Syariah into many smaller branches; the act

Syariah Law

Islam is a complete package, a complete
message and way of life. The disciplines and principles that govern the
behavior of a Muslim individual towards his or herself, family, neighbors,
community, city, nation and the Muslim polity as a whole, the Ummah. Similarly
Syariah governs the interaction between communities, groups and social and
economic organizations. Syariah establishes the criteria by which all social
actions are classified, categorized and administered within the overall
governance of the state.

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Syariah Law first establishes the
patterns believers should follow in worshipping Allah: prayers, charity,
fasting and pilgrimage. Syariah literally means “a well-trodden path to water”,
the source of all life, representing the path to Allah, as given by Allah, the
Originator of all life. Syariah law is the law of Islam and was cast from
Muhammad’s words, called “Hadith”, his actions, called “Sunnah”, and  the “Quran”, which  he dictated. Syariah law itself cannot be
altered, but the interpretation of Syariah law, called “fiqh”, by muftis (the
Islamic jurist) gave some latitude.1

The divisions of syariah are called “branches” (furu) in Arabic. The main
branches areibadat (rituals or acts of worship) and mu’amalat (human
interactions or social relations). These branches are divided into many smaller
branches; the act of worships or al-ibadat, called the five pillars of Islam,
namely, affirmation of faith, prayer, fasting, charity and pilgrimage. Whereas the
human interaction or al-mu’amalat includes the financial transactions,
endowment, laws of inheritance, marriage, divorce and child custody, food and
drinks (including ritual slaughtering and hunting), penal punishments, welfare
and peace and judicial matters (including witnesses and forms of evidence.2

It is also very clear that the Syariah Law plays an important
role relating to the family law (the marriage and divorce) for Muslims in Malaysia.
Hence, a specific Syariah Court is available for the Muslims. Unlike the High Court which is established by the Federal
Constitution, the Syariah court is a creature of State law. Article
74 of the Federal Constitution, read together with the State List, 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; 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; and Constitution,
organisation and procedure of the Syariah courts.3

The State List stipulates that the Syariah court is to have
jurisdiction only 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.

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, 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. 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.

However,
there is dicta to the contrary in Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan
Islam Malaysia (Perkim) Kedah & Anor, a case 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. 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 hukum 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.”

The
Federal Court was much persuaded by statements in the authorities 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 to qualified to do so is the Syariah court. 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.

Unlike the High Court, the Court of Appeal and the Federal
Court, which are established by the Federal Constitution, the Syariah
court has been equated to the Sessions Court and Magistrates’ Court which, in
the Federal Constitution, are called inferior courts. The Syariah courts
are mere “State courts” and do not enjoy the same status and powers
as the High Court. 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.4

Quite clearly, the Syariah court cannot be considered any
greater than the inferior courts. 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; In exercising its criminal jurisidiction, 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 the Syariah court in its
criminal jurisdiction is subject to limits imposed by Federal law 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 and the Syariah court, the proceedings before the High Court must
take precedence over the Syariah court.

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.

Article 121(1A) neither establishes nor confers jurisdiction on
the Syariah court. 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 High Court and the subordinate
courts, unfettered by the operation of Article 121(1A).

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, such jurisdiction being outside the scope of State law,
although concerning Islamic law.5

Article 121(1A) was introduced to prevent conflict of
jurisdiction between the civil court and the Syariah court. 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. 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. 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.

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, it
does not follow that there is an overlapping jurisdiction or assisting
jurisdiction between the two nor are they considered double proceedings.

Jurisdictions of Syariah
Court In Malaysia

According to Article
121 (1A) of the Federal Constitution, exclusive jurisdiction has been
given to the Syariah Court in the administration of Islamic laws and Syariah
court have jurisdiction only over Muslims. As State Courts, they have
jurisdiction within the respective State Boundaries only. Syariah laws in
Malaysia apply in the following areas; Family laws in respect of marriage,
divorce, custody and guardianship, maintenance of children ,
matrimonial properties, and alimony, Laws of succession, Probate and
Administration, relating to distribution, as well as Trust Deed. With regard to
criminal laws the jurisdiction of the Syariah laws are limited and confined to offences
in respect of polygamous marriage, close proximity, indecent dressing and
behavior, violation of the ‘pillars of Islam’, not fasting during Ramadan, not
attending Friday prayers, desertion by either spouse and apostasy. However
action against unnatural offences (eg sodomy) committed by a Muslim is brought
in the Civil Court although such offences are provided in both Syariah Law
and Civil Law. Power of Syariah Court on criminal and civil matter
includes it having jurisdiction over offences that is against the
precepts of the religion of Islam provided that such
jurisdiction does not deal with offence punishable with imprisonment for a term
exceeding three years or with any fine exceeding five thousand ringgit or with whipping
exceeding six strokes or with any combination thereof.

 

Syariah
Court

It is agreed upon similar
issue, facts and law which have been determine/decided by a
higher Syariah Court shall be respected by the lower Syariah Court. If differ,
use “adab al ikhtilaf the Jurisdiction Constitution of Malaysia & state
enactment. Constitution of Malaysia 1984 (amendment) provides for the following
power; trial & sentence with imprisonment & fine
(muslim only), fine not more RM5,000.00, 6 month imprisonment,
canning not more than 6 stroke, combination of any of the above.6

Syariah Court is lead by
Chief Syarie Judge and has been divided in three levels with their
own jurisdiction; The Syariah Court of Appeal, The Syariah High Court and The
Syariah Subordinate Court.7

The
Syariah Court of Appeal 

On the other hand, the
Syariah Court od Appeal have jurisdiction to hear and determine any appeals for
any decision that has been made by the Syariah High Court in execution of
original jurisdiction, can set aside/annul any conviction or lessen any
sentence, have monitoring power and checking on The Syariah High Court and, if
found needed for justice importance, either their own need or on any party or
people who has importance, at any level in any matter or proceeding, either mal
or criminal, in Syariah High Court, called and examined any record about it and
can make orders as required for justice. The cases heard by a panel of 3 person
(appointed by Sultan) and Chief Syarie Judge is the chairman of this
panel and whatever decision made is final.8

The
Syariah High Court

In its
criminal jurisdiction, any offence committed by a Muslim
under the Islamic Law (according to State Enactment) or any other
written law which prescribes offences against the precepts of the religion of
Islam; and have mal jurisdiction within The State, The Syariah High Court can hear and decide all action and proceeding if all parties in actions or proceedings are muslims andactions
or proceedings are related with; betrothal, marriage, ruju’, divorce, annulment
of marriage (fasakh), nusyuz,or judicial separation(faraq) or any other matter
relating to the relationship between husband and wife. Any disposal or claim
properties raised from any matters as in the maintenance of dependants,
legitimacy, or guardianship or custody (hadhanah) of infants; wills or gifts
made while in a state of marad-al-maut; gifts inter vivos, or settlements
made without adequate consideration in money or money’s worth by a Muslim.
Wakaf or nazr; division and inheritance of testate or intestate property and the
determination of the persons entitled to share in the estate of
a deceased Muslim or the shares to which such persons
are respectively entitled, a declaration that a person is no longer a
Muslim, a declaration that a deceased person was a Muslim or otherwise at the
time of his death and other matters in respect of which jurisdiction is
conferred by any written law.9

The
Syariah Subordinate Court

The Syariah Subordinate
Court has jurisdiction within The State at districts that are fixed and must
be within it criminals jurisdiction, for offences committed by Muslim under
Islamic Law (according to state Enactments) or any other written law which
stipulates offence for Islamic Religion. The Syariah Subordinate Court also has
jurisdiction, within The State at districts that are fixed and must be in
its Mal jurisdiction, can hear and decide all actions and proceedings
where The Syariah High Court has been given power to hear and decide,
(not including hadhanah claim or harta sepencarian).

Quite clearly, the idea of a “dual” legal system in
Malaysia of civil law and 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.10

This issue is of vital importance to the peoples of Malaysia,
with their multicultural, multi-ethnic and multi-religious history.

 

 

 

 

 

 

 

 

 

 

 

1www.heraldmalaysia.com/news/syariah-laws-in-malaysia/34923/14

2http://factsanddetails.com/southeast-asia/Malaysia/sub5_4d/entry-3677.html

3http://www.mondaq.com/x/472794/trials+appeals+compensation/The+Syariah+Court+Its+Position+Under+The+Malaysian+Legal+System

4https://www.slideshare.net/hidayahtulnabieha/industrial-relations-law-the-establishment-powers-and-jurisdictions-of-industrial-court

5http://www.malaysianbar.org.my/members_opinions_and_comments/article_1211a_what_does_it_really_mean_.html

 

6https://www.syariahcourt.gov.sg/

7http://www.heraldmalaysia.com/news/syariah-laws-in-malaysia/34923/14

8http://www.mswp.gov.my/index.php/en/mengenai-mswp-3/perkhidmatan/jurisdiction/syariah-appeal-court

9http://www.mswp.gov.my/index.php/en/mengenai-mswp-3/perkhidmatan/jurisdiction/mahkamah-tinggi-syariah

10http://www.mswp.gov.my/index.php/en/mengenai-mswp-3/perkhidmatan/jurisdiction/syariah-subordinate-court

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