The Federal Constitution declares that the Constitution is the supreme law of the Federation

while Islam is the “religion of the Federation.” The secular basis of the Malaysian legal
system was explained by the Supreme Court in the case of Che Omar bin Che Soh v Public
Prosecutor, whereby, due to British colonization, “the religion of Islam became separated into
two separate aspects, the public aspect and the private aspect.” The role of the religion of
Islam in the public aspect was diminished, and it became “nothing more than a mere
appendix to the ruler’s sovereignty.” Thus, the role of Islam was limited only to the private
aspect, that is, as the personal law of Muslims, which centers upon issues such as marriage,
divorce, inheritance, maintenance, and the like. Under the Federal Constitution, Islamic law
is a matter falling within the State List, that is, it is a matter over which the State Legislature
has jurisdiction and not Parliament. The Ninth Schedule of the Constitution identifies in some
detail the specific subjects of Islamic law and personal and family law of persons professing
the religion of Islam over which the State Legislature has jurisdiction. This also includes
Islamic criminal law and the constitution, organization and procedure of Syariah courts. The
position of Syariah courts is respected by the Constitution and its jurisdiction to decide
matters within its “exclusive jurisdiction” protected under Article 121 (1A) which provides
that the civil courts shall not have jurisdiction in respect of any matter within the jurisdiction
of the Syariah courts.

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 . . . 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/or
jurisdictional relationship: a matter is either within the jurisdiction of the civil court or the
Syariah court; it 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.

The Syariah court

It has been said that Islamic law and the civil law exist as parallel systems in Malaysia. The
proposition, while attractive, is grossly inaccurate in law. As it stands today, the
administration of Islamic law is confined to personal law for Muslims and the Syariah court
is subordinate to the courts established by the Federal Constitution and under federal law, as
this article will show. The Syariah court has in recent years become a prominent subject in
public discussion, not least of all with the constitutional provision that "Islam is the religion
of the Federation". It is vital that the history of how religion came to be inserted in the
Federal Constitution be first examined, objectively and dispassionately, given that the subject
is fraught with difficulty.
Unlike 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:

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

adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts;
b) 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;
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, 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.
Jurisdiction cannot be implied
It is a common misconception that once established, a Syariah court has, ipso facto,
jurisdiction over all matters relating to Islamic law and Malay customs set out in the State
List. In a case where a widow sought a declaration that her deceased husband was a Buddhist
during his lifetime and at the time of his death, the High Court held that the jurisdiction of the
Syariah court cannot be derived by implication and that if State law did not confer
jurisdiction to deal with a particular matter in the State List, the Syariah court would be
precluded from dealing with that matter. As State law did not confer jurisdiction to determine
the issue whether a person is a Muslim or not at the time of his death, the High Court was not
precluded from hearing and determining that issue.

Similarly, in a dispute over wakaf land,56 it was held that when there is a challenge to the
jurisdiction of the High Court, the test was not whether the court had jurisdiction but whether
jurisdiction had been conferred on the Syariah court. Only if such jurisdiction were conferred
on the Syariah court would the High Court be precluded from considering the matter before
it.57

However, there is dicta to the contrary in Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan
Islam Malaysia (Perkim) Kedah & Anor,58 a case before the Federal Court, that the
jurisdiction of the Syariah court to deal with the issue 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.59 The Syariah court in that case had held
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."60
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 qualified 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 law64... 'the general rule undoubtedly is, that the jurisdiction of the superior courts
is not taken away, except by express words or necessary implication'."65

Unfortunately, Soon Singh was not discussed, but by implication not followed, in Latifah Mat
Zain,66 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 1 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 1 automatically. It has to be provided for."
No exclusive jurisdiction on Islamic law
It is also inaccurate to hold that the Syariah court has exclusive jurisdiction on all matters
related to Islamic law. Given that the Syariah court is a creature of State law, it has no power
of interpretation on any matter which is the province of the High Court and the subordinate
courts, including issues on the interpretation of federal law and State law.76

In 2008, one Abdul Kahar77 was charged in the the Syariah court for several offences for
deviant teaching contrary to a State Enactment.78 He challenged the constitutionality of the
State Enactment on the grounds that the subject matter of the offences fell outside the term
"precepts of Islam" in the State List circumscribing the legislative power of the State. The
issue then arose as to whether the Syariah court had jurisdiction to enter upon the
interpretation of the term "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.79

The Federal Court held that the Syariah court had no such power and that State law could not
possibly confer such power because:

a) the ascertainment of Islamic law and other personal laws for purposes of federal law is a
federal matter;80
b) any question whether a law made by a State is within the power of a state;81 and the
interpretation of the Federal Constitution is a matter for the High Court.82

In 2012, one Siti Hasnah applied to the High Court to declare her conversion to Islam when
she was a year old to be invalid. The Court of Appeal held that the jurisdiction of the civil
court was not ousted merely because the subject matter of a claim or complaint has an Islamic
law element in it.
No overlapping jurisdiction
Another common misunderstanding is that the Syariah court is a parallel system established
under Article 121(1A) of the Federal Constitution.

Article 121 establishes the High Court, the Court of Appeal and the Federal Court and
recognised such inferior courts as may be prescribed by law. Article 121(1A), however,
merely excludes the jurisdiction of the High Court in respect of any matter within the
jurisdiction of the Syariah court.

Quite clearly, Article 121(1A) 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).85

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,86 such jurisdiction being outside
the scope of State law, although concerning Islamic law.

Article 121(1A) was introduced to prevent conflict of jurisdiction between the civil court and
the Syariah court.87

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.88
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.89 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.90

Although there may be distinct issues falling within the jurisdiction of the civil court and the
Syariah court at the same time as in Latifah Mat Zain,91 it does not follow that there is an
overlapping jurisdiction or assisting jurisdiction between the two nor are they considered
double proceedings.

The Syariah court an inferior court

Unlike the High Court, the Court of Appeal and the Federal Court, which are established by
the Federal Constitution,68 the Syariah court has been equated to the Sessions Court and
Magistrates' Court which, in the Federal Constitution, are called inferior courts.69 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.71

Quite clearly, the Syariah court cannot be considered any greater than the inferior courts.72

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 jurisidiction,73 the Magistrates' Court can impose a sentence of
an imprisonment up to 5 years, a maximum fine of RM10,000 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 law74
of a maximum sentence of three years imprisonment, maximum fine of RM5,000 and
whipping up to six strokes, the so-called "3:5:6 Rule"

It is therefore 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.