Syariah and civil court conflicts

IN any country with legal pluralism, that is, more than one system of laws and courts, some jurisdictional conflicts between the various courts are bound to arise. In our legal system, the problem is compounded by a federal-state division of legislative power under a supreme Constitution.

Inevitably, issues arise, now and then, about whether a matter falls within the competence of a civil or a syariah or a native court. The exclusive power to determine this dispute belongs to the Federal Court under Articles 4(3) and 128(1). Decisions can go either way.

In Mamat Daud v Government, (1988) a federal law was declared to be unconstitutional because it was a trespass on the power of the Terengganu state assembly. In Iki Putra Mubarak (2021), a Selangor state law was held to be an illegal incursion into a federal power.

Public perceptions about who has jurisdiction is coloured by the popular but wrong belief that the entire, vast field of the syariah belongs to the state assemblies. The actual situation is more complex.

The Constitution provides for a federal-state demarcation of powers. Power over Islamic matters is shared between federal and state legislatures. Schedule 9, List II, Para 1 confers powers on state assemblies to enact laws on 24 or so specified matters of personal and family law of persons professing the religion of Islam on such matters as succession, marriage, divorce, maintenance, adoption, legitimacy, guardianship and other matters of Muslim personal law.

In addition, state assemblies have the power over the “creation and punishment of offences by persons professing the religion of Islam, except in regard to matters included in the Federal List”.

The penal powers of the states appear to be quite broad but are actually residual and subject to the following five limits imposed by Schedule 9, Lists I and II:

First, syariah courts have jurisdiction only over persons professing the religion of Islam.

Second, the syariah offence must be against the “precepts of Islam”. In PP v Mohd Noor Jaafar (2005), a violation of section 5(1) of the Islamic Religious Schools (Malacca) Enactment 2002 was held not to relate to precepts of Islam and therefore not within the jurisdiction of the syariah courts.

Third, the offence must not be in relation to matters included in the Federal List. Under Schedule 9, List I, Item 4, all “civil and criminal law and procedure” is in federal hands. Prisons, reformatories, remand homes, places of detention, public order, betting, lotteries and foreign pilgrimages are in the Federal List and therefore, beyond state powers.

Matters such as Islamic banking and insurance, even though matters of Islamic law, are not triable by the syariah courts because they are dealt with by federal law.

Fourth, state authority to legislate on Islamic matters is further limited by List I para 4(h) “in respect of any of the matters included in the Federal List or dealt with by federal law”. This means that the states have no power to punish crimes like murder, rape, robbery, theft, incest or unnatural sex which, though undoubtedly Islamic offences, are part of existing federal laws and therefore enforceable by the police and the Public Prosecutor under Article 145(3). The states have no jurisdiction over these offences.

Fifth, the Constitution in Schedule 9 List II Item 1 says that syariah courts “shall not have jurisdiction in respect of offences except in so far as conferred by federal law”. The term “jurisdiction” should be interpreted to refer to a triple set of powers: who may be tried, what offences may be tried, and what penalties may be inflicted.

The relevant federal law is the Syariah Courts (Criminal Jurisdiction) Act 1965. It imposes limits on the penalties that syariah courts can impose. These are a maximum of three years’ jail, RM5,000 fine and six lashes. Despite what some east coast states have legislated, death, amputation and life imprisonment are outside the powers of the states.

Further, the problem is that the federal Parliament has exercised its powers only partially. It has prescribed the penalties but has not enumerated the offences that the syariah courts may try.

Due to Parliament’s default, state assemblies have drawn on the rich body of Islamic jurisprudence in many fields to supply an elaborate and growing list of offences against the precepts of Islam.

Islamic offences like defiling a place of worship, unnatural sex and incest are included within the list of offences against the precepts of Islam.

The constitutional problem is that many of these offences are either in the Federal List or are covered by federal law and therefore outside the jurisdiction of the states. The states do not have the authority to empower syariah courts with powers the states themselves do not possess.

That is why occasional issues of competence or jurisdiction to enact the law are referred to the Federal Court.

Some politicians depict such constitutional issues as a challenge to the exalted position of Islam in our legal system. The gullible public, not schooled in constitutional jurisprudence, falls prey to unfounded fears.

Actually, the issue is about who should be the prosecutor – the Attorney General or the syariah authorities; and the venue of the trial – the civil courts or the syariah courts. For 66 years this has been the legal position.

What can be done to douse the embers of controversy and reduce the overlap of powers between the civil and syariah courts? The government’s appointment of a committee to look into this matter is a good first step.

It is humbly submitted that there is no need to amend the Federal Constitution. Instead, Parliament must employ its long-dormant power in Schedule 9, List II, Item 1 to do two things:

First, without touching the state laws on “personal and family law” matters, Parliament should, in the field of criminal law, after a thorough consultation with the states, enumerate the offences against the precepts of Islam that the syariah courts may exercise jurisdiction on. This will have two advantages: first, the overlap with and trespass on the Federal List will be eliminated. Second, on offences against the precepts of Islam prescribed by federal law, there will be a uniform law for all 14 regions of the country.

Second, Parliament should, in consultation with the states, relook the 3-5-6 formula to enhance, if need be, the punishments prescribed.

In turn, all state assemblies must revise their Enactments on criminal offences to fall in line with the (proposed) Syariah Courts (Criminal Jurisdiction Amendment) Act. Once this is done, recourse to the courts for constitutional review will not be necessary.

Other more complicated measures may also be possible under Articles 76A and 80(4) relating to the power of Parliament to extend the legislative power of the states. But these measures require a separate examination on another occasion.

Emeritus Prof Datuk Dr Shad Saleem Faruqi is holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are the writer’s own.