Jurisdictional conflict between Islamic law and Civil laws in Malaysia
A Review of the Judg,emt pf the Federal Court in
by
A L R Joseph, MA, LLBof Gray’s Inn, BarristerAdvocate & Solicitor(Malaya & Singapore)
1. Introduction
In Malaysia, Muslims are governed, in (“substantially”) personal law matters, by Islamic law as set out in the various state Islamic law administration statutes. The High Court of Malaya and the High Court of Sabah and Sarawak do not have jurisdiction in respect of any matter within the jurisdiction of syariah courts.
However, long before 10 June 1988 (when Article 121(1A) was created by amendment – Act A 704) a historical and embarrassing problem that civil courts faced in the Malay States (Tanah Melayu) was to be found in the the well-established assertion (to quote Thorne J in Ramah binti Ta’at v Laton binti Malim Sutan) that:
‘[Muslim law is not] a question of foreign law at all, but [one of the law of this land]. The local law is a matter of which the Court must take judicial notice. The Court must propound the law, and it is not competent to the Court to allow evidence to be led as to what is the local law.’
The embarrassment is contained in the fact that judges of the civil courts lacked (and still do lack) adequate knowledge of the Islamic law thereby requiring, in practice, expert evidence to be led, whatever the personal skill of the individual judge.So even in the 1920s, in British colonial Malaya, there arose a debate as to whether civil judges were best equipped to deal with Muslim law. In Ramah binti Ta’at v Laton binti Malim Sutan itself, Thorne J – after stating that he ‘cannot claim to any abstruse knowledge of [Muslim] law’ – suggested common legislation throughout Federated Malay States (FMS) on divorce and succession, and the like, and a special court structure for its administration. In the same case, however, Farrer-Manby J thought the existing courts were competent to take evidence of Muslim law as well as matters of custom, by virtue at least of section 57 of the then Evidence Enactment.
Little did those colonial judges know that 80 years later the jurisdictional debate would take such politically-charged centre stage in 21st century Malaysia.Despite, even today, there being no all encompassing nationwide Islamic legislation in Malaysia, like the Singapore Administration of Muslim Law Act, for instance, the basic Islamic law is more or less similar, being founded on the orthodox tenet of the Shafi’i school of law, there are inevitable local variations, and so care must be taken to identify the state system affecting any particular issue.
In the States of Malaysia, a federal law, the Muslim Courts (Criminal Jurisdiction) Act 1965 conferred jurisdiction upon courts constituted under any state law, for the purposes of dealing with offences dealing with offences under Muslim law. Moreover, under item 1 of the State List state legislatures are given power to make law for the ‘creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List.’
The aim of the amendment which created Article 121(1A) – which provides that the two civil High Courts ‘shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts’ - was in many ways to avoid for the future any conflict between the decisions of the syariah courts and the civil courts. Unfortunately, however, it appears to have caused even more confusion, uncertainty and conflict than ever was the case.
Conclusion
The following conclusions and lessons can be drawn from the decision of the Federal Court in Latifah v Rosmawati:
(a) The intended aim (‘to avoid for the future any conflict between the decisions of the syariah courts and the civil courts’) of the amendment which created Article 121
(1A) has not only not materialised, it has, in the event (nearly 20 years later), had the very opposite effect. Unfortunately, it appears to have caused even more confusion, uncertainty and conflict than ever was the case.
(b) If laws are made by Parliament and state legislatures in strict compliance with the Federal List and State List there should not be any situation where there would be a clash of jurisdiction. However, where state legislatures overreach and make laws within the domain of the Federal Parliament such conflict cannot be avoided. Unfortunately, there are such state laws, no more more apparent than in the area of criminal law.
(c) Where there is any challenge to the jurisdiction of the High Court or the syariah courts, on constitutional grounds, the appropriate and only forum to resolve the issue is the apex civil court, the Federal Court. Accordingly, it is still for the civil courts (now clearly identified as the Federal Court) to determine, when a court’s jurisdiction is challenged on constitutional grounds, the question whether a matter is within or without the jurisdiction of either court (the High Court or the syariah courts).
(d) It is clear that to speak of Article 121(1A) having taken away the jurisdiction of the civil courts in all matters pertaining to Islamic law is a fallacy. ‘[Article 121(1A)] was not introduced for the purpose of ousting the jurisdiction of the civil courts.’
(e) The syariah courts are inferior courts. They inhabit a sphere within the judicial space which is inferior to the superior civil courts, that is the say the High Court, Court of Appeal and the Federal Court.
(f) The current legislative and judicial constitutional arrangement means that there will be cases over which neither court has jurisdiction. And where cases fall into this lacunae, there are no straight forward solutions. But what is clear is that the courts should not attempt to solve this intractable problem by venturing into creative judicial legislation. ‘The function of the court is to apply the law, not make or to amend law not made by the legislature. Knowing the inadequacy of the law, it is for the Legislature to remedy it, by amendment or by making new law. It is not the court’s function to try to remedy it.’
(g) The syariah courts derive jurisdiction only by express provision and not by implication. ‘It can never be that once the syariah courts are established the courts are seized with jurisdiction over all the matters mentioned in item 1 [of the State List] automatically. It has to be provided for.’
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