In Malaysia, the norms saying 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 are consider 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 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 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”

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.