THE Administr Ation of Islamic Law in Malaysia: DR Ibtisam at Ilyana Ilias

THE
ADMINISTR
ATION OF
ISLAMIC
LAW IN
MALAYSIA
DR IBTISAM @ ILYANA ILIAS
1
HISTORICAL DEVELOPMENT OF
ISLAMIC LAW IN MALAYSIA
Before During After

British British British
INFLUENCE OF
ENGLISH LAW
Syariah court were

subordinate to civil
Appeal went to civil
court
Later moved to state
Via court system when
cases were decided by
authority
English trained judges Limited to personal and
matrimonial law of
METHODS Muslim
Via legislation Mufti office was
Civil Law Enactment preserved
imports the English
common law and equity
HEAD OF ISLAM
Article 3 of the Federal Constitution

The YDPA is the Head of religion of Islam in his
own State and States not having a Ruler (Malacca,
Penang, Sabah, Sarawak and Federal Territories of
Kuala Lumpur, Labuan and Putrajaya.
Section 1(2)(d) of Eighth Schedule in the Federal
Constitution
The Ruler is the Head of Islam.
HEAD OF ISLAM
▪ The YDPA is advised by a Council in matters
relating to the religion of Islam.
▪ Rulers are aided and advised by the Council of
Islamic religion in matters relating to the religion
of Islam.
▪ Rulers are aided and advised by the Muftis in
matters relating to the Islamic law.
5
CONFERENCE OF RULERS
▪ Consists of the nine Malay Rulers and the four
Yang di Pertua Negeri (Malacca, Penang, Sabah,
Sarawak).
▪ Article 38 (2)(b) of the Federal Constitution
▪ In matters of Islamic religion, the COR shall
agree or disagree to the extension of any
religious acts, observances or ceremonies to the
Federation as a whole.
▪ E.g. determining the date of fasting and the
dates of Muslim festivals
6
CONFERENCE OF RULERS
he COR is advised by the National Council of
▪T
Islamic Religious Affairs Malaysia (Majlis
Kebangsaan Hal Ehwal Agama Islam Malaysia).
7
MUFTI
• Every state has a mufti who is appointed by the Head
of the religion of Islam.
• Mufti are the religious advisers to the Malay Rulers
and have the authority and qualification to issue
fatwa.
• A state mufti leads the Department of Mufti.
• The department process the request for fatwas,
organises religious programmes and publishes
religious books and pamphlets.
8
▪ Every state has a mufti who is appointed by the
Head of the religion of Islam.
▪ Mufti are the religious advisers to the Malay
MUFTIRulers and have the authority and qualification
to issue fatwa.
▪ A state mufti leads the Department of Mufti.
▪ The department process the request for fatwas,
organises religious programmes and publishes
religious books and pamphlets.
9
Article 12 on the establishment and
maintenance of Islamic institution
by the federation or state.
ISLAMIC INSTITUTIONS AT
FEDERAL LEVEL
11
THE
NATIONAL
COUNCIL OF
ISLAMIC ▪ Has a duty to discuss and give
RELIGIOUS advice to the COR, any State
government or State Council of
AFFAIRS Islamic religion on Islamic law
MALAYSIA matters, administration of
(MAJLIS Islamic religion and Islamic
education.
KEBANGSAA ▪ The objective of the National
N HAL Council is to standardise the
EHWAL administration of Islamic law
between States.
AGAMA
ISLAM
MALAYSIA).
12
DEPARTM
▪ JAKIM is a federal agency in the
ENT OF management of Islamic matters and
ISLAMIC development of the Muslims.
▪ It is under the authority of the Prime
ADVANCE Minister’s department and enforces
MENT OF the policies of the National Council
of Islamic Religious Affairs
MALAYSI Malaysia.
A ▪ In the aspect of Islamic law, JAKIM
assists in the legislation and
(JABATAN standardisation of Islamic law.
JAKIM also standardises the
KEMAJUA mechanisms in enforcing Islamic
N ISLAM law.
MALAYSI
A) (JAKIM) 13
DEPARTM
ENT OF ▪ As a leading agency of Islamic affairs
ISLAMIC management at the federal level as
well as the Secretariat to the National
ADVANCE Council for Islamic Religious Affairs
Malaysia (MKI), JAKIM has
MENT OF implemented three main functions:
MALAYSI Function 1: Drafting and

Standardization of Islamic Law
A Function 2: Coordination of Islamic
(JABATAN Administration
KEMAJUA Function 3: Coordination and

Development of Islamic Education
N ISLAM
MALAYSI
A) (JAKIM) 14
15
HOW TO DETERMINE THE
RIGHT HALAL LOGO FROM
JAKIM
16
DEPARTME
NT OF ▪ JKSM was established by the Federal
SYARIAH Government in 1998.
▪ It is under the authority of the Prime
JUDICIARY Minister’s department.
MALAYSIA ▪ The role is to coordinate the
administration of Syariah courts at
(JABATAN national level/
▪ It assists States with a joint service for
KEHAKIMA Islamic Affairs Officers. The joint
N SYARIAH service is headed by a Chief Syariah
Judge of Malaysia.
MALAYSIA)
(JKSM)
17
ISLAMIC INSTITUTIONS AT
STATE LEVEL
COUNCIL OF ISLAMIC
RELIGION (MAJLIS AGAMA
ISLAM)
▪ Under the Head of the religion of Islam.
▪ Kelantan was the first State that established a Council of
Islamic Religion in 1915.
▪ Various roles
▪ sections 4-31 of the Administration of Islamic Law (Federal
Territories) Act 1993
▪ See Dr Farid Sufian’s book, pp. 19, 20
19
▪ MAIS is a major Islamic religious
authority in the State of Selangor
and is responsible to advise the
Selangor Sultan's DYMM for all
matters pertaining to the religion of
Islam except involving justice and
Islamic law.
▪ MAIS is also in charge of maintaining
the affairs of mualaf and baitulmal
property and policymakers related to
Islam.
COUNCIL OF ISLAMIC
RELIGION (MAJLIS
AGAMA ISLAM) 20
DEPARTM
ENT OF ▪ Is established under the State
government.
ISLAMIC ▪ Enforces the policies of the
Council of Islamic religion.
RELIGION ▪ Enforces Islamic law and takes
action against Muslims
(JABATA committing offences against
Islamic law.
N AGAMA
ISLAM)
21
JAIS is the implementing agency
of all policies adopted by MAIS
and is in charge of upholding
Islamic teachings and maintaining
the affairs of Muslims in the State
of Selangor such as divorce,
preaching, Islamic education,
mosque management and so on.
22
BREAK-IN BY JAIS OFFICERS
BASED ON FALSE KHALWAT
REPORT
23
SYARIAH COURTS
▪ Are placed within the authority of States.

▪ Hear disputes in matters over which the Syariah courts
have jurisdiction, namely Islamic law matters.
▪ Further details will be discussed in the next topic.
24
STATE DEPARTMENT OF
SYARIAH JUDICIARY (JABATAN
KEHAKIMAN SYARIAH NEGERI)
▪ Administers the Syariah courts in the State.
▪ The Department manages the following :
▪ 1) registration of mal, criminal and inheritance cases,
▪ 2) the proceedings of mal, criminal and inheritance
cases,
▪ 3) the orders of Syariah courts,
▪ 4) the process of appeal, and
▪ 5) the issuance of inheritance certificate.
25
INSTITUTION OF FATWA IN
MALAYSIA
During the lifetime of the Prophet Muhammad SAW, the Prophet always
relied on the Quranic revelations or his divinely inspired ijtihad, which
later became known as the Sunnah.
However, these divine revelations came to a halt by the demise of the
Prophet.
Therefore, in cases where there was no specific or express ruling in
al-Quran and as-Sunnah, the Companions and the next generation of
jurists exercised their own ijtihad in order to find solutions for more
complicated new cases.
Subsequently, Islamic Law developed through the practice of ijtihad.
Among the famous forms of ijtihad was fatwa.
26
MALAYSIA
▪ Generally fatwa is a legal opinion or ruling on a matter if Islamic law
issued by an Islamic scholar who is known as a Mufti.
▪ A mufti should be a qualified mujtahid so that he can deduce rulings
based on the sources of Islamic Law through the process of Ijtihad.
▪ He should therefore be knowledgeable in the legal texts and sciences of
al-Quran and hadith, know the application of ijma and qiyas, good
Arabic language.
▪ A mufti must be just, trustworthy and pious.
27
MALAYSIA
▪ Fatwa literally means to describe or enlighten
▪ It explains and interpret the laws from Allah on Shariah or legal matters
▪ A formal legal opinion on Islamic law
▪ An answer to any new cases issued by a authorised body or individual
▪ As the laws come from Allah, the jurist and mufti are very cautious when
dealing with fatwa
▪ In Surah an-Nisa: 59
▪ The muslims have the obligation to obey Allah and the Prophet and those in charge
of with authority
▪ This means the obligation to refer to the Quran and Sunnah in any dispute that arise
28
▪National Fatwa Committee &
State Fatwa Committee
29
THE NATIONAL FATWA
COMMITTEE
▪ to discuss any major issue at national level and
eventually issue a fatwa on it.
▪ -to unify or standardise contradicting fatwas in
Malaysia, if any.
▪ To advise the YDPA on all matters regarding
hukum Shara’.
30
THE ROLE THE STATE FATWA
COMMITTEE IN THE
ISSUANCE OF FATWA.
▪ to discuss and issue a ruling on new issues which are not addressed by
AlQuran, AsSunnah and Ijma’. The Mufti as the Chairman of the State
Fatwa Committees will make and publish in the Gazette a fatwa or
ruling on any unsettled or controversial question of or relating to Islamic
Law [section 34(1) of the Administration of Islamic Law (Federal
Territories) Act 1993].
▪ to amend, modify or revoke any previous fatwa issued by the same
Fatwa Committee or the previous commitees. [section 36 of the
Administration of Islamic Law (Federal Territories) Act 1993].
▪ to make an order that a study and research is to be conducted on any
issue submitted to them. [section 37 of the Administration of Islamic
Law (Federal Territories) Act 1993].
31
ENFORCEMENT OF FATWA
▪ Fatwa is not binding and enforceable unless and until it is published in
the State Gazette.
▪ Section 34 Administration of Islamic Law (Federal Territories) Act 1993
▪ (1)The Mufti shall, on the direction of the YDPA and may on his own
initiative or on the request of any person made by letter addressed to the
mufti, make and publish in the Gazette, a Fatwa or ruling on any
unsettled or controversial question of or relating to Islamic law.
▪ (2) No statement made by the Mufti shall be taken to be fatwa unless
and until it is published in the Gazette pursuant to subsection (1).
32
▪ A fatwa binds Muslim only and has no legal effect over non-Muslims.
▪ Section 34 Administration of Islamic Law (Federal Territories) Act 1993
▪ (3) Upon publication in the Gazette, a fatwa shall be binding on every
muslim residents in the Federal Territories as a dictate of his religion
and it shall be his religious duty to abide by and uphold the fatwa, unless
he is permitted by Islamic law to depart from the fatwa in matters of
personal observance, belief or opinion.
33
▪ A Fatwa, which is passed by a State Legislative Assembly, shall have a
force of law within the state boundary only.
▪ Q: Legal effect: non-uniformity of Fatwas?
▪ A fatwa which is passed by a State Legislative Assembly shall be
authoritative laws for the Syariah courts of that particular state. Section
34 Administration of Islamic Law (Federal Territories) Act 1993
▪ (4) A Fatwa shall be recognised by all Courts in the Federal Territories
as authoritative of all matters laid down therein.
34
▪ Since the administration of Islamic Law is under the administration of
the States, a state has full discretion either to accept a fatwa issued by
the National Islamic Consultative Committee or to reject it.
35
▪ Position in Selangor.
▪ Starting from 2003, Selangor has agreed to fully adopt fatwas issued by
the National Fatwa Committee.
▪ Section 52 Administration of Religion of Islam (State of Selangor) 2003.
▪ In 2006, Perlis has fully adopted Selangor’s approach provided it has
been agreed upon by the Conference of Rulers.
▪ Section 52 Administration of the Religion of Islam Enactment 2006
(Perlis).
36
A CHILD & ORS V
JABATAN PENDAFTARAN
NEGARA & ORS [2020]
2MLJ 277-354
37
POSITION OF
ISLAM UNDER
THE FEDERAL
CONSTITUTION
▪DR IBTISAM @ ILYANA ILIAS
38
CONSTITUTIONAL PROVISIONS
▪ Article 3 (1) of the Federal Constitution
▪ “Islam is the religion of the Federation; but other
religions may be practiced in peace and harmony in
any part of the Federation.
▪ Article 11(1) of the Federal Constitution
▪ Every person has the right to profess and practise his
religion and subject to clause (4), to propagate it.
39
CHE OMAR CHE SOH V. PUBLIC
PROSECUTOR [1988] 2MLJ 55
▪ Ground of appeal : the mandatory death sentence for the drug

trafficking offence and for the offence under the Firearms
(Increased Penalties) Act 1971 is against the injunctions of
Islam and therefore void.
▪ It is argued that since Islam is the religion of the Federation,
(article 3(1)) and since the Constitution is the supreme law of
the Federation (article 4 (1)), the imposition of the death penalty
on these offences, not being hudud or qisas according to Islamic
law, is contrary to Islamic injunction and is therefore
unconstitutional.
40
Judgment;
▪ The court looked at the history of Islamic law after the British
colonization, which was confined to personal laws.
▪ The court observed that “it can be seen that during the British colonial
period, through the system of indirect rule and establishment of secular
institutions, Islamic law was rendered isolated in a narrow confinement of
the law of marriage, divorce, and inheritance only.”(quoting MB Hooker
Islamic Law in South-east Asia (1984)
▪ The court further stated that
▪ “in this sense of dichotomy that the framers of the Constitution understood
the meaning of the word ‘Islam’ in the context of article 3…..
▪ “the term ‘Islam’ or ‘Islamic religion’ in article 3 of the Federal Constitution
in the context means only such acts as relate to rituals and ceremonies.”
41
Judgment;
▪ The court also considered the constitutional and legal history of the
Federation and the Civil Law Act 1956 which provides for the
reception of English common law in this country.
▪ The court finally concluded that
“we have to set aside our personal feelings because the law in this
country is still what it is today, secular law, where morality not
accepted by the law is not enjoying the status of law. Perhaps that
argument should be addressed at other forums or at seminars and,
perhaps, to politicians and Parliament. Until the law and the system is
changed, we have no choice but to proceed as what we are today.”
42
▪ Case : Meor Atiqulrahman bin Ishak dan lain-lain lwn Fatimah
bte Sihi dan lain-lain [2000] 5 MLJ 375
▪ Brief facts;
▪ Three pupils were dismissed from their school because of their refusal
to take off the ‘religious’ serban (turban) they wear at school. They
refused to take off the serban on religious grounds. They claimed that
their expulsion from school for wearing the serban was contrary to,
inter alia, the freedom of religion. The defendants argued, inter alia,
that the wearing of the serban to school breached a regulation of the
school made under a circular issued by the Department of Education.
▪ Referred to the cases of Hjh Halimatussaadiah bte Hj Kamaruddin v.
Public Services Commission, Malaysia & Anor [1994] 3 MLJ 61 &
Che Omar Che Soh v. Public Prosecutor
43
Hjh Halimatussaadiah bte Hj Kamaruddin v. Public Services
Commission, Malaysia & Anor [1994] 3 MLJ 61
▪ The issue on the plaintiff being prohibited from wearing purdah during office hours,
based on the government’s circular that prohibited any public servant from wearing any
attire that covers the face during working hours. The plaintiff was given a notice to
show cause and she replied that in accordance with Surah 24 in the Quran, a Muslim
woman is obligated to cover her face except the eyes. She also argued that she wore
purdah to avoid defamation (fitnah) and she was entitled to profess her religion in
accordance with the Federal Constitution
▪ It was held that the freedom of religion guaranteed in article 11(1) of the Federal
Constitution is not absolute because article 11 (5) does not authorise any act contrary to
any general law relating to public order, public health or morality.
▪ The prohibition on a female public servant against wearing any attire that covers her
face during working hours did not affect the constitutional right of the petitioner to
practise her religion. The wearing of purdah did not have any connection to the
constitutional right of the petitioner to profess and to practise Islam as her religion.
▪ The trial judge accepted the view of the Mufti of Wilayah Persekutuan that Islam does
not prohibit neither obligate a Muslim woman from wearing purdah, therefore it would
not be wrong for any regulation to be made on the attire of a public servant during
working hours insofar that it does not contravene public order, public health or
morality.
44
Meor Atiqulrahman bin Ishak dan lain-lain lwn Fatimah bte Sihi dan
lain-lain [2000] 5 MLJ 375
▪ Article 3 of the Constitution given its proper interpretation, namely putting
Islam beyond rituals and ceremonies, would mean that the Government has
the responsibility to protect and promote Islam as best it could.
▪ This means the regulation regarding attire of pupils should not ignore Islam.
Prohibiting pupils from wearing the serban is contrary to article 3 and article
11 of the Federal Constitution.
▪ “every Muslim has the right to profess and to practise his religion in
accordance with article 11(1) of the FC and prohibiting a Muslim from
wearing serban is contrary to article 3 and article 11, therefore, it is invalid
and becomes void. The prohibition is not relevant to maintaining public
order, public health and morality as required in article 11(5).”
45
▪ High Court decided in favour of the students. The students were not given
right to be heard through their guardians. Their expulsions from school were
invalid, void and of no effect. The court ordered them to resume their school
and the defendant was ordered to pay them compensation and costs.
▪ The Court of Appeal, reversed the High Court decision. In arriving at its
conclusion, it applied the test of whether “the right to wear a “serban” is an
integral part of the religion of Islam”.
▪ The court said that that is a question of evidence and it was for the Appellants
to adduce sufficient relevant admissible material to prove that that is indeed
the case. The court concluded:
“there was not a shred of evidence before the learned judge confirming that the
wearing of a serban is mandatory in Islam and is therefore an integral part of
Islam”.
46
▪ At Federal Court, leave to appeal was granted on one issue only:
▪ Whether the regulations prohibiting the wearing of “serban”

▪ by school pupils violate Article 11(1) of the Federal Constitution.
▪ It was held that the School Regulations 1997 in so far as it prohibits the
students from wearing turban as part of the school uniform during school
hours does not contravene the provision of Article 11(1) of the Federal
Constitution and therefore is not unconstitutional.
47
SHARIAH COURTS,
CIVIL COURTS AND
THE CONFLICTS
▪ DR IBTISAM @ ILYANA ILIAS
48
JURISDICTION OF SHARIAH
COURT: CONSTITUTIONAL
PROVISION
▪ Can the jurisdiction of Syariah Court be inferred from State List, Item
1, Ninth Schedule, Federal Constitution
Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic
law and personal and family law of persons professing the religion of Islam, including the Islamic
law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance,
adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; 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; Malay customs;
Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public
places of worship, creation and punishment of offences by persons professing the religion of
Islam against precepts of that religion, except in regard to matters included in the Federal List ;
the constitution, organization and procedure of Syariah courts, which
shall have jurisdiction only over persons professing the religion of Islam
and in respect only of any of the matters included in this paragraph, but
shall not have jurisdiction in respect of offences except in so far as
conferred by federal law; the control of propagating doctrines and beliefs among persons
professing the religion of Islam; the determination of matters of Islamic law and doctrine and
Malay custom
49
49
JURISDICTION OF SYARIAH
COURT
▪ Discussions in cases ; conflicting views of how Syariah Court can
obtain its jurisdiction?
▪ Case 1 : Ng Wan Chan v. Majlis Ugama Islam Wilayah Persekutuan
& Anor (No 2) [1991] 3 MLJ 487 (High Court)
▪ Principle :
▪ The State legislature needs to expressly confer such jurisdiction to Syariah Courts.
▪ Case 2 : Soon Singh a/l Bikar Singh v. Pertubuhan Kebajikan Islam

Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 (Federal
Court)
▪ Principle :
▪ Syariah Court may derive jurisdiction directly from Item 1 of the State List
without any express conferment from the State Legislature.
50
CONFLICT OF LAWS
▪ Conflict of laws started to happen during the British
colonization
▪ Examples of cases:
▪ PP v. David John White Alias Abdul Rahman
[1940] MLJ 214
▪ Issue on polygamous marriage (clash of Islamic law +civil law)
▪ Brief facts ; David (the accused) married Birdie Rose according
to Christianity in a church Taiping in 1918. While the marriage
was still subsisting, he converted to Islam (and named Abdul
Rahman) and married Aisha according to Mohammedan law in
1936. He was then charged bigamy and claimed trial.
51
CONFLICT OF LAWS
▪ Section 494 of the Penal Code on offence of bigamy

▪ “Whoever, having a husband or wife living, marries in any case
in which such marriage is void by reason of its taking place
during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend
to seven years, shall also be liable to fine….”
▪ The lawyer for the accused argued that he should not be
convicted of bigamy because the second marriage under
Mohammedan law is not void by reason that it takes place
during the life of the first wife.
52
CONFLICT OF LAWS
▪ Judgment
▪ “…a man who enters into a marriage relationship with a woman according
to monogamous rites takes upon himself all the obligations springing from
a monogamous relationship and acquires by law the status ‘husband’ in a
monogamous marriage. He cannot, therefore, whatever his religion may be,
during the subsistence of that monogamous marriage marry or go through a
legally recognized form of marriage with another woman.”
▪ “Under Mohammedan law in a purely Moslem country there may be no
penal sanction for entering upon a second marriage in these imagined
circumstances. But the Penal law of the Federation applies to all and it
makes no difference whether the marriage is valid under Mohameddan law
or not; it is in this case valid in point of form but is void under the civil law
of the Federated Malay States for the reason of its having taken place
during the life of his wife. I convict the accused of bigamy.”
53
CONFLICT OF LAWS
Ainan bin Mahamud v. Syed Abubakar & Others
[1039] MLJ 209
▪ Issues of whether a son (6th Def, Mat Sah) is not a natural and lawful
child to Mahmud (legitimacy of a child) , thus not entitled to be a
beneficiary under a deed of settlement
▪ Clashes between the Evidence Enactment and Mohammedan law
▪ Evidence Enactment, section 112 provides that
▪ “ The fact that any person was born during the continuance of a valid
marriage between his mother and any man, or within 280 days after
its dissolution, the mother remaining unmarried, shall be conclusive
proof that he is the legitimate son of that man, unless it can be shown
that the parties to the marriage had no access to each other at any time
when he could have been begotten’.
54
CONFLICT OF LAWS
▪ In Mohammedan law ;
▪ If a married woman should produce a child within 6 months from the
date of her marriage, which is the shortest period of gestation in the
human species, its descent is not established from her husband unless
he claims it; and even in the event of his claiming it, if he should
admit that it was the fruit of fornication, its descent is not established.
▪ In conclusion, in Islam, the paternity of a child born within 6 months
of marriage is only established if the husband acknowledges that the
child is his.
▪ Judgment :
▪ “…I hold that therefore, that our Evidence Enacment is a statute of
general application, and all the inhabitants of the Federated Malay
States are subject to its provisions, whatever may be their race or
religion.”
55
CONFLICT OF LAWS
Myriam v. Mohamed Ariff [1971] 1 MLJ 265
▪ Brief facts :
▪ Issue on custody of children
▪ The applicant was a Swiss lady who converted to Islam when she
married the respondent in London in 1949. When they came back to
M’sia, they registered their marriage at the Registry of Marriages, KL
in 1960. They have two children, a girl 8 years old and a boy 3 years
old at the time of the trial.
▪ In 1963, they got divorce at the Kathi’s court and the respondent had
the custody of the children while the applicant had the right to access
to the children.
▪ In 1968 the applicant married another Muslim man in Kuantan. In
1969, the respondent married his cousin.
56
CONFLICT OF LAWS
▪ Whether the civil court has jurisdiction to hear the case when the Kathi’s
court had decided upon the issue?
▪ Judgement ; the civil court has jurisdiction by virtue of section 45 (6) of the Selangor
Administration of Muslim law Enactment which provides
▪ “Nothing in this Enactment contained shall affect the jurisdiction of any Civil Court and,
in the event of any differences or conflict arising between the decision of a Court of the
Kathi Besar or a Kathi and the decision of a Civil Court acting within its jurisdiction, the
decision of a Civil Court shall prevail.”
▪ Whether the Mohammedan law or the civil law is applicable to decide on
the issue?
▪ Judgement ;
▪ The civil law was applicable – the Guardianship of Infants Act 1961 by virtue of the
Selangor Guardianship of Infants (Extension) Enactment 1961 – the court looked at the
‘welfare of the children’
▪ The court disregarded aspects of Mohammedan law (Shafie school) highlighted by the
respondent on the disqualification of the applicant to have custody of the children, inter
alia that :
▪ (a) she remarries a man not related to the minor within the prohibited degree, so long as
the marriage subsists,
▪ (b) she resides at a distance from the father’s place of residence…..
57
CONFLICT OF LAWS
▪ Tengku Mariam binti Tengku Sri Wa Raja & Anor v.
Commissioner for Religious Affairs, Terengganu & Ors101.
▪ In this case, the question of the validity of wakaf made by the testator for the
benefit of the family and relatives was referred to the Mufti of Terengganu, who
gave a fatwa which declaring the wakaf to be valid. The propounding parties then
brought this case to the High Court, which decided that it was not bound by the
fatwa issued by the Mufti earlier – showing that the power to decide on Islamic
laws appears to be with the civil court.
▪
Farid Sufian in his book, Powers and Jurisdictions of Syariah Courts, when
commenting on the decision made in Tengku Mariam’s case, has highlighted the
problem in the process of propounding the Islamic law, whereby in this case, the
High Court has suggested the position of the law by referring to the previous Privy
Council’s decisions, which were made by referring to the common law doctrine,
instead of referring to the main source of the Islamic laws itself, i.e. the Quran, the
Sunnah, and the authoritative opinions by the Muslim jurists.
58
AMENDMENT TO ARTICLE
121 OF FC
▪ In 1988, the constitutional amendment was been made. Through this
amendment, a new clause, (1A), was inserted in Article 121. The article is as
follows:
121. (1) there shall be two high Courts of co-ordinate jurisdiction and status,
namely—
(a) one in the States of Malaya, which shall be known as the High Court in
Malaya and shall have its principal registry at such place in the States of Malaya
as the Yang di-Pertuan Agong may determine; and
(b) one in the States of Sabah and Sarawak, which shall be known as the High
Court in Sabah and Sarawak and shall have its principal registry at such place in
the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;
59
AMENDMENT TO ARTICLE
121 OF FC
▪ and such inferior courts as may be provided by federal law; and the High Courts
and inferior courts shall have such jurisdiction and powers as may be conferred
by or under federal law.
▪
(1A) the courts referred to in Clause (1) shall have no jurisdiction in respect of
any matter within the jurisdiction of the Syariah Courts.
60
POST AMENDMENT : TO
WHAT EXTENT IT RESOLVES
THE CONFLICT
▪ In Shahamin Faizal Kung bin Abdullah v. Asma bte Haji Yunus,
1991 (3) CLJ 220 the civil court ruled that the issue regarding the custody of
the children in this case was within the jurisdiction of the Civil Courts. Edgar
Joseph J. (as he then was) stated that such insertion of Article 121 (1A) in the
Federal Constitution did not set aside the Court of Judicature Act 1964 and
therefore, the jurisdiction of the civil court was still recognised to hear the case.
▪ In other words, the civil court’s jurisdiction was not excluded in hearing the
case. It was quite shocking that the civil court did not recognise the jurisdiction
conferred by the Federal Constitution, the supreme law of Malaysia, to the
Syariah courts through the amendment which has been made to the constitution.
61
POST AMENDMENT : TO
THE CONFLICT
▪ The position, however, was short – lived.
▪ The then Supreme court in a subsequent case

of Mohamed Habibullah b Mahmood v Faridah bte
Dato Talib unanimously rejected the approach taken by
the judge in Shahamin
62
POST AMENDMENT : TO
THE CONFLICT
▪ Mohamed Habibullah b Mahmood v Faridah Dato Talib [1992] 2
MLJ 793(Supreme Court)
▪ This is an appeal against the decision of High Court .

▪ This was a case between husband and wife who were both Muslims. The
wife alleged assaults by the husband and hence applied for an injunction.
The High Court allowed the wife’s application. But on appeal the then
Supreme Court held that clause (1A) of Article 121 took away the
jurisdiction of the High Court in respect of any matter within the
jurisdiction of the Syariah Court. And the Court held that the matter
between the parties as husband and wife was purely a matrimonial
offence which came within the ambit of syariah law.
63
POST AMENDMENT : TO
THE CONFLICT
▪ (Per Harun Mahmud Hashim SCJ) (1) The intention of Parliament by art
121(1A) of the Federal Constitution is to take away the jurisdiction of the High
Courts in respect of any matter within the jurisdiction of the Syariah Court
▪ (2) The parties in this case are muslims and they are husband and wife. The
allegations of assault and battery by the plaintiff fall within s 127 of the Islamic
Family Act 1984 and the Syariah Court has power to grant an injunction under s
107 of the Act. There cannot be any doubt that the Syariah Court has
been conferred with jurisdiction in respect of matters before the High Court in
this case.
▪ (Per Mohamed Azmi SCJ) The root of the plaintiffs complaint relates to the
conduct of the defendant during the course of a Muslim marriage. Itis not really a
civil or criminal matter as suggested by the trial judge. In fact and in law, the
alleged assault and battery constitute a matrimonial offence or misconduct and
the matter should be dealt with by the court in its matrimonial and not in its
general civil jurisdiction
64
POST AMENDMENT TO
ARTICLE 121 OF FC
▪ Dalip Kaur v Pegawai Polis Daerah Balai Polis Bukit Mertajam
Anor [1992](Supreme Court)
▪ Gurdev Singh had converted to Islam because he wanted to marry a

Muslim girl. However, before the marriage was solemnised, he died.
His mother, Dalip Kaur, applied to the High Court Penang for a
declaration that the deceased was at the time of his death not a Muslim
and/or that he had renounced Islam and prayed that she was entitled to
the deceased’s body for burial.
▪ At the trial, Dalip led evidence that her son had renounced Islam by a
deed poll and also he had rebaptised into Sikhism.
65
POST AMENDMENT : TO
THE CONFLICT
▪ Dalip Kaur v Pegawai Polis Daerah Balai Polis Bukit Mertajam Anor
[1992](Supreme Court)
▪ The learned judicial commissioner found that the signature on the deed poll
was not that of the deceased. He also rejected the evidence regarding
rebaptism and the congregation at the Sikh temple. He held that the
deceased was a Muslim at the time of his death. Dalip appealed.
▪ At the hearing of the appeal, the Supreme Court remitted the case to the
High Court for the judge to refer certain questions of Islamic law that
arouse therein to the Fatwa Committee under section 37 of the Kedah
Enactment.
▪ The High Court sat again for the purpose of referring the questions. The
Fatwa Committee was of the opinion that the deceased was a Muslim at the
time of his death. After receiving the fatwa, the learned judicial
commissioner confirmed his earlier findings and decision.
66
POST AMENDMENT : TO
THE CONFLICT
▪ The appeal was dismissed. The High Court was entitled to accept the
answers of the Fatwa Committee to the questions which were referred
to it and which were agreed to by the parties. The Fatwa Committee
was of the opinion that the deceased was a Muslim as he had been
duly converted to Islam and there was no decision of a Syariah Court
which decided that he had renounced Islam.
67
POST AMENDMENT : TO
THE CONFLICT
▪ Hashim Yeop A Sani CJ (Malaya):

▪ “On the conversion out of Islam, there were no provisions in the
Kedah Enactment. On the other hand, there were three provisions,
namely, sections 139, 140 and 141, which dealt with conversion into
Islam.”
68
POST AMENDMENT : TO
▪
THE CONFLICT
Dalip Kaur v Pegawai Polis Daerah Balai Polis Bukit Mertajam Anor
▪ Hashim Yeop A Sani CJ (Malaya):

▪ “We are of the view that clear provisions should be incorporated in all the State
Enactments to avoid difficulties of interpretation by the civil courts. This is
particularly important in view of the amendment to art 121 of the FC….The new
cl(1A) of art 121 of the Constitution effective from 10 June 1988 has taken away the
jurisdiction of the civil courts in respect of matters within the jurisdiction of the
Syariah courts. But that clause does not take away the jurisdiction of the civil court
to interpret any written laws of the states enacted for the administration of Muslim
law. One of the opinions given in the fatwa of the Fatwa Committee in this case was
that a convert who executes a deed poll renouncing Islam is a murtad (apostate). Of
course, this opinion is valid only for the state of Kedah. If there are clear provisions
in the State Enactment, the task of the civil court is made easier when it is asked to
make a declaration relating to the status of a person whether such person is or is not
a Muslim under the Enactment. A clear provision imposing obligation on the
relevant authority to keep and maintain a register of converts who have executed a
deed poll renouncing Islam.
69
POST AMENDMENT : TO
THE CONFLICT
▪ Mohamed Yusoff SCJ:

▪ “The present question, in my view, cannot be determined by a simple
application of facts as has been found by the learned judicial
commissioner on the basis of veracity and relevancy of evidence
according to civil law. Such serious issue would, in my mind, need
consideration by eminent jurists who are properly qualified in the field
of Islamic jurisprudence. On this view, it is imperative that the
determination of the question in issue requires substantial
consideration of the Islamic law by relevant jurists qualified to do so.
The only forum qualified to do so is the Syariah Court.”
70
POST AMENDMENT TO
ARTICLE 121 OF FC
▪ Dalip Kaur v Pegawai Polis Daerah Balai Polis Bukit Mertajam Anor
▪ Mohamed Yusoff SCJ:

▪ “I am also of the view that since the fatwa was sought from the committee,
clear directions from the committee should be adhered to. The fatwa issued
by the committee is clear in what it says “…samada seseorang itu terkeluar
daripada Islam (murtad) atau tidak hendaklah terlebih dahulu disabitkan
oleh mana-mana mahkamah Syariah dan dihukum ia sebagai terkeluar
daripada Islam (murtad) jika tidak ada disabitkan oleh mana-mana
mahkamah Syariah dan dihukum maka seseorang itu tetap di dalam agama
Islamnya.”
▪ “It further states that “…berkekalan Islamnya kerana tidak ada hukuman
dari mana-mana mahkamah Syariah negeri Kedah ini yang mensabitkan ia
terkeluar daripada Islam.”
71
FACTORS CONTRIBUTING TO
THE CONFLICT
72
1) NO EXPRESS PROVISION IN THE STATE
ENACTMENT CONFERRING THE POWER TO THE
SHARIAH COURT TO DECIDE THE MATTER (MOSTLY
IN CONVERSION OUT OF ISLAM CASES)
▪ Conversion to Islam
▪ All State Enactments and the Act (for Federal Territories) have
express provisions giving the Syariah court the jurisdiction to deal
with cases of conversion to Islam.
▪ Conversion out of Islam
▪ Only some State Enactments contain express provisions giving
the Syariah court the jurisdiction to deal with cases of conversion
out of Islam.
73
The Administration of the Religion of Islam and the Malay custom of
Pahang Enactment 1982 under Part IV states that where any person who
has embraced the religion of Islam in accordance with the Part, apostasises
from the religion, he shall report to the court of a kadi of his decision and
the Yang di Pertua shall register it. Before his decision is reported and
registered, he shall be presumed to be a Muslim.
The Negeri Sembilan Administration of Islamic Law Enactment 1991,
section 90 (3) provides that a Muslim, or a saudara baru who has
converted to Islam and later decides to renounce the same shall report the
said decision to the Registrar of Saudara Baru, who shall register the said
decision in the prescribed form. Before the said decision is reported and
registered, he shall be treated as a Muslim.
The Kelantan Enactment No 4 of 1994, section 102 provides that no
person who has confessed that he is a Muslim by religion may declare that
he is no longer a Muslim until a court has given its approval to that effect.
Before the court gives its approval, the person shall be presumed to be a
Muslim and any matter which is connected with the Religion of Islam
shall be applied to him.
74
SHARIAH COURT TO DECIDE THE MATTER
(MOSTLY IN CONVERSION OUT OF ISLAM CASES)
▪ Ng Wan Chan v. Majlis Ugama Islam Wilayah Persekutuan & Anor
(1993) High Court
▪ Main issue:
▪ Whether the deceased, Lee Siew Kee, was a Muslim or a Buddhist at the
time of his death.
▪ The plaintiff, being the deceased’s widow, inter alia, asked the High
Court to make a declaration that the deceased was a Buddhist during his
lifetime and at the time of his death
▪ The defendant challenged the jurisdiction of the High Court to entertain
the plaintiff’s claim.
75
▪ The Federal Constitution, Ninth Schedule List II- State List, specifically
gives power to state legislatures to constitute Muslim courts and when
constituted, ‘shall have jurisdiction only over persons professing the
Muslim religion and in respect only of any of the matter included in this
paragraph. Therefore, a Syariah court derives its jurisdiction under a
state law, (for Federal Territories- Act of Parliament) over any matter
specified in the State List under the Ninth Schedule of the Federal
Constitution.
▪ If the state law does not confer on the Syariah court any jurisdiction to
deal with any matter stated in the State List, the Syariah court is
precluded from dealing with matter. Jurisdiction cannot be derived by
implication.
▪ “…since there is nothing to show that the Syariah court has the
jurisdiction conferred on it by any written law to determine the issue of
whether a person is or is not a Muslim at the time of his death, this High
Court is not precluded from determining that issue, and consequently to
hear this application
76
▪ Soon Singh a/l Bikar Singh v. Pertubuhan Kebajikan Islam
(Perkim) Kedah & Anor [1999] Federal Court
▪ Brief facts:
▪ The appellant was brought up as a Sikh but converted to Islam
when he was a minor. The conversion was duly registered at the
Syariah court Kota Setar, Kedah.
▪ When he was over 21 years of age, he went through a Baptism
ceremony into Sikh faith at Sikh Gurdwara in Kuala Lumpur,
thereby renouncing the religion of Islam. He then executed a deed
poll to declare that he was a Sikh and later applied for a
declaration from the High Court in Kuala Lumpur that he was no
longer a Muslim.
▪ The appellant,Jabatan Agama Islam, raised a preliminary objection
against the application on the ground that the High Court had no
jurisdiction as the matter came under the jurisdiction of the syariah
courts. 77
▪ The High Court dismissed the application on the ground that
the subject matter in the application fell within the
jurisdiction of Syariah Courts and therefore, in view of cl
(1A) of art 121, the High Court had no jurisdiction.
▪ The judgment of Mohamed Yusoff SCJ in Dalip Kaur was
considered by the High Court whereby the Supreme Court
held that ‘conversion out of Islam (apostacy) fell within
the jurisdiction of the Syariah Courts.
78
▪ “It is clear that all State Enactments and the Federal Territories Act
contain express provisions vesting the syariah courts with the
jurisdiction to deal with conversion to Islam. On the other hand,
only some State Enactments expressly confer jurisdiction on the
syariah courts to deal with conversion out of Islam.
▪ “...in our opinion, the jurisdiction of the syariah courts to deal with
the conversion out of Islam, although not expressly provided in the
State Enactments, can be read into them by implication derived
from the provisions concerning conversion into Islam.”
▪ “…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.”
79
▪ “…the appellant’s application for a declaration that he is no
longer a Muslim comes within the jurisdiction of the
Syariah court and not the High Court. Accordingly, we
dismiss this appeal with costs.”
80
▪ Kaliammal a/p Sinnasamy lwn Pengarah Jabatan Agama Islam
Wilayah Persekutuan (JAWI) dan lain [2006] High Court
▪ The applicant, being the wife to Moorthy (the deceased) applied for
orders, inter alia, that the deceased was a Hindu and not a Muslim at the
time of death.
▪ There was an order by the Syariah Court which clearly decided that on 22
December 2005 the deceased was a Muslim and his name was Mohamad
bin Abdullah. The Syariah court has the jurisdiction and the competency
to determine the affirmation of the deceased’s conversion to Islam. With
that, the civil court does not have the jurisdiction and cannot act to review
again the decision of that Syariah Court.
▪ Though the wife claimed that the deceased has done acts contrary to being
a Muslim, that too are to be decided by Shariah Court.
81
▪ In the Federal Territory, there is an express provision in the
Islamic Administrative Act (the Federal Provinces) 1993 (‘505
Act’) regarding embracement of the Islamic religion.
Therefore, the Syariah court and not the civil court has
jurisdiction and competency to determine any matters arising
in Act 505 like the affirmation of the person’s conversion to
Islam.
▪ This is in accordance with article 121 (1A) of the FC which
provides that the civil court does not have the relevant
jurisdiction with any matters whereby the Syariah court has the
jurisdiction given under the written law.
82
▪ Dalam Perkara Permohonan Perisytiharan Status Agama Islam
Nyonya binti Tahir, Permohonan ex-Parte Majlis Agama Islam
Negeri Sembilan (2006)
▪ The children of the deceased gave evidence in the Syariah court that the
deceased had led the life of a non-Muslim since her childhood, married a
non-Muslim and never intended to revert to Islam.
▪ The Syariah Court declared that she died as a non-Muslim.
83
▪ Dalam Perkara Permohonan Perisytiharan Status Agama Islam Si
Mati Mohammad Abdullah @ Moorthy a/l Maniam, Permohonan
ex-Parte Majlis Agama Islam Wilayah Persekutuan Kuala
Lumpur(2006)
▪ The deceased’s family questioned the conversion of the deceased (as
explained earlier).
▪ Based on the evidence of his conversion into Islam, the Syariah Court
declared that the deceased had indeed died as a Muslim.
.
84
▪ Dalam Perkara Permohonan Perisytiharan Status Agama Islam Si
Mati Mohammad Abdullah @ Moorthy a/l Maniam, Permohonan
ex-Parte Majlis Agama Islam Wilayah Persekutuan Kuala
Lumpur(2006)
▪ The deceased’s family questioned the conversion of the deceased (as
explained earlier).
▪ Based on the evidence of his conversion into Islam, the Syariah Court
declared that the deceased had indeed died as a Muslim.
.
85
▪ Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Others
[2007] 4 MLJ 585, FC
▪ To decide whether a person is still a Muslim or not is within the
jurisdiction of Syariah Court (In other words, apostacy is within the
jurisdiction of Syariah Courts).
▪ The Federal Court’s decision in Soon Singh had created a procedure that
the National Registration Department (NRD) would require a
certification from the Syariah Court as an evidence to show that a
Muslim has converted out of Islam.
▪ Therefore it was reasonable for the NRD to reject the application of the
appellant to change the status of Islamic religion in her IC in the absence
of a certification from the Syariah Court.
.
86
(MOSTLY IN CONVERSION OUT OF ISLAM
CASES)
▪ Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors
and other appeals [2018] 1 MLJ 545 (Federal Court)
▪ The jurisdiction of the Syariah courts to determine a subject matter of a
dispute must be expressly conferred by the state legislation. The State must
claim ownership over the subject matters that fall within the jurisdiction of the
Syariah courts by providing for it expressly in its legislation; because
otherwise, the Syariah courts could be excluded from deciding on a subject
matter which falls within Item 1 of List II (State List) in the Ninth Schedule to
the Federal Constitution.
▪ In these present appeals, s. 50(3)(b)(x) of the Perak Enactment 2004 was not
applicable as nowhere was there any express provision in the said section
which confers jurisdiction on the Syariah court to determine the validity
of a person’s conversion to Islam. Thus, the Court of Appeal had
misdirected itself on the construction of s. 50(3)(b) of the Perak
Enactment 2004.
87
2) APPLICATION FOR CUSTODIAL RIGHT OF
CHILDREN BY NON-MUSLIM PARTNER UPON
CONVERSION TO ISLAM OF ANOTHER PARTNER
(MUSLIM WENT TO SHARIAH COURT WHILE
NON-MUSLIM APPLIED FROM HIGH COURT )
▪ PREVIOUS SECTION 51 OF LRA 1976

▪ Dissolution on ground of conversion to Islam
▪ 51. (1) Where one party to a marriage has converted to Islam, the other party
who has not so converted may petition for divorce:
▪ Provided that no petition under this section shall be presented before the
expiration of the period of three months from the date of the conversion.
▪ (2) The Court upon dissolving the marriage may make provision for the
wife or husband, and for the support, care and custody of the children of the
marriage, if any, and may attach any conditions to the decree of the dissolution
as it thinks fit.
▪ (3) Section 50 shall not apply to any petition for divorce under this section.
.
88
NON-MUSLIM APPLIED FROM HIGH COURT
NEW SECTION 51 OF LRA 2017
)
Dissolution on ground of conversion to Islam
51. (1) Where one party to a marriage has converted to Islam-
(a) either party may petition for divorce under this section or section 53, or
(b) both parties may petition for a divorce under section 52
Provided that no petition under this section shall be presented before the
expiration of the period of three months from the date of the conversion.
(2) The Court upon dissolving the marriage or at any time may make
provision for the wife or husband, and for the support, care and custody of the
children of the marriage, if any under Part VII and Part VIII, and may attach
any conditions to the decree of the dissolution as it thinks fit.
(3) Section 50 shall not apply to any petition for divorce where one party
has converted to Islam.
89
NOTE that section 51 of LRA has to be read together with section 3(3) of LRA.
)
PREVIOUS SECTION 3(3) OF LRA 1976

(3) This Act shall not apply to a Muslim or to any person who is married under Islamic
law and no marriage of one of the parties which professes the religion of Islam shall be
solemnized or registered under this Act; but nothing herein shall be construed to prevent a
court before which a petition for divorce has been made under section 51 from granting a
decree of divorce on the petition of one party to a marriage where the other party has
converted to Islam, and such decree shall, notwithstanding any other written law to the
contrary, be valid against the party to the marriage who has so converted to Islam.
90
NEW SECTION 3 (3) OF LRA 2017
)
“This Act shall not apply to a Muslim or to any person who is married under Islamic law
and no marriage of one of the parties which professes the religion of Islam shall be
solemnized or registered under this Act; but nothing herein shall be construed to prevent
a court from having exclusive jurisdiction over the dissolution of a marriage and all
matters incidental thereto including granting a decree of divorce or other orders under
Part VII and Part VIII on a petition for divorce under section 53 where one party
converts to Islam after the filing of the petition or after the pronouncement of a decree,
or a petition for divorce under either section 51, 52 or 53 on the petition of either party
or both parties to a marriage where one party has converted to Islam, and such decree
and orders made shall, notwithstanding any other written law to the contrary, be valid
against the party to the marriage who has so converted to Islam.”
91
EFFECT OF THE PREVIOUS SECTION 51 AND SECTION 3(3) OF LRA 1976

• Only the non-converting spouse can petition for divorce in the High Court on the
ground of Conversion to Islam by the other spouse. Conversion to Islam appears to be
considered as an offence entitling the non-converting spouse to ask for a divorce.
• Nevertheless, if the non-converting spouse does not petition for divorce, the marriage
is considered to be still subsisting and not dissolved by the conversion to Islam of the
other spouse.
• The converting spouse has no right to petition for divorce in the High Court. That was
the reason why the converting spouse went the Syariah Court to dissolve their
marriage such as in the case of Subashini.
92
Now, the spouse who has converted to Islam can also petition for divorce in the High
Court (on section 51-Dissolution on ground of conversion to Islam, OR on section 52-
Dissolution by mutual consent, OR section 53 -Breakdown of marriage). It solves the
previous problems of
1. the marriage to be still considered as subsisting whenever the non-converting spouse
does not petition for divorce OR refuses to petition for divorce.
2. The converting spouse is not permitted to petition for divorce in the High Court and
has to continue with the marriage even though he or she has converted to Islam and
is of a different faith.
3. Decided cases had shown that the effort of the converting spouse to dissolve the
marriage in the Syariah Court shall not be successful because the marriage was
solemnised under the civil law, therefore it has to be dissolved by the civil court (the
High Court). In addition, the Syariah Court also has no jurisdiction over the
non-Muslim spouse.
93
Shamala a/p Sathiyaseelan v. Dr Jeyaganesh a/l C Mogarajah (2004, High Court) –pages
238-240 of Dr Farid’s book
• The plaintiff wife and the defendant husband are both Hindus at the time of marriage.
Their marriage was solemnised in a Hindu temple and registered under the Law
Reform (Marriage & Divorce) Act 1976. There are two children of the marriage,
Saktiswaran four years old and Theiviswaran two years old. The husband later
converted to Islam and the two children were converted to Islam by the husband alone.
• The marriage broke down and the plaintiff wife left the children with the defendant
husband. She later applied to the High Court for the custody of the children and was
given an interim order of their custody. The defendant husband applied to the Selangor
Syariah High Court for the hadhanah (custody) of the children. The application for
hadhanah was served on the plaintiff wife. Later the plaintiff wife was given a copy of
the order of the Syariah Court that had given hadhanah of the two children to the
defendant husband.
94
• The Syariah Court has no jurisdiction over the non-Muslims. The hadhanah order from
the Selangor High Court was not binding on the plaintiff wife because she was a
non-Muslim.
• The interim High Court order was binding on both the plaintiff wife and the defendant
husband.
95
Case : Subashini a/p Rajasingam v. Saravanan a/l Thangathoray (2008, Federal Court)
–pages 240-282 of Dr Farid’s book.
Brief facts :
The parties were married in accordance with a civil ceremony and their marriage was
registered under the Law Reform (Marriage & Divorce) Act 1976.There were two
children of the marriage, both boys, Dharvin Joshua aged 4 and Sharvin aged 2.
The husband later converted to Islam & he also converted the elder son to Islam. He
commenced proceedings for the dissolution of marriage and custody of the elder son in
the Syariah High Court Kuala Lumpur and the wife was given notice of this by the
Syariah Court. An interim custody order of the elder son was given to the husband by the
Syariah Court.
2 months and 18 days after the husband’s conversion, the wife filed a petition for divorce
under section 51 of the 1976 Act coupled with an application for custody and ancilliary
reliefs in the High Court.
96
•
On issues of divorce & custody of a marriage registered under the Law Reform
(Marriage & Divorce) Act 1976 – the High Court has jurisdiction.
• “The husband could not shield himself behind the freedom of religion clause under Art
11 (1) of the FC to avoid the antecedent obligations under the 1976 Act on the ground
that the civil court has no jurisdiction over him. It must be noted that both the husband
& wife were Hindus at the time of their marriage.
• Therefore, the status of the husband and wife at the time of registering their marriage
was of material importance, otherwise the husband’s conversion would cause injustice
to the unconverted wife including the children. A non-Muslim marriage does not
automatically dissolve upon one of the parties conversion to Islam. Thus, by
contracting the civil marriage, the husband and wife were bound by the 1976 Act in
respect of divorce and custody of the children of the marriage, and thus, the civil court
continues to have jurisdiction over him, notwithstanding his conversion to Islam.”
97
Viran a/l Nagapan v. Deepa a/p Subramaniam (2016, Federal Court)
)
• Viran (appellant) and Deepa (respondent) contracted a civil marriage under the
Law Reform (Marriage & Divorce) Act 1976. They had two children, a daughter
Shamila and a son Mithran. The appellant later converted to Islam and registered
the conversion to Islam of his children. The appellant then applied for the
dissolution of his civil marriage with the respondent at the Seremban Syariah High
Court. The Syariah granted the order for the said dissolution of marriage. Later he
was also given the permanent custody order of the two children and respondent
wife was given the visitation rights and access to the two children.
• In the meantime, the respondent wife had petitioned for divorce at the Seremban
High Court, together with the application for the custody of the children. The
High Court dissolved the marriage and granted permanent custody of the two
children to the respondent wife. The appellant was given the weekly access to the
children
98
• The appellant husband took away the son from the respondent’s house. The
respondent wife applied for a recovery order and the High Court granted the
application & ordered the police to enter the appellant’s residence to recover
the son & to return him to the custody of the respondent wife.
• The appellant husband appealed against the custody order granted by the High
Court in favour of the respondent wife. He also filed an appeal against the
recovery order to the Court of Appeal. The appeals against the custody order
& the recovery order were heard jointly by the Court of Appeal. The Court of
Appeal dismissed both appeals and affirmed the decision of the Civil High
Court in respect of the custody order & the recovery order. The appellant
husband appealed further to the Federal Court.
99
ON CONFLICT BETWEEN THE SYARIAH COURT & THE CIVIL COURT

• The civil courts had consistently held that the converted spouse could not use
his conversion to Islam to escape responsibilities under the LRA. A
non-Muslim marriage did not automatically dissolve upon one of the parties
converting to Islam. The civil courts continued to have jurisdiction in respect
of divorce as well as custody of the children despite the conversion of one
party to Islam.
• In the present case, the appellant and the respondent were Hindus at the time
of their marriage and by contracting the civil marriage under the LRA they
were bound by its provisions in respect of divorce as well as custody of the
children of the marriage. Matters under the LRA were within the jurisdiction
of the civil courts and the civil courts continued to have jurisdiction over
them notwithstanding the appellant’s conversion to Islam.
100
• On the facts of the case, the Syariah High Court had no jurisdiction to dissolve
the civil marriage between the appellant and the respondent and to make an order
granting custody of the two children out of the marriage to the appellant. The
jurisdiction to do that was with the civil court.
• Article 121 (1A) which removed the jurisdictions of the civil courts in respect of
any matter within the jurisdiction of the Syariah Courts did not operate to deny
the civil courts in respect of the matters set out in section 51 of the LRA. It was
clear that art 121(1A) was introduced not for the purpose of ousting the
jurisdiction of the civil courts but to avoid any conflict of cases before. In the
present case, the conflict arouse because the appellant had brought his case to the
Syariah High Court. However, the LRA continued to bind the appellant despite
his conversion to Islam and the Syariah Courts had no jurisdiction over the
appellant’s application to dissolve his civil marriage with the respondent or over
the custody of the children born from the civil marriage under the LRA.
101
• The Syariah Courts had jurisdiction only over matters relating to divorce &
custody when it involved a Muslim marriage, solemnised according to
Muslim law. When one of the parties was a non-Muslim, the Syariah Courts
did not have the jurisdiction over the case even if the subject matter fell
within their jurisdiction.
• Thus, art 121(1A) of the FC which deprived the civil courts jurisdiction in
respect of any matters within the jurisdiction of the Syariah courts was not
applicable in this case and it was important for the civil courts and the
Syariah Courts not to transgress into each other’s jurisdiction
102
ON CUSTODY ORDER
• In relation to the custody order of the High Court as affirmed by the Court of
Appeal, the welfare of the children was the paramount consideration. Among
factors to be considered include the conduct of the parties, their financial and
social status, the sex and age of the child, his/her wishes, the confidential
reports of a social welfare officer and whether in the long run it would be in
the greatest interest, welfare and happiness of the child to be with one parent
rather than the other.
103
• From the decided cases, it was suggested that children above the age of seven
could be presumed to be capable of giving independent opinion. When the
son, aged 8, and the daughter, aged 11, were interviewed privately, it was
found that the son preferred to stay with the father and did not wish to live
with his mother while the daughter expressed her wish to live with her
mother. It was clear that both children were certain of their choices, had
settled down and were well cared for. Therefore, the court varied the custody
order of the High Court; the custody of the daughter remained with the
mother while the custody of the son moved to the appellant.
104
3) UNILATERAL CONVERSION OF CHILDREN BY
ONLY MUSLIM SPOUSE )
: Subashini a/p Rajasingam v. Saravanan a/l Thangathoray (2008, Federal Court)
• On conversion of the child by one parent

• One parent has the right to convert a child.
• “The wife complained that the husband had no right to convert either child of the
marriage to Islam without the consent of the wife….The word ‘parent’ in article 12 (4)
of the Federal Constitution, which states that the religion of a person under the age of
18 years shall be decided by his parent or guardian, means a single parent.”
105
Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak & Ors(2018,
Federal Court)
• Patmanathan and Indira Gandhi were married on 10 April 1993. The marriage was
registered under the Law Reform (Marriage and Divorce) Act 1976 (the LRA). There
were three children of the marriage, Tevi aged 12, Karan aged 11 and Prasana aged 11
months (at the time Indira filed for judicial review).
• On 11 March 2009, Patmanathan converted to Islam. At the time of conversion, Tevi
and Karan were residing with Indira while Prasana was with Patmanathan. On 8 April
2009, Patmanathan obtained an ex parte interim custody for all the three children from
the Syariah Court. He later obtained a permanent custody order on 29 September 2009.
• Sometime in April 2009, Indira received documents from Patmanathan showing that
all the three children had been converted to Islam on 2 April 2009 and that the
Pengarah Jabatan Agama Islam Perak had issued three certificates of conversion to
Islam on her three children. The documents also showed that the Registrar of Muallaf
had registered the children as Muslims.
106
• On 9 June 2009, Indira filed an application for judicial review in the Ipoh High Court
to quash the certificates of conversion to Islam of the children. Indira claimed that the
issuance of the certificates of conversion to Islam by the Registrar of Muallafs was
ultra vires and illegal because it contravened few laws; the State law (sections 96 and
106 (b) of the Administration of the Religion of Islam (Perak) Enactment 2004, the
federal law (sections 5 and 11 of the Guardianship and Infants Act 1961 and the
Federal Constitution (Article 12 (4) read together with Article 8(2)).
• In the meantime, Indira filed an application in the High Court of Ipoh for custody of
the three children and on 11 March 2010, the High Court granted Indira the custody of
the three children.
• The custody order also directed Patmanathan to deliver the youngest child, Prasana, to
Indira immediately. Indira later filed a petition for divorce on grounds of her husband’s
conversion to Islam under section 51 of the LRA and the divorce was granted on 8
August 2012.
107
HIGH COURT
• Judgment of High Court on issue of jurisdiction:

• The civil courts are creatures of the Constitution whereas the Syariah Courts
are creatures of the State law.
• Article 121 (1A) of the Federal Constitution does not confer jurisdiction for
constitutional interpretation on the Syariah Courts to the exclusion of the civil
courts.
• The requirements of sections 96 & 106 (on requirements for a valid
conversion and capacity to convert to Islam) of the Perak Enactment must be
complied with by the Registrar of Muallafs in issuing the Certificates of
Conversion. Section 101 (2) which states that the certificates shall be
conclusive proof of the fact stated therein, was held not to oust the jurisdiction
of the court where there is patent non-compliance with the statutory
requirements.
• Accordingly, the High Court had exclusive jurisdiction to hear the application.
108
COURT OF APPEAL
• Judgment of Court of Appeal on issue of jurisdiction:The High Court’s decision was

reversed by a majority in the Court of Appeal.
• The Court of Appeal held that the High Court had no power to question the decision of
the Registrar of Muallafs or to consider the Registrar’s compliance with the statutory
requirements sections 96 & 106 of the Perak Enactment. Reference was made to the
powers of the Registrar in registering under section 100 and conclusiveness of the
Certificates of Conversion, as proof of the facts started in section 101(2).
• The Court of Appeal took the position that the fact that a person has been registered in
the Registrar’s of Muallafs as stated in the Certificates of Conversion is proof that the
conversion process had been done to the satisfaction of the Registrar.
109
COURT OF APPEAL
• Judgment of Court of Appeal on issue of jurisdiction:The High Court’s decision was

reversed by a majority in the Court of Appeal.
• The Court of Appeal held that the High Court had no power to question the decision of
the Registrar of Muallafs or to consider the Registrar’s compliance with the statutory
requirements sections 96 & 106 of the Perak Enactment. Reference was made to the
powers of the Registrar in registering under section 100 and conclusiveness of the
Certificates of Conversion, as proof of the facts started in section 101(2).
• The Court of Appeal took the position that the fact that a person has been registered in
the Registrar’s of Muallafs as stated in the Certificates of Conversion is proof that the
conversion process had been done to the satisfaction of the Registrar.
110
3 questions to be decided by the Federal Court:
1. Whether the High Court has the exclusive jurisdiction to review the actions of the
Registrar of Muallafs or his delegate acting as public authorities in exercising statutory
powers vested by the Administration of the Religion of Islam (Perak) Enactment 2004.
2. Whether a child of a marriage under the Law Reform (Marriage and Divorce) Act 1976
(a civil marriage) who has not attained the age of 18 years must comply with both
sections 96(1) and 106(b) of the Administration of the Religion of Islam (Perak)
Enactment 2004 (or similar provisions in State laws throughout the country) before the
Registrar of Muallafs or his delegate may register the conversion to Islam of that child.
3. Whether the mother and the father (if both are still surviving) of a child of a civil
marriage must consent before a certificate of conversion to Islam can be issued in respect
of that child.
111
• THE FEDERAL COURT:

• ISSUE OF JURISDICTION AND ARTICLE 121 (1A)The High Court has the
exclusive jurisdiction to review the actions of the Registrar of Muallafs or his delegate
acting as public authorities in exercising statutory powers vested by the
Administration of the Religion of Islam (Perak) Enactment 2004. It is the inherent
power of the High Court / civil court in cases of judicial review or constitutional
issues or interpretation of the law, regardless of its subject matter. The Syariah Court
does not have similar jurisdictions. The Syariah Court’s jurisdictions are also confined
to persons and subject matters in the State List and it must be provided for under the
relevant State legislation.
• Article 121 (1A) of the Federal Constitution does not oust the jurisdiction of the civil
courts in matters related to judicial review, interpretation of the Federal Constitution
and interpretation of the state laws. The civil court also continues to exercise its
jurisdiction as given by the Federal law, notwithstanding the conversion of one party to
Islam as seen in the cases of Subashini & Viran as explained above.
112
• THE FEDERAL COURT:

• ISSUE OF JURISDICTION AND ARTICLE 121 (1A) The High Court has the
exclusive jurisdiction to review the actions of the Registrar of Muallafs or his delegate
acting as public authorities in exercising statutory powers vested by the
Administration of the Religion of Islam (Perak) Enactment 2004. It is the inherent
power of the High Court / civil court in cases of judicial review or constitutional
issues or interpretation of the law, regardless of its subject matter. The Syariah Court
does not have similar jurisdictions. The Syariah Court’s jurisdictions are also confined
to persons and subject matters in the State List and it must be provided for under the
relevant State legislation.
• Article 121 (1A) of the Federal Constitution does not oust the jurisdiction of the civil
courts in matters related to judicial review, interpretation of the Federal Constitution
and interpretation of the state laws. The civil court also continues to exercise its
jurisdiction as given by the Federal law, notwithstanding the conversion of one party to
Islam as seen in the cases of Subashini & Viran as explained above.
113
OTHER ISSUES:
2. A child of a marriage under the Law Reform (Marriage and Divorce) Act 1976
(a civil marriage) who has not attained the age of 18 years must comply with
both sections 96(1) and 106(b) of the Administration of the Religion of Islam
(Perak) Enactment 2004 (or similar provisions in State laws throughout the
country) before the Registrar of Muallafs or his delegate may register the
conversion to Islam of that child.
• The appellant’s children did not utter the two clauses of the affirmation of
faith and were not present before the Registrar of Muallafs before the
certificate of conversion was issued. The requirement in s. 96(1) had not
been fulfilled.
• The issuance of the certificates despite the non-fulfilment of the
mandatory statutory requirement was an act which the Registrar had no
power to do under the Enactment.
114
▪ 3. Both the mother and the father (if both are still surviving) of a child of
a civil marriage must consent before a certificate of conversion to Islam
can be issued in respect of that child.
115
4) OVERLAPPING CRIMINAL OFFENCES IN BOTH
FEDERAL LAW AND STATE ENACTMENT
• The conflict as in Sukma Darmawan (1999) 1 M.L.J. 266 (C.A.) would not
have arisen under the old Administration of Muslim Law Enactment 1959
(Penang), for example, as none of the offences therein provided overlapped
with the existing offences in the federal criminal statutes e.g.the Penal Code.
• But, after article 121 was amended, new offences were created in the State
Enactments, some of which overlapped with offences
already existing in the federal criminal law statutes e.g. the Penal Code. A
good example is “liwat” which overlap with the provisions in sections 377A
and 377D of the Penal Code. “Gambling” appears to overlap with the
provisions in sections 6 and 7 of the Common Gaming Houses Act 1953. So,
it was a matter of time that such a conflict would arise.
116
• The case of Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara
Malaysia & Anor (1998) 4 MLJ 742 (HC), (1999) 1 MLJ 266 (CA), (1999) 2 MLJ
241
• This case originated from the Sessions Courts wherein the petitioner was charged with
the offence of gross indecency under section 377D of the Penal Code. He pleaded
guilty and was sentenced to six months imprisonment. He then applied for a writ of
habeas corpus. He contended that the Sessions Court had no jurisdiction to try him on
the charge preferred against him. He claimed that being a Muslim only the Syariah
Courts had jurisdiction to try him for the offence of “liwat” under the Syariah Criminal
Offences (Federal Territories) Act 1977.
•
117
• The Federal court in approaching the issue agreed that Article 121(1A) “was to stop
the practice of aggrieved parties coming…… to get the High Court to review decision
made by Syariah courts.
• It also held that article 121(1A) should not be construed literally as it would give rise
to consequences which the legislature could not possibly have intended. The court
preferred “to construe both clauses (1) and (1A) of article 121 together and choose a
construction which will be consistent with the smooth working of the system which this
article purports to regulate, and reject an interpretation that will lead to uncertainty
and confusion into the working of the system”.
• The court then proceeded to apply ‘the provisions of sections 59 of the Interpretation
Act so that where an act or omission is an offence under two or more written laws the
offender may be prosecuted and punished under any of those laws, so long as he is not
prosecuted and punished twice for the same offence’. The final decision of the court is
that ‘where an offender commits an offence triable by either the civil court or a
Syariah court, he may be prosecuted in either of those courts’.
118
• Iki Putra Mubarrak V. Kerajaan Negeri Selangor & Anor (2021, Federal Court)
• The petitioner was charged in the Selangor Syariah High Court for having
attempted to commit sexual intercourse against the order of nature with
certain other male persons. The governing provision of the charge is s. 28
of the Syariah Criminal Offences (Selangor) Enactment 1995 (‘1995
Enactment’) read together with s. 52.
• The petitioner obtained leave pursuant to art. 4(3) and (4) of the Federal Constitution
(‘FC’) to challenge the competency of the Selangor State Legislature (‘SSL’) to enact
s. 28 of the 1995 Enactment. The issue concerned the interpretation or effect of the
words ‘except in regard to matters included in the Federal List’ (‘preclusion clause’)
contained in item 1, List II, Ninth Schedule of the FC (‘State List’), vis-à-vis the power
of the State legislatures to make laws under the said item.
• The petitioner argued that ss. 377 and 377A of the Penal Code, comprised
in Federal law, already governed the very subject-matter of s. 28 of the 1995
Enactment and, accordingly, the SSL was incompetent to pass s. 28 by virtue
of the words ‘except in regard to matters included in the Federal List’ in item 1 of
the State List.
119
• The apex court allowed the applicant's legal challenge against Section 28 of
the Syariah Criminal Offences (Selangor) Enactment 1995 on the grounds that
the matter falls under the jurisdiction of federal and not state laws.
• Federal Court held that whilst list II Para 1 gives the state legislature the
power for “…the creation and punishment of offences by persons professing
the religion of Islam against the precepts of that religion, expect in regard to
matters included in the Federal List”. The words “except in regard to matters
included in the Federal List” is the preclusion clause which clearly shows that
the state power over Islamic Law is subordinated to federal power and is
residual and not inherent.
120
• The Federal Court in its decision stated that “the primary power of legislation
in criminal law resides in Parliament. This is further borne out by the state list
in terms of the power of the state Legislature to enact criminal Law, namely
that the powers are subjected to the preclusion clause in item 1 of the state list
and item 9 of the state list”. In view of this, the Federal Court had rightly
ruled that Section 28 of the Syariah Criminal Offences (Selangor) Enactment
1995 touching on the criminalization of unnatural sex, is one that Parliament
is empowered to act on and the state has no power to enact such law.
121

THE Administr Ation of Islamic Law in Malaysia: DR Ibtisam at Ilyana Ilias

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THE Administr Ation of Islamic Law in Malaysia: DR Ibtisam at Ilyana Ilias

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THE

DR IBTISAM @ ILYANA ILIAS

Before During After

Syariah court were

Article 3 of the Federal Constitution

MALAYSI Function 1: Drafting and

KEMAJUA Function 3: Coordination and

▪ Are placed within the authority of States.

▪ Ground of appeal : the mandatory death sentence for the drug

▪ At Federal Court, leave to appeal was granted on one issue only:

▪ Whether the regulations prohibiting the wearing of “serban”

▪ DR IBTISAM @ ILYANA ILIAS

▪ Case 2 : Soon Singh a/l Bikar Singh v. Pertubuhan Kebajikan Islam

▪ Section 494 of the Penal Code on offence of bigamy

▪ The then Supreme court in a subsequent case

▪ This is an appeal against the decision of High Court .

▪ Gurdev Singh had converted to Islam because he wanted to marry a

▪ Hashim Yeop A Sani CJ (Malaya):

▪ Hashim Yeop A Sani CJ (Malaya):

▪ Mohamed Yusoff SCJ:

▪ Mohamed Yusoff SCJ:

▪ PREVIOUS SECTION 51 OF LRA 1976

Dissolution on ground of conversion to Islam

51. (1) Where one party to a marriage has converted to Islam-

PREVIOUS SECTION 3(3) OF LRA 1976

EFFECT OF THE PREVIOUS SECTION 51 AND SECTION 3(3) OF LRA 1976

ON CONFLICT BETWEEN THE SYARIAH COURT & THE CIVIL COURT

: Subashini a/p Rajasingam v. Saravanan a/l Thangathoray (2008, Federal Court)

• On conversion of the child by one parent

• Judgment of High Court on issue of jurisdiction:

• Judgment of Court of Appeal on issue of jurisdiction:The High Court’s decision was

• Judgment of Court of Appeal on issue of jurisdiction:The High Court’s decision was

3 questions to be decided by the Federal Court:

• THE FEDERAL COURT:

• THE FEDERAL COURT:

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