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Jurisdictional conflicts between Civil Laws & Syariah Laws in Malaysia : Article 121 (1A) of the Federal Constitution of Malaysia

Updated: May 27

Malaysia operates a dual court system, consisting of Civil courts and Syariah Courts. The Civil court structure comprises Superior Courts and Subordinate Courts. The Superior Courts include the High Court of Malaya, the High Court of Sabah and Sarawak, the Court of Appeal, and the Federal Court. Syariah Courts, operating independently from the civil system, handle cases governed by Syariah Family and Syariah Criminal Enactments passed by State Legislatures. The Federal Constitution of Malaysia (“Ninth Schedule”) outlines the general matters within the jurisdiction of Syariah Courts. 

Despite the 1988 amendment to the Federal Constitution, Article 121 (1A) specified that the two High Courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts, jurisdictional conflicts between Syariah Laws and Civil Laws persist. This amendment is primarily to mitigate conflicts between both jurisdictions. 

Still, its effectiveness is a topic of inquiry in this article, as we explore the ongoing conflicts between Syariah Law and Civil Law jurisdictions in Malaysia, notwithstanding the enactment of Article 121 (1A) of the Federal Constitution.

Historical Background

Before the advent of British colonial rule, Malaysia did not possess a cohesive legal framework. At that time, Islamic (Syariah) law was widely used and coexisted along with other customary laws. Under British colonisation, Malaysia, then referred to as "Tanah Melayu", saw the implementation of the English legal system, including common law and equity principles. This legal framework came to govern civil, commercial, and criminal affairs. Yet, it was noted in the Privy Council in Yeap Cheah Neo v Ong Cheng Neo (1875)  that ‘In applying this general principle of introducing the laws of England which are not adapted to the circumstances of the colony, do not become a part of its law’

The introduction of English law in the region naturally resulted in restricting the relevance of local laws such as customary and Islamic law, to specific personal matters like family, religion, or inheritance. Nevertheless, this shift did not mean that Islamic law no longer held significance in Tanah Melayu. Instead, it is the other way around which can be supported by the following cases. In Ramah v Laton (1927), Thorne J emphasised the significance of Islamic law by saying to the effect that Muslim law is ‘the law of the land’ and courts must take judicial notice. The Federal Court in Rosliza Ibrahim v Kerajaan Negeri Selangor & Anor [2021] also confirmed that in Malaysia’s jurisdiction, the justice delivery system on Islamic matters will be done through the Syariah Courts.

Certainly, the influence of British colonial power had a profound impact on the Malaysian legal system, and this influence is still evident in the structure of Malaysia's legal system today. In the era of decolonization, Malaysia, among the newly emerging nations in the Middle East and Southeast Asia, aims to adopt legal pluralism as a method of harmonising their colonial past with their varied ethnic, religious, and cultural backgrounds. The common law was inherited from British rule and continued to serve as the foundation of Malaysia’s law. Concurrently, Syariah law was incorporated as a subset into the legal structure. Unlike the High Court, the Court of Appeal, and the Federal Court, which are established by the FC, the Syariah Court has been equated to the Sessions Court and Magistrates' Court (“inferior courts”). Abdul Hamid Mohamad FCJ in Latifah v Rosmawati [2007] confirmed that the Syariah courts are mere State Courts and do not enjoy the same status and powers as the High Court.

Prior the Amendment to the Federal Constitution

Before, the civil courts encroached on the jurisdiction of the Syariah Courts from time to time. Article 121 (1), prior to the 1988 constitutional crisis, provided that the judicial power of the Federation vested in the two High Courts which clearly gave the power to the civil courts in judicially reviewing the Syariah Court's decision despite it being within its jurisdiction. There are legal precedents demonstrating that in conflicts between civil and Syariah law, civil law takes precedence. In Ainan v Syed Abu Bakar & Ors [1939], the court ruled that Section 112 of the Evidence Enactment where a child born in the continuance of a valid marriage overrides the rule of Islamic law that a child born within 6 months of marriage is illegitimate. Additionally, the Civil High Court in Myriam v Mohamed Ariff [1971] applied the Guardianship of Infants Act 1961 to Muslims which the Act explicitly says does not apply to Muslims if the same is already provided under State Islamic Enactments. 

Conflicts revolving around Article 121(1A) of Federal Constitution

In paragraph 1, List II of the Ninth Schedule to the Federal Constitution of Malaysia (“State List”), it explicitly provides that Syariah Courts shall only have jurisdiction over persons professing the religion of Islam and in respect of matters included such as legitimacy, succession, marriage, divorce and so on. From this, the inclusion of Article 121 (1A) could be seen as a formalisation of differentiating the Syariah Court’s jurisdiction from Civil courts. 

In the sense of natural language, this law is clear that the Civil courts shall not interfere with any matter that is within the jurisdiction of the Syariah courts. However, conflicts arise when it comes to implementation which primarily revolves around the phrase ‘within the jurisdiction’. In this regard, the Federal Court in Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor [1999] held that “within the jurisdiction of the Syariah Courts'' means “within the exclusive jurisdiction of the Syariah Courts”. Courts prefer to construe both Article 121(1) and Article 121(1A) of the Federal Constitution 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. 

In 2007, the Federal Court clarified in Latifah v Rosmawati that, since both Civil and Syariah Courts are creatures of statute, their respective jurisdictions are conferred only by reference to relevant statutes. It follows that courts cannot assume jurisdiction over a matter merely because no other court has jurisdiction over it. Abdul Hamid Mohamad FCJ also supports the view as expressed by Low Hop Bing J that Syariah courts derive jurisdiction only by the express provision by stating that the State Legislature, in making law to constitute and organise the Syariah courts, shall also provide for the jurisdictions of such courts within the limits allowed by Item 1 of the State List.

The Federal Court ruling, in Indira Gandhi (2018), was hailed as one of the most important court decisions in the constitutional history of the nation. In this case, the Federal Court reaffirmed the civil courts’ constitutional role and powers and emphasised that Article 121(1A) does not automatically oust the civil courts’ jurisdiction as soon as a subject matter relates to the Islamic religion’ as provided under the State List. 

The Supreme Court, in Tan Sung Mooi v Too Miew Kim [1994], ruled that it would be unjust to a non-Muslim spouse and children whose remedy is only available in civil courts if the civil court has no jurisdiction to order the converted spouse who is under the jurisdiction of the Syariah Court. This decision is, in fact, consistent with the State list which provides that the Syariah Court only has jurisdiction over people who are religious Islam. 

It is worth noting that the High Court may not always intervene in the jurisdiction of the Syariah Court. For instance, in matters involving apostasy (“conversion out of Islam”), the High Court held that it has no jurisdiction to determine whether a Muslim individual has legally renounced Islam as demonstrated in the case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan [2007].

In my opinion...

The amendment of Article 121 (1A) of the Federal Constitution did not resolve the jurisdictional conflicts between Civil and Syariah law. Rather, it has led to more conflicts. This is primarily attributed to the question intentions behind its inclusion, stemming from the 1988 Malaysian constitutional crisis. 

We should acknowledge that there are certain powers of judicial review and of constitutional interpretation that are important constituents under civil courts’ judicial power that cannot be abrogated from the civil courts, whether by constitutional amendment, Act of Parliament, or otherwise. Any amendment or development in constitutional law should solely be made to address the present context and conditions, aiming for the betterment of human life, and should never serve to complicate the law or facilitate the expansion of authority for those in positions of power.

Written By: Lee Mann Heyy

Edited By: Michelle Lee & Nicole Gan

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