Topic > A look at the Syariah courts - 1166

The civil courts occasionally infringed on the jurisdiction of the Syariah courts before section 121(1A) of the Federal Constitution was amended by the Constitution (Amendment) Act 1988 (Act A704) came into force on 10 June 1988. The violation by the civil court of the jurisdiction of the Syariah courts has caused great concern among those interested or involved in the administration of Islamic law. The government set up a committee led by Tan Sri Syed Nasir Ismail to review the position of the Syariah courts and push for measures to raise their status. One of the actions taken as a result of the work of that committee was the accumulation of clause (1A) of Article 121. In Article 121(1A) of the Federal Constitution, there will be two High Courts with co-ordinate jurisdiction and rank where the courts listed in Clause (1) shall have no jurisdiction over any matter falling within the jurisdiction of the Syariah courts. In that article the word courts refers to the two High Courts which are the Malaya High Court and the Sabah and Sarawak High Court. Clause (1A) is obviously to grant exclusive jurisdiction to the Syariah Court to arbitrate any matter which has been lawfully conferred by law within the jurisdiction of the Syariah Court. It therefore takes away the jurisdiction of the two High Courts and the lower courts over any matter falling within the jurisdiction of the Syariah Courts. It also prevents civil courts from evaluating the decisions of Syariah courts. The ideal approach to take in defining the jurisdiction of the Syariah court is the “object” approach and not the “relief prayed for” approach. For example, we must examine state laws to see whether Syariah courts have been specifically confessed...... by paper ...... which further refer the question of the validity of the law to the Federal Court under the Article 128 of the Federal Constitution, the Court of Appeal ruling in the Sukma Darmawan case can also provide a way out. The late Justice Harun Hashim, in writing, seems to accept that a conflict might arise particularly in our legal system with reference to abnormal sexual offenses and this has been attributed in one way or the other to the introduction of Article 121 paragraph 1A of the Constitution. He further emphasized that Islamic law affecting Muslims falls within the sole legislative power of states and demonstrated that conflict of laws is an interesting and engaging topic for academic study and research. This is because according to him this creates discomfort in the personal life of a person trapped in the web of a situation of difference of laws which can be very oppressive..