Introduction

The internal relationship of the civil courts with the Syariah courts has also raised
issues related to the jurisdiction of both courts and the position of Islam in the Constitution.
The civil and Syariah courts exist in a dual court structure produced following Malaysia’s
independence in an effort to ensure that there would be a federal secular legal system in the
form of the civil courts, as well as a religious forum for Muslims under which to dispense
Islamic personal and family law. In Malaysia, the civil and Syariah courts exist side by side
in a dual court structure. The civil courts were established as federal courts to deal with
federal matters, whereas the Syariah courts are provided for in the Federal Constitution as
state courts that can be established to deal with matters of Islamic law.

The understanding of the Syariah courts as subordinate to the civil courts has arguably
been altered following the introduction of an amendment to Article 121 (1A) of the
Constitution following the Constitutional Amendment Act 1988. Article 121 (1A) now
provides that the civil courts ‘shall have no jurisdiction in respect of any matter within the
jurisdiction of the Syariah Courts.’ The question of whether the Syariah Court has jurisdiction
over any particular matter is therefore significant: once an issue is within the jurisdiction of
the Syariah Court, by definition, the civil courts’ jurisdiction is excluded. It is unclear
whether the civil High Courts continue to have the power to intervene as a matter of judicial
review.

The view that Article 121 (1A) does not exclude the supervisory review power of the
High Court is supported by several commentators, such as Andrew Harding (Law,
Government and the Constitution of Malaysia, 136-7 (1996)), Thio Li-Ann (in an essay in
Constitutional Landmarks in Malaysia: The First 50 Years, 197 at 202), and the Malaysian
Bar Council (in its Amicus Brief in Lina Joy) who argue that Article 121 (1A) simply states
the obvious, i.e. that each court deals with matters within its own jurisdiction, but it does not
transfer additional powers to the Syariah courts. Another view is that the very objective of the
amendment was to prevent the High Court from having the power of judicial review over the
Syariah Court as had happened in certain family law cases: see, e.g. Hassan Saeed, in
Freedom of Religion, Apostasy and Islam (2004) 149 at 150.
 The judicial trend recently has appeared to lean towards the latter view. In Subashini
Rajasingam v Saravanan Thangathoray ([2007] 7 CLJ 584), a case concerning the custody of
children when one parent had converted to Islam, the demarcation between the civil and
Syariah courts was interpreted to mean that the Syariah courts ‘are not lower in status than
the civil courts whereby they are of equal standing under the [Federal Constitution]’ (at [23]).
This clear separation between the civil and Syariah courts appears to have resulted in an
either jurisdictional relationship. In other words, this in the matters of either within the
jurisdiction of the civil court or the Syariah court and it definitely cannot be under both.

The general jurisdiction of the Syariah Court is expressly provided for in the Federal
Constitution under Article 74 (2) and List II, Schedule 9. Syariah courts have jurisdiction
over ‘Islamic law and personal and family law of persons professing the religion of Islam’,
which includes, inter alia, matters such as betrothal, marriage, divorce, legitimacy, dowry,
maintenance, adoption, succession, and religious endowments. This is consistent with the
idea that the Syariah courts are meant to be state courts established to deal with Islamic law
‘only over persons professing the religion of Islam’ according to List II, Schedule 9. State
legislatures are then meant to specify the jurisdiction of the Syariah courts of their particular
states, within the general jurisdiction laid down by the Federal Constitution.

Hence, the Syariah Court can be classified into three categories which are Syariah
Subordinate (lower) Court, Syariah High Court and Syariah Appeal Court. Most subject
matters begin in the Syariah Subordinate Court, except on matters pertaining to custody of
children and the division of matrimonial assets (‘harta sepencarian’). These are under the
jurisdiction of the Syariah High Court. The Syariah High Court hears appeals from the
Syariah Subordinate Court and it may revise decisions of the lower court. Besides that, any
claim above Fifty Thousand Ringgit Malaysia (RM 50,000) is also heard in the Syariah High
Court. However, in Selangor, the minimum amount is One Hundred Thousand Ringgit
Malaysia (RM 100,000). The Syariah Appeal Court hears appeals from the Syariah High
Court. The jurisdiction of the Syariah Court is divided into both, criminal and civil. Different
procedures apply in both jurisdictions. Only a Muslim, either by birth or by way of
conversion, can go to the Syariah Court. Additionally, the Syariah Court can also hear cases
where a non-Muslim is also a party to the proceedings. This is because it was not clearly
state in the Federal Constitution that the non-Muslim cannot be called as a witness.
The answer

In Malaysia, the norm says that Islamic law and civil law exist as parallel in the
Malaysian Legal System. However, this fact is not totally wrong but a bit inaccurate in the
law perspective. Nowadays, the main functions or objectives of Islamic law focused towards
the personal law solely for Muslims and the Syariah Court establishment as subordinate
under Federal law by the Federal Constitution. The position of Syariah Court in the
perspective of Malaysian Legal System become a prominent subject in the public discussion,
not least of all with the controversial statement stated that “Islam is the religion of the
Federation”. In other words, the main important part is for us to examine the history of how
religion came to be inserted in the Federal Constitution objectively in the law perspective
instead of religion perspective.

The creation of Syariah Court is from the State law, unlike the High Court which was
established directly by the Federal Constitution. According to article 74 of Federal
Constitution which being read together with the State List, has prescribed that any matters
related to Islamic law including the establishment of Syariah Courts are to be fall under the
jurisdiction of the State. According to the State List, in order to legislate the Islamic law and
Malay customs, the legislative power of State was granted and confined to 26 matters as
follows:

a) Succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance,

adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts;
b) Wakaf and the definition and regulation of charitable and religious trusts, the
appointment of trustees and the incorporation of persons in respect of Islamic religious and
charitable endowments, institutions, trusts, charities and charitable institutions operating
wholly within the State;
c) Malay customs;
d) Zakat, Fitrah and Baitulmal or similar Islamic religious revenue;
e) Mosques or any Islamic public places of worship;
f) Creation and punishment of offences by persons professing the religion of Islam
against precepts of that religion; and
g) Constitution, organization and procedure of the Syariah Courts
 In other words, the State List properly described that the jurisdiction of Syariah Court
is only over persons professing the religion of Islam and in respect only of the above matters
are involved. Besides, the Syariah Court position in the Malaysian Legal System in terms of
offences is considered out of scope unless it was being honored by the Federal law.

The position of Syariah Court can be further discussed in four main points in the view of
Malaysian Legal System as follows:

a) Jurisdiction cannot be implied

It is a normal for people to misconception the jurisdiction of Syariah Court, whereby

its having power over all matters related to Islamic law and Malay customs as per stated in
the State List. For example, in the case where a widow sought a declaration that her deceased
husband was a Buddhist during his lifetime and at the moment of his death, hence the
jurisdiction was being held by High Court. This is because, State law did not honor the
authority of Syariah Court to deal with the particular matter in the State List, hence Syariah
Court was being precluded from dealing with that matter. In other words, the main reason is
because of the State law did not confer jurisdiction to determine the issue of whether a person
is a Muslim or not during the time of his death, hence it was considered as High Court
jurisdiction in terms of hearing and determining the issue.

In a similar concept, the position of Syariah Court was being question in one of the
dispute over Wakaf land, which it was being held when there is a challenge in terms of
jurisdiction of the High Court, but the test are not to determine whether the court had
authority to deal with the case but whether the authority had been honored to Syariah Court.
This is because, if the jurisdiction were conferred on the Syariah Court, definitely the High
Court can be precluded from the hearing and determining on the issue. However, there is a
conflict in one of the cases of Soon Sigh a/l Bikar Singh v Pertubuhan Kebajikan Islam
Malaysia (Perkim) Kedah & Anor, the position of Syariah Court was being tested when the
authority of the court is only deal with the issue of conversion out of Islam. Although not
expressly provided in State law, could be implied from the express provisions conferring
jurisdiction on the issue of conversion into Islam. Hence, the case was being heard and
determined by Syariah Court that the deceased convert had not renounced the religion of
Islam and therefore was a Muslim at the time of his death.
 The rationale of the Federal Court appears to be as follows: “As in the case of
conversion to Islam, certain requirements must be complied with under hukum syarak for a
conversion out of Islam to be valid, which only the Syariah courts are the experts and
appropriate to adjudicate. In short, it does seem inevitable that since matters on conversion to
Islam come under the jurisdiction of the Syariah courts, by implication conversion out of
Islam should also fall under the jurisdiction of the same courts.”

The Federal Court was much persuaded by statements in the authorities that the
question of conversion out of Islam involves issues requiring substantial consideration of the
Islamic law by relevant jurists qualified to do so and that therefore the only forum to qualify
to do so is the Syariah court. It is submitted that although the fact that the determination of a
Muslim's conversion out of Islam may involve inquiry into the issue of renunciation of Islam
under Islamic law, it did not follow that it would be “inevitable” that the Syariah court should
have jurisdiction.

With the greatest respect, the Federal Court decision also appears to contradict two
authorities cited in the judgment:“…express and unambiguous language appears to be
absolutely indispensable in statutes passed for the following purposes: imposing tax;
conferring or taking away legal rights; excepting from the operation of or altering clear
principles of law; altering the jurisdiction of courts of law...‘the general rule undoubtedly is,
that the jurisdiction of the superior courts is not taken away, except by express words or
necessary implication’.”

Unfortunately, Soon Singh was not discussed, but by implication not followed, in
Latifah Mat Zain, where the Federal Court held that: “What it means is that, the Legislature
of a State, in making law to ‘constitute’ and ‘organize’ the Syariah courts shall also provide
for the jurisdictions of such courts within the limits allowed by item one of the State List, for
example, it is limited only to persons professing the religion of Islam. The use of the word
‘any’ between the words ‘in respect only of’ and ‘of the matters’ means that the State
Legislature may choose one or some or all of the matters allowed therein to be included
within the jurisdiction of the Syariah courts. It can never be that once the Syariah courts are
established the courts are seized with jurisdiction over all the matters mentioned in item one
automatically. It has to be provided for.”
b) No exclusive jurisdiction on Islamic law

Another misconception normally is in the perspective of any cases or matters related

to Islamic law which being said are exclusively and solely under Syariah Court jurisdiction.
However, as we understand the establishment of Syariah Court are coming from State law
which it has no power of interpretation on any matter which in the scope of High Court and
the others subordinate courts, including the issues on the interpretation of Federal law and
State law.

In 2008, Syariah Court was charging Abdul Kahar for several offences in terms of
deviant teaching contrary to a State Enactment. However, he then challenged the
constitutionality of the State Enactment in terms of basis of the subject matter related to the
offences fell outside the scope of term “precepts of Islam” in the State List circumscribing the
legislative power of the State. Hence, the issue then arose whereby the jurisdiction of Syariah
Court was being questioned in the scope of interpretation of the terms “precepts of Islam”
and thereby determine whether the provisions in the State Enactment creating the offences
were in accordance with the provisions of the Federal Constitution.

In other words, the Federal Court conclude that the reason why Syariah court had no
such power and that the State law could not possibly confer such power to Syariah court
because of the reasons as follows:

a) The ascertainment of Islamic law and other personal laws for purposes of federal law
is a federal matter;
b) Any question whether a law made by a State is within the power of a state and the
interpretation of the Federal Constitution is a matter for the High Court.

In the relation to this point, Siti Hasnah has applied to the High Court to declare her
conversion to Islam when she was one year old considered as invalid. The reason is because
in the view of Court of Appeal, the jurisdiction of Civil Court was not ousted merely because
the subject matter of a claim or complaint has an Islamic law element in it.
c) No overlapping jurisdiction

The Syariah Court is a parallel system established under Article 121 (1A) of the
Federal Constitution is another common misunderstanding which become a controversial
issue previously. According to Article 121, the establishment of High Court, the Court of
Appeal and the Federal Court was being recognized as inferior courts as may be prescribed
by law. However, the creation of Article 121 (1A) clearly stated that the jurisdiction of the
High Court was being merely excludes in the respect of any matter within the jurisdiction of
Syariah Court. Hence, it considered as quite clearly statement in the Article 121 (1A) that
neither establishes nor confers jurisdiction on the Syariah court. It is only when some
jurisdiction is expressly conferred by State law on the Syariah court that Article 121 (1A)
would apply to exclude the jurisdiction of the High Court and the subordinate courts on that
matter.

It has been stated above that the Syariah court can only have jurisdiction if expressly
conferred by State law within the constraints of the Islamic law matters mentioned in the
State List. In the absence of jurisdiction being conferred on the Syariah court in respect of
any matter, such matter would fall within the jurisdiction of the High Court and the
subordinate courts, unfettered by the operation of Article 121 (1A). In any case, Article 121
(1A) does not take away the jurisdiction of the High Court to interpret any State law enacted
for the administration of Islamic law, such jurisdiction being outside the scope of State law,
although concerning Islamic law.

The main reason of Article 121(1A) was introduced to prevent conflict of jurisdiction
between the civil court and the Syariah court. In other words, if Federal laws and State laws
are made in strict compliance with the Federal List and State List, there should not be a
situation where both the civil court and the Syariah court have jurisdiction over the same
matter or issue. Besides, if an issue were to arise on whether State law infringes on the
Federal List, Article 121 (1A) cannot be an argument for ousting the jurisdiction of the civil
court. In such a situation the question to be asked is whether such State law is constitutional
in the first place, which is a matter for the Federal Court to decide. Although there may be
distinct issues falling within the jurisdiction of the civil court and the Syariah court at the
same time, it does not follow that there is an overlapping jurisdiction or assisting jurisdiction
between the two nor are they considered double proceedings.
d) The Syariah Court an inferior court

Syariah court has been called as inferior court which are equated to the Sessions Court
and Magistrates Court, unlike the High Court, the Court of Appeal and the Federal Court,
which are established by the Federal Constitution. The Syariah Court do not enjoy the same
status and powers as the High Court and considered as one of mere “State courts”. In other
words, Syariah court only has supervisory powers over other inferior tribunals same as
Industrial Court compared to High Court which has supervisory power over the Syariah
court.

Hence, it considered as quite clearly statement that the Syariah court cannot be considered
any greater than the inferior courts as follows:

a) The Sessions Courts and Magistrates Courts are established by the Subordinate Courts Act
1948, which is a federal law, whereas the Syariah court is established by State law, Article
121 (1A) notwithstanding;
b) In exercising its criminal jurisdiction, the Magistrates Court can impose a sentence of an
imprisonment up to 5 years, a maximum fine of RM 10,000 and whipping up to twelve
strokes, or a combination thereof, the so-called “5:10:12 Rule”; and
c) The Syariah court in its criminal jurisdiction is subject to limits imposed by Federal law of
a maximum sentence of three years imprisonment, maximum fine of RM 5,000 and
whipping up to six strokes, the so-called “3:5:6 Rule”

Therefore, it is clear that under no circumstances can the Syariah court be considered
equivalent to the High Court. It follows in principle that, where there is an issue of competing
jurisdiction between the High Court and the Syariah court, the proceedings before the High
Court must take precedence over the Syariah court.
Statute or Cases

The Syariah Courts are the one that will administer the syariah laws in both states and
federal territorties. Then, in order to ensure the independence or jurisdiction of the Syariah
Courts, there was an amendment which addition of Article 121(1A) of the Federal
Constitution that stated the High Courts; which exercise the judicial power of the Federation,
shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah
Courts. Furthermore, under Article 145(3) indicate the Federal Constitution does not extend
the power of the Attorney General to institute, conduct or discontinue any proceedings for an
offence to the proceedings before a Syariah Courts. In addition, the constitutional ensure the
independence or freedom of person is also extended to those that were arrested under syariah
laws. It is similar under the federal criminal law if being arrested, that being stated in Article
5(4) of the Federal Constitution express that a person who is arrested for an offence which is
triable by a Syariah Courts, shall without unreasonable delay, and in any case within twenty-
four hours (excluding the time of any necessary journey) be produce before a Syariah Court
judge and shall not be further detained in custody without the Syariah court judge’s authority.

In addition, the power of the states to punish Muslims for offences under syariah laws
was confirmed by the Court of Appeal in the case of Kamariah bt Ali v Kerajaan Kelantan, 3
MLJ 657 (2002). In stating the limited scope of freedom of religion under Article 11 of the
Federal Constitution, the court held: Article 11 of the Federal Constitution (in relation to
Islam) cannot be interpreted so widely as to revoke all legislation requiring a person of the
Muslim faith to perform a requirement under Islam or prohibit them from committing an act
forbidden by Islam or that prescribes a system of committing an act related to Islam.

The jurisdiction of the Islamic judiciary in Malaysia could be divided into two parts,
which are the criminal and the civil matters. Furthermore, the civil matter that the court has
jurisdiction which are as follows:
(a) Family, engagement, marriage, divorce and property claims related to it, financial
support after divorce and custody
(b) Distribution of Harta Sepencarian
(c) Wakaf or nazar
(d) Others as empowered by any law
 In addition, since the establishment of the Syariah courts, the Syariah judges have
jurisdiction to deal with both criminal and civil matters as long as it related with Islamic
religion. Besides that, there is one case that shows the vital role or the position of Syariah
court in Malaysia Legal System, which in the cases of Lina Joy v Majlis Agama Islam
Wilayah Persekutuan dan Lain-Lain. As the case create a conflict whether it should be handle
either with civil court or Syariah court.

Regarding to the case, it is about a Malay woman (Azalina binti Jailani), applied to
the National Registration Department (NRD) for the change of her name, to Lina Lelani and
then to Lina Joy. This is because; she had renounced Islam for Christianity and planning to
marry a Christian. From 1997, she made an attempt twice to change her name at NRD. After
that, the application of changing her name was approved in October 1999 but her new
identity card (IC) still stated her religion as Islam. Due to that Lina Joy made an application
towards NRD office to eliminate the word “Islam” and her original name from the
replacement Identity Card. However, NRD refused to her application on the basis that it was
not complete without an order from Syariah Court to approve that she had renounced Islam.
Then, the court of Appeal by a majority decision dismissed her appeal. In addition, the
conversion of religion from Islam to other religion will not happen as the Syariah court has
never granted such order of apostasy to a living person

Moreover, there is also one case that has the same issue that related with conversion
of religion, which in the case of Saravana a/l Thangathoray v Subashine a/p Rajasingham. In
this case it is about a couple that was married under a civil law and they had 2 children,
which later her husband converted to Islam and her son were also being converted as well by
her husband. After that, due to that his wife made a complained that her son’s conversion was
done without her knowledge and consent and wanted an injunction from the High Court.
However, High Court stated that they had no jurisdiction to hear the matter which means her
action has failed. In addition, on appeal majority of the decision has the same opinion with
the High Court. The Federal court judged that the marriage is not dissolve due to conversion
of one person. Therefore, from the cases it can indicate that the positions of Syariah court in
the Malaysian Legal System are important in a matter that related with Islamic religion. As
we can see any matters that related with Islam cannot be interfere by other court and does not
have the authority or power to judge or decide anything that involve Islamic religion except
Syariah Court.
Nevertheless, the jurisdiction or the role of Syariah court is not restricted to
conversion of religion matter only. There are several matters or issues that emphasize the
position or function of Syariah court, which are as follows:
(a) Whether a matter is within or outside jurisdiction of Syariah court
(b) Mixed issues such as Islamic Banking
(c) Remedy unavailable in Syariah Courts

The first issue is whether a matter is within or outside jurisdiction of Syariah Court,
which before the addition of Article 121 (1A) there’s a conflict between the civil court and
Syariah court jurisdiction. Then, after the amendment of the Article 121 it emphasizes the
jurisdiction between these two courts. In addition, there are two cases that relates with this
issue. The first case (Tongiah Jumali v Kerajaan Johor) is about the plaintiff is a Muslim,
converted to Christianity and married second plaintiff. She claimed that her marriage was
valid under Malaysian Law. The state law was silent on the issue of conversation out of
Islam. The High Court stated that the provision impliedly states that the Syariah Court shall
have the jurisdiction over conversion in and out of Islam.

The second case (Norlela Mohamad Habibullah v Yusuf Maldoner) is about parties
were married under Muslim marriage and divorce under Civil Law abroad. Marriage and
Divorce was not registered in Selangor. When the issue of the custody of infant came up, the
plaintiff obtained civil high court order. Respondent challenged order of High Court under
121(1A). Because it is not registered, Syariah High Court is not applicable.

The second issue is mixed issues such as Islamic Banking, which Priyathaseny v
Pegawai Penguatkuasa Agama is one of the case that related with this issue. In the case it
stated the caught for committing close proximity, argued she converted Hinduism. Seek
declaration she was not subjected to the Syariah Court. Issue was whether she was still
professing Islam and subjected to Syariah Court. High Court did not really delve into the
interpretation of profess and move the case to the Syariah Court. After that, the third issue is
remedy unavailable in Syariah Courts, like in the case of Soon Singh v Pertubuhan Kebajikan
Islam Malaysia; stated the subject matter approach and not remedy prayed for approach.
Remedy applied not available to the Syariah Court but still within its jurisdiction.
 In addition, based on the issues we can indicate the position of Syariah Court as one
of the body that have the authority to decide and make their own judgment within their
jurisdiction. On the other hand, Syariah Courts is very essential for the Muslim society as it
helps solving any disputes which accordance to Islamic perspective that cannot handle by the
High Court. Besides that, the cases above shows that Syariah Court have the absolute power
or authority to decide and judge without being intervene by High Court as long as it is related
with Islam and within their jurisdiction and power.

Therefore, according to the case above it shows that the important role played by
Syariah courts specifically for the Muslims in Malaysia. In addition, Syariah Court cover
every aspects of Muslims from individual, spouse and even family matters, which the court
ensure every living person will get their own rights and justice with the guidance or
according to Al-Quran and Sunnah.
Conclusion

In conclusion, the recent decade’s shows the role of Islamic law has evolved in
Malaysia and same goes to the structure of the institution; which the one that develop and
implement the Islamic law. As we can see how Islamic law plays its role in the legal system
of the country, it shows the development throughout the history of that nation. From 13
colonies, that being administered by Britain has become 13 states in a federation which
include the 14th sub national unit, the Federal Territories. Furthermore, during the colonial
period, majority of the areas in Malaysian are regulated based on the consistent body of
national law that being applied consistently throughout the region. Even though, some of the
national law were originally comes from the Islamic legal tradition (most was not).

During the colonial Malaysia, each of the different colonies developed and applied
their version of Islamic law to regulate some aspects on how their Muslim citizen lives.
However, when Malaysia become independent each sub-national unit still have the power
that can develop a body of Islamic law in order to regulate the lives of Muslims within their
own territory which in a matters of family law, inheritance, wakaf, and punishment for un-
Islamic behaviour. Therefore, today each unit were also allowed to construct or establish their
own body of special Syariah Courts with the power or authority to solve any cases among
Muslims that implicate that unit’s Islamic law.

Furthermore, in Malaysia the role of Islamic law has grown substantially in this past
few decades. The reason are mainly because the growth and evolution of the state Islamic
Legal Systems. In addition, Federal Government able to overcome and resisted the pressure
from Islamists to ensure Malaysia’s national law more Islamic. However, all Malaysia’s
states (include the Federal Territories) have begun to implement more aggressively their
constitutional power to regulate the lives of Muslims within their territory. In addition, the
National Courts have been ignore their traditional power in order to review state Syariah
courts interpretation of their own state’s Islamic law, which it can be seen the significant in
the last development.
 Besides that, as the Islamic regulation in every states have grown more pervasive, and
as the state court become independence or autonomous from the Federal Courts. There has
something new that they can focus to improve the mechanisms by which Islamic law is
developed and applied, which among these is a cooperative effort in order to improve or
upgrade various Syariah Court systems around the country. The purpose is to professionalize
the operation of the court and to promote harmonization of Islamic law applied in Malaysia
that have different sub-national units.

Moreover, regarding the idea of a “dual legal” system in Malaysia of Civil law and
Syariah law is misconceived. This is because the Syariah law applicable only to Muslims and
only as personal, with provision for any offences against the precepts of Islam. In addition, as
we can see in the Federal Constitution does not mention or suggest the Syariah Court will
compete with or be parallel to the Civil Court on the same subject matter, and this is
supported by judicial authority. This issue is importance to the peoples in Malaysia, as the
country has multicultural, multi-ethnic and multi-religious history.