Islamic Law

A. 160 FC does not include Islamic law as one of its definition of law A. 4 declares that the supreme law of the land is the FC A. 121 (before the amendment in 1988) vested the judicial power of the federation in the 2 High Courts and other inferior cts but excluded Syariah ct

A.3 merely declares that Islam is the religion of the federation AND does not declares that the federation is an Islamic state as in the Constitution of Pakistan. 2 consequences gained from A. 3: 1) the govt may lawfully establish or maintain, or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in Islam and incur the necessary expenditure for these purposes.

2) the govt thru annual Supply Acts & Enactments may spend money on the administration of Islamic law

 A.3 h/ever does not states who is the Islamic head for the whole federation. Instead A. 3(2) puts the Ruler of the states as the head of Islam in his state. As for those state w/out Ruler, the YDPA is the head of Islam who also remains as the head of religion in his own state. Rulers h/ever agreed unanimously that YDPA shall be authorize to rep. the Rulers in acts, observances or ceremonies wc the conf. of Rulers has agreed should extend to the fed as a whole. Eg determining the commencement of fasting and dates of Hari Raya

 Islamic law in the FC is a state matter wc fall under Sch 9,item 1 of List 11 (State list) h/ever states do not have absolute power to legislate on Islamic law but only on those matter as specified in item 1 Fed govt h/ever may legislate on the Islamic aspects of matters in the Federaf & Concurrent lists. Eg the Islamic Banking Act 1983

Item 1 list II states that Syariah court shall not have jurisdiction in respect of offences except so far as conferred by the federal law. Parliament t/4 thru the Syariah Courts (criminal Jurisdiction) Act 1965 confer a very limited criminal jurisdiction upon the Syariah courts. This create a further problem as the line which separates Islamic law from federal matter is very thin as can be found in Mamat bin Daud v Govt of Msia [1988] 1 MLJ 119

Mamat bin Daud;s case

SC held: s. 298A of the Penal Code was invalid and ultra vires the FC bcoz it was a provision which was in pith and substance on Islamic law where Parliament has no power to legislate under A. 74(1)

 Besides

provisions in FC limiting the jurisdiction of states over Islamic law, federal laws do have its way in doing the same. Eg in cases of intestate or probate, account has to be taken under the Probate and Administration Act 1959 which give the kadi only the power to certify the shares to be allotted to the beneficiaries under Islamic law

Exclusive jurisdiction of the Syariah Court (A.121(1A))

Most significance amendment to FC in
1988. Why? It modified the provision that the judicial power of the federation shall be vested only in the civil courts and ousted the jurisdiction of the civil High courts over matter which fall within the jurisdiction of the Syariah courts.

Mohamed Habibullah bin Mahmood v Faridah bt Dato Talib [1992] 2 MLJ 793 SC

Harun Hashim S.C.J : when there is a challenge to the courts jurisdiction, the correct approach is to firstly see whether the Syariah court has juurisdiction and not whether the state legislature has power to enact the law conferring jurisdiction on the Syariah court.

Exclusive jurisdiction
In Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor [1999] 2 AMR 2337 FC, it was held that A. 121(1A) does not remove the jurisdiction of the Sessions Court over a Muslim for any offence where the jurisdiction has not been specifically conferred upon the Syariah court

Thus A. 121(1A) does not automatically confer jurisdiction on the Syariah courts. Its jurisdiction is obtained when states enact laws conferring such jurisdiction as given by A. 74 & 77 FC. Jurisdiction cannot be derived by implication

Review of decision by High ct

B4 the amendment in 1998, High ct would on several occasions review and vary decisions of syariah ct Inn Genga Devi a/p Chelliah lwn Santanam a/l Damodran [2001] 2 AMR 1485 HC, an applicant who embraced Islam obtained an order for custody of a child from the Syariah ct in ALor Setar.

The mother (respondent) who was a Hindu, asked for a declaration that the order by the Syariah ct was ultra vires, null and void. It was held by the High ct that A. 121(1A) of FC provides that civil cts cannot interfere with matters within the jurisdiction of the Syariah ct let alone setting aside the order of the Syriah ct as they have separate jurisdiction

 h/ever in the case of Dalip Kaur v Pegawai Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1, Hashim Yeop Sani C.J observed that such does not take away the jurisdiction of the civil ct to interpret any written laws of the states enacted for the administration of Muslim law.