CONFLICT OF JURISDICTION BETWEEN CIVIL AND SYARIAH COURTS

AFTER THE AMENDMENT OF ARTICLE 121(1A) OF FEDERAL

CONSTITUTION

Before Article 121(1A) of the Federal Constitution was amended

by the Constitution (Amendment) Act 1988 (Act A704) which came into
force on 10 June 1988, the civil courts from time to time encroached upon
the jurisdiction of Syariah Courts. The encroachment by the civil court
upon the jurisdiction of the Syariah Courts caused great concern among
those interested or involved in the administration of Islamic Law.

A committee chaired by Tan Sri Syed Nasir Ismail was established

by the government to look into the position of Syariah Courts and
recommend measures to raise their status. One of the measures taken as
a result of the work of that committee was the addition of clause (1A) to
Article 121.

In Article 121(1A) of the Federal Constitution,

121. Judicial power of the Federation.

(1) There shall be two High Courts of co-ordinate jurisdiction and status,
namely-

(a) The courts referred to in Clause (1) shall have no jurisdiction in

respect of any matter within the jurisdiction of the Syariah courts.

In that article, the word courts refer to the two High Courts which
are High Court Malaya and High Court Sabah and Sarawak. Clause (1A) is
clearly to confer exclusive jurisdiction to the Syariah court to adjudicate
on any matter that has been lawfully vested by the law within the
jurisdiction of the Syariah court. Thus takes away from the two High
Courts and inferior courts jurisdiction over any matter within jurisdiction of
the Syariah Courts. It also prevents the civil courts from reviewing
decisions of the Syariah Courts.
 The approach to be taken in determining the jurisdiction of the
Syariah court is the ‘subject matter’ approach and not the ‘remedy
prayed’ approach for example to look into the State enactments to see
whether or not the Syariah courts have been expressly conferred
jurisdiction on a given matter.

While Clause (1A) ousts the jurisdiction of the civil courts over a
matter which falls under the jurisdiction of the Syariah Courts, it does not
take away the jurisdiction of the civil courts to interpret any written law
enacted for the administration of the Islamic Law. Thus, the civil courts
have continued to interpret the relevant State Enactments (and Federal
Acts in the case of the Federal Territories; hereafter, only State
Enactments are mentioned for convenience) to determine whether a
matter falls within the jurisdiction of the civil courts or Syariah Courts.

Unfortunately, clause (1A) itself has raised problem of

interpretation and application. The phase ‘within the jurisdiction of the of
the Syariah Courts’ is ambiguous .In Sukma Darmawan Sasmitaat
Madja v Ketua Pengarah Penjara , Malaysia & Anor [1999] 2 MLJ
241, the Federal Court held, in relation to criminal jurisdiction of the
Syariah Courts that the jurisdiction of the civil court is ousted. Otherwise,
the prosecuting authorities have the discretion to proceed either under
the relevant civil legislation or Islamic law legislation provided the
offender is not prosecuted or punished twice for the same offence.

In civil cases, Federal Court has affirmed the correctness of Soon

Singh in relation to apostasy in Lina Joy v Majlis Agama Islam Wilayah
Persekutuan dan lain-lain [2007] 4 MLJ 585. Azlina Bt. Jailani who
was the plaintiff, was born as a Muslim. She applied twice, unsuccessfully,
to change her name on grounds she had converted to Christiny. On the
advice of the National Registration Department (NRD) officer, she made
third effort, this time stating simply she wanted a name change. She was
given a replacement identity card(IC) with her new name, Lina Joy. But, in
early 2000 Lina Joy applied to the NRD for deletion of ‘Islam’ and her
original name. Her application was dismissed. She was informed her
application was incomplete without Syariah Court affirming she had
renounced Islam.

She applied to the High Court for several declarations concerning

violation of her right to freedom of religion guaranteed by the Federal
Constitution. She also sought an order that she had renounced Islam. The
High Court dismissed her applications. She appealed.

In Court of Appeal the parties by common consent agreed to

narrow down the issues to just one: whether the NRD has the right to
require her to present a Syariah Court order affirming she is an apostate
before deleting ‘Islam’ from her replacement IC. The Court of Appeal, by
a majority decision, dismissed her appeal.

The Federal Court, in majority decision, affirmed the correctness

of Soon Singh. The majority reasoned that since apostasy relates to
Islamic Law, and Islamic law is one of the matters in Item 1 of the State
List under Ninth Schedule to the Federal Constitution, apostasy clearly
falls with in the jurisdiction of Syariah Court. By virtue of Article 121(1A),
the civil court has no jurisdiction over the subject matter.

Soon Singh and Lina Joy have resolved the jurisdiction problem
posed apostasy cases where all parties are Muslims. However, the Federal
Court decisions in these cases, and in Shaik Zolkaffily, have not resolved
all the jurisdictional problems arising from the coexistence of the civil and
Syariah Courts. Two factual situation raising jurisdictional problems have
been highlighted. They are:

1. Cases concerning religious status and matrimonial matters (which is

under Syariah jurisdiction) in which one of the parties is a non-
Muslim; and
 2. Cases which raised issues concerning Islamic law as well as civil law.

How to overcome these problems

• If a question concerning Islamic law arises in proceedings before a

civil court for an order, the parties involved may either call Islamic
law experts to give evidence or the court may refer the question to
the relevant fatwa committee for a ruling.
• The cases should be heard by the civil court sitting with Syariah
judge who decides on Islamic issues and such decision bind civil
court which decides all other issues and the case as a whole.
• Unify the civil and Syariah Courts at all levels, in effect, federalizing
the Syariah Courts. In such rising on civil and Syariah cases, two
judges from each discipline must sit together and make the
judgement in both issues and the final judgment of the court is to be
given by both, jointly.