Malaysia: The Syariah Court: Its Position Under The Malaysian Legal System

It has been said that Islamic law and the civil law exist as parallel systems in Malaysia. The proposition, while attractive, is grossly inaccurate in law. As it stands today, the administration of Islamic law is confined to personal law for Muslims and the Syariah court is subordinate to the courts established by the Federal Constitution and under federal law, as this article will show.

The Syariah court has in recent years become a prominent subject in public discussion, not least of all with the constitutional provision that "Islam is the religion of the Federation".1

It is vital that the history of how religion came to be inserted in the Federal Constitution be first examined, objectively and dispassionately, given that the subject is fraught with difficulty.

Federation of Malaya

The Federal Constitution has its roots in the Federation of Malaya Agreement 1948 ("the FMA 1948") which established a federation known as the Federation of Malaya or Persekutuan Tanah Melayu comprising the nine Malay states2 and the Settlements3 of Penang and Malacca.4 It was envisaged that the Federation, while remaining under British rule for the time being, would progress towards eventual self-government.5

Historically, British rule in the Malay States eschewed interference with the powers of the Malay Rulers on matters relating to Islam and Malay customs. This position was maintained in the FMA 1948,6 with a proviso that federal legislation could be made for enabling the courts to ascertain Islamic law or Malay customs concerning matters brought before them for adjudication.7

As for legislation, each Malay State had the power to pass laws on Islam and Malay customs to the extent not repugnant to any law passed by the legislative council of the Federation.8 This distribution of legislative powers between the Federation and the Malay States remains unchanged to this day. Islam as the religion of the Federation was to come later.

The Reid Commission

In 1956, as one of the final steps taken in the direction of self-government for the Federation, an independent commission headed by Lord Reid9 was appointed by the British Crown and the Conference of Rulers to make recommendations for a constitution for an independent Federation of Malaya.

The draft constitution and the report submitted by the Reid Commission was passed with amendments and approved by the Federal Legislative Council in July 1957.

In the course of the deliberations of the Reid Commission, the then-dominant political party called the Alliance submitted a proposal that Islam be made the official religion.10

The Reid Commission decided to not make any provision for an official religion, preferring to maintain the status quo by retaining religion as a State matter11 as they were concerned over the apparent contradiction between the Alliance declaration that Malaya would be a secular state and the proposed provision for Islam to be the official religion of the Federation.12

This omission led to the formation of a Working Party comprising representatives of the British Government, the Malay Rulers and the Alliance coalition to review the Reid Report.13 Tunku Abdul Rahman argued strongly for an article declaring Islam as the official religion of the Federation.14 The component parties in the Alliance agreed that the proposed provisions should include two provisos — first, that it would not affect the position of the Rulers as head of religion in their respective States, and second, that the practice and propagation of other religions in the Federation would be assured under the Constitution.15

Justice Sheik Abdul Hamid, the member of the Reid Commission from Pakistan who initially agreed with the other members to omit any provision for an official religion in the draft constitution, later proposed in his Notes of Dissent that the Alliance proposal be adopted as it was "innocuous", pointing out that at least 15 other countries had similar provisions in their constitutions.16

The Federation of Malaya government, in a White Paper published in 1957, explaining the changes to the recommendations of the Reid Commission, stated:

"There has been included in the proposed Federation Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular State, and every person will have the right to profess and practise his own religion and the right to propagate his religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion."17

In the event, an express provision was made in Article 3(1), the terms of which have remained unchanged since:

"Islam is the religion of the Federation but other religions may be practised in peace and harmony in any part of the Federation."

The Malay States and the Settlements comprised in the Federation of Malaya became independent as from 31 August 1957 by virtue of the Federation of Malaya Agreement 1957, given force of law by the Federal Constitution Ordinance 1957.18

That the Federation was to be a secular nation was reiterated by Tunku Abdul Rahman in a speech before the legislative council:

"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."19

Malaysia

Prior to the formation of Malaysia, a commission of inquiry chaired by Lord Cobbold20 was appointed to ascertain the views of the people of North Borneo and Sarawak, and upon assessment of those views, to make recommendations on the inclusion of North Borneo and Sarawak in the proposed Federation of Malaysia and issued a report in 1962.21 Although the British member of the Cobbold Commission recommended that the Federal provision on religion should not be extended to Borneo territories which have a non-Muslim majority, the Malayan members recommended22 otherwise:

"... we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no way jeopardises freedom of religion in the Federation, which in effect would be secular."

In 1963, the Federal Constitution was amended upon the admission of Singapore and the North Borneo states of Sabah and Sarawak to the Federation.23

Article 3 of the Federal Constitution remained unchanged.

Public and private aspects of Islam in Malaysia

In 1988, a full bench of five in the Supreme Court (as the Federal Court was then known) had occasion to consider Article 3 in an appeal against a mandatory death sentence for drug trafficking and possession of firearms. It was contended on behalf of the accused that Islam being the religion of the Federation, as declared in the Federal Constitution, and the Federal Constitution being the supreme law of the Federation, the imposition of the death penalty was unconstitutional, being contrary to Islamic injunction.24

Although the Supreme Court acknowledged that Islam was not just a mere collection of dogmas and rituals but a complete way of life covering all fields of human activities, be they private or public, legal, political, economic, social, cultural, moral or judicial,25 it held that this was not the meaning intended by the framers of the Constitution. So far as Islam was concerned, the result of the development of law by the British in Malaya had the effect of turning the legal system into a secular institution. Thus, all laws, including the administration of Islamic law, had to be validated through a secular fiat.26

The court also observed that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in the narrow confines of the law of marriage, divorce and inheritance — the sphere of personal law. This private aspect of Islamic law is only applicable to Muslims as their personal law.27

Islam being the religion of the Federation did not mean that laws passed by Parliament must be imbued with Islamic religious principles; nor did the existence of Syariah law prior to independence require that laws of general application must conform to the Syariah, for to hold otherwise would be contrary to the constitutional and legal history of the Federation and also to the Civil Law Act 1956, which provides for the reception of English common law in this country.28

It is in this sense of the dichotomy that the framers of the Constitution understood the meaning of the word "Islam" in the context of Article 3. Religion being often described as a sensitive matter in Malaysia, the concluding words of Salleh Abbas LP are noteworthy:

"... we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law."29

Jurisdictional controversies

This dichotomy between the public and private aspects of Islamic law, when ignored, has given rise to difficulties.

In recent years, the bitter custody and child's religious rights battles in Subashini Rajasingam,30 Indira Gandhi31 and Deepa Subramaniam32 sparked new conflicts between the Syariah court and the civil court. In these three cases, all involving Hindu married couples with children, the husband had converted to Islam, taken the children away from their mothers and in two cases, converted the children also to Islam. Controversy also arose when State religious authorities and the Syariah court purported to subject the non-Muslim spouse to the jurisdiction of the Syariah court, although state Syariah laws clearly provided that the Syariah court had jurisdiction only over Muslims. Another issue was the reluctance of the police to act on the complaints made by the non-Muslim spouse.

In the now infamous Borders case,33 in 2012, officers of JAWI,34 accompanied by the media, raided the Borders Bookstore at The Gardens, Mid Valley City in Kuala Lumpur. During the raid, the JAWI officers seized several books by international author Irshad Manji, titled Allah, Kebebasan dan Cinta, a Malay translation of Allah, Liberty and Love which was also seized, on the grounds that the books were prohibited.35

At the material time, the publications were, in fact, not subject to any prohibition order by the Minister of Home Affairs. The JAWI officers proceeded to examine the Muslim and non-Muslim employees of Borders, and issued orders compelling them to be subject to further investigation and examination.

The next day, a similar raid was conducted at another Borders store. Notwithstanding the full co-operation given by Borders and its employees, the JAWI officers arrested one Nik Raina Nik Abdul Aziz, who was the store manager, and charged her for disseminating or distributing publications deemed contrary to Islamic law.

Both the High Court36 and the Court of Appeal37 held that the act of enforcement by JAWI was unlawful and illegal, primarily on the grounds that the books were in fact not subject to any prohibition order at the material time. The Court of Appeal was of the view that any law, be it Federal or State, that breached the Federal Constitution must be struck down and any Federal or any State Government and its agencies that apply the law wrongfully must be corrected.38

In June 2014, enforcement officers of JHEAINS39 arrested 17 people at a wedding reception. Those arrested were transgender persons, nicknamed mak andam, present at the wedding in service as wedding planners and beauticians. They were charged for cross-dressing against the Syariah law in Negeri Sembilan.40

These mak andam applied to the High Court for judicial review, which was refused. In the Court of Appeal,41 it was declared that the Negeri Sembilan Islamic religious enactment barring cross-dressing was contrary to the Federal Constitution.42

The Director-General of JAKIM43 publicly criticised the Court of Appeal for interfering with the administration of lslamic law by the Syariah court in contravention of Article 121(1A) of the Federal Constitution. The Minister for Religious Affairs then issued a statement to the effect that the Government was planning to establish a Syariah Federal Court in order to prevent any further interference by the civil court.44 This reignited the debate whether Malaysia had a dual legal system of civil law and Syariah law.

By far, the most divisive of these controversial cases have been the ban on the use of "Allah" by non-Muslims including the ruling that the weekly Herald Malaysia newspaper of the Roman Catholic Church could not refer to God in that way in its Malay-language edition;45 the seizure of an Indonesian publication that used "Allah" for Sunday school materials,46 and the seizure of 300 copies of the Bible in Bahasa Melayu and Bahasa Iban that contained the word.47 The High Court in the Herald case held that the church had a constitutional right to use "Allah",48 a decision that was set aside by the Court of Appeal.49 Unfortunately, the constitutionality of the prohibition remains unclear as the Federal Court refused leave to appeal.50

The jurisdictional controversies referred to above remain unsettled as these circumscriptions on the legislative power of the State and the jurisdiction of the Syariah court have yet to be closely examined before the courts. It is moot that some of the actions taken by the religious authorities and the orders issued by the Syariah court in the above cases may have exceeded their power and jurisdiction.

The Syariah court

Unlike the High Court which is established by the Federal Constitution, the Syariah court is a creature of State law.51 Article 74 of the Federal Constitution, read together with the State List,52 prescribes that Islamic law and Islamic matters — including the establishment of Syariah courts — fall under the jurisdiction of the State. According to the State List, the legislative power of the State assembly to legislate on Islamic law and Malay customs is confined to 26 matters:

  1. Succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts;
  2. Wakafs and the definition and regulation of charitable and religious 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;
  3. Malay customs;
  4. Zakat, Fitrah and Baitulmal or similar Islamic religious revenue;
  5. Mosques or any Islamic public places of worship;
  6. Creation and punishment of offences by persons professing the religion of Islam against precepts of that religion; and
  7. Constitution, organisation and procedure of the Syariah courts.

The State List stipulates that the Syariah court is to have jurisdiction only over persons professing the religion of Islam and in respect only of the above matters. It is also provided that the Syariah court shall not have any jurisdiction in respect of offences unless conferred by federal law.

Jurisdiction cannot be implied

It is a common misconception that once established, a Syariah court has, ipso facto, jurisdiction over all matters relating to Islamic law and Malay customs set out in the State List.

In a case where a widow sought a declaration that her deceased husband was a Buddhist during his lifetime and at the time of his death,53 the High Court held that the jurisdiction of the Syariah court cannot be derived by implication and that if State law did not confer jurisdiction to deal with a particular matter in the State List, the Syariah court would be precluded from dealing with that matter.54 As State law did not confer jurisdiction to determine the issue whether a person is a Muslim or not at the time of his death, the High Court was not precluded from hearing and determining that issue.55

Similarly, in a dispute over wakaf land,56 it was held that when there is a challenge to the jurisdiction of the High Court, the test was not whether the court had jurisdiction but whether jurisdiction had been conferred on the Syariah court. Only if such jurisdiction were conferred on the Syariah court would the High Court be precluded from considering the matter before it.57

However, there is dicta to the contrary in Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah & Anor,58 a case before the Federal Court, that the jurisdiction of the Syariah court to deal with the issue conversion out of Islam, although not expressly provided in State law, could be implied from the express provisions conferring jurisdiction on the issue of conversion into Islam.59 The Syariah court in that case had held that the deceased convert had not renounced the religion of Islam and therefore was a Muslim at the time of his death.

The rationale of the Federal Court appears to be as follows:

"As in the case of conversion to Islam, certain requirements must be complied with under hukum syarak for a conversion out of Islam to be valid, which only the Syariah courts are the experts and appropriate to adjudicate. In short, it does seem 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."60

The Federal Court was much persuaded by statements in the authorities61 that the question of conversion out of Islam involves issues requiring substantial consideration of the Islamic law by relevant jurists qualified to do so and that therefore the only forum to qualified to do so is the Syariah court.62

It is submitted that although the fact that the determination of a Muslim's conversion out of Islam may involve inquiry into the issue of renunciation of Islam under Islamic law, it did not follow that it would be "inevitable" that the Syariah court should have jurisdiction.63

With the greatest respect, the Federal Court decision also appears to contradict two authorities cited in the judgment:

"... express and unambiguous language appears to be absolutely indispensable in statutes passed for the following purposes: imposing tax; conferring or taking away legal rights; excepting from the operation of or altering clear principles of law; altering the jurisdiction of courts of law64... 'the general rule undoubtedly is, that the jurisdiction of the superior courts is not taken away, except by express words or necessary implication'."65

Unfortunately, Soon Singh was not discussed, but by implication not followed, in Latifah Mat Zain,66 where the Federal Court held that:

"What it means is that, the Legislature of a State, in making law to 'constitute' and 'organize' the Syariah courts shall also provide for the jurisdictions of such courts within the limits allowed by item 1 of the State List, for example, it is limited only to persons professing the religion of Islam. The use of the word 'any' between the words 'in respect only of' and 'of the matters' means that the State Legislature may choose one or some or all of the matters allowed therein to be included within the jurisdiction of the Syariah courts. It can never be that once the Syariah courts are established the courts are seized with jurisdiction over all the matters mentioned in item 1 automatically. It has to be provided for."67

The Syariah court an inferior court

Unlike the High Court, the Court of Appeal and the Federal Court, which are established by the Federal Constitution,68 the Syariah court has been equated to the Sessions Court and Magistrates' Court which, in the Federal Constitution, are called inferior courts.69 The Syariah courts are mere "State courts" and do not enjoy the same status and powers as the High Court.70

It follows that the High Court has supervisory powers over the Syariah court just as it has supervisory powers over other inferior tribunals, such as the Industrial Court.71

Quite clearly, the Syariah court cannot be considered any greater than the inferior courts.72

  1. The Sessions Courts and Magistrates' Courts are established by the Subordinate Courts Act 1948, which is a federal law, whereas the Syariah court is established by State law, Article 121(1A) notwithstanding;
  2. In exercising its criminal jurisidiction,73 the Magistrates' Court can impose a sentence of an imprisonment up to 5 years, a maximum fine of RM10,000 and whipping up to twelve strokes, or a combination thereof, the so-called "5:10:12 Rule"; and
  3. the Syariah court in its criminal jurisdiction is subject to limits imposed by Federal law74 of a maximum sentence of three years imprisonment, maximum fine of RM5,000 and whipping up to six strokes, the so-called "3:5:6 Rule".

It is therefore clear that under no circumstances can the Syariah court be considered equivalent to the High Court. It follows in principle that, where there is an issue of competing jurisdiction between the High Court and the Syariah court, the proceedings before the High Court must take precedence over the Syariah court.75

No exclusive jurisdiction on Islamic law

It is also inaccurate to hold that the Syariah court has exclusive jurisdiction on all matters related to Islamic law. Given that the Syariah court is a creature of State law, it has no power of interpretation on any matter which is the province of the High Court and the subordinate courts, including issues on the interpretation of federal law and State law.76

In 2008, one Abdul Kahar77 was charged in the the Syariah court for several offences for deviant teaching contrary to a State Enactment.78 He challenged the constitutionality of the State Enactment on the grounds that the subject matter of the offences fell outside the term "precepts of Islam" in the State List circumscribing the legislative power of the State. The issue then arose as to whether the Syariah court had jurisdiction to enter upon the interpretation of the term "precepts of Islam" and thereby determine whether the provisions in the State Enactment creating the offences were in accordance with the provisions of the Federal Constitution.79

The Federal Court held that the Syariah court had no such power and that State law could not possibly confer such power because:

  1. the ascertainment of Islamic law and other personal laws for purposes of federal law is a federal matter;80
  2. any question whether a law made by a State is within the power of a state;81 and the interpretation of the Federal Constitution is a matter for the High Court.82

In 2012, one Siti Hasnah applied to the High Court to declare her conversion to Islam when she was a year old to be invalid. The Court of Appeal held that the jurisdiction of the civil court was not ousted merely because the subject matter of a claim or complaint has an Islamic law element in it.83

No overlapping jurisdiction

Another common misunderstanding is that the Syariah court is a parallel system established under Article 121(1A) of the Federal Constitution.

Article 121 establishes the High Court, the Court of Appeal and the Federal Court and recognised such inferior courts as may be prescribed by law. Article 121(1A), however, merely excludes the jurisdiction of the High Court in respect of any matter within the jurisdiction of the Syariah court.

Quite clearly, Article 121(1A) neither establishes nor confers jurisdiction on the Syariah court.84 It is only when some jurisdiction is expressly conferred by State law on the Syariah court that Article 121(1A) would apply to exclude the jurisidiction of the High Court and the subordinate courts on that matter.

It has been stated above that the Syariah court can only have jurisdiction if expressly conferred by State law within the constraints of the Islamic law matters mentioned in the State List.

In the absence of jurisdiction being conferred on the Syariah court in respect of any matter, such matter would fall within the jurisdiction of the High Court and the subordinate courts, unfettered by the operation of Article 121(1A).85

In any case, Article 121(1A) does not take away the jurisdiction of the High Court to interpret any State law enacted for the administration of Islamic law,86 such jurisdiction being outside the scope of State law, although concerning Islamic law.

Article 121(1A) was introduced to prevent conflict of jurisdiction between the civil court and the Syariah court.87

If federal laws and State laws are made in strict compliance with the Federal List and State List, there should not be a situation where both the civil court and the Syariah court have jurisdiction over the same matter or issue.88

If an issue were to arise on whether State law infringes on the Federal List, Article 121(1A) cannot be an argument for ousting the jurisdiction of the civil court.89 In such a situation the question to be asked is whether such State law is constitutional in the first place, which is a matter for the Federal Court to decide.90

Although there may be distinct issues falling within the jurisdiction of the civil court and the Syariah court at the same time as in Latifah Mat Zain,91 it does not follow that there is an overlapping jurisdiction or assisting jurisdiction between the two nor are they considered double proceedings.92

Conclusion

Quite clearly, the idea of a "dual" legal system in Malaysia of civil law and Syariah law is misconceived. Syariah law is only applicable to Muslims and only as personal law, with provision for certain offences against the precepts of Islam. Nothing in the Federal Constitution suggests that the Syariah court is to compete with or be parallel to the civil court on the same subject matter, and this is supported by judicial authority.

This issue is of vital importance to the peoples of Malaysia, with their multicultural, multi-ethnic and multi-religious history.

The nation called "Malaysia" has no existence outside of the Federal Constitution, which is the supreme law of the country. A united and functional Malaysia can only exist when legal issues are determined in accordance with principle, in well-reasoned judgments by the courts, with a willingness to grapple with difficult issues without glossing over or avoidance or oversimplification or a giving way to sentiment.

The authorities reviewed in this article have in the main avoided these dangers and provided guidance and a path to the future, although with some anomalies that need in due course to be resolved.

Footnotes

1 Article 3, Federal Constitution

2 The Federated Malay States of Selangor, Pahang, Perak and Negeri Sembilan and the States of Perlis, Kedah, Kelantan, Terengganu and Johor

3 Previously part of the Straits Settlements

4 Clause 3, Federation of Malaya Agreement 1948 ("FMA 1948")

5 Recital, FMA 1948

6 Clause 5, FMA 1948

7 Proviso, Clause 5, FMA 1948

8 Clause 100, FMA 1948

9 Hence, the Reid Commission

10 Joseph M Fernando, The Making of the Malayan Constitution (MBRAS, 2002) [Fernando] at 129

11 Citing the request of the Rulers to retain religion as a State matter on the grounds that the provision would infringe their position as the head of the Muslim religion in their respective States; Fernando, supra n 10

12 Fernando, supra n 10

13 Ibid, at 149

14 Ibid, at 161

15 Ibid, at 162

16 Supra, n 10 at 130

17 Ibid, at 163

18 FM Ordinance No 55 of 1957

19 Tunku Abdul Rahman (Hansard, 1 May 1957)

20 Hence, the Cobbold Commission

21 Report of the Commission of Inquiry, North Borneo and Sarawak

22 Ibid, at 53-54; Or see (http://en.wikisource.org/wiki/Report_of_the_Commission_of_Enquiry,_North_Borneo_and_Sarawak,_1962/CHAPTER_4/general_matters

23 Malaysia Act (Act No 26 of 1963)

24 Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55

25 Ibid, at 56C

26 Ibid, at 56C-D

27 Ibid, at 56E

28 Supra, n 24 at 56A-C

29 Ibid, at 57E-F

30 Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147

31 Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2013] 5 MLJ 552; Ketua Polis Negara v Indira Gandhi a/p Mutho [2015] 2 MLJ 149 (CA)

32 Viran Nagapan v Deepa Subramaniam [2015] 3 CLJ 537 (CA)

33 Berjaya Books Sdn Bhd v Jabatan Agama Islam Wilayah Persekutuan Wilayah Persekutuan & Ors [2014] 1 MLJ 138

34 Jabatan Agama Islam Wilayah Persekutuan (Department of Federal Territory Islamic Affairs)

35 By virtue of s 13 of the Syariah Criminal Offences (Federal Territories) Act 1997

36 Supra, n 33

37 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya Books Sdn Bhd & Ors [2015] 1 AMR 739

38 Ibid, at 761(53)

39 Jabatan Hal Ehwal Agama Islam Negeri Sembilan (Department of Negeri Sembilan Islamic Affairs)

40 Syariah Criminal (Negeri Sembilan) Enactment 1992, s 66

41 Muhamad Juzaili Mohd Khamis & Anor v State Government of Negeri Sembilan & Ors [2015] 1 AMR 673; [2015] 1 CLJ 954

42 Decided by Mohd Hishamudin Yunus, Aziah Ali and Lim Yee Lan JJCA

43 Jabatan Kemajuan Islam Malaysia (Department of Islamic Development Malaysia)

44 (http://www.themalaymailonline.com/malaysia/article/jakim-confirms-putrajayas-plan-for-shariah-equivalent-to-federal-court); (http://www.thestar.com.my/News/Nation/2014/11/15/civil-court-syariah-court-jakim/)

45 Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri & Ors [2014] 4 MLJ 765

46 Jerry WA Dusing @ Jerry W Patel & Anor v Menteri Keselamatan Dalam Negeri Malaysia & Anor [2015] 1 MLJ 675

47 (http://english.astroawani.com/malaysia-news/jais-returns-seized-bible-azmin-ali-48402)

48 Supra, n 45 at 782(12)

49 Ibid, at 782(18)

50 Supra, n 45

51 Article 74 (2) of the Federal Constitution

52 Read with the Ninth Schedule of the Federal Constitution, Item 1 of List II (State List)

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

54 Ibid, at 489C-F

55 Ibid, at 490D

56 Shaik Zolkaffily bin Shaik Natar & Ors v Majlis Agama Islam Pulau Pinang dan Seberang Perai [1997] 3 MLJ 281 (see also Barkath Ali bin Abu Backer v Anwar Kabir bin Abu Backer [1997] 4 MLJ 389)

57 Shaik Zolkaffily; supra, n 56 at 293F

58 [1999] 1 MLJ 489

59 Ibid, at 502A

60 Ibid, at 502G

61 Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1; Md Hakim Lee v Majlis Agama Islam Wilayah Persekutuan, Kuala Lumpur [1998] 1 MLJ 681

62 Dalip Kaur; supra, n 61 at 10A

63 Supra, n 58 at 502G

64 Ibid, at 502B

65 Ibid, at 502C

66 [2007] 5 MLJ 101

67 Ibid, at 116(43)

68 Article 121, Federal Constitution

69 Latifah Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 at 114G

70 Dato' Kadar Shah Tun Sulaiman v Datin Fauziah Haron [2008] 7 MLJ 779 at 785E

71 Ibid, at 785F

72 Article 121(1), Federal Constitution

73 Subordinate Courts Act 1948; s 87

74 Syariah Court (Criminal Jurisdiction) Act 1965, Act No. 355 (Rev – 1988); s 2

75 Supra, n 70; para 14 at 785

76 Zaina Abidin bin Hamid @ S Maniam & Ors v Kerajaan Malaysia & Ors [2009] 6 MLJ 863

77 Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor (Kerajaan Malaysia, intervener) & Anor [2008] 3 MLJ 617

78 Charged with five offences under various provisions of the Syariah Criminal Offences (Selangor) Enactment No 9 of 1995

79 Supra, n 75 at 622H-I

80 Ibid, at 623C

81 Ibid, at 623G

82 Ibid, at 622

83 Siti Hasnah Vangarama Abdullah v Tun Dr Mahathir Mohamad & Ors [2012] 7 CLJ 845 at 854(14)

84 Shaik Zolkaffily supra, n 56 at 293F

85 Ibid

86 Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 at 7F

87 Mohamed Habibullah bin Mahmood v Faridah Bte Dato Talib [1992] 2 MLJ 793 at 804A (see also Professor Ahmad Ibrahim, "The Amendment of art. 121 of the Federal Constitution: Its effect on the Administration of Islamic Law" [1989] 2 MLJ xvii; cited in Latifah Mat Zin, supra, n 69 at 117I

88 Latifah Mat Zin; supra, n 69 at 118C-E

89 Ibid, at 118F

90 Ibid, at 118G; Article 128 of the Federal Constitution

91 Supra, n 88

92 Ismail bin Mohamad v Wan Khairani bt Wan Mahmood and another appeal [2011] 1 MLJ 743 at 750G

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions