STATUS OF SYARIAH COURTS

[59] By way of comparison, in as much as the civil courts are ensconsed within the
Constitutional framework, Syariah Courts are as yet non-existent, until such time when the State
Legislature makes law to establish them, pursuant to the powers given it under Item 1 of the List
II (State List) in the Ninth Schedule of the Constitution. In other words, the status of Syariah
Courts is dependent on the State Legislature. As the Federal Court expressed in Latifah bte
Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 (at paras [32]-[33]):
… The Legislature of a State may make law to set up or constitute the Syariah Courts in the
State. Until such law is made such courts do not exist. The position is different from the case of
the Civil High Courts, the Court of Appeal and the Federal Court. In the case of those civil
courts, there is a whole Part in the Constitution (Part IX) with the title ‘the Judiciary’.
So the civil High Courts, the Court of Appeal and the Federal Court are established by the
Constitution itself. But, that is not the case with the Syariah Courts. A Syariah Court in a state is
established or comes into being only when the Legislature of the State makes law to establish it,
pursuant to the powers given to it by item 1 of the State List. In fact the position of the
Syariah Courts, in this respect, is similar to the Sessions Courts and the
Magistrates’ Courts. In respect of the last two mentioned courts, which the Constitution call
‘inferior courts’, art 121(1) merely says, omitting the irrelevant parts:
121(1) There shall be … such inferior courts as may be provided by federal law … (Emphasis
added.)
[2018] 1 MLJ 545 at 574
[60] Article 74 of the Federal Constitution confers powers on the Legislature of a state to make
laws, with respect to any of the matters enumerated in the State List or the Concurrent List. Of
relevance to the present appeals is Item 1 of the State List, which reads as follows:
1 Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic
Law and personal and family law of persons professing the religion of Islam, including the
Islamic Law relating to succession, testate and intestate, betrothal, marriage, divorce, dower,
maintenance, adoption, legitimacy, guardianship, gifts, partitions, and non-charitable trusts;
Wakafs and the definition and regulation of charitable and religions trusts, the appointment of
trustees and the incorporation of persons in respect of Islamic religious and charitable
endowments, institutions, trusts, charities and charitable institutions operating wholly within the
State: Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques
or any Islamic public place of worship, creation and punishment of offences by persons
professing the religion of Islamic against precepts of that religion, except in regard to matters
included in the Federal List; the constitution, organization and procedure of
Syariah Courts, which shall have jurisdiction only over persons professing the
religion of Islam and in respect only of any of the matters included in this
paragraph, but shall not have jurisdiction in respect of offences except in so
far as conferred by federal law; the control of propagating doctrines and beliefs among
persons professing the religion of Islam; the determination of matters of Islamic law and doctrine
and Malay custom. (Emphasis added.)
[61] The jurisdiction of Syariah Courts must be provided for by the State Legislature within
the limits of Item 1; the courts do not have automatic jurisdiction over all the matters mentioned
(see Latifah bte Mat Zin para [43]), in that its jurisdiction must be expressly conferred by
state legislations. In other words, the state must claim ownership over the subject
matters that fall within the jurisdiction of the syariah courts by providing for
it expressly in its legislation; because otherwise, the syariah courts could be excluded
from deciding on a subject matter which falls within Item 1 of List II (State List) in the Ninth
Schedule to the Federal Constitution. This is an important point which in the past had affected
the full effect of the Syariah Court’s power when there is no express and clear provision enacted
in the state enactment. A case in point is Soon Singh a/l Bikar Singh v Pertubuhan
Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489. In that case,
the Federal Court held that in the absence of any express provision (in the then Kedah
Administration of Muslim Law Enactment 1962 conferring jurisdiction on the Syariah Court to
decide on questions of apostasy), the Syariah Court has jurisdiction by implication; the
court held that this is to be inferred from the language of the relevant provisions of the state
enactments with regard to the conversion of Islam. (Emphasis added.)
[62] Speaking through Mohd Dzaiddin FCJ (as he then was) in Soon Singh, His Lordship
said at p 501:
[2018] 1 MLJ 545 at 575
From the analysis of the State Enactments, it is clear that all State Enactments and the Federal
Territories Act contain express provisions vesting the syariah courts with jurisdiction to deal
with conversion to Islam. On the other hand, only some State Enactments expressly confer
jurisdiction on the syariah courts to deal with conversion out of Islam. In this regard, we share
the view of Hashim Yeop A Sani CJ (Malaya) in Dalip Kaur p 7 that ‘clear provisions
should be incorporated in all State Enactments to avoid difficulties of
interpretation by the civil courts’, particularly in view of the new cl (1A) of art
121 of the Constitution which as from 10 June 1988 had taken away the
jurisdiction of the civil courts in respect of matters within the jurisdiction of
the syariah courts. Be that as it may, in our opinion, the jurisdiction of the syariah courts to
deal with the conversion out of Islam, although not expressly provided in the State Enactments,
can be read into them by implication derived from the provisions concerning conversion into
Islam. (Emphasis added.)

Limits on jurisdiction of Syariah Court

Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other
appeals [2018] 1 MLJ 545

Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other
appeals [2018] 1 MLJ 545

[29] On the other hand, the Applicant had contended that Article 121 (1A) of the FC does not
constitute a blanket exclusion of the jurisdiction of Civil Courts whenever a matter relating to
Islamic law arises and cited the Federal Court cases of Indira Gandhi Mutho v. Pengarah
Jabatan Agama Islam Perak & Ors [2018] 1 MLJ 545; [2018] 3 CLJ 145; [2018] 2
MLRA 1 and Rosliza Ibrahim v. Kerajaan Negeri Selangor & Anor [2021] 2 MLRA
70; [2021] 2 MLJ 181; [2021] 3 CLJ 301 to support its contention.
[30] However, I am of the view that the decisions of the Federal Court in Indira
Gandhi (supra) and Rosliza (supra) can be distinguished from the facts in the present case.
[31] In Indira Gandhi (supra), the subject matter of judicial review is the issuance of
certificates of conversions by the Registrar of Muallafs under the Administration of the Religion
of Islam (Perak) Enactment 2004). Indira Gandhi does not involve any decision made by
the Syariah Courts.
[32] Whereas in Rosliza (supra), there is no judicial review filed and the matter was
commenced by way of originating summons seeking declarations, among others, that the
Plaintiff is not a person professing the religion of Islam. The case of Rosliza too does not
involve any decision made by the Syariah Courts.
[33] In the present case, I find that the subject matter of review is the decision by the Syariah
Appeal Court which is made within its jurisdiction and therefore, it is not amenable to judicial
review by virtue of Article 121 (1A) of the FC.
[34] Therefore, premise on the above, the Applicant’s reliance on Indira Gandhi (supra)
and Rosliza (supra) is misplaced and devoid of merit.

Wan Johairiza bin Wan Ab Rahman v Mahkamah Rayuan Syariah Selangor &
Ors [2021] MLJU 2586