Taking a Look at the Syariah Courts

The civil courts from time to time infringed upon the jurisdiction of Syariah Courts before Article 121(1A) of the Federal Constitution was modified by the Constitution (Amendment) Act 1988 (Act A704) which came into force on 10 June 1988. The infringement by the civil court upon the jurisdiction of the Syariah Courts caused vast concern among those interested or involved in the management of Islamic Law. A committee lead by Tan Sri Syed Nasir Ismail was established by the government to look into the position of Syariah Courts and urge measures to raise their status. One of the actions taken as a result of the work of that committee was the accumulation of clause (1A) to Article 121.

In Article 121(1A) of the Federal Constitution, there shall be two High Courts of co-ordinate jurisdiction and rank where the courts listed in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. The word courts refer to the two High Courts which are High Court Malaya and High Court Sabah and Sarawak in that article. Clause (1A) is obviously to grant exclusive jurisdiction to the Syariah court to arbitrate on any matter that has been lawfully vested by the law within the jurisdiction of the Syariah court. Thus, it takes away from the two High Courts and inferior courts’ jurisdiction over any subject within jurisdiction of the Syariah Courts. It also avoids the civil courts from evaluating decisions of the Syariah Courts.

The ideal approach to be taken in shaping the jurisdiction of the Syariah court is the ‘subject matter’ approach and not the ‘remedy prayed’ approach. As an example, we have to look into the State enactments to see whether or not the Syariah courts have been specifically confe...

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...ed that further referring the issue of validity of the law to the Federal Court under Article 128 of the Federal Constitution, the judgement of the Court of Appeal in Sukma Darmawan may also provide the way out.

The late Justice Harun Hashim through writing seem to accept that a conflict would arise in our legal system in particular reference to abnormal sexual offences and this has been attributed to in one way or another to the introduction of Article 121(1A) of the Federal Constitution. He further emphasized that Islamic law affecting Muslims is within the sole legislative power of the States and show that conflict of laws is an interesting and absorbing subject for academic study and research. This is so because according to him it gives distress on the personal life of a person caught in the web of a difference of laws situation which can be very overwhelming.