Based on Article 121 (1A) in Federal Constitution, the High Courts and civil courts have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. Any matter that involve two Muslims shall be decided by the Syariah courts especially those matters includes marriage, divorce, legitimacy, adoption and other personal and family law. This is written clearly in the Ninth Schedule List II in Federal Constitution as well.
The civil courts do not have the jurisdiction to hear any case that involves Muslims. There is a landmark case that showed that the civil court has no jurisdiction on Muslim case which is the Soon Singh case in 1999. In this case, the appellant was born to Sikh parents and brought up as a Sikh. However, he converted to Islam in 1988 without the knowledge and consent of his widowed mother assumed the Muslim name of Salman bin Abdullah. The conversion was registered at the Syariah Court Kota Setar, Kedah under s.139 of the Kedah Administration of Muslim Law Enactment 1962 (‘the Kedah Enactment’). In 1992, by which time he was over 21 years of age, he went through a Baptist ceremony into the Sikh faith at Sikh Gurdwara, thereby renouncing the religion of Islam. Following this, on 27 July 1992, he executed a deed poll in which he declared unequivocally that he was a Sikh, that he had abandoned the name of Salman bin Abdullah.
Then, he filed the originating summons in the Kuala Lumpur High Court seeking a declaration that he was no longer a Muslim. At the hearing before the learned judge on 11 November 1993, counsel for Jabatan Agama Islam Kedah raised a preliminary objection against the application contending that the High Court had no jurisdiction as the matter came under the jurisdiction of the Syariah courts. After hearing the submissions of counsel, on 2 February 1994, his Lordship upheld the objection and dismissed the application. In his judgment, the subject matter in the application was a matter within the jurisdiction of the Syariah courts. The civil courts had no jurisdiction.
In a nutshell, we can conclude that the civil courts do not have the jurisdiction to hear any case that is within the jurisdiction of Syariah courts as it is stated clearly in Article 121 (1A) of Federal Constitution.
1.3.1 (a) Article 121 (1A)
In the year 1988, there is a significant amendment had been made by the parliament to the Federal Constitution. The inclusion of new clause (1A) into Article 121 that stated “The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”. Article 121 (1A) is a provision which to prevent jurisdiction conflicts between civil courts and Syariah courts. It is obvious that the intention of Parliament by Article121 (1A) is to take away the jurisdiction of the high court in respect of any matter within the jurisdiction of the Syariah courts.
Syariah courts are the courts created by the State Assemblies to administer certain Islamic laws. The Constitution stated that Syariah courts can only have jurisdiction “over persons professing the religion of Islam” and in respect only of certain specific matters of Islamic law, listed in the Constitution. If two Muslims having a problem involving their personal law, for example the custody of child, then this is the matter within the jurisdiction of Syariah courts. The civil courts should not interfere when a party comes to civil courts after losing case in the Syariah courts. This was all that was intended with the inclusion of Article 121 (1A).
What Article 121 (1A) has done is to grant exclusive jurisdiction to the Syariah courts in the administration of Islamic Laws. In other words, Article 121 (1A) is a provision to prevent conflicts of jurisdiction between the civil courts and the Syariah courts. Thus, we can see that this article had protected the jurisdiction of administration of Syariah courts in deciding any cases about the Syariah.
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1.3.1 (b) Can Civil Law Overrule Syariah Law?
Civil law cannot overrule Syariah law which the jurisdiction is within the Syariah courts. According to Federal Constitution in Article 121 (1A) and Ninth Schedule List II, it stated that the exclusive jurisdiction has been given to the Syariah courts in the administration of Islamic laws. This means that civil court cannot overrule to those cases which is involve two Muslims and the matter that under the jurisdiction of Syariah courts.
Any matter that brings to the Syariah court is within Syariah court jurisdiction. If or anyone would like to appeal, they must not bring it to the civil court because civil court does not have the jurisdiction to decide the Muslims case. Based on the State law, the jurisdiction to rule the Muslims’ matter is under their administrative power. The Syariah courts ruled based on the Qur’an and Sunnah, which is the main source of Islamic law.
However, Article 75 in Federal Constitution stated that if the State law is in conflict with the Federal law, the State law shall be void. So, if any matter that is inconsistent with the Federal law, the Federal law shall prevail and State law shall void.
