Mari kita lihat. Pertama, dalam sesuatu kes mungkin terdapat persoalan mengenai undang-undang tanah yang merupakan undang-undang sivil dan 'common law of England' yang terletak di bawah bidangkuasa mahkamah sivil dan dalam kes yang sama terdapat juga persoalan seperti wakaf yang terletak dalam bidangkuasa mahkamah syariah.
Kedua, beberapa undang-undang baru telah dibuat di bawah enakmen-enakmen negeri dan dilaksanakan oleh mahkamah syariah mengandungi peruntukan-peruntukan kesalahan jenayah yang bertindih dengan kesalahan-kesalahan yang serupa yang telah sedia wujud dalam Kanun Kesiksaan dan Akta-Akta lain.Sebagai contoh, Kesalahan Jenayah Syariah (Negeri Pulau Pinang) 1996 yang digubal selepas pindaan perkara 121 1(A) memperkenalkan kesalahan baru seperti perjudian, sumbang-mahram, pelacuran dan liwat.Ini dilihat bertindih dengan kesalahan-kesalahan yang telah sedia ada didalam kanun kesiksaan. Konflik ini dapat dilihat terjadi didalam kes liwat Sukma Darmawan[5].
Ketiga,'subject matter' dalam sesuatu kes itu mungkin terletak dalam bidangkuasa mahkamah syariah, tetapi salah satu pihak yang terlibat mungkin seorang bukan Islam, sedangkan mahkamah syariah tidak mempunyai bidangkuasa terhadap orang bukan Islam. Jadi, kemanakah pihak yang terlibat hendak pergi untuk mendapatkan keadilan? Sebagai contoh, masalah untuk menentukan status agama seseorang atau yang melibatkan pertukaran agama dari agama Islam ke agama lain. Contoh yang terdekat ialah apa yang telah berlaku didalam kes Moorthy. “Subject Matter” di dalam kes ini terletak didalam bidangkuasa Mahkamah Syariah, tetapi pihak yang terlibat terdiri daripada bukan Islam(balu Moorthy,S. Kaliammal).
Terdapat juga kes-kes murtad (apostacy) sering dibawa ke Mahkamah Tinggi Sivil,seperti didalam kes Soon Singh Bikar Singh v PERKIM, Kedah & Anor [6] dan Mahkamah Tinggi telah acapkali mengatakan bahawa dalam hal-hal yang melibatkan kesahihan samada seseorang itu masih Islam atau pun tidak, ia adalah di bawah bidangkuasa Mahkamah Syariah walaupun tiada enakmen murtad secara spesifik diluluskan oleh mana-mana Dewan Undangan Negeri. Sedangkan, di dalam kes Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam & Anor [7] tidak menetapkan prinsip bahawa Mahkamah Sivil tidak boleh memutuskan isu sama ada seseorang itu beragama Islam atau tidak.
Masalah juga bertambah rumit apabila kes-kes berkenaan murtad dan juga kesahihan samada seseorang itu Islam atau pun tidak, dirujuk kepada Mahkamah Syariah. Ini kerana 'in reality', Mahkamah syariah tidak pernah membuat keputusan untuk membenarkan seseorang itu keluar dari Islam atau pun mengistiharkan status seseorang itu sebagai tidak Islam. Sebagai contoh apa yang terjadi didalam kes Moorty,Dalip Kaur,Soon Singh, Lina Joy, Mamat Daud dan sebagainya. Tetapi di dalam kes Nyonya Tahir[8], buat pertama kalinya sebuah Mahkamah Syariah di Seremban telah mengistiharkan status seseorang itu sebagai tidak Islam dimana keputusan ini dibuat selepas kontroversi Moorthy berlaku.
Resolusi persidangan Meja Bulat Lim Kit Siang: Resolution 1 Mengembalikan Perkara 121 Perlembagaan Persekutuan ke maksud asalnya pada tahun 1988 sebelum dipinda. Resolution 2 Mendesak Perdana Menteri menubuhkan JK Terpilih Parlimen untuk membincangkan masalah yang ditimbulkan oleh Perkara 121 (1) (A) Resolution 3 Masyarakat kebanyakkan merasa bimbang dan tidak berpuas hati terhadap penafian keadilan dalam kes Moorthy dan kes-kes lain seumpamanya. Resolution 4 Forum ini merakamkan kebimbangannya terhadap sikap kebanyakkan pihak berkuasa agama negeri-negeri dalam perlaksanaan undag-undang Islam khasnya yang melibatkan masyarakat bukan Islam. Resolution 5 Mendesak agar Peguam Negara bertindak demi kepentingan masyarakat ramai dalam kes Moorthy dan kes-kes seumpamanya bagi mencerminkan hak persamaan semua rakyat dengan mengambil kira nilai-nilai persamaan tanpa mengira kaum dan agama yang dijamin oleh perlembagaan persekutuan.
MEMORANDUM DEWAN PEMUDA PAS(DPP)
DPP melahirkan kebimbangan di atas percubaan pihak-pihak tertentu yang mendesak kerajaan supaya meminda Perkara 121(1A) Perlembagaan Persekutuan bagi membolehkan Mahkamah Sivil mencampuri urusan Mahkamah Syariah [9]. DPP membuat satu memorandum mendesak tindakan Suhakam terhadap usaha menafikan hak Mahkamah Syariah dengan alasan seperti di bawah:
i. Hak Mahkamah Syariah sebagai satu sistem kehakiman yang diiktiraf oleh Perlembagaan akan terpinggir sekiranya Mahkamah Sivil diberi kuasa untuk campur tangan terhadap keputusan Mahkamah Syariah; ii. Umat Islam dalam apa keadaan sekalipun mesti diberikan hak menguruskan soal-soal agama mereka dalam kerangka kehakiman sendiri, dan kehakiman Islam mestilah mempunyai taraf yang tinggi dan tidak boleh diganggu-gugat oleh mahkamah lain; iii. Tindakan menyekat kebebasan Mahkamah Syariah boleh membangkitkan rasa tidak puas hati dan memungkinkan wujud anasir-anasir negatif bagi mengembalikan hak Mahkamah Syariah; dan iv. Percubaan untuk menundukkan Mahkamah Syariah di bawah Mahkamah Sivil boleh mengundang krisis agama dan perkauman yang boleh menjejaskan hak-hak awam di negara ini. SATU CADANGAN:
Kita telah lihat konflik terjadi didalam kes Moorthy, apabila 'subject matter' berada didalam bidangkuasa Mahkamah Syariah, tetapi terdapat pihak yang terlibat mungkin seorang bukan Islam dimana Mahkamah Syariah tiada bidangkuasa keatasnya. Untuk mengatasi masalah ini, kes-kes seumpama ini hendaklah dibicarakan di hadapan Hakim Mahkamah Sivil yang duduk bersama Hakim Mahkamah Syariah. Hakim Mahkamah Syariah akan menentukan isu berkenaan undang-undang Islam dan keputusannya akan binding keatas Hakim Mahkamah Sivil.Hakim Mahkamah Sivil membuat keputusan ke atas isu-isu yang lain serta kes tersebut.
[1] [1971] 1 MLJ 265 [2] [2001] 4 MLJ clxxx [3] [2004] 3 MLJ xxxiv [4] [1992] 2 MLJ 793 [5] Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia [1999] 1 MLJ 266 [6] [1999] 1 MLJ 489 [7] [1992] 1 MLJ 1 [8] “A religious court has ruled that an ethnic Malay woman raised by her Muslim grandmother died a Buddhist in a case hailed as a first in Malaysia.”(http://www.malaysiakini.com/news/46151) 4th Feb 2006. [9] “Memorandum Mendesak Tindakan Suhakam Terhadap Usaha Menafikan Hak Mahkamah Syari”,4th Feb 2006, http://www.tranungkite.net/modules.php?name=News&file=article&sid=4397
You act for Bani bin Abu Hashim who comes to your office and relates to you as follows:
My late father, Abu Hashim and his youngest brother, Abu Hisham were co-propriertor of a piece of land in Kuala Perlis. Abu Hashim had eye problems and became blind in 1990. In January 1992, Abu Hisham became a director of Kembara Sdn. Bhd. (Kembara). Abu hisham Approached Bank Bulan which agreed to grant a loan of RM 3000, 000 to Kembara, provided that Abu Hisham become guarantor and a piece of land is provided as security. Abu Hisham decided to charge the land that he shared with Abu Hashim to Bank Bulan but Bank Bulan insisted that Abu Hisham should first obtain the written consent of his co- proprietor to do so. Hence, in June 1992, Abu Hisham went to see Abu Hashim and told him to affix his thumbprint on a document which he claimed to be Abu Hashim’s consent to allow Abu Hisham to construct a house on the said land. Unknown to Abu Hashim, the document was his consent to allow Abu Hisham to charge the said land in favour of Bank Bulan. Bank Bulan disbursed the loan to Kembara upon registration of the charge in January 1993. However, in January 1994, Kembara defaulted in repaying the loan instalments. Bank Bulan is now seeking for an order for sale of the land by virtue of the provisions of the National Land Code 1965. Advise Bani as to the effect of the charge created by Bank Bulan and the legal action that you can take to safeguard his father's estate in the land concerned.
ANSWER:
In the question, there are 2 issues. First issue is whether charge created by Bank Bulan defeasible or not. Second issues is whether Bani can take any legal act against Bank Bulan. According to section 340 (1) of NLC when title of interest is registered shall be indefeasible but subject to the following of this section. Section 340 (2) stated the circumstances that title of interest can be challenge. They are fraud, misrepresentation, forgery, void instrument and title of interest that unlawfully acquired. As in the case of OCBC bank v Lee Lee Fah[1], Dato Siti Norma Yaakob held that the only way title can be challenge is for respondent to establish any circumstances in section 340 (2) of NLC.
Generally in the case of fraud, the title shall not be indefeasible. Fraud mean dishonest of some sought. In the case of Waimiha Saw mill v Wai One Timber[2] stated that it is also fraudulent act if it is establish by deliberate and dishonest trip causing an interest not to be registered. Fraud means actual fraud as mention in the case of Asset Co. Ltd. V Mere Roihi[3] . in order to prove fraud, 2 stage must be fulfill. Firstly conduct must be in definition of fraud that is actual fraud. Secondly fraud must be committed by person or his agent and as a result, his name was registered in the title. If the person is not a party within the fraud, then the title shall be indefeasible.
In the question, Abu Hisham went to see Abu Hashim and told him to affix his thumbprint on a document which he claimed to be Abu Hashim’s consent to allow Abu Hisham to construct a house on the land. Abu Hashim had eye problems and blind. Unknown to Abu Hashim the document was his consent to allow Abu Hisham to charge the said land in favour of Bank Bulan. Thus, we can see that the conduct of Abu Hisham was in definition of fraud that is actual fraud as he dishonestly cheated Abu Hashim that the document he presented to Abu Hashim was actually charge document not document to allow him to build a house on the said land. Abu Hisham also was the party within the fraud and as a result charge was created over the land. Therefore an actual fraud had been committed by Abu Hisham. By virtue section 340 (2) (a) title is defeasible if there is fraud. Similarly in the case of Haji Aishah Bt Lebai Itam v Yah Bt Taib[4] where in this case an illiterate woman was induce to sign a transfer form by one party. The fraud alleged was a fraudulent misrepresentation by Haji Musa to the plaintiff to the effect that the transfer to him which she executed not a transfer but a charge for the amount she owed. The court held that this amount to fraudulent act and the title of the land shall be defeasible.
However there is exception to the exception of defeasibility. According to provision in section 340 (3) "provided that nothing in this sub-section shall effect any title of interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such purchaser." This mean that if plaintiff can prove there is bona fide purchaser for valuable consideration, then the title shall become indefeasible again. In order to determine bona fide purchaser for valuable consideration, 2 factors must be fulfill. Firstly, person who has pays valuable consideration. If no consideration, he becomes a volunteer and not bona fide purchaser. Consideration must come by the registered proprietor. It is sufficient if has consideration and not need to be adequate. Secondly the person must acts in good faith, means that he has no knowledge whether actual or constructive that the title or interest that he acquired is bad in law.
In the question, Bank Bulan agreed to grant a loan of RM 300,000 to Kembara Sdn. Bhd which Abu Hisham become a director of that company provided that Abu Hisham becomes a guarantor and a piece of land is provided as security. Moreover, Bank Bulan had asked Abu Hisham to obtain the written consent from his co-proprietor who is Abu Hashim in order for him to get the loan.
Bank Bulan can be said to be a bona fide purchaser as the bank had pay a consideration when they disbursed the loan to Kembara upon registration of the charge in January 1993. Bank Bulan also act in good faith since they had no knowledge that the title is bad in law as Abu Hisham had commit a fraudulent act in order to get the consent from his co-proprietor, Abu Hashim. Since Bank Bulan had fulfilled the 2 factors, Bank Bulan can be said as bona fide purchaser for valuable consideration. Similarly in the case of Owe Then Kooi v Au Thiam Seng[5] where the land was transferred to transferee by way of fraud. Subsequently the land was charged to the bank. It was held that the interest which was obtained by the chargee was indeafisible. Abdul Malek Judge stated that "in the event of fraud, the title or interest may be set a side by any person or body to whom it may subsequently vested. 'Subsequently' must mean after the event of the fraud and in our present situation, it is the second defendant in whom the interest is subsequently granted". This case showed that bona fide purchaser for valuable consideration also includes chargee, lessee and easement.
CONCLUSION
As for conclusion, the charge created by Bank Bulan to the land owned by Abu Hisham and Bani's late father, Abu Hashim is defeasible. This is because an actual fraud had been committed by Abu Hisham in obtaining consent from his co-proprietor who was Abu Hashim. However, since Bank Bulan is a bona fide purchaser for valuable consideration because of the bank had paid a consideration and acted in good faith thus the title shall become indefeasible. This means that Bani can not take any legal action against Bank Bulan since the interest title fall in bona fide purchaser for valuable consideration.
Tribunal is a body set up by legislation to adjudicate upon disputes in a specific area and which enjoys a degree of autonomy. A tribunal is an important and the best form in settling dispute outside the court system. This is because tribunals enable an ordinary man to obtain a cheap, fair and impartial hearing when he is affected by administrative action.One situation where such an occasion arises relates to disciplinary actions in universities. UiTM is one of the universities in Malaysia that uses a tribunal in handling students' disciplinary matters. UiTM is Malaysia's largest institution of higher learning that has experienced a phenomenal growth since its inception in 1956.Presently, the University has expanded nationwide with three satellite campuses, 14 branch campuses, six city campuses, 25 franchise colleges and a smart campus for the future.This large students population size inevitably raises, among others, disciplinary problems. Accordingly, this calls for a need to set up a proper process or procedure to handle the problems. UiTM Students’ Disciplinary Tribunal was created by virtue of the Educational Institutions (Disciplinary) Act 1976 (Act 174). Under this Act, an officer of the University is empowered by the Minister to carry out proceedings in the Students' Disciplinary Tribunal, and further the said officer could delegate his authority for the said purpose to other officers in the University. Currently, the officer in charge of this tribunal is one from the Hal Ehwal Pelajar (HEP) office.
4.1 The Rules
The Malaysian public universities are generally paternalistic in nature. This is reflected in the offences under the Educational Institutions (Disciplinary) Act 1976. The offences could be largely categorized into several categories namely, main, general, hostel and traffic offences. The main offences are contained in Part IV of the said Act. One of the offences under the main category is where a student becomes a member of any local or foreign political party or workers union or non-governmental organizations without obtaining a prior approval from the Education Minister. This prohibition is extended to acts of having any arrangements with the said organizations, and showing support or doing anything that could be interpreted as to show support to the said organizations. As for the general offences, these are contained in the Educational Institutions (Discipline of Students) Rules 1976 in the Second Schedule of the Act. Among them are prohibitions against gambling, pornographic materials, possession of drugs and drug use. The hostel rules are contained in Part III of the Rules, which seek to safeguard the decorum of the occupants by providing prohibition against such matters as vandalism and nuisance.
Traffic rules are contained in Part IV of the Rules and these rules aim to regulate the conduct of the motor vehicle users on campus, for instance, the registration of the motor vehicle by the owner, obedience of the speed limits, and the parking of the vehicles in the appropriate places. Students are also bound by any other written law of Malaysia. When a student is charged in a Court of Law for transgressing of any law, he or she would be automatically suspended from the University, and automatic expulsion would follow from a conviction.
4.2 The Procedures
The Educational Institutions (Disciplinary) Act 1976 (Act 174) provides guidelines on the procedures regarding Student Disciplinary Tribunal. When the Tribunal is convened, the Secretary of the Board, who is usually the Executive Officer from the Students Affairs Department, will read out the charge against the student, and the student would be asked whether he understands the charge which is laid out against him. If the answer were in the affirmative, he would be asked for his plea. If the student were to plead guilty to the charge, the Board would once again explain the particulars of the charge to him; and if the student pleads guilty to it again, the Board would declare a finding of "guilty". Sentencing does not take place automatically at this point. The student would be asked to present any mitigating factors, after which the Board would discuss the appropriate punishment to be given. If the student were to present a plea of not guilty, a mini trial would be commenced and the Board would call the witnesses for the Board to present evidence against the student. The student would be asked to cross-examine the said witnesses, following which the Board would reexamine its own witnesses.Next, the student would be asked to present his defence and he could call any witness for his side to present evidence before the Board, and the same process of cross-examination and reexamination would follow. If the Board makes a finding of guilt, the student would then be asked to present a case for mitigation.
The punishment can be one or any combination of the following: a warning; a fine not exceeding RM 200.00; suspension for a certain period; exclusion from any parts of the University for a certain period, and expulsion. In practice, the University has issued a guideline for the minimum and maximum limits of punishment that the Board could pass. For instance, the maximum penalty for the offence of possession of cigarettes is a fine of RM50.00.
A student who is dissatisfied with the decision of the Tribunal could lodge a written notice of appeal to the Secretary of the Tribunal within five days of the decision of the Tribunal and the said officer would then forward the notice to the Education Minister together with the records of the proceedings.
"The claim that civil law system is being practiced in some of the South East Asian States is rather an exaggeration, and in fact a misconception. The truth of the matter is that apart from the fact that some of the major areas of law in these States are codified, nothing else resembles the system as found either in France or in Germany."
The Civil Law system is said to be practiced in many countries in the world. However, there is a claim that the practice of this system in some of the South East Asian states is rather an exaggeration. It is said that there is nothing else that resembles the system as found either in France or Germany apart from the fact that some of the major areas of law in these states are codified.
The meaning of Civil Law is the entire system of law that currently applies to most Western European countries, Latin America, countries of the Near East, large parts of Africa, Indonesia and Japan. It is derived from ancient Roman law, and originated in Europe on the basis of the Roman jus civile, which is the private law that was applicable to the citizen and between citizens within the boundaries of a State in a domestic context. It was also called the jus quiritum, as opposed to the jus gentium, which is the law applied internationally, that is between States.
There are many features of Civil Law system. The first feature is the creation of doctrine of binding precedent. The authority of binding precedent is attributed in Federal Germany to the decisions of the Federal Constitutional Court the decisions of which for this reason are published in the official Federal Journal (Bundesgesetzblatt). In contrast, the doctrine in the French Legal System is not a binding authority on the courts, or a binding guide to the decision.
This is because the doctrine places court decisions in their proper perspective and indicates the policies underlying legislation. This means it has merely persuasive authority. Per se judicial decisions are not binding. However, they have de facto authority.
The second feature is codification. In Civil Law system, code is an authoritative, comprehensive and systematic collection of general clauses and legal principles, divided into Books or Parts dealing in a logical fashion with the law relating thereto. Civil codes are thereto regarded as the primary sources of law to which other sources are subordinate and often the only source of law on a particular matter. However, the codification movement was not wholly beneficial even with respect to the cohesion of the system. The "perfection of reason" achieved in the form of the civil codes of France (1804) and Germany (1896).
Next, the third feature is the doctrine of legal writing, the styles of doctrinal writing in France and Germany are, it would seem, more approximate now than at one time. The annotated codes (Kommentare) are now more often discursive and critical in approach, and German manuals or treaties (Lehrbucher) deal more with decided cases and aspects of actual practice than they once did.
The fourth feature is the court system. The Civil Law system has separate court system to trial different types of cases. The German Civil System has Ordentliche Gerichtsbarkeit (court with ordinary jurisdiction), Arbeitgerichtsbarkeit (employment law jurisdiction), Sozialgerichtsbarkeit (social jurisdiction), Finanzgerichtsbarkeit (fiscal jurisdiction), Verwaltungsgerictsbarkeit (administrative jurisdiction) and the Verfassungsgerichtsbarkeit, dealing with constitutional cases. The French Courts are organized on the basis of general and limited jurisdiction. The system has a dual court system. There are ordinary courts (the ordre judiciaire) and administrative courts (ordre administrative). The Supreme Administrative Court, known as the Conseil d’Etat. However, the Administrative Court more likely to belong to the executive, and it is only the ordinary court that can really be regarded as having its judicial functions, its autorite judiciare- the judicial power.
The hierarchy of courts is divided in a three- tier level, where in the lower tier, there is tribunaux d’instance, and also tribunaux de commerce. Together with the two courts are tribunals; those are social security tribunals, employment tribunals, and Landlord and tenant tribunals. In the second tier level, is the tribunaux de grande instance, which can try both civil and criminal matters, do not have any appellate jurisdiction, and functions as a regional court. Finally, at the top of the hierarchy is the cour d’appel, which hear appeal cases. The cour d’appel is divided into several divisions and do not simply try any kind of cases.
Eventually, the final feature is the difference between public and private law. In the French Civil system, the establishment of the courts, which governed the private and public matters distinctively, noted as a different feature as compared to the English Common Law. Those courts are Supreme Court, (cour de’cassation) which deal with private law (droit prive); while the Conseil d'Etat handle concerns about the public law (droit public). The droit prive handle private matters, the rights and duties of private persons. Public law on the other hand, would govern disputes involving States as one of the parties.
After identifying all the features of Civil Law system, we will then compare Indonesia, Thailand and Philippines to all those features mentioned. First, let's take a look at Indonesia law system. The main and most important source of the Indonesian National Law is the philosophy of Pancasila, as contained in the Preamble to the 1945 Constitution. Pancasila consists of five main principles, which are belief in the one supreme God, humanity, national unity, deliberations (musyawarah) towards consensus (mufakat) or democracy, and social justice. The Pancasila is regarded as the grundnorm or rechtsidee of the Indonesian Law, so that any law or regulation is expected to conform to this philosophy in its details. The policy of 'partial' codification has been developed, meaning that specific parts of the Civil or Commercial Courts are promulgated separately from time to time, as was the case with the new Company Law. A special body was established with the task of legal reform.
This body, named the Lembaga Pembinaan Hukum Nasional (or Institute for the Development of the National Law) was placed under the authority of the Prime Minister and consisted of representatives of political parties and law professors. Moreover, the Civil Code comprise of systematic laws, whereby the contract law is part of the Civil Court.
The structure of the Indonesian Courts is the general court is executed by the District Court (Pengadilan Negeri) and High Court (Pengadilan Tinggi) at the summit at the juridical system is the Supreme Court, the country’s highest juridical body. The judges and those involved in the lawsuit have direct contact with each other. In addition, Indonesia does not have binding precedents doctrine as in Malaysia.
Next, we will look into the country of Thailand. The sources of law are Code of Manu (Dharmasastera), which is the ancient Hindu Jurisprudence and Dhammasattham, which is the fundamental law of individual liberty and private rights dealing with both civil and criminal matters. The court system in Thailand commonly known as the 'Law of the three Great Seals', was more restatement of the prevailing Penal and Civil Law. It contained not only the Dhammasattham but also the existing royal decrees and edicts. In 1891, the Ministry of Justice controlled the courts. The Courts of Justice are divided into three-tiers, namely the Courts of First Instance that are divided into Courts of First Instance in Bangkok Metropolis and the Courts of First Instance in the province. Next are the Court of Appeal and the Regional Court of Appeal and the highest Court of Justice is the Supreme Court.
Finally, we will take a look in the Philippines law system. The main sources of Philippines law are the Constitution, statutes, treaties and conventions, and judicial decisions. The Constitution is the fundamental law of the land and as such, it is authority of the highest order against which no other authority can prevail. In addition, Philippines law is also derived from cases because the Civil Court provides that 'judicial decisions applying to or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. Only decisions of its Supreme Court established jurisprudence and are binding on all other courts. The judge may still apply the customs of the place or, in its default, the general principles of law in the absence of any statutes governing the point in controversy. The Civil Court also provides that 'customs which are contrary to law, public order or public policy shall not be countenanced', and 'a custom must be proved as a fact according to the rules of the evidence'. Thus, Philippines law takes cognizance of customs, which may be considered, as supplementary sources of the law.
The five principles in the Constitution, which are regarded as the New Charter is described as 'pro-life, pro-people, pro-poor, pro-Filipino and anti-dictatorship'. There is a formal separation of powers between legislative, executive and judiciary. The judicial system of the Philippines consists of a hierarchy of courts with the Supreme Court at the apex. Under the Judicial Reorganization Act, the other courts are one Court Of Appeals; Regional Trial Courts divided into 13 judicial regions, composing a total of 950 branches; and 82 Metropolitan Trial Courts, 124 Municipal Trial Courts in Cities and 438 Municipal Trial Courts and 480 Municipal Circuit Trial Courts.
For Muslims, there are 51 shari'a circuit and 5 shari'a district courts. Aside form these tribunals, there are Special Courts, namely, the Court of Tax Appeals and the Sandiganbayan. The highest court in the judicial system of the Philippines is the Supreme Court. The cases that are heard and decided by the Supreme Court en banc are those involving the constitutionality of a treaty, executive agreement or law. Law doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.
The Civil Code was drafted by a Code Commission and came into effect on 1 July 1950, replacing the Spanish Civil Court 1889. It includes new rules aimed at incorporating Filipino customs and new rights in courses of action such as civil actions for obstruction on civil liberty, moral and nominal damages. There are 27 Codes in force in the Philippines.
As a conclusion, there are some of the features in the Civil Law system of Germany and France, which can be found in the South East Asian States that include Indonesia, Thailand and Philippines. Therefore, we cannot say it as merely an exaggeration and misconception.
