MALAYSIAN LEGAL SYSTEM Sources of law - administration of islamic law in malaysia

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ADMINISTRATION OF ISLAMIC LAW IN MALAYSIA

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Transcript of MALAYSIAN LEGAL SYSTEM Sources of law - administration of islamic law in malaysia

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ADMINISTRATION OF ISLAMIC LAW IN MALAYSIA

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Jurisdiction of Syariah Courts

Administration of Islamic Law (Federal Territories) Act 1993

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Administration of Islamic Law (Federal Territories) Act 1993

S 46Syariah High Court-Criminal Jurisdiction-Civil Jurisdiction

S 47Syariah Subordinate Court-Criminal Jurisdiction-Civil Jurisdiction

S 52Syariah Appeal Court

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Syariah High Court Criminal Jurisdiction Civil Jurisdiction

Syariah Subordinate Court Criminal Jurisdiction Civil Jurisdiction

Syariah Appeal Court

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Syariah High CourtCriminal Jurisdiction S 46(2)(a)

any offence committed by a Muslim and punishable under the Enactment or the Islamic Family Law (Federal Territories) Act 1984 [Act 303], or under any other written law prescribing offences against precepts of the religion of Islam for the time being in force, and may impose any punishment provided therefor.

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Syariah High CourtCivil Jurisdiction S 46(2)(b) all actions and proceedings in which all the parties

are Muslims and which relate to— (i) betrothal, marriage, ruju’, divorce, nullity of

marriage (fasakh), nusyuz, or judicial separation (faraq) or

other matters relating to the relationship between husband and wife;

(ii) any disposition of, or claim to, property arising out of any of the matters set out in subparagraph (i);

(iii) the maintenance of dependants, legitimacy, or guardianship or custody (hadhanah) of infants;

(iv) the division of, or claims to, harta sepencarian;

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(v) wills or death-bed gifts (marad-al-maut) of a deceased Muslim;

(vi) gifts inter vivos, or settlements made without adequate consideration in money or money’s worth, by a Muslim;

(vii) wakaf or nazr; (viii) division and inheritance of testate or intestate

property; (ix) he determination of the persons entitled to share

in the estate of a deceased Muslim or of the shares to which such persons are respectively entitled; or

(x) other matters in respect of which jurisdiction is conferred by any written law.

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Syariah Subordinate CourtCriminal Jurisdiction S 47(2)(a) any offence committed by a Muslim

under the Enactment or any other written law prescribing offences against precepts of the religion of Islam for which the maximum punishment provided by the Enactment or such written law does not exceed two thousand ringgit or imprisonment for a term of one year or to both, and may impose any punishment provided therefor.

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Syariah Subordinate CourtCivil Jurisdiction S 47(2)(b) hear and determine all such actions

and proceedings as the Syariah High Court is authorized to hear and determine in which the amount or value of the subject-matter in dispute does not exceed fifty thousand ringgit...

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Syariah Appeal Court - Section 52(1) The Syariah Appeal Court shall have

jurisdiction to hear and determine any appeal against any decision made by the Syariah High Court in the exercise of its original jurisdiction.

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Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988) The Syariah Courts duly constituted under

any law in a State and invested with jurisdiction over persons professing the religion of Islam and in respect of any of the matters enumerated in List II of the State List of the Ninth Schedule to the Federal Constitution are hereby conferred jurisdiction in respect of offences against precepts of the religion of Islam by persons professing that religion which may be prescribed under any written law: 

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Provided that such jurisdiction shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding five thousand ringgit or with whipping exceeding six strokes or with any combination thereof.

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Examples of offences under Syariah Courts criminal jurisdictionWith reference to Syariah Criminal Offences (Federal Territories) Act 1997

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S 19 Consumption of intoxicants Consumption of intoxicants Fine not exceeding RM 3000 or to

imprisonment for a term not exceeding two years or both.

Islam: All schools of though hold that punishment for consumption of intoxicants is a hadd crime, punishable with 80 lashes

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S 23(1) Zina

“sexual intercourse with a woman who is not his lawful wife…”

Fine not exceeding RM 5000 or to imprisonment for a term not exceeding three years or to whipping not exceeding 6 strokes or to any combination thereof.

Islam: punishment for fornication is 100 lashes, for adultery is stoning to death.

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S 41 Qazf

Accusation of zina Fine not exceeding RM 5000 or

imprisonment for a term not exceeding three years or both.

Islam: flogging with 80 stripes, and reject their evidence ever after.

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Article 121 (1A) Federal Constitution

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Article 121: Judicial power of the Federation(1) There shall be two high Courts of co-ordinate jurisdiction and status, namely— (a) one in the States of Malaya, which shall be known as the high Court in Malaya and shall have its principal registry at such place in the States of Malaya as the YDPA may determine; and (b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the YDPA may determine; (c) (Repealed),and such inferior courts as may be provided by federal law; and the high Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.

(1A) The courts referred to in clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

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Clause (1A) of Article 121 Came into effect on 10 June 1988.

To prevent civil courts from overruling the decisions of Syariah courts or giving decisions that are contrary to Syariah courts’ decisions.

To raise the status and protect the integrity of the Syariah courts that apply Islamic law.

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Confers exclusive jurisdiction to the Syariah courts to adjudicate on any matter that has been lawfully vested by the law within the jurisdiction of the Syariah courts.

It has taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the Syariah courts.

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The “subject matter” approach If the legislature 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.

Determine jurisdiction by taking the “subject matter” approach and not the “remedy prayed for” approach.

MAJLIS UGAMA ISLAM PULAU PINANG DAN SEBERANG PERAI v SHAIK ZOLKAFFILY BIN SHAIK NATAR [2003] 3 MLJ 705

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Therefore, to determine whether Syariah court has jurisdiction, just look into the State enactments and see whether there is an enactment that confers jurisdiction to the Syariah court on any given matter.

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Exception -- Apostacy

Exception: conversion out of Islam (Apostacy)

Although not conferred by state enactments, it still falls within the exclusive jurisdiction of the Syariah courts.

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SOON SINGH A/L BIKAR SINGH v PERTUBUHAN KEBAJIKAN ISLAM MALAYSIA (PERKIM) KEDAH  The appellant — who was brought up as a Sikh —

converted to Islam without the knowledge and consent of his widowed mother while he was still a minor. Upon reaching 21 years of age, he went through a baptism ceremony into the Sikh faith, thereby renouncing Islam. He then executed a deed poll in which he declared unequivocally that he was a Sikh.

Subsequently, sought a declaration from the KL High Court that he was no longer a Muslim.

Jabatan Agama Islam Kedah contended that the High Court had no jurisdiction as the matter came under the jurisdiction of the Syariah courts.

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The jurisdiction of the syariah courts to deal with conversions out of Islam, although not expressly provided for in some State Enactments, can be read into those enactments by implication derived from the provisions concerning conversion into Islam.

It is inevitable that since matters on conversion to Islam come under the jurisdiction of the syariah courts, by implication, conversion out of Islam should also fall under the jurisdiction of the same courts.

Thus, the appellant's application for a declaration that he was no longer a Muslim came within the jurisdiction of the syariah court and not that of the High Court .