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

succession, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, and

criminal offences under Islamic law.

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. Islamic laws have been administered, not only by

the Syariah Courts, but also the Civil Courts. However by Article 121 (1A) of the

Constitution of Malaysia, today, exclusive jurisdiction has been given to the Syariah Courts

in the administration of Islamic laws. The Syariah laws in Malaysia do not apply to non-

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,

marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions

and non-charitable trusts;

a. Wakafs 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;

b. Malay customs;

c. Zakat, Fitrah and Baitulmal or similar Islamic religious revenue;

d. Mosques or any Islamic public places of worship;

 e. Creation and punishment of offences by persons professing the religion of Islam

against precepts of that religion; and

f. Constitution, organisation and procedure of the Syariah courts.

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.