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The Position of Syariah Court From The View of Malaysian Legal System
The Position of Syariah Court From The View of Malaysian Legal System
The Syariah courts are mere "State courts" and do not enjoy the same status and
powers as the High Court. It follows that the High Court has supervisory powers over
the Syariah court just as it has supervisory powers over other inferior tribunals, such as the
Industrial Court. In countries having dual judiciary system (civil and Shariah), a clear stand
must be made as to which court shall have jurisdiction to preside power over Islamic banking
disputes. Ideally, cases involving Islamic banking ought to be heard at the Shariah court as
they apply Islamic law and principles. However in most if not all of the Islamic countries,
commercial issues such as banking are not within the jurisdiction of Shariah court. There
several cases in Malaysia under the position of Syariah Court from the view of Malaysian
legal system.
The Shariah court comprises the Shariah Subordinate Court, Shariah High Court and
Shariah Court of Appeal. The Shariah Courts are set up under the respective states’
administration of Islamic law Enactments/Acts. These courts deal principally with the
personal and family laws of persons professing the religion of Islam, Islamic law of
The State List stipulates that the Syariah court is to have jurisdiction only over
persons professing the religion of Islam and in respect only of the above matters. It is also
provided that the Syariah court shall not have any jurisdiction in respect of offences unless
the Syariah Courts, but also the Civil Courts. However by Article 121 (1A) of the
Muslims.
Public and private aspects of Islam in Malaysia is one of under position of Syariah
court view of Malaysian legal system. In 1988, a full bench of five in the Supreme Court (as
the Federal Court was then known) had occasion to consider Article 3 in an appeal against a
mandatory death sentence for drug trafficking and possession of firearms. It was contended
on behalf of the accused that Islam being the religion of the Federation, as declared in the
Federal Constitution, and the Federal Constitution being the supreme law of the Federation,
the imposition of the death penalty was unconstitutional, being contrary to Islamic injunction.
The Syariah court, the High Court which is established by the Federal
Constitution, the Syariah court is a creature of State law. 51 Article 74 of the Federal
Constitution, read together with the State List,52 prescribes that Islamic law and Islamic
matters including the establishment of Syariah courts fall under the jurisdiction of the State.
According to the State List, the legislative power of the State assembly to legislate on Islamic
law and Malay customs is confined to 26 matters: Succession, testate and intestate, betrothal,
a. Wakafs and the definition and regulation of charitable and religious trusts, the
b. Malay customs;
The State List stipulates that the Syariah court is to have jurisdiction only over persons
professing the religion of Islam and in respect only of the above matters. It is also provided
that the Syariah court shall not have any jurisdiction in respect of offences unless conferred
by federal law.