Name : Tok Hong Chen

ID : 1181100084
Jurisdictional conflict between the Civil Courts and Syariah Courts in Malaysia.

Islamic law under the Federal List 1 of Schedules 9 stated that Civil and criminal law and
procedure and the administration of Justice: Ascertainment of Islamic Law and other personal
laws for the purposes of the Federal Law.
The constitution stated that organization and procedure of Syariah Court which have the
jurisdiction on any over persons who professing the religion of Islam and in respect only of any
matters in the state list and in so far as conferred by the Federal Law.
Article 121 (1A) provides that the High Court and court subordinate to it shall have no
jurisdiction in any matter which in the jurisdiction of Syariah Court. Syariah Court are
independent of civil courts. The constitution permits Islamic Courts to be establish and syariah
officials to be hired. The amendment made leads to the Islamic religious court to be equal in its
constitutional status with the civil courts.

The position of Syariah Court before amendment to Art 121 Syariah Court has been regarded as
inferior to Civil courts. There are overlapping the jurisdiction occur between two courts. CIVIL
Courts application of law are sometimes inconsistent with Islam doctrine. Not only that the
judgement of civil courts will go against judgement of syariah court as well.

In the case of Mohamd Habibullah , the court held that the effect of Art 121(1A) is to take away
the jurisdiction of High Court in respect of any matter which within the jurisdiction of Syariah
Court. While in the case Kamariah BTE Ali also have the similar perspective where judge
Alauddin stated that the new clause 1A of the article has taken away the jurisdiction of the civil
court in respect of matter within the jurisdiction of the Syariah courts.
Nevertheless does not take away the jurisdiction of the civil courts to interpret any written laws
of the statesenacyed for the administration of Muslim law.

In the cases below there are conflict between jurisdiction power as there are different opinion ,
whose decision will prevail. Tongih Jumali v Kerajaaan Johor. Plaintiff I Muslim by birth,
converted to Christianity and married non-Muslim. He then claimed her marriage was valid
under Malaysian law. The Johor State Enactment had provision regarding conversion into Islam
but not conversion out of Islam. Accoding the Shriah Judiciary Malaysia Muslim can only
renounce their faith by applying to the syariah courts. However that process constitutes wide
ranging penalties for an apostasy application. Apostasy is also prohibited by states in Sabah
Kelantan, perak, Pahang, Malacca. Mohamad Habibullah v Yusuf Maldoner. The parties
contracted a Muslim marriage abroad and divorced under civil law abroad. Neither the marriage
nor divorce was registered under Muslim laws of Selangor therefore the relationship was not be
recognized by the state itself.

The other conflict would be where a case should go if one party is a Muslim and other is a non-
Muslim. In the case of Saravanan a/l Thangatoray v Subashini a/p Rjasingham both of them are
married under civil law and they have two infant. The husband then converted himself and one
of his son to Islam. Wife was then argued than argued that without her consent for the
conversion. She latter sought an injunction to restrain her husband converting another child. The
court of appeal have inability to grant the injunction as it is the matter within the jurisdiction of
Syariah Court.

Next conflict is syariah related law or decision involves a grave constitutional laws question
about fundamental rights of the federal and state division of power. In the case Priyathasany v
Pegawai Pengatkuasa Agama, the plaintiff was born Muslim and she then adopted Hinduism.
She then married an ethnic Indian. She was charged for two offences which are insulting Islam
by act of conversion and cohabitation outside of lawful Muslim wedlock with a non-Muslim. She
questioned constitutional about right of conversion being violated. High Court held that should
not abdicate its responsibility to interpret the Federal Constitution she argued.

Another arguments is sometimes the remedy being prayed for is unvailable in the Syariah
Courts. Soon Singh v PERKIM .The court adopted the” subject matter” approach rather than the
“remedy prayed for” approach. The remedy prayed for not available does not deprive the Syriah
Courts of jurisdiction if the subject matter is within its competence. Azizah v Fatimah. This case
is about custody dispute between the natural mother and her sister over an infant child. Natural
mother applied to civil HIGH Court for writ of Habeas Corpus. Federal Court refused, as the
subject matter was in the exclusive jurisdiction of the Syariah Court.