The judge made these remarks in a 54-page judgment in deciding whether the money in two joint accounts of Datuk Sharibun Wahab and Latifah Mat Zin was subject to the Islamic law hibah (gifts). Click here to download the Federal Court's Judgment)
Sitting Judges of the Federal Court on the Latifah Mat Zin's case:
Civil Courts vs Syariah Court
"... Once again the issue of conflict of jurisdiction of the civil and the syariah courts has come to forefront. This problem has arisen and has become more serious over the last two decades. Courts, the civil courts as well as the syariah courts have had to grapple with this problem.
While a judgment settles the case before the court, it creates other problems in subsequent cases.
Being one of the judges who had had to grapple with this problem since my High Court days and with the benefit of the many seminars and conferences that I have participated, I think I am now in a position to take a FRESH look at the problem in a BROADER perspective than the specific issue arising in the instant appeal.
Incidentally, it coincides with 50th year of independence and the Federal Constitution.
The Constitution recognized the necessity to establish syariah courts as STATE courts with jurisdiction over Muslims ONLY in, substantially, personal law matters.
Thus, in the Ninth Schedule, List II (State List) a provision is made, inter alia, for the creation of syariah courts. It must be emphasized that the Ninth Schedule is a SCHEDULE to the Constitution.The Ninth Schedule, as it says what it is, is a "Legislative List." The words "Legislative Lists" are clear enough. They mean what they say: the matters contained in the two lists are matters that Parliament and the Legislature of a STATE may make law with respect thereto, respectively.
Parliament may make law in relation to marriage and divorce, it is not permitted to make law on the same subject-matter affecting Muslims because it falls under paragraph (ii) as Islamic personal law relating to marriage and divorce.
The net effect is that marriage and divorce law of non-Muslims is a matter within the jurisdiction of Parliament to make, while marriage and divorce law of Muslims is a matter within the jurisdiction of the Legislature of a STATE to make.
Article 75 provides:
"75. If any STATE law is inconsistent with a FEDERAL law, the Federal law shall prevail and the State law shall, to the extent of the inconsistency, be VOID."
When it talks about "the constitution, organization and procedure of Syariah courts", what it means is that the Legislature of a State may make law to set up or constitute the syariah courts in the State. UNTIL such law is made such courts do NOT exist.
The position is different from the case of the civil High Courts, the Court of Appeal and the Federal Court. In the case of those civil courts, there is a whole Part in the Constitution (Part IX) with the title "the Judiciary".
So, the civil High Courts, the Court of Appeal and the Federal Court are established by the Constitution itself. But, that is NOT the case with the syariah courts.
A syariah court in a State is established or comes into being ONLY when the LEGISLATURE of the State makes law to establish it, pursuant to the powers given to it by item 1 of the State List.
In fact, the position of the syariah courts, in this respect, is similar to the Session Courts and the Magistrates’ Courts. In respect of the last two mentioned courts, which the Constitution call "inferior courts".
If for example, a question arises whether a particular provision of a law made by Parliament or the State Legislature is in contravention of the provisions of the Ninth Schedule, it is the Federal Court that has jurisdiction to decide.
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.
At the very least, the law should provide "and such courts shall have jurisdiction over all matters mentioned in item 1 of List II - State List of the Ninth Schedule."
IF there is NO requirement for such provision, then it would also not be necessary for the Legislature of a State to make law to "constitute" and "organize" the syariah courts.
Would there be Syariah courts WITHOUT such law? Obviously none.
That is why such law is made in every State e.g. Administration of Islamic Law Enactment 1989 (Selangor).
The point to note here is that both courts, civil and syariah, are creatures of statutes. Both owe their existence to statutes, the Federal Constitution, the Acts of Parliament and the State Enactments. Both get their jurisdictions from statutes i.e. Constitution, federal law or State law, as the case may be.
So, it is to the relevant statutes that they should look to determine whether they have jurisdiction or not. Even if the syariah court does not exist, the civil court will still have to look at the statutes to see whether it has jurisdiction over a matter or not.
Similarly, even if the civil court does not exist, the syariah court will still have to look at the statute to see whether it has jurisdiction over a matter or not.
Each court must determine for itself first whether it has jurisdiction over a particular matter in the first place, in the case of the syariah courts in the States, by referring to the relevant State laws and in the case of the syariah court in the Federal Territory, the relevant Federal laws. Just because the other court does not have jurisdiction over a matter does NOT mean that it has jurisdiction over it.
So, to take the example given earlier, if one of the parties is a non-Muslim, the syariah court does NOT have jurisdiction over the case, even if the subject matter falls within its jurisdiction.
On the other hand, just because one of the parties is a non-Muslim does not mean that the civil court has jurisdiction over the case if the subject matter is not within its jurisdiction. So, there may be cases over which neither court has jurisdiction. It may be said that it cannot be so.
In my view, it can be so, because either court obtains its jurisdiction from STATUTE , NOT from the fact that the other court does not have jurisdiction over the matter.
The problem is, everyone looks to the court to solve the problem of the Legislature.
Judges too, (including myself), unwittingly, took upon themselves the responsibility to solve the problem of the legislature because they believe that they have to decide the case before them one way or the other.
That, in my view, is a MISTAKE.
The function of the court is to apply the law, not make or to amend law not made by the Legislature.
Knowing the inadequacy of the law, it is for the Legislature to remedy it, by amendment or by making new law. It is NOT the court’s function to try to remedy it.
There are cases in which some of the issues fall within the jurisdiction of the civil court and there are also issues that fall within the jurisdiction of the syariah court.
This problem too will have to be tackled by the Legislature.
Neither court can assume jurisdiction over matters that it does not have just because it has jurisdiction over some of the matters arising therein. Neither court should give a final decision in a case only on issues within its jurisdiction.
Until the problem is solved by the Legislature, it appears that the only way out now is, if in a case in the civil court, an Islamic law issue arises, which is within the jurisdiction of the syariah court, the party raising the issue should file a case in the syariah court solely for the determination of that issue and the decision of the syariah court on that issue should then be applied by the civil court in the determination of the case. But, this is only possible if BOTH parties are Muslims.
If one of the parties is NOT a Muslim, such an application to the syariah court CANNOT be made.
If the non-Muslim party is the would-be Plaintiff, he is UNABLE even to commence proceedings in the syariah court.
If the non-Muslim party is the would-be defendant, he would NOT be able to appear to put up his defence. The problem persists.
Similarly, if in a case in the syariah court, a civil law issue e.g. land law or companies law arises, the party raising the issue should file a case in the civil court for the determination of that issue which decision should be applied by the syariah court in deciding the case.
Actually if laws are made by Parliament and the Legislatures of the States in strict compliance with the Federal List and the State List and unless the real issues are misunderstood, there should NOT be any situation where both courts have jurisdiction over the same matter or issue......"
