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The Civil-Syariah Courts Relation:

Reconciling The Civil Justice Institution and The Islamic Court System in Malaysia

A commentary on Encik Mohammed Iman’s dissertation entitled “Syariah/Civil Courts Jurisdiction In Matters Of Hukum Syara: A Persisting Dichotomy”

 

 

1.0 Introduction

 

“Maintain justice in administration and impose it on your own self and seek consent of the people, for the discontent sterilises the contentment of the privileged few…Unloose the tangle of mutual distrust between the public and the administration and remove all the causes which may give rise to strained relations between them.” Ali bin Abi Talib, Caliph Al-Rashidyn[1]

 

The words of the Caliph are an excellent starting point for the commentary on the essay and the review of the state of the Syariah administration in our country. It has to be established prior to those activities that Islam advocates a just administration of the State. This would mean that it is rendered unto a person what he or she deserved, whether rewards or punishments. Such a principle was evident in the administration of the Islamic State of Medina ( and later Mecca ) by the Prophet Mohammad s.a.w. and was embodied in the Charter of Medina ( Mithaq-e-Madina ), the first Constitution of an Islamic Nation.[2] Thus, this author undertook to also be concerned about the application of such principles as justice, fairness and equality derived from the model of that Charter in the dispensation of Hukum Syara, either in the proposition of Mohd. Iman or in the present Malaysian system. The primary objective of this paper, however, is to evaluate the work of Mohd. Iman in the light of the Constitution of the Federation of Malaysia.

 

2.0 An Overview of Mohd. Iman

 

In his most admirable thesis, Mohd. Iman had raised an issue regarding the dichotomy of the jurisdiction of the Syariah and the Civil courts in Malaysia. He argued at great length, using Soon Singh[3] and Lingam[4] as starting points, the inadequacy of the current prescriptions as regard to the scope and limits of the jurisdiction of the two courts. The inadequacy arises from the ambiguity in the power-conferring provisions relating to the two courts and the different interpretation of the aforesaid provisions that resulted in conflicting ratio in decided cases. Consequently, there then exist two concurrent court systems of which the one, the Civil court, is predominant over the other[5]. There is also the issue of “whose decision will finally be binding and who will resolve this conflict of jurisdictional decision?” in the case of opposing parties in a dispute invoking different Court respectively. In order for a complete resolution of the problem, Mohd. Iman suggested that the dual Courts system be abolished and both the Syariah and Civil courts be integrated at the Superior Courts. The new courts “should have separate benches or divisions with Syariah Judges and Muslim Civil Judges to serve on them to hear and determine appeals from the inferior Courts in pure Syariah and mixed Syariah and civil causes, matters and questions”.

 

The law highlighted in this discussion is Article 121 (1A) of the Federal Constitution, which states:

 

“The courts referred to in Clause (1)[6] shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”

 

Tied to this provision of the Constitution is the List II of the Ninth Schedule that enumerated the fields or areas in which the legislative power of the State Assembly is effective and exclusively so. Specifically, item (1) of List II provided for the Assembly the prerogative of installing “Islamic law and personal and family law of persons professing the religion of Islam” in their respective states. In reading Article 121 (1A) Mohd. Iman adopted two methods; the First Impression and Precedents Related. The First Impression approach looked into the literary value of the wordings of the clause – in term of its meaning, context and relation to similar provisions of the Constitution – without references to case laws while the Precedent Related method examined the decided cases to derive a principle and compare it to the objectives of the clause. Mohd. Iman then systematically converge both approaches to deduce a concept in which he advocated for the reform of the Syariah-Civil courts relation.

 

In conclusion, Mohd. Iman made a scholarly studies on the state of the Civil-Syariah courts relation and suggested proper changes be made which was mention hereinabove and in order that these changes might materialize, the only option is for a constitutional amendment. Nevertheless, the present author had his reservations regarding some of Mohd. Iman’s argument for such changes and his sometimes very bold pronouncements of the legal reality in Malaysia. These reservations, however, will not in any degree diminish the author’s scholarly admiration of the systematic thought of A Persisting Dichotomy and before such reservations or comments or critiques are being brought forward, the author wish to state that this is a particularly destitute attempt to comment on a Mohd. Iman’s thesis.

 

3.0 The Problems With A Persisting Dichotomy

 

 “This constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void” The Federal Constitution, Article 4 (1)

 

The above article is the hinge to the understanding of the operation of Constitutional Sovereignty in Malaysia. The Federal Constitution is a result of the social contract of every citizens, hence its status as the highest law of the land.[7] It follows that the Constitution has to be treated with ultimate care, either in the application or the interpretation of it because the activities of our Nation stand and fall on such processes.

 

3.1 The Problem of Mohd. Iman’s Exegesis of Article 121 (1A)

 

Mohd. Iman claimed to have applied a contextual interpretation of the Federal Constitution, not only limiting to the letters but also extending to the object of article in subject. It was held that Article 121(1A) is injunctive in nature, which is, to the opinion of this author, correct as far as the literal meaning and the application of the clause is concerned. In re Mohamed Habibullah[8] ( per Harun Hashim SCJ ) it was held that the objective of the clause is to “take away” the High Court’s jurisdiction in matters of the prerogatives of the Syariah Court. The issue is settled here pertaining to the intent of the clause (1A) of Article 121 but this reading had not resolved the conflict of interest as regards to the jurisdictions of both Courts. This is because the clause itself said nothing of the scope of the Syariah Court which ought not be crossed by the Civil Court. Another problem that was raised is the subjection of the Court of Appeal to clause (1A). Clause (1B) of the same article that provided for the creation of an appellate authority, i.e. the Court of Appeal, also vested in that Court:

 

(a)     jurisdiction to determine appeals from decisions of a High Court or a judge thereof ( except decisions of a High Court given by a registrar or other officer of the Court and appealable under federal law to a judge of the Court); and

(b)     such other jurisdiction as may be conferred by or under federal law.

 

The provisions given to the Federal Court in Articles 121 (2) (b)[9], 128 (1) and (2)[10] did not exclude the Federal Court the jurisdiction pertaining to the Syariah Court. Therefore, on the argument that the Court of Appeal was not given any extra provisions concerning the jurisdiction in respect of any matter within the syariah law, Mohd. Imam argued that the Court of Appeal, thus was not empowered to interfere with affairs within the Syariah Court’s jurisdiction. He asserted that by virtue of (1B)(a), the Court of Appeal can listen to appeals against the decisions of the High Court, but as the High Court is subjected to the injunction in clause (1A), it logically follows that the appellate function of the Court of Appeal applies only as far as the injunction is concerned. A second assertion that Mohd. Iman has made was that, by virtue of (1B)(b), the Court of Appeal has other adjudication functions as provided “by or under federal law”. In subscribing federal law to List I of the Ninth Schedule, he concluded that these laws will necessarily contains no elements of the Hukum Syariah under the prerogative of the State Assembly as provided by List II. These two assertions are the results of the First Impression approach adopted by Mohd. Iman and the present author contend that first impressions may be misleading and has misled Mohd. Iman in his judgement of the issue at hand: the reading of Article 121(1A).

 

3.1.1 Thorough Evaluation Exegesis – Reading in Context and in Concept

 

In place of the First Impression exegesis, the author would like to suggest the Thorough Evaluation exegesis of Article 121. The method advocated by Mohd. Iman is good, but up to a point only. This is because the lack of guidelines, procedures and a framework in which the interpretation was done when using the First Impression approach made it insufficient for an accurate derivation of truth.

 

One possible framework that we can develop for this purpose is by the using of the context and the concept of a particular law – the Thorough Evaluation method. In this approach, the interpretation of a written law is realized 1) in its contextual value and 2) in its conceptual value.[11] The reason for such approach is the presupposition that there are two main parts to a law, i.e. the implementation and the application of it. The implementation of a law includes the stages of its development until the current state and the present form of that law. The application of a particular law is the usage of the law in form of principles in the Court. In the Thorough Evaluation approach, the contextual interpretation of a law means the understanding of its implementation while the conceptual interpretation is the perception of its application.

 

As we apply the Thorough Evaluation approach to the reading of Article 121 ( in particular Clause (1A) ), we are concerned first and foremost with the historical context of that provision. In the pages below ( see sec 3.1.2 ), this author will attempt to examine the historical object of the provision. This examination takes into account the elaboration of Mohd. Iman on the development that leads to the implementation of Hukum Syara in Malaysia. This author agrees with the points presented by Mohd. Iman in that regard. The focus of the author then is the objective or the reason Clause (1A) was added to Article 121.

 

List II too will be subjected to the lenses of Thorough Evaluation to examine the validity of the claims made by Mohd. Iman on the nature, functions and object of the list.

 

 

 

 

3.1.2 The Historical Objective of Article 121(1A)

 

Mohd. Iman had painstakingly elaborated the history of the development of the Syariah Court and Islamic laws administration of this country. It is generally agreed and reasonably concluded that the Malays desired to be governed and determined by the rule of Hukum Syara. It is inevitable that the Muslim ummah be accorded their right to the access of Syariah justice through the courts. Before the addition of Clause (1A) of Article 121, however, this right to the access to a syariah court is often impeded, hindered or made difficult by the overriding power of the Civil Court ( i.e. the High Court ) on the jurisdiction of the former. This power is deduced from Article 121 Clause (1) and the Courts of Judicature Act, 1964 (A91) section 4[12]. It is on this ground then, was Clause (1A) added. This clause is not a power conferring but a settlement clause.[13] This means that Clause (1A) does not give the Syariah Court certain jurisdiction but is to resolve the conflicting power of the concurrent Civil-Syariah courts system. This view is championed in the decision of the Supreme Court ( now Federal Court ) in Sukma Darmawan.[14] Mohd. Eusoff Chin CJ ( Malaysia ) opined that the introduction of Article 121(1A) was the result of the “concern among those entrusted with the task of administering Muslim law” over the power of ordinary court “to review and quite regularly reviewed, the decisions of Syariah Courts by certiorari”. The learned Judge held that clause (1A) had the limited purpose of preventing the High Court “from exercising its power of judicial review over decisions of a Syariah Court”. It is an each own to its own settlement provision.

 

In ascertaining the above point, the author came to a different conclusion than that of A Persisting Dichotomy. Mohd. Iman correctly suggested the clause is to prevent the interference of the Civil Courts on matters pertaining Syariah, but he further expounded ( albeit wrongly ) this view to include that the provision is “essentially [ constituting ]…a limitation on Parliament’s law –making power” and “it is not addressed to the Courts”. Such is a faulty exegesis of the text and it would not be inappropriate to suggest that Mohd. Iman was doing eisegesis instead, that is, reading into the wordings. His overzealous bias is not only evident in his examinations of the objectives of clause (1A) but also in his concluded subjection of the Court of Appeal to that clause and his comprehension of the words “any matter within the jurisdiction of the Syariah Courts”. In his argument, Mohd. Iman had chose to ignore the major understanding of the subject and instead appealed to the less popular views.

 

3.1.3 The Court of Appeal

 

As mentioned above, Mohd. Iman had made two assertions regarding the subjection of the Court of Appeal to Article 121(1A). This author disagrees with him on the second assertion. The argument that Mohd. Iman gave did not take into consideration the state of the affairs before the inclusion of both Clause (1A) and Clause (1B). In the previous section, it was pointed out that prior to the introduction of clause (1A), the High Court had power to review, and often did so, the decisions of the Syariah Court by certiorari. This would suggest to us then, that the provisions of Clause (1) did not follow the logical argument of Mohd. Iman and that the High Court then, despite only having “such jurisdiction and powers as may be conferred by or under federal law”, had the overriding power against the jurisdiction of Syariah Court. Hence, there was a need to include Clause (1A) as already discussed above. Where there was no provision the likes of Clause (1A), the Superior Courts had power over Syariah Courts’ jurisdiction by certiorari”.

 

This would then force us to conclude that the Court of Appeal, installed under Clause (1B) and unaffected by Clause (1A)[15] and by virtue of the agreed usage of the provision “having such jurisdiction and powers as may be conferred by or under federal law”, may review and reverse the judgement of the Syariah Court. This would therefore, leave us with the Federal Court and the Court of Appeal as the two highest appellate authorities in the land. The outcome of this is not the hindering of the rights to syariah justice but the equality[16] of the Muslim and the non-Muslim citizens in our country to the right to appeal in the highest level where the application of the Constitution is assured.

 

3.1.4 Jurisdiction of Syariah Court – An Examination of List II

 

Mohd. Iman in his quaint readings of the related provisions of Article 121(1A), item(1) of the List II of the Ninth Schedule and State Enactments pertaining to the Administration of Islamic Law and Syariah Courts[17] had proposed that the jurisdiction of the Syariah Court,

1.        is to be an exclusive one and constitutionally conferred as opposed to Civil Courts’

2.        is mandated ( according to item(1) List II ) on its establishment by the State Enactment

3.        is not necessarily bothered with the religion professed by the parties in the dispute as long as one party is Muslim and the claim is covered under Hukum Syariah

 

The view of this author is opposed to Mohd. Iman especially in the last two proposed items. For the proposition that the jurisdiction of the Syariah Court is to be an exclusive one, Mohd. Iman had appealed to Article 121 (1A) to say that because it restrict the intervention of the High Courts on the matters of syariah, the clause actually is conferring positive exclusivity status to Syariah Courts. This is not the case as thought by this author and the ratio of the learned Mohd. Eusoff Chin CJ in deciding the meaning to the expression “jurisdiction of the Syariah Court” in Sukma Darmawan. The Judge concluded that exclusive jurisdiction refers to the limitation of the Syariah Courts’ power of adjudication.[18] If, and only if, a case is undisputedly dealing with gazetted Quranic laws can it be tried before a Syariah Court. The limitation is not only on the pure Syariah matters but also those that are expressly gazetted under State Enactments. This would rule out the wider scope of Quranic legal principles which are not legislated in Malaysia.

 

Mohd. Iman’s pronouncement that the Syariah Courts’ jurisdiction is constitutionally conferred is not only an extra-contextual understanding of List II and the provision of Clause (1A) but is also indeed ultra vires. His protruded that since item(1) of List II states that “the constitution, organization and procedure of Syariah court which shall have jurisdiction…in respect only of any of the matters included in this paragraph”, it naturally means that once the Syariah Courts are established, they are mandated by item(1) “that they shall have jurisdiction in respect of matters specified in that item but subject to the conditions mentioned therein”. In contrast, he argued that it was the federal laws, not the Constitution, that confer power to adjudication function to the Civil Courts’. This clearly shows Mohd. Iman’s inconsistency in reading the Constitution – he reads one section with one lenses and another with a different lenses though both have the similar implication. If by virtue of item(1) of List II he can argue for a constitutionally conferred jurisdiction for the Syariah Courts, why not by the same logical argument, on basis of item(4) of List I, he contends that the Civil Courts’ power is also derive from the highest law of the land? This is indeed a mystery of the First Impression method that Mohd. Iman had used. This author, however, rejects the idea that the Federal Constitution is conferring any of the Courts their jurisdictions. Mohd. Iman’s misconception is based on his ( deliberate? ) misconstruction of the meaning of the Constitutional provisions in the Ninth Schedule. His misunderstanding of the functions of the lists in the Ninth Schedule had resulted in his once-established-jurisdiction-is-mandated theory of the Syariah Court.

 

A more contextual reading of the Ninth Schedule and the articles preceding it, Article 74 and Article 77 will see a different understanding of it than that of Mohd. Iman’s. The reason for the creation of the Ninth Schedule, that is, its function, is to lay out in specified manner the subject matter of federal laws and State laws. Thus, the items enumerated in the lists in that schedule are but the fields or areas in which the Parliament or the State Legislative Assembly has power to legislate and set rules. The items are not themselves laws, rather laws are created by the pertinent authorities to regulate these items. Item (1) of List II would then be the things or fields in which the State Assembly may and exclusively so, legislate. These include the installation of Syariah Courts and the creation of Syariah laws. As such, there is no confusion here as to whether the Syariah Courts are even installed by the Constitution, or that its jurisdiction being constitutionally conferred. Based on context, it is the State legislations that establish the Syariah Courts.[19] And because it is the State that legislates on matters pertaining to the Quranic laws, then it must be held that it is the State that confers jurisdiction to the Syariah Courts. Since we have established that the items in List II themselves are not laws, then it follows that if the State have not legislate any laws to regulate those items ( which are areas or fields in the operation of the State and the citizens ), the Syariah Courts will have no jurisdiction over the areas not legislated. It is fair to say that when there is no legislation, there will not be any jurisdiction. For if there is jurisdiction without legislation, on what basis would the judge make his decisions? The jurisdiction of the Syariah Court is not to be implied from the List II as argued by Mohd. Iman. Jeffery Tan J in Shaik Zolkaffily held that “if state law does not confer on the Syariah court any jurisdiction to deal with any matter in the State List, the Syariah court is precluded from dealing with the matter, and jurisdiction cannot be derived by implication[20]

 

The final proposition that Mohd. Iman made regarding the jurisdiction of the Syariah Court is it encompasses even the non-Muslim. He said that the subject of the Syariah Court is essentially Islamic personal laws and not the person of a Muslim. In doing so, he admittedly acknowledged that he is turning the table against the judgement of the Supreme Court in Tan Sung Mooi ( per curiam Mohamed Dzaiddin, SCJ ). He was also in conflict with the legislations that were supposed to regulate the matters pertaining to Hukum Syara, therefore creating jurisdiction in the Syariah Court; in the context of Tan Sung Mooi, s. 45(3) (b) of the Administration of Islamic Law (Federal Territories) Act, 1993 and s. 43 of the Selangor Enactment of 1952.[21] Again, the starting point of Mohd. Iman’s examination of the Constitution, in particular item (1) of List II had proved fatal to his understanding of the concept and subject of the Syariah Court. Indeed he had chosen the obscure section of item(1) to justify his idea of how the Syariah Court should operate. Mohd. Iman, reading the earlier parts of item (1) has concluded that the subject for the creation of Syariah Courts is Islamic laws. He chided at the practice of restricting the jurisdiction of Syariah Courts to only people professing the Islamic faith and claimed that this is both ultra vires and a legacy of the colonial British[22]. This is a very problematic proclamation indeed as we judge it by the Charter of Medina and the Federal Constitution of Malaysia. The points on the Charter will be discuss in the next section ( sec 4.0 ). Here this author would like to show that the truth is in contrary to the argument of Mohd. Iman as per the Federal Constitution.

 

The reading of item(1) of List II by the Thorough Evaluation approach will reveal that this provision in its contextual meaning is stating a restriction on the Syariah Courts’ jurisdiction to encompass only the Muslims. As Mohd. Iman had so meticulously elaborated in regards of the historical development of the Hukum Syara in Malaysia, it was the issue of the “concern and aspirations of the Malay people that their life and conduct be governed and determined by the rules of Hukum Syara” that finally culminate in the installation of Syariah Courts in Malaysia. Having said that, it is quite obvious that the subject matter is the Malays[23], the Muslim persons. It was then not the Hukum Syara, as suggested by Mohd. Iman, that is the essential point or the root or the subject of the installation of the Syariah Courts. The distinction here may sound superficial but is vital in determining the historical purpose of the Syariah Courts. If the subject matter is Islamic personal law, then the jurisdiction of the Syariah Courts should be extended to non-Muslims ( as long as one party in dispute is Muslim ) if the issue of dispute is covered by that law. However, if the subject matter is Muslim, then the jurisdiction of the Syariah Courts ought only be over the people professing the Islamic faith, involving issues covered by the Islamic personal law. The examinations of history point us to the second possibility. As we have settled the facts for the historical context, now let us look into the literary context of item(1) List II for further understanding. Every literary piece has this basic interpretation rule, the obscure texts should be read in light of the clearer texts. This is what Mohd. Iman did not do. The later part of item (1) is clear in regards to the jurisdiction of the Syariah Court in the area of the Islamic laws mentioned in the earlier part. It states that “the constitution, organisation and procedure of Syariah courts which shall have jurisdiction ONLY over persons professing the religion of Islam…” This indeed is very clear and unambiguous compared to the earlier part of item (1) “Islamic law and personal and family law of persons professing the religion of Islam”. Thus, as we make the clear text to explain the obscure text, we arrived at a conclusion that the Islamic law mentioned in the earlier part of item (1) and the Syariah Courts’ jurisdiction ( explicitly mentioned in the later part ) relate and rule only over the Muslim citizens of Malaysia. As for the conceptual understanding the whether or not Syariah Courts’ jurisdiction extends to non-Muslim the way indicated by Mohd. Iman, the learned Mohd. Eusoff Chin CJ ( Malaysia ) had fairly recently in his judgement in Sukma Darmawan opined that “ the Syariah Courts have jurisdiction only over persons professing the religion of Islam”. He even went a step further stating that “the Syariah officers would only investigate offences triable by the Syariah Court where all the parties including the witnesses are of the Islamic religion”. Therefore, it is certain that item (1) and the State Enactments ( including Parliament Acts on Syariah ) in their contextual meaning had, together with the conceptual meaning derive from the application in case law, established that the Syariah Courts’ actions and proceedings shall be effective if, and only if, all parties in dispute are Muslims.

 

 

 

 

 

 

4.0 The Medina Model[24]

 

As mentioned at the beginning of this essay, the Charter of Medina is the earliest Constitution of an Islamic State ( this author, however, is not advocating the view that Malaysia is an Islamic State ). In the Medina Model, it was set that the dhimmis ( settlers of the Islamic State, having rights to citizenship through social contract ) should not be entitled to obligations imposed on the Muslims ( the Believers ) such as the sakat and zakat system. Their duties to the State were purely political and hence were bound to such citizenry acts as the jizyah ( tax ) and military services. It must be held, however, the subjection of the dhimmis and non-Muslims in general to Hukum Syara was coincidental. As Medina under Muhammad s.a.w was an Islamic State whose laws were Quranic in principles ( though the Quran was not completed yet at that time ), the non-Muslims having had to obey the State law, which happened to be Syariah laws, where then subjected to Hukum Syara. Nevertheless, it was clear from the beginning, since the covenant between the Believers and the dhimmis that the latter were not to be subjected to any Islamic obligations and traditions as far as their personal lives were concerned. This was a reflection of the teachings of Muhammad s.a.w that non-Muslims shall not be oppressed “or infringed of his rights, or puts a responsibility on him which is beyond his strength, or takes something from him against his will”[25]. The Charter of Medina obviously is not in the same mind as Mohd. Iman when he places an unequal yoke between the Believers and non-Muslims. By subjecting non-believers to the Hukum Syara and thereby the Syariah Courts’ jurisdiction, he is “putting a responsibility on him which is beyond his strength”. How can one who does not profess the Islamic faith be obliged to uphold the Syariah? Is this not something to heavy for him to bear?

 

And then again in the context of Malaysia in which the social contract is the Federal Constitution, it was agreed that Islam is the religion of the Federation[26]. Nevertheless, the understanding of Islam as the religion of Malaysia is that it is only in ceremony and ritual.[27] The religion of Islam in its status is granted precedence over other religions but by no mean Malaysia is an Islamic State in the like of Afghanistan, Pakistan and Saudi Arabia.[28] In fact the respected Malaysian jurist, Tan Sri Dr. Ahmad Ibrahim, had contended that Malaysia is not an Islamic State in the truest sense because our political and socio-economic system is not fundamentally Islamic.[29] A comparison can be made in this regard to the state of Pakistan. Pakistan before the seventies was not an Islamic State even though Islam was made the official religion in 1948. It was only after the declaration in the late seventies by Zial ul-Haq that she became an Islamic State. Having said these, this author asserts that the non-Muslim in Medina ( in Muhammad’s time ) was in a very different constitutional context than the non-Muslim in present day Malaysia. The former, having a covenant with the Believers are obliged to follow the legal system of the day which is Syariah-based. This is not the case with the non-Muslim citizens of Malaysia whose terms of social-pact with the indigenous Muslim Malays did not include a creation of an Islamic legal system ( which is reflected in the secular and pluralistic nature of our Constitution ). To subject the non-Muslims to the jurisdiction of the Syariah Courts and under the Hukum Syara would then be an infringed of their will in the social contract. It is also to demand of him something which he does not priory accept, equivalent to “taking something from him ( his subjection to Syariah ) against his will”.

 

Therefore, by comparing the Medina Model, Mohd. Iman’s proposition of an expanded jurisdiction failed to find strong justification. The administration of the Islamic state of Medina did not subject the unbelievers to the Islamic personal laws and the unbelievers were equally protected of their rights insofar as they perform their citizenry ( political ) duties to the State. This author would like to suggest that the restriction of the Syariah jurisdiction was not wholly of colonial misappropriation of power but can trace its root to the Medina Model and the teaching of justice by Muhammad s.a.w. The restriction is so as not to put an obligation too heavy for the unbelievers to bear and ( partly ) not forcing him to accept something against the predetermined agreement.

 

5.0    Concluding Discussion

 

A Persisting Dichotomy is not merely a reflection of a legal scholar’s thought. On a wider scope, it also expressed the sentiments of the Muslim community in Malaysia. This sentiment was heightened in view of the events at that time. It was then, only a few years after Ops Lallang which revealed a number of apostate of the Islamic faith in this country. The feelings of that time was also strongly affected by the liberal pro-pluralist UMNO government which in the view of certain Muslims were not safeguarding the prominence of Islam in Malaysia. These sentiments did not stop at the writing of A Persisting Dichotomy, but continue to develop until the present time when successive world events had reinforced the need for a purer Islamic teaching and wider Islamic policy-making in our country.

 

This author agrees fully with such pursue in the faith that his Muslim fellow citizens will, by a clearer and stronger adherence to Islam, bring the country to a greater heights. The summary of thoughts below are the crystallization of the points that were made throughout this essay and is hope to provide some aid in our contemplation of the role of the Syariah institution in Malaysia.

 

5.1 Summary of Thoughts

 

5.1.1 On Article 121 (1A)

 

This is a limitative injunction upon the High Court and its subordinates on matters regarding item (1) of List II of the Ninth Schedule. It is not a power conferring clause but a settlement clause which in the word of Harun Hashim SCJ, is to “ prevent conflicting jurisdictions between the civil courts and the Syariah Courts.”[30]

 

This clause does not affect the Court of Appeal. Both the Federal Court and the Court of Appeal stand as the highest appellate courts in Malaysia, empowered to hear appeals from the Syariah Courts and being Superior Courts, both courts are entitled to the review of the decision of the Syariah Courts by certiorari.

 

5.1.2 On List II ( or the State List ) of the Ninth Schedule

 

This list, as of the other lists in the Ninth Schedule, enumerates the fields or areas in which the relevant authorities may legislate. In the case of List II, the relevant authority is the State Legislative Assembly and the Assembly has exclusive power to create laws governing the items provided.

The items enumerated in this list, as of the other lists in the Ninth Schedule, are not laws. Laws are later creations of the relevant authority to regulate these items.

 

5.1.3 On the Syariah Courts’ Jurisdiction

 

The Syariah Courts’ jurisdiction are conferred by the State through the State Enactments. The said jurisdiction is exclusively:

1)       over the matters that were legislated

2)       only on matters undisputedly Islam

3)       over persons professing the Islamic religion

 

5.2    Resolutions For The Reform of the Civil-Syariah Courts Relation

 

Mohd. Iman’s proposed resolutions of the problem of the Civil-Syariah courts relation are in the abolishment of the dual Court system and the integration of both courts at Superior Courts. This, the present author held, is only postponing the problem a step backward. By having “two systems in one system”, Mohd. Iman is complicating the issue further without solving the problems at hand. If his suggestions were implemented, it would be even more confusing than before as now, both courts have equal status and the judges are of same ranking. All the problems identified by Mohd. Iman in the present system will still prevail, and very probably, at a greater degree.

 

In place of Mohd. Iman’s resolutions, this author would like to proposed the following be done to reform and mend the present system:

1)       A correct reading and clearer explanation of the Federal Constitution. Semantic changes should be made to obscure clauses in light of the clear texts and the object of the clause so as to provide a greater understanding of these provisions

2)       A consistent Fatwa-Syariah pronouncement. The fiqh experts and the ulama should clear the confusion of certain issues in Islam such as murtad for the sake of the Muslims and non-Muslims alike. Also there should be at least a greater degree of coherence between the fatwa of every states

3)       The dichotomy of Civil-Syariah Courts’ jurisdiction should continue to be uphold. And Article 121(1A) should be read in the light of Mohd. Habibulah ( per cur. Harun Hashim SCJ )

4)       The conflict of the Civil-Syariah Courts’ jurisdiction should be resolved in the light of the ratio of Mohd. Eusoff Chin CJ, i.e. Syariah Courts handle only matters that are undisputedly Islamic and involves both parties professing the religion of Islam.

5)       An unbiased examination of the status of Malaysia as an Islamic State. This is to determine what is the highest law ( Federal Constitution or Syariah ) and which is the highest court ( Civil or Syariah )

 

 

 

The End

 

 

 

 



[1] Mutalib, Hussin, Islam in Malaysia: From Revivalism To Islamic State?, Singapore: Singapore University Press, p 59.                                            

[2] Mahayudin Hj. Yahaya, Tamadun Islam,Edisi Ke-2,Fajar Bakti, 2001, p105-110

[3] Soon Singh a/l Bikar Singh v. Pertubuhan Kebajikan Islam, Malaysia (PERKIM), [1994] 1 AMR 923

[4] Lingam a/l Sundarajoo v. Majlis Agama Negeri Kedah Darulaman, [1994] 1 AMR 851

[5] This is by virtue of s4 of the Courts of Judicature Act, 1964 (A91)

In the event of inconsistency or conflict between this Act and any other written law other than the constitution in force at the commencement of this Act, the provisions of this Act shall prevail’.

Mohd. Iman argued that this section must either be declared ultra vires or read in such way that it will not confer upon the Civil courts to act on matter relating to the item (1) of List II of Federal Constitution

[6] Clause (1) provides for the establishment of two High Courts and other inferior courts

[7] Min Aun Wu, The Malaysian Legal System, Second Edition, Longman, 2002, p32

[8] . Mohamed  Habibullah bin Mahmood v. Faridah bte Dato  Talib,[1992] 2 MLJ p800

[9] The Federal Constitution, Article 121

(2) There shall be a court which shall be known as the Mahkamah Persekutuan (Federal Court) and shall have its principal registry in Kuala Lumpur, and the Federal Court shall have the following jurisdiction, that is to say:

(b)    such original or consultative jurisdiction as is specified in Articles 128 and 130; and

[10] Article 128

(1)          The Federal Court shall, to the exclusion of any other court, have jurisdiction of any other court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jurisdiction

(a)    any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws; and

(b)    disputes on any other question between States or between the Federation and any State.

(2)          without prejudice to any appellate jurisdiction of the Federal Court, where in any proceedings before any provision of this Constitution, the FederalCourt shall have jurisdiction (subject to any rules of court regulating the exercise of that jurisdiction) to determine the question and remit the case to other court to be disposed of in accordance with the determination.

[11] This method is modified from the contextual approach advocated by English and American legal scholars. Ref. Slapper Gary, The English Legal System and Holland A. James & Webb S. Julian, Learning Legal Rules

[12] S4 of the COJ states, “In the event of inconsistency or conflict between this Act and any other written law other than the constitution in force at the commencement of this Act, the provisions of this Act shall prevail

[13] Shaik Zolkaffily bin Shaik Natar v Majlis Agama Islam Pulau Pinang [1997] 3 MLJ 281 at p293

[14] Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor [1999] 2 AMR

[15] For the clause only subject the “courts referred to in Clause (1)” to this injunction

[16] The Federal Constitution, Article 8 (1) “All persons are equal before the law and entitled to the equal protection of the law”

[17] Enactments 5/91, 8/82, 3/15,4/92, 3/92, 4/93

[18] The learned Mohd. Eusoff Chin CJ stated, “we have come to the conclusion that the expression ‘jurisdiction of the Syariah Courts’ refers to ‘the exclusive jurisdiction’ of those courts. In other words if a person professing the religion of Islam does a proscribed act which is an offence both under the Penal Code and Act, then the courts referred to in Article 121(1) will have jurisdiction to try such an offence. It is only in respect of offences under the Act that a Syariah Court may have exclusive jurisdiction.”

 

[19] In re Shaik Zolkaffily, “Jurisdiction to the Syariah Court is given by state laws, or for the Federal Territories by an Act of Parliament, over any matter in the State List under the Ninth Schedule of the Federal Constitution.”

An example of this kind of provision in State law is s48 of the Penang Enactment in particularly Clause (1)

[20] See also Ng Wan Chan v Majlis Ugama Islam Wilayah Persekutuan & Anor ( No 2) [1991] 3 MLJ 487

[21] These State Enactments as with most of the other States clearly state that the actions of the Syariah Courts are restricted to when all parties in disputed are Muslims. Also the Syariah Courts ( Criminal Jurisdiction ) Act 1965 s. 2 “ The Syariah Courts…invested with jurisdiction over persons professing the religion of Islam”

[22] He used very strong wordings when saying, “The confining of Syariah Courts’ jurisdiction to only the Muslims is hangover of the legacy of the colonial past rooted in the distrust of the Syariah Courts’ competence and the adequacy of their Court procedures and practices”

[23] In fact a Malay is defined as “a person who professes the religion of Islam” in Article 160(2) of the Federal Constitution

[24] Facts are taken from

a)       Kassim Ahmad, A Short Note On the Medina Charter ( Online Article ), http://www.19org/english/articles /kassim2.htm

b)       Non-Muslim Minority under the Islamic Shari’ah , ( Online Article at Khilafah al-Alam al-Islami ), http://islamic-world.net/Islamic-state/non-muslim.htm

c)       Yusuf al-Qaradawi, The Lawful and The Prohibited in Islam, trans. Kamal El-Helbawy, M.Moinuddin, Syed Shukry

[25] Hadith as Reported by Abu Daoud

[26] Article 3(1), Federal Constitution

[27] Chee Omar Che Soh v PP [1976] 2 MLJ 112 ( per cur. Salleh Abbas LP )

[28] Tunku Abdul Rahman affirmed the constitutional position of Islam saying “I would like to make it clear that this country is not an Islamic state as it is generally understood, we merely provided that Islam shall be the official religion of the State”, Min Aun Wu, The Malaysian Legal System, 2nd Edition, Longman, 2002, p156 quoting

[29] Seminar Perundangan Islam Peringkat Kebangsaan, August 1981

[30] Mohd Habibullah, for citation refer footnote 8.