The Position of Syariah Court

[2015] 1 LNS(A) xl Legal Network Series 1
THE SYARIAH COURT: ITS POSITION UNDER THE

MALAYSIAN LEGAL SYSTEM +
by
ROSLI DAHLAN*
FAWZA SABILA FAUDZI**
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.
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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”. [1]
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.
Federation of Malaya
The Federal Constitution has its roots in the Federation of Malaya

Agreement 1948 (“the FMA 1948”) which established a federation known
as the Federation of Malaya or Persekutuan Tanah Melayu comprising the
nine Malay states [2] and the Settlements [3] of Penang and Malacca. [4] It was
envisaged that the Federation, while remaining under British rule for the
time being, would progress towards eventual self-government. [5]
Historically, British rule in the Malay States eschewed interference with

the powers of the Malay Rulers on matters relating to Islam and Malay
customs. This position was maintained in the FMA 1948, [6] with a proviso
that federal legislation could be made for enabling the courts to ascertain
Islamic law or Malay customs concerning matters brought before them for
adjudication. [7]
As for legislation, each Malay State had the power to pass laws on Islam
and Malay customs to the extent not repugnant to any law passed by the
legislative council of the Federation. [8] This distribution of legislative
powers between the Federation and the Malay States remains unchanged to
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this day. Islam as the religion of the Federation was to come later.
The Reid Commission
In 1956, as one of the final steps taken in the direction of self -government
for the Federation, an independent commission headed by Lord Reid [9] was
appointed by the British Crown and the Conference of Rulers to ma ke
recommendations for a constitution for an independent Federation of
Malaya.
The draft constitution and the report submitted by the Reid Commission
was passed with amendments and approved by the Federal Legislative
Council in July 1957.
In the course of the deliberations of the Reid Commission, the then-

dominant political party called the Alliance submitted a proposal that Islam
be made the official religion. [10]
The Reid Commission decided to not make any provision for an official
religion, preferring to maintain the status quo by retaining religion as a
State matter [11] as they were concerned over the apparent contradiction
between the Alliance declaration that Malaya would be a secular state and
the proposed provision for Islam to be the official religi on of the
Federation. [12]
This omission led to the formation of a Working Party comprising

representatives of the British Government, the Malay Rulers and the
Alliance coalition to review the Reid Report. [13] Tunku Abdul Rahman
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argued strongly for an article declaring Islam as the official religion of the
Federation. [14] The component parties in the Alliance agreed that the
proposed provisions should include two provisos − first, that it would not
affect the position of the Rulers as head of religion in their respective
States, and second, that the practice and propagation of other religions in
the Federation would be assured under the Constitution. [15]
Justice Sheik Abdul Hamid, the member of the Reid Commissi on from
Pakistan who initially agreed with the other members to omit any provision
for an official religion in the draft constitution, later proposed in his Notes
of Dissent that the Alliance proposal be adopted as it was “innocuous”,
pointing out that at least 15 other countries had similar provisions in their
constitutions. [16]
The Federation of Malaya government, in a White Paper published in 1957,

explaining the changes to the recommendations of the Reid Commission,
stated:
“There has been included in the proposed Federation Constitution a

declaration that Islam is the religion of the Federation. This will in
no way affect the present position of the Federation as a secular
State, and every person will have the right to profess and practise his
own religion and the right to propagate his religion, though this last
right is subject to any restrictions imposed by State law relating to
the propagation of any religious doctrine or belief among persons
professing the Muslim religion.” [17]
In the event, an express provision was made in Article 3(1), the terms of
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which have remained unchanged since:
“Islam is the religion of the Federation but other religions may be

practised in peace and harmony in any part of the Federation.”
The Malay States and the Settlements comprised in the Federation of

Malaya became independent as from 31 August 1957 by virtue of the
Federation of Malaya Agreement 1957, given force of law by the Federal
Constitution Ordinance 1957. [18]
That the Federation was to be a secular nation was reiterated by Tunku

Abdul Rahman in a speech before the legislative council:
“I would like to make it clear that this country is not an Islamic state
as it is generally understood, we merely provided that Islam shall be
the official religion of the State.” [19]
Malaysia
Prior to the formation of Malaysia, a commission of inquiry chaired by

Lord Cobbold [20] was appointed to ascertain the views of the people of
North Borneo and Sarawak, and upon assessment of those views, to make
recommendations on the inclusion of North Borneo and Sarawak in the
proposed Federation of Malaysia and issued a report in 1962. [21] Although
the British member of the Cobbold Commission recommended that the
Federal provision on religion should not be extended to Borneo territories
which have a non-Muslim majority, the Malayan members
recommended [22] otherwise:
“... we are agreed that Islam should be the national religion for the
Federation. We are satisfied that the proposal in no way jeopardises
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freedom of religion in the Federation, which in effect would be
secular.”
In 1963, the Federal Constitution was amended upon the admission of

Singapore and the North Borneo states of Sabah and Sarawak to the
Federation. [23]
Article 3 of the Federal Constitution remained unchanged.
Public and private aspects of Islam in Malaysia
In 1988, a full bench of five in the Supreme Court (as the Federal Court
was then known) had occasion to consider Article 3 in an appeal against a
mandatory death sentence for drug trafficking and possession of firearms .
It was contended on behalf of the accused that Islam being the religion of
the Federation, as declared in the Federal Constitution, and the Federal
Constitution being the supreme law of the Federation, the imposition of the
death penalty was unconstitutional, being contrary to Islamic injunction. [24]
Although the Supreme Court acknowledged that Islam was not just a mere
collection of dogmas and rituals but a complete way of life covering all
fields of human activities, be they private or public, legal, political,
economic, social, cultural, moral or judicial, [25] it held that this was not the
meaning intended by the framers of the Constitution. So far as Islam was
concerned, the result of the development of law by the British in Malaya
had the effect of turning the legal system into a secular institution. Thus,
all laws, including the administration of Islamic law, had to be validated
through a secular fiat. [26]
The court also observed that during the British colonial period, through
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their system of indirect rule and establishment of secular institutions,
Islamic law was rendered isolated in the narrow confines of the law of
marriage, divorce and inheritance − the sphere of personal law. This private
aspect of Islamic law is only applicable to Muslims as t heir personal
law. [27]
Islam being the religion of the Federation did not mean that laws passed
by Parliament must be imbued with Islamic religious principles; nor did
the existence of Syariah law prior to independence require that laws of
general application must conform to the Syariah, for to hold otherwise
would be contrary to the constitutional and legal history of the Federation
and also to the Civil Law Act 1956, which provides for the reception of
English common law in this country. [28]
It is in this sense of the dichotomy that the framers of the Constitution

understood the meaning of the word “Islam” in the context of Article 3.
Religion being often described as a sensitive matter in Malaysia, the
concluding words of Salleh Abbas LP are noteworthy:
“... 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.” [29]
Jurisdictional controversies
This dichotomy between the public and private aspects of Islamic law,
when ignored, has given rise to difficulties.
In recent years, the bitter custody and child’s religious rights battles in
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Subashini Rajasingam, [30] Indira Gandhi [31] and Deepa Subramaniam [32]
sparked new conflicts between the Syariah court and the civil court. In
these three cases, all involving Hindu married couples with children, the
husband had converted to Islam, taken the children away from their
mothers and in two cases, converted the children also to Islam. Controversy
also arose when State religious authorities and the Syariah court purported
to subject the non-Muslim spouse to the jurisdiction of the Syariah court,
although state Syariah laws clearly provided that the Syariah court had
jurisdiction only over Muslims. Another issue was the reluctance of the
police to act on the complaints made by the non-Muslim spouse.
In the now infamous Borders case, [33] in 2012, officers of JAWI, [34]
accompanied by the media, raided the Borders Bookstore at The Gardens,
Mid Valley City in Kuala Lumpur. During the raid, the JAWI officers
seized several books by international author Irshad Manji, titled Allah,

Kebebasan dan Cinta, a Malay translation of Allah, Liberty and Love which
was also seized, on the grounds that the books were prohibited. [35]
At the material time, the publications were, in fact, not subject to any
prohibition order by the Minister of Home Affairs. The JAWI officers
proceeded to examine the Muslim and non-Muslim employees of Borders,
and issued orders compelling them to be subject to further investigation
and examination.
The next day, a similar raid was conducted at another Borders store.
Notwithstanding the full co-operation given by Borders and its employees,
the JAWI officers arrested one Nik Raina Nik Abdul Aziz, who was the
store manager, and charged her for disseminating or distributing
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publications deemed contrary to Islamic law.
Both the High Court [36] and the Court of Appeal[37] held that the act of
enforcement by JAWI was unlawful and illegal, primarily on the grounds
that the books were in fact not subject to any prohibition order at the
material time. The Court of Appeal was of the view that any law, be it
Federal or State, that breached the Federal Constitution must be struck
down and any Federal or any State Government and its agencies that apply
the law wrongfully must be corrected. [38]
In June 2014, enforcement officers of JHEAINS [39] arrested 17 people at a

wedding reception. Those arrested were transgender persons, nicknamed
mak andam, present at the wedding in service as wedding planners and
beauticians. They were fined for cross-dressing against the Syariah law in
Negeri Sembilan. [40]
At that time, three other mak andam had appealed to the Court of Appeal
against the same Syariah law as being unconstitutional and the arrest of the
17 brought the issue to prominence in the news. In the event, the Court of
Appeal [41] held that the State Enactment prohibiting cross-dressing by men
was unconstitutional as being against the fundamental liberties in Part II
of the Constitution. In particular the Court of Appeal pointed out that the
framers of the Constitution intended the term “Islam” in Article 3 to be
given restrictive interpretation and give emphasis to Article 3(4), which
provided that Article 3 did not derogate any other provision in the
Constitution. [42]
The Director-General of JAKIM [43] publicly criticised the Court of Appeal

for interfering with the administration of lslamic law by the Syariah court
in contravention of Article 121(1A) of the Federal Constitution. The
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Minister for Religious Affairs then issued a statement to the effect that the
Government was planning to establish a Syariah Federal Court in order to
prevent any further interference by the civil court. [44] This reignited the
debate whether Malaysia had a dual legal system of civil law and Syariah
law.
By far, the most divisive of these controversial cases have been the ban on
the use of “Allah” by non-Muslims including the ruling that the weekly
Herald Malaysia newspaper of the Roman Catholic Church could not refer
to God in that way in its Malay-language edition; [45] the seizure of an
Indonesian publication that used “Allah” for Sunday school materials, [46]
and the seizure of 300 copies of the Bible in Bahasa Melayu and Bahasa
Iban that contained the word. [47] The High Court in the Herald case held
that the church had a constitutional right to use “Allah”, [48] a decision that
was set aside by the Court of Appeal. [49] Unfortunately, the

constitutionality of the prohibition remains unclear as the Federal Court
refused leave to appeal. [50]
The jurisdictional controversies referred to above remain unsettled as these

circumscriptions on the legislative power of the State and the jurisdiction
of the Syariah court have yet to be closely examined before the courts. It
is moot that some of the actions taken by the religious authorities and the
orders issued by the Syariah court in the above cases may have exceeded
their power and jurisdiction.
The Syariah court
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
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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
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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, [53] 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. [54] 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. [55]
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
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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 hokum 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 [61]
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 qualified to do so is the Syariah
court.[62]
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. [63]
With the greatest respect, the Federal Court decision also appears to
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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 [64] ... ‘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.” [67]
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
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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.[70]
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 law [74] 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 an d the
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Syariah court, the proceedings before the High Court must take precedence
over the Syariah court. [75]
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 Kahar [77] 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]
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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. [83]
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. [84] 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 jurisidiction 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
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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. [92]
Conclusion
Quite clearly, the idea of a “dual” legal system in Malaysia of civil law and
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Syariah law is misconceived. Syariah law is only applicable to Muslims
and only as personal law, with provision for certain offences against the
precepts of Islam. Nothing in the Federal Constitution suggests that the
Syariah court is to compete with or be parallel to the civil court on the
same subject matter, and this is supported by judicial authority.
This issue is of vital importance to the peoples of Malaysia, with their

multicultural, multi-ethnic and multi-religious history.
The nation called “Malaysia” has no existence outside of the Federal

Constitution, which is the supreme law of the country. A united and
functional Malaysia can only exist when legal issues are determined in
accordance with principle, in well-reasoned judgments by the courts, with
a willingness to grapple with difficult issues without glossing over or

avoidance or oversimplification or a giving way to sentiment.
The authorities reviewed in this article have in the main avoided these
dangers and provided guidance and a path to the future, although with some
anomalies that need in due course to be resolved.
____________________________________________________________
+
This article is reproduced, with permission, from the Legal Herald (May 2015 issue), a
publication by Lee Hishammuddin Allen & Gledhill, Advocates & Solicitors, Kuala Lumpur,
Malaysia.
* Rosli Dahlan (rd@lh-ag.com) heads the Corporate & Commercial Disputes Practice
Group at Lee Hishammuddin Allen & Gledhill and regularly appears at the High Court
and appellate courts on public law issues.
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** Fawza Sabila Faudzi (fawza@lh-ag.com) graduated from the Ahmad Ibrahim
Kuliyyah of Laws, International Islamic University Malaysia, and is currently a pupil -
in-chambers with the firm
Endnotes:
[1]
Article 3, Federal Constitution.
[2]
The Federated Malay States of Selangor, Pahang, Perak and Negeri Sembilan and
the States of Perlis, Kedah, Kelantan, Terengganu and Johor.
[3]
Previously part of the Straits Settlements.
[4]
Clause 3, Federation of Malaya Agreement 1948 (“FMA 1948”) .
[5]
Recital, FMA 1948.
[6]
Clause 5, FMA 1948.
[7]
Proviso, Clause 5, FMA 1948.
[8]
Clause 100, FMA 1948.
[9]
Hence, the Reid Commission.
[10]
Joseph M Fernando, The Making of the Malayan Constitution (MBRAS, 2002)
[Fernando] at 129.
[11]
Citing the request of the Rulers to retain religion as a State matter on the grounds
that the provision would infringe their position as the head of the Muslim religion in
their respective States; Fernando, supra n 10.
[12]
Fernando, supra n 10.
[13]
Ibid, at 149.
[14]
Ibid, at 161.
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[15]
Ibid, at 162.
[16]
Supra, n 10 at 130.
[17]
Ibid, at 163.
[18]
FM Ordinance No 55 of 1957.
[19]
Tunku Abdul Rahman (Hansard, 1 May 1957).
[20]
Hence, the Cobbold Commission.
[21]
Report of the Commission of Inquiry, North Borneo and Sarawak .
[22]
Ibid, at 53-54; Or see
<http://en.wikisource.org/wiki/Report_of_the_Commission_of_Enquiry,_North_Bor
neo_and_Sarawak,_1962/CHAPTER_4/general_matters>
[23]
Malaysia Act (Act No 26 of 1963).
[24]
Che Omar bin Che Soh v. Public Prosecutor [1988] 2 MLJ 55.
[25]
Ibid, at 56C.
[26]
Ibid, at 56C-D.
[27]
Ibid, at 56E.
[28]
Supra, n 24 at 56A-C.
[29]
Ibid, at 57E-F.
[30]
Subashini a/p Rajasingam v. Saravanan a/l Thangathoray and other appeals
[2008] 2 MLJ 147.
[31]
Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak & Ors [2013]
5 MLJ 552; Ketua Polis Negara v. Indira Gandhi a/p Mutho [2015] 2 MLJ 149 (CA).
[32]
Viran Nagapan v. Deepa Subramaniam [2015] 3 CLJ 537 (CA).
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[33]
Berjaya Books Sdn Bhd v. Jabatan Agama Islam Wilayah Persekutuan Wilayah
Persekutuan & Ors [2014] 1 MLJ 138.
[34]
Jabatan Agama Islam Wilayah Persekutuan (Department of Federal Territory
Islamic Affairs).
[35]
By virtue of s 13 of the Syariah Criminal Offences (Federal Territories) Act 1997 .
[36]
Supra, n 33.
[37]
Jabatan Agama Islam Wilayah Persekutuan & Ors v. Berjaya Books Sdn Bhd &
Ors [2015] 1 AMR 739.
[38]
Ibid, at 761(53).
[39]
Jabatan Hal Ehwal Agama Islam Negeri Sembilan (Department of Negeri Sembilan
Islamic Affairs).
[40]
Syariah Criminal (Negeri Sembilan) Enactment 1992, s. 66.
[41]
Muhamad Juzaili Mohd Khamis & Anor v. State Government of Negeri Sembilan
& Ors [2015] 1 AMR 673; [2015] 1 CLJ 954.
[42]
Decided by Mohd Hishamudin Yunus, Aziah Ali and Lim Yee Lan JJCA .
[43]
Jabatan Kemajuan Islam Malaysia (Department of Islamic Development Malaysia)
[44]
<http://www.themalaymailonline.com/malaysia/article/jakim -confirms-
putrajayas-plan-for-shariah-equivalent-to-federal-court>;
<http://www.thestar.com.my/News/Nation/2014/11/15/civil-court-syariah-court-
jakim/>.
[45]
Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri &
Ors [2014] 4 MLJ 765.
[46]
Jerry WA Dusing @ Jerry W Patel & Anor v. Menteri Keselamatan Dalam Negeri
L A W
Malaysia & Anor [2015] 1 MLJ 675.
[47]
<http://english.astroawani.com/malaysia-news/jais-returns-seized-bible-azmin-
ali-48402>.
[48]
Supra, n 45 at 782(12).
[49]
Ibid, at 782(18).
[50]
Supra, n 45.
[51]
Article 74 (2) of the Federal Constitution.
[52]
Read with the Ninth Schedule of the Federal Constitution, Item 1 of List II (State
List).
[53]
Ng Wan Chan v. Majlis Ugama Islam Wilayah Persekutuan & Anor (No 2) [1991]
3 MLJ 487.
[54]
Ibid, at 489C-F.
[55]
Ibid, at 490D.
[56]
Shaik Zolkaffily bin Shaik Natar & Ors v. Majlis Agama Islam Pulau Pinang dan
Seberang Perai [1997] 3 MLJ 281 (see also Barkath Ali bin Abu Backer v. Anwar
Kabir bin Abu Backer [1997] 4 MLJ 389).
[57]
Shaik Zolkaffily; supra, n 56 at 293F.
[58]
[1999] 1 MLJ 489.
[59]
Ibid, at 502A.
[60]
Ibid, at 502G.
[61]
Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor
[1992] 1 MLJ 1; Md Hakim Lee v. Majlis Agama Islam Wilayah Persekutuan, Kuala
L A W
Lumpur [1998] 1 MLJ 681.
[62]
Dalip Kaur; supra, n 61 at 10A.
[63]
Supra, n 58 at 502G.
[64]
Ibid, at 502B.
[65]
Ibid, at 502C.
[66]
[2007] 5 MLJ 101.
[67]
Ibid, at 116(43).
[68]
Article 121, Federal Constitution.
[69]
Latifah Mat Zin v. Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 at 114G.
[70]
Dato’ Kadar Shah Tun Sulaiman v. Datin Fauziah Haron [2008] 7 MLJ 779 at
785E.
[71]
Ibid, at 785F.
[72]
Article 121(1), Federal Constitution.
[73]
Subordinate Courts Act 1948; s. 87.
[74]
Syariah Court (Criminal Jurisdiction) Act 1965, Act No. 355 (Rev − 1988); s. 2.
[75]
Supra, n 70; para 14 at 785.
[76]
Zaina Abidin bin Hamid @ S Maniam & Ors v. Kerajaan Malaysia & Ors [2009]
6 MLJ 863.
[77]
Abdul Kahar bin Ahmad v. Kerajaan Negeri Selangor (Kerajaan Malaysia,
intervener) & Anor [2008] 3 MLJ 617.
[78]
Charged with five offences under various provisions of the Syariah Crim inal
Offences (Selangor) Enactment No 9 of 1995.
L A W
[79]
Supra, n 75 at 622H-I.
[80]
Ibid, at 623C.
[81]
Ibid, at 623G.
[82]
Ibid, at 622.
[83]
Siti Hasnah Vangarama Abdullah v. Tun Dr Mahathir Mohamad & Ors [2012] 7
CLJ 845 at 854(14).
[84]
Shaik Zolkaffily supra, n 56 at 293F.
[85]
Ibid.
[86]
Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor
[1992] 1 MLJ 1 at 7F.
[87]
Mohamed Habibullah bin Mahmood v. Faridah Bte Dato Talib [1992] 2 MLJ 793
at 804A (see also Professor Ahmad Ibrahim, “The Amendment of art. 121 of the
Federal Constitution: Its effect on the Administration of Islamic Law” [1989] 2 MLJ
xvii; cited in Latifah Mat Zin, supra, n 69 at 117I.
[88]
Latifah Mat Zin; supra, n 69 at 118C-E.
[89]
Ibid, at 118F.
[90]
Ibid, at 118G; Article 128 of the Federal Constitution.
[91]
Supra, n 88.
[92]
Ismail bin Mohamad v. Wan Khairani bt Wan Mahmood and another appeal [2011]
1 MLJ 743 at 750G.
L A W

The Position of Syariah Court

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The Position of Syariah Court

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[2015] 1 LNS(A) xl Legal Network Series 1

THE SYARIAH COURT: ITS POSITION UNDER THE

The Federal Constitution has its roots in the Federation of Malaya

Historically, British rule in the Malay States eschewed interference with

The Reid Commission

In the course of the deliberations of the Reid Commission, the then-

This omission led to the formation of a Working Party comprising

The Federation of Malaya government, in a White Paper published in 1957,

“There has been included in the proposed Federation Constitution a

“Islam is the religion of the Federation but other religions may be

The Malay States and the Settlements comprised in the Federation of

That the Federation was to be a secular nation was reiterated by Tunku

Prior to the formation of Malaysia, a commission of inquiry chaired by

In 1963, the Federal Constitution was amended upon the admission of

Article 3 of the Federal Constitution remained unchanged.

Public and private aspects of Islam in Malaysia

It is in this sense of the dichotomy that the framers of the Constitution

seized several books by international author Irshad Manji, titled Allah,

In June 2014, enforcement officers of JHEAINS [39] arrested 17 people at a

The Director-General of JAKIM [43] publicly criticised the Court of Appeal

was set aside by the Court of Appeal. [49] Unfortunately, the

The jurisdictional controversies referred to above remain unsettled as these

The Syariah court

Unlike the High Court which is established by the Federal Constitution,

(a) Succession, testate and intestate, betrothal marriage, divorce,

(b) Wakafs and the definition and regulation of charitable and

charitable endowments, institutions, trusts, charities and

(c) Malay customs;

(d) Zakat, Fitrah and Baitulmal or similar Islamic religious

(e) Mosques or any Islamic public places of worship;

(f) Creation and punishment of offences by persons professing the

(g) Constitution, organisation and procedure of the Syariah courts.

Jurisdiction cannot be implied

It is a common misconception that once established, a Syariah court has,

In a case where a widow sought a declaration that her deceased husband

The rationale of the Federal Court appears to be as follows:

“As in the case of conversion to Islam, certain requirements must be

Syariah courts, by implication conversion out of Islam should also

It is submitted that although the fact that the determination of a Muslim’s

“... express and unambiguous language appears to be absolutely

Unfortunately, Soon Singh was not discussed, but by implication not

“What it means is that, the Legislature of a State, in making law to

the jurisdictions of such courts within the limits allowed by item 1

The Syariah court an inferior court

(a) The Sessions Courts and Magistrates’ Courts are established

(b) In exercising its criminal jurisidiction, [73] the Magistrates’

(c) the Syariah court in its criminal jurisdiction is subject to limits

It is therefore clear that under no circumstances can the Syariah court be

No exclusive jurisdiction on Islamic law

Another common misunderstanding is that the Syariah court is a parallel

Article 121(1A), however, merely excludes the jurisdiction of the High

Quite clearly, Article 121(1A) neither establishes nor confers jurisdiction

In the absence of jurisdiction being conferred on the Syariah court in

Article 121(1A) was introduced to prevent conflict of jurisdiction between

This issue is of vital importance to the peoples of Malaysia, with their

The nation called “Malaysia” has no existence outside of the Federal

a willingness to grapple with difficult issues without glossing over or

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