INTERACTION BETWEEN SYARIAH LAW AND CIVIL LAW

Introduction

1.

Islamic law has a place in the administration of justice and has been

applied by syariah courts and civil courts in Malaysia. The courts in discharging
its judicial functions have expounded Islamic law within the framework of the
Constitution and specific laws relating to Islam enacted by Parliament and state
legislature. Currently efforts are being made to enhance the status of the syariah
courts and specific laws relating to Islam have been enacted. Nevertheless there
is still uncertainty and controversy regarding the powers and jurisdiction of the
syariah courts. Civil courts in a number of cases continue to exercise jurisdiction
over matters relating to Islam which are within the jurisdiction of the syariah
courts. Against this scenario the title of this paper is without doubt an apt topic
for a discussion. The topic admittedly covers a broad range of relevant issues.
However this paper will focus only on three current issues namely the issues of
jurisdiction, disputes regarding conversion and legal position of non-Muslim
spouse of a Muslim convert by referring to judicial decisions and provisions of the
relevant legislation.

Constitutional Position

2.

The Federal Constitution assumes a federal character that provides for a

federal system in Malaysia.

The federal system establishes duality of

government consisting of a strong federal government at the centre and state

governments at the state level. The crucial element in this system is the division
of legislative and executive powers between the federal and state governments.

3.

Article 74 of the Federal Constitution defines the extent of the legislative

powers of the federal and state governments by referring to three lists, the
Federal List (List I), the State List (List II and List IIA) and the Concurrent List
(List III and List IIIA) which are set out at exhaustive length in the Ninth Schedule.

4.

The division of federal and state executive powers follows the division of

legislative powers.

In other words the executive authority of the federal

government extends to all matters where Parliament may make laws and the
executive authority of a state extends to all matters where the state legislature
may make laws (Article 80).

Jurisdiction Of Syariah Courts And Civil Courts

5.

The Federal Constitution has placed Islamic law and the constitution,

organization and procedure of syariah courts under the jurisdiction of the state
governments while civil and criminal law and procedures and the administration
of justice including the constitution and organization of civil courts under the
jurisdiction of the federal government (Item 1 of the State List and item 4 of the
Federal List).

6.

Accordingly since independence a parallel system of justice co-exists in

Malaysia with the syariah courts dealing with matters relating to Islam and having

jurisdiction only over persons professing the religion of Islam and civil courts
having jurisdiction on matters relating to civil and criminal law. However the two
court systems do not always enjoy an amicable relationship. Prior to 1988, the
syariah courts did not really have exclusive jurisdiction as the civil courts had
power to review and quite regularly reviewed, the decisions of the syariah courts
by certiorari which in the process had overturned the decisions of the syariah
courts (see MYRIAM v. ARIFF (1971) 1 MLJ 265 AND COMMISSIONER FOR
RELIGIOUS AFFAIRS, TERENGGANU & ORS v. TENGKU MARIAM (1969) 1
MLJ 110).

7.

The conflict between the decisions of the syariah courts and the civil

courts could perhaps be blamed on the provision of the state enactments on

matters relating to Islam which continued to accord predominant position to the
civil courts by preserving the jurisdiction of the civil courts and for its decision to
prevail over the decision of the syariah courts in the event of any difference or
conflict arising between their decisions (see subsection 45(b) of the Selangor
Administration of Muslim Law Act 1952, the Terengganu Enactment 4 of 1955
and the Kelantan Enactment 1 of 1953). To compound the problem the Courts of
Judicature Act 1964 confers a wide and general jurisdiction on the High Court to
try all offences and all civil proceedings. Further, section 4 thereof provides that
in the event of inconsistency or conflict between the provisions of 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. In the result the Act continues the
subordination of the syariah courts jurisdiction to the civil courts jurisdiction.

8.

In 1988, the Constitution (Amendment) Act 1988 [Act A704] was passed

by Parliament. Clause (1A) was added to Article 121 of the Federal Constitution
which provides that the civil courts shall have no jurisdiction with respect to
matters within the jurisdiction of the syariah courts. The amendment was made
in order to avoid the conflict between the decisions of the syariah courts and civil
courts, to give the syariah courts exclusive jurisdiction over matters relating to
Islamic law, to protect the integrity and enhance the status of the syariah courts
and to free the syariah courts from interference by the civil courts. In short the
amendment was to prevent the High Court from exercising its powers of judicial
review over decisions of the syariah court (SUKMA DERMAWAN SASMITAAT
MADJA v. KETUA PENGARAH PENJARA MALAYSIA (1999) 1 CLJ 481).

9.

However, Clause (1A) of Article 121 by itself does not confer jurisdiction

on the syariah courts. By virtue of item 1 of the State List of the Ninth Schedule
to the Federal Constitution the jurisdiction of the syariah courts has to come by
state legislation so far as it relates to syariah civil matters and creation and
punishment of offences and federal law so far as it relates to syariah criminal
jurisdiction over offences [Syariah Courts (Criminal Jurisdiction) Act 1965 (Act
355)]. But such jurisdiction can only be exercised by the syariah courts over
persons professing the religion of Islam and in respect only of any of the matters
included in item 1. It expressly excludes matters included in the Federal List.
Clearly the civil courts are denied of jurisdiction in syariah matters which come
within the state legislative competence only.

10.

It would appear that the amendment is clear-cut but in reality nothing is

clear cut. In fact, the very question whether a matter is within the jurisdiction of
the syariah courts can be a contested issue thus giving rise to the issue of
jurisdiction and casting doubt on the efficacy of the new Clause (1A) in ensuring
that the syariah courts enjoy exclusive jurisdiction over syariah matters.

11.

In SHAHAMIN FAIZUL KUNG v. ASMA BT HAJI JUNUS (1991) 3 MLJ

327 the High Court held that it had jurisdiction to deal with the matter relating to
the custody of children where parties were Muslims as there was nothing in
subsection 40(3) of the Penang Administration of Muslim Law Enactment 1959
which conferred exclusive jurisdiction on the Chief Qadis Court in matters
relating to the custody of children where the parties were Muslims. Edgar Joseph
J in his judgment referred to sections 23 and 24 of the Courts of Judicature Act
1964 which conferred jurisdiction on the High Courts to try all civil proceedings
and to appoint guardians of infants respectively. On the other hand subsection
40(3) of the Penang Enactment conferred jurisdiction on the Court of the Kathi
Besar to hear actions and proceedings in which all the parties were Muslims.
The learned judge then referred to section 4 of the Courts of Judicature Act 1964.
His Lordship accordingly held that Clause 121(1A) of the Federal Constitution did
not affect the jurisdiction of the High Court because section 4 of the Courts of
Judicature Act 1964 was to render ineffective amendments to the Constitution
pertaining to the jurisdiction of the High Court made after the date of
commencement of the section unless the amendments were made with
retrospective effect.

It is to be noted that the High Court in arriving at the

decision observed that the words other than the Constitution in force at the

commencement of this Act in section 4 referred to the Federal Constitution in

force at the commencement of the Courts of Judicature Act 1964 and since
Clause 121(1A) of the Federal Constitution came into force in 1988 while the
Courts of Judicature Act 1964 came into force in 1964, it did not affect the
jurisdiction of the High Court. Therefore by virtue of section 4 of the Courts of
Judicature Act 1964, sections 23 and 24 thereof would prevail to confer
jurisdiction on the High Court to hear the application.

12.

However in MOHAMED HABIBULLAH B. MAHMOOD v. FARIDAH BTE

DATO TALIB (1992) 2 MLJ 793 the Supreme Court disagreed with the
exposition of the law in SHAHAMIN FAIZUL KUNGS case when it held that
section 4 of the Courts of Judicature Act 1964 which prevailed over the provisions
of any other written law, could not prevail over Clause 121(1A) of the Federal
Constitution. The Supreme Court in its judgment stated that the words other
than the Constitution in section 4 were added to exclude the Constitution and the
words in force at the commencement of the Act in the same section did not refer
to the Federal Constitution but to laws made before the commencement of the
Courts of Judicature Act 1964.

The Supreme Court further held that the

allegation of assault and battery by the plaintiff fell within section 127 of the
Islamic Family Law Act 1984 and the syariah court had power to grant an
injunction under section 107 of the Act.

Accordingly the High Court had no

jurisdiction to adjudicate the plaintiffs claim for damages for assault and battery
against her husband and to the grant of all injunctions arising therefrom. Clearly
the decision of the Supreme Court in MOHAMAD HABIBULLAH had judicially
removed the first obstacle to the enforcement of Clause 121(1A).

Conversion

13.

The issue of conversion involving a Muslim and non-Muslim always

involves the jurisdictional conflict between the syariah courts and the civil courts.
When a dispute arises over the persons faith or more specifically whether a
person has become a Muslim convert, often questions are raised on whether the
syariah courts have exclusive jurisdiction to hear it.

The words within the

jurisdiction of the syariah courts appearing in Clause 121(1A) are subject to

interpretation especially in cases where one of the parties to the dispute is a nonMuslim. In any event a question involving Islamic law may arise before the civil
court where the parties are non-Muslims.

Obviously what appears to be a

straightforward and clear amendment of Article 121 may not be that

straightforward and clear after all. The conflict continues.

14.

In NG WAN CHAN v. MAJLIS UGAMA WILAYAH PERSEKUTUAN

(1991) 3 MLJ 487 the High Court was asked to determine whether a person who
had converted to the religion of Islam had died as a Muslim. The defendant
raised a preliminary objection contending that by virtue of Clause 121(1A) the
High Court had no jurisdiction to adjudicate the issue whether the deceased was
a Muslim at the time of his death. Eusoff Chin J in dismissing the objection ruled
that the High Court was not precluded from determining the issue as there was
nothing to show that the syariah court had the jurisdiction conferred on it by the
Selangor Administration of Muslim Law Enactment 1952 or the Islamic Family
Law (Federal Territories) Act 1984 to determine the issue of whether a person
was or was not a Muslim at the time of his death. Jurisdiction could not be

derived from implication.

On the other hand if the syariah court had such

jurisdiction, the High Court would not under Clause 121(1A) have the jurisdiction
to deal with the application. Consequently, the High Court could determine the
issue.

15.

But in DALIP KAUR v. PEGAWAI POLIS DAERAH, BALAI POLICE

DAERAH, BUKIT MERTAJAM (1992) 1 MLJ 1 the Supreme Court in

determining whether the appellants deceased son had renounced Islam during
his lifetime observed that the only forum qualified to determine the question was
the syariah court.

The determination according to the Supreme Court

transgressed into the realm of syariah law which needed serious consideration
and proper interpretation of such law. It required substantial consideration of the
Islamic law by relevant jurists qualified to do so. However the Supreme Court
accepted the finding made by the High Court that the deceased died as a Muslim.
The Supreme Court also noted that the Kedah Administration of Muslim Law
Enactment 1952 did not have provisions for converts to leave Islam and observed
that clear provisions should be incorporated to avoid difficulties. It would appear
from the judgment of this case that the Supreme Court accepted that the civil
court had the jurisdiction to determine the issue of the status of the deceaseds
religion during his life time as the relevant state enactment did not provide for
apostacy.

16.

In LIM CHAN SENG v. PENGARAH JABATAN AGAMA ISLAM PULAU

PINANG (1996) 3 CLJ 231, Abdul Hamid J in considering the issue of jurisdiction
under Clause 121(1A) in the light of the Penang Administration of Muslim Law

Enactment 1993 decided that the High Court had jurisdiction to declare that the
plaintiff had renounced Islam.

Clause 121(1A) did not automatically confer

jurisdiction on the syariah courts, it must act upon the power given by Articles 74
and 77 of the Federal Constitution and the State List and accordingly enact laws
conferring the jurisdiction. The Penang Enactment the learned judge found did
not have provisions which empowered the syariah courts to hear and determine
the issue of apostacy.

The learned judge commenting on MOHAMED

HABIBULLAH said that the cardinal issue concerning the approach to be used
by the syariah courts in determining its jurisdiction i.e. whether to look at the
subject matter or at the type of order prayed, remained uncertain. In that case
the provision regarding power to grant injunction against molestation was
provided for in the Islamic Family Law (Federal Territories) Act 1984. But what
would be the position if the remedy was not provided in the Act? The Supreme
Court did not address this issue.

17.

From the judgments of NG WAN CHAN, DALIP KAUR and LIM CHAN

SENG it would appear that a law conferring jurisdiction on the syariah courts is
necessary before such courts can exercise jurisdiction over any matter. The
judgment to certain extent is not without any basis as item 1 of the State List only
allows the state legislature to constitute the syariah courts which shall have
jurisdiction only over persons professing the religion of Islam and in respect only
of any of the matters included in this item. The Ninth Schedule deals with the
legislative matters in respect of which federal and state legislatures are
competent to legislate. Item 1 of the State List contains matters over which the
legislature of a state may legislate. It does not confer jurisdiction on the syariah

courts, instead it empowers the state legislature to enact a law to confer

jurisdiction on the syariah courts. In the absence of any such law the syariah
courts cannot assume jurisdiction. However a pertinent question which may be
asked is whether in the absence of such law the civil courts are entitled to
assume the jurisdiction. The above cases show that the High Courts can assume
jurisdiction.

18.

In 1998 the High Court had the occasion to consider the above question.

The issue for determination in the case of MD HAKIM LEE v. MAJLIS AGAMA
ISLAM WILAYAH PERSEKUTUAN, KUALA LUMPUR (1998) 1 MLJ 681 was
whether the High Court could entertain the plaintiffs application for a declaration
that his purported renunciation of the Islamic faith by a deed poll and statutory
declaration was in accordance with the law and valid. The High Court held that
the matter was outside its jurisdiction to determine on account of the ouster of
jurisdiction by Clause 121(1A) of the Federal Constitution. By virtue of item 1 of
the State List of the Ninth Schedule the jurisdiction lied with the syariah courts on
its wider jurisdiction over a person professing the religion of Islam even if no
express provisions were provided in the Administration of Islamic Law (Federal
Territories) Act 1993 because under Article 74 of the Federal Constitution, it was
within the competency of the state legislature to legislate on the matter.

Its

absence from the express provision in the Act would not confer the jurisdiction on
the civil courts. The fact that the plaintiff might not have his remedy in the syariah
courts would not make the jurisdiction exercisable by the High Court.

It is

submitted that the exposition of the law in the above case is correct, but the
decision does not solve the problem of lack of jurisdiction because if the state

10

enactment does not confer jurisdiction on a particular subject matter on the

syariah court, it is doubtful whether such court can hear the matter.

19.

The answer to the above question is provided by the Supreme Court in

SOON SINGH BIKAR SINGH v. PERTUBUHAN KEBAJIKAN ISLAM

MALAYSIA (PERKIM) KEDAH (1999) 2 CLJ 5.

The appellant who had

embraced Islam had subsequently renounced the religion by way of a deed poll
and thereafter applied to the High Court for a declaration that he was no longer a
Muslim. The Federal Court in the judgment of Mohamed Dzaiddin FCJ observed
that all state enactments contain express provision vesting the syariah courts with
jurisdiction to deal with conversion to Islam.

Only some state enactments

expressly confer jurisdiction on the syariah courts to deal with conversion out of
Islam. Clear provisions should be incorporated in all state enactments to avoid
difficulties of interpretation by the civil courts particularly in view of Clause
121(1A) of the Federal Constitution which had taken away the jurisdiction of the
civil courts in respect of matters within the jurisdiction of the syariah courts. The
Federal Court held that the jurisdiction of the syariah courts to deal with the
conversion out of Islam, although not expressly provided in the state enactments
could be read into them by implication derived from the provisions concerning
conversion into Islam. One reason for this being that the determination of a
Muslim converts conversion out of Islam involves inquiring into the validity of his
purported renunciation of Islam under Islamic law in accordance with Hukum
Syarak, which only the syariah courts were the experts and appropriate to
adjudicate.

11

20.

Similarly

in

LINA

JOY

v.

MAJLIS

AGAMA

ISLAM

WILAYAH

PERSEKUTUAN (2004) 2 MLJ 119 the High Court and the Court of Appeal
acknowledged that the issue of an act of conversion out of Islam must be subject
to the relevant syariah law to be determined by the syariah courts and that
freedom of religion under Clause 11(1) of the Federal Constitution must be read
with Clause 3(1) which placed Islam in a special position as the main and
dominant religion of the Federation. This special position was further reinforced
by Clause 74(2) which enabled the federal and state governments to enact
syariah laws to be implemented by separate judicial system namely the syariah
courts under Clause 121(1A).

It also acknowledged that the incidence of

apostacy was a sensitive matter among Muslims. Muslims in this country, where
Islam was the official religion, were subject to special laws that no other
community was subject to.

21.

The validity of the syariah courts decision cannot be reviewed or

questioned by the civil courts. In KALIAMMAL a/p SINNASAMY v. PENGARAH

JABATAN AGAMA ISLAM WILAYAH PERSEKUTUAN (SAMAN PEMULA No.
R1-24-102-2005)(unreported). The case involved a determination of the status
of religion of the applicants husband who died on 20 December 2005.

The

tussle for his body between the respondent and the applicant once again raised
the issue of jurisdiction of the syariah courts and the civil courts. The syariah
court on 22 December 2005 decided by way of an ex-parte application of the
respondent that at the time of his death he was a Muslim and must be buried
accordingly.

The applicant sought custody of the deceaseds remains and a

declaration that he was a Hindu.

The High Court on 28 December 2005

12

dismissed the application stating that there were express provisions under the
Administration of Islamic Law (Federal Territories) Act 1993 which explained the
procedure relating to conversion to the religion of Islam and accordingly the court
which was competent to determine the issue was the syariah court.

The High

Court, relying on the decisions of the High Court in NOR KURSIAH BT

BAHARUDDIN v. SHAHRIL LAMIN (1997) 1 MLJ 537 and the Court of Appeal
in KAMARIAH ALI v. KERAJAAN NEGERI KELANTAN (2002) 3 MLJ 657 held
that it had no jurisdiction to review, or question the validity of the decision made
by the syariah court.

22.

It is necessary at this juncture to advert to two decisions which, though not

related to the issue of conversion, are significant as it deals with the correct
approach to be adopted by the court in determining the issue of jurisdiction of the
syariah court i.e. is it the subject matter approach or the remedy approach. In
ABDUL SHAIK MD IBRAHIM v. HUSSEIN IBRAHIM (1999) 3 CLJ 539, the High
Court in determining whether the adoption of the plaintiffs child by the
defendants was null and void had to consider whether the matter was within the
jurisdiction of the syariah court. It was decided that whether the matter fell under
the jurisdiction of the syariah court or the civil court, the court should look at the
subject matter of the action and not the remedies prayed for. The remedy prayed
for in the case was a declaration which was not provided for in the Penang
Administration of Islamic Religious Affairs Enactment 1993. If the High Court
were to adopt the remedy approach even at the outset the syariah court did not
have jurisdiction to grant the remedy.

The High Court referred to MAJLIS

AGAMA ISLAM PULAU PINANG v. ISA ABDUL RAHMAN (1992) 3 CLJ 1675

13

where the Supreme Court held that the claim for an injunction could be heard by
the High Court as the remedy was not provided for in the Penang Administration
of Muslim Law Enactment 1959 though the subject matter of the suit which was
wakaf was provided for in the said Enactment. The learned judge decided that
he was no longer bound by ISA ABDUL RAHMAN as in SOON SINGH the
Federal Court considered the question of jurisdiction purely on the subject matter
approach though the remedy sought was a declaration which was not provided in
the relevant state enactment. His Lordship also observed that the judgment in
ISA ABDUL RAHMAN might give rise to an undesirable effect: a party might by
the inclusion of a prayer for a remedy not provided in the law applicable to the
syariah court, remove a matter the subject matter of which were within the
jurisdiction of the syariah court, to the civil court.

23.

The second case is MAJLIS UGAMA ISLAM PULAU PINANG v. SHAIK

ZOLKAFFILY SHAIK NATAR (2003) CLJ 289 wherein the Federal Court held
that the syariah court was seized with jurisdiction by way of subparagraph
48(2)(b)(v), (vii) and (ix) of the Penang Administration of Islamic Religious Affairs
Enactment 1993 and where a remedy was not provided for in the state law
pertaining to Muslims, it was not for the courts to legislate and confer jurisdiction
to the civil courts but for the state legislature to provide the remedy.

In SHAIK

ZOLKAFFILY the appellant had sought for a declaratory relief and an order of
injunction in respect of a piece of land which formed the subject matter of a will
by a deceased Muslim. The relief of injunction and declaration was not provided
for in the Penang Administration of Islamic Religious Affairs Enactment 1993 but
the subject matter of the claim i.e. the will was provided for in subparagraph

14

48(2)(b)(v) of the said Enactment. The Supreme Court took the subject matter
approach as opposed to the remedy approach in determining the question
whether the syariah court had jurisdiction to hear the case.

It approved the

decision of the High Court in ABDUL SHAIK MD. IBRAHIM v. HUSSEIN

IBRAHIM (1999) 3 CLJ 539.

24.

The implication approach adopted by the Supreme Court in SOON SINGH

was also considered and accepted by the Supreme Court in SHAIK

ZOLKAFFILY. However what happens in a situation where there is no express
provision at all in the relevant state enactment giving jurisdiction to the syariah
court on any particular subject matter but the subject matter is within the
competence of the state legislature to enact that is to say item 1 of the State List.
In SOON SINGH there was an express provision on the conversion of Islam but
not on renunciation of Islam and hence the implication approach. The Federal
Court provided an answer by adopting the judgment of the High Court in MD.
HAKIM LEE i.e. it was not for the courts to legislate but for the state legislature to
provide the remedy and the fact that the appellant did not have his remedy in the
syariah court would not make the jurisdiction exercisable by the civil court.

Legal Position Of A Non-Muslim Spouse Of A Muslim Convert

25.

In Malaysia, separate systems of family law and personal law exist for

Muslims and non-Muslims. The Law Reform (Marriage and Divorce) Act 1976
[Act 164] applies to every marriage contracted by non-Muslims in Malaysia or
domiciled in Malaysia but are resident outside Malaysia. The Act does not apply

15

to a Muslim or any person who is married under Islamic law and prohibits any
marriage of which one of the parties professes the religion of Islam from being
solemnized or registered thereunder. Muslim marriages are governed by the
relevant Islamic Family Law Enactments enacted by the state legislature and in
respect of which the syariah courts can exercise jurisdiction. The conversion of a
spouse has an effect on the non-Muslim marriage, custody of children,
distribution of property and maintenance.

26.

It may happen that a person is married under Act 164 but subsequently

converts to Islam.

The conversion raises the question of the effect of the

conversion on his marriage to his non-Muslim spouse. Subsection 46(2) of the

Islamic Family (Federal Territories) Act 1984 [Act 303] requires the dissolution of
the non-Muslim marriage to be confirmed by the syariah court. It is to be noted
that since the syariah court has jurisdiction over persons professing Islam, only
the Muslim spouse can seek confirmation of the dissolution of the non-Muslim
marriage before the syariah court.

27.

On the other hand, under section 51 of Act 164 where one party to a

marriage has converted to Islam, the other party who has not so converted may
petition for divorce. Clearly the right to petition for divorce is given to the nonMuslim spouse only. Further, subsection 3(3) of Act 164 allows a civil court to
grant a decree of divorce on the petition of one party to a marriage under section
51 where the other party has converted to Islam and such decree,
notwithstanding any other written law to the contrary, is valid against the Muslim
spouse. Subsection 51(2) empowers the civil court dissolving the marriage to

16

make provision for the wife or husband, and for the support, care and custody of
the children of the marriage. The vesting of jurisdiction with the civil courts is
easy to comprehend as the marriage to be dissolved is the non-Muslim marriage
and one of the spouses is a non-Muslim over whom the syariah courts do not
have jurisdiction. But it is also important to consider the extent to which the court
may make an ancillary order under subsection 51(2), can it be extended to
include an order for division of matrimonial assets and maintenance of nonMuslim spouse under sections 76 and 77.

28.

In TAN SUNG MOOI v. TOO MIEW KIM (1994) 3 CLJ 708 the parties

were married according to Chinese customary rites in 1964. On a petition by the

wife the High Court dissolved the marriage in 1991 and granted a decree nisi to
be made absolute after three months.

Pending the decree nisi being made

absolute, the petitioner filed an application under sections 76 and 77 of Act 164
for division of matrimonial assets and maintenance of spouse. The respondent
opposed the application on the grounds that the High Court had no jurisdiction
over him with respect to the ancillary relief arising from the divorce because of his
conversion to Islam in 1993. The Supreme Court decided as follows:

(a)

that Act 164 only applied to non-Muslims and non-Muslim

marriages and accordingly it applied to the parties since they were
non-Muslims;

(b)

the application under sections 76 and 77 of Act 164 concerned

matters affecting both parties legal obligations as non-Muslims and

17

was incidental to the granting of the divorce, the civil court would
have jurisdiction to hear the application despite the fact that the
respondent converted to Islam;

(c)

from the wording of subsection 51(2), the legislature clearly

intended to provide ancillary relief for non-Muslim spouses and the
children of the marriage as a result of one partys conversion to
Islam and by implication from subsection 51(2) the civil court had
jurisdiction to hear and determine the ancillary issues;

(d)

it would result in grave injustice to non-Muslim spouses and

children whose only remedy would be in the civil courts if the High
Court no longer had jurisdiction, since the syariah court did not
have jurisdiction over non-Muslim;

(e)

in the context of legislative intent of section 3 of the overall purpose

of Act 164, the respondents legal obligations under a non-Muslim
marriage could not be extinguished or avoided by his conversion to
Islam; and

(f)

Clause 121(1A) of the Federal Constitution had taken away the

jurisdiction of the High Court in respect of matters falling within the
jurisdiction of the syariah courts, paragraph 45(3)(b) of the
Administration of Islamic Law (Federal Territories) Act 1993
provided that the syariah courts should have jurisdiction to hear and

18

determine all actions in which all the parties profess the Muslim
religion, the syariah courts did not have jurisdiction over the
petitioner who was a non-Muslim therefore Clause 121(1A) did not
affect the jurisdiction of the High Court to hear the application under
sections 76 and 77 of Act 164.

29.

When a spouse converts to Islam he at once becomes subject to Muslim

personal and religious laws. But the more difficult question in such cases is what
is the effect of the conversion on the other spouse who does not convert. Surely
they have some rights vested on them before the conversion. This issue was
discussed in the case of DOUGLAS A PEDLEY v MAJLIS AGAMA ISLAM
PULAU PINANG (1990) 2 CLJ (Rep) 24. The plaintiff and his wife were Roman
Catholics who married in 1966. In 1987 the plaintiffs wife converted to Islam
without his knowledge and consent. The plaintiff sought a declaration that his
wifes conversion had not determined their marriage. The High Court held that in
respect of this marriage, the personal laws of the plaintiff and the civil laws of the
country were applicable to the plaintiff under subsection 51(2) of Act 164, a nonMuslim marriage had not dissolved upon one of the parties converting to Islam; it
only provided a ground for the other party who had not converted to petition for
divorce.

30.

Subsection 51(1) of Act 164 gives the right to the party who has not

converted to Islam to petition for divorce which can be presented before the
expiration of three months from the date of the conversion. Subsection 46(2) of
the Islamic Family Law (Federal Territories) Act 1984 [Act 303] on the other hand

19

provides that the conversion to Islam by either party to a non-Muslim marriage

shall not by itself operate to dissolve the marriage unless and until so confirmed
by the Court.

Two questions arise from these two provisions.

Firstly the

provisions of subsection 51(2) which only give the right to the non-Muslim spouse
to petition to the civil court for divorce may give rise to a situation where the nonMuslim spouse does not petition for divorce and when this arises what is the
position of the marriage? Secondly, what is the position of a confirmation by the
syariah court under subsection 46(2) of Act 303 that the non-Muslim marriage is
dissolved under the civil law.

31.

In NG SIEW PIAN lwn. ABD. WAHID B. ABU HASSAN KADI DAERAH

BUKIT MERTAJAM & SATU LAGI (1993) 1 CLJ 393 the plaintiff and the second
defendant who were both Buddhists were married in 1973 under the Civil
Marriage Ordinance 1952. In 1991 the second defendant embraced Islam and in
the same year had filed an application before the syariah court seeking to annul
the marriage on the ground that she had converted to Islam. The marriage was
dissolved as the plaintiff did not convert. The plaintiff sought a declaration from
the High Court that the syariah court did not have jurisdiction to dissolve the nonMuslim marriage.

32.

Abdul Hamid J held that the syariah court did not have the jurisdiction to

make the order as it did since the plaintiff was not a Muslim. The learned judge
considered the provision of subsection 46(2) of the Penang Islamic Family Law
Enactment 1985 which is similar to subsection 46(2) of Act 303 and said that the
subsection was declaratory in nature and did not confer jurisdiction. It could be

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applied if the syariah court was conferred the jurisdiction and such jurisdiction
could not be given without amending item 1 of the State List since the syariah
court had jurisdiction only on persons professing the religion of Islam. As long as
the State List remains in its present form, subsection 46(2), if it means conferring
jurisdiction on the syariah court, was inconsistent with the Federal Constitution,
hence unconstitutional. The learned judge concluded that the syariah court did
not have the jurisdiction to hear the second defendants application as the plaintiff
in this case was not a Muslim and the High Court had the jurisdiction under
subsection 51(2) of Act 164 to dissolve the marriage.

33.

The effect of subsection 51(1) is that if the non-Muslim spouse does not

petition for divorce the converting spouse has no right to petition for divorce. The
Muslim spouse cannot not go to the civil court neither can he or she go to the
syariah court since one of the parties was a non-Muslim. There appears to be a
lacuna in the law. The High Court in the same case suggested that in such
circumstance the law should be amended to give power to the civil court to
dissolve the marriage as it was not a Muslim marriage and the syariah court did
not have the jurisdiction to dissolve a non-Muslim marriage.

34.

There may be a situation where a non-Muslim spouse does not petition for

divorce before the expiration of three months from the date of the conversion. It
would appear that if such situation arises the marriage does not automatically
dissolve.

In EESWARI VISUVALINGAM v. GOVERNMENT OF MALAYSIA

(1990) 1 MLJ 86 the appellant was married according to Hindu rites.

Her

husband subsequently embraced Islam. He was a pensioner under the Pensions

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Act 1980 and later died. The appellant had not sought a divorce from him under
Act 164. Hashim Yeop Sani CJ (Malaya) in his judgment said that there was no
evidence that the marriage had been dissolved. The appellant was therefore
suing as a widow. Since the appellants marriage remained valid under the civil
law at the time of the death of Visuvalingam, she was therefore a dependant
under the pensions laws and was entitled to a derivative pension.

35.

The objective of section 51 of Act 164 is to protect the rights of non-Muslim

women who have been left by their husbands who have converted to Islam.
Islam must not be used as an escapism by non-Muslim men to run away from
their legal obligations by changing their religion to Islam. This is the purpose of
section 51 of Act 164 [SHAMALA SATHIYASEELAN v. DR. JEYAGANESH C.
MOGARAJAH (2004) 2 CLJ 416]. The SHAMALA SATHIYASEELANs case
raises the issue of the parents rights where a child converted to Islam. In this
case the respondent converted to Islam on 19 November 2002.

On 25

November 2002 he converted his two infant children without the consent of his
non-Muslim wife (the plaintiff).

The plaintiff sought a declaration that the

conversions of her two children by her respondent Muslim husband was null and
void as the conversions were made without her knowledge and consent. The
respondent objected to the application on the ground that a civil court had no
jurisdiction to hear this application.

36.

On the status of the husband and wife viz-a-viz the two minors the High

Court ruled that the fact that the husband had converted to Islam did not change
the status of their civil marriage, the husbands obligation under the Hindu

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marriage could not be extinguished or avoided by his conversion to Islam, section

51 of Act 164 had given the wife the right to petition for divorce but as she did not
do so she remained his wife although non-Muslim. The husband could not apply
for divorce under the Islamic family law as the syariah court had no jurisdiction to
deal with cases where one of the parties was a non-Muslim. As regards the
issue of parental consent, the use of the singular word parent in both Clause
12(4) of the Federal Constitution and subsection 95(b) of the Administration of
Islamic Law (Federal Territories) Act 1993 rendered the consent of a single
parent enough to validate the conversion of a minor to Islam.

37.

Regarding the maintenance of children, the Islamic Family Law

Enactments impose upon a man the duty to maintain his child whether he is in his
custody or the custody of any other person [see for instance section 72 of Act
303]. But the maintenance ends when the child attains the age of 18 years
(section 79 of Act 303). The obligation of the father to provide maintenance to his
children includes the obligation of a convert father to maintain an infant child
although he is of different religion (Conversion To Islam Effect On Status Of
Marriages And Ancillary Reliefs Nuraisyah Chua Abdullah).

38.

Even though subsection 51(1) of the Act 164 allows only the non-Muslim

convert to present a petition for divorce, the convert is not precluded from
presenting a petition for divorce under the Act.

It is never the intention of

Parliament to deny a convert the same right. Subsection 53(1) of Act 164 allows
either party to a marriage to petition for a divorce on the ground that the marriage
has irretrievably broken down. The provision of the invocation of Act 164 is only

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against a Muslim or any person who is married under Muslim law. In TEY SIEW
CHOO v. TEO ENG HUA (1999) 6 CLJ 308 the petitioner and the respondent
had undergone a Buddhist customary marriage in 1982 and had registered under
Act 164. In 1995 the petitioner embraced Islam and parted with the respondent.
In 1998 the petitioner petitioned for divorce under Act 164 on the ground that the
marriage had irretrievably broken down by virtue of her conversion to Islam and
that the parties had lived apart.

39.

The High Court held that under section 53 either party could petition for

divorce and clearly therefore the petitioners conversion did not per se deprive
her of rights which might be otherwise available to her under the Act.

The

prohibition of the invocation of the Act was only against a Muslim or any person
who was married under Muslim law.

The petitioner when she married the

respondent was yet to be a Muslim and so was never married under Muslim law.
The Court had also held that under syariah law the petitioners marriage
immediately dissolved upon her conversion as by so embracing Islam, she had
become subject to Muslim personal and religious laws. A conversion of one party
to Islam, however, will not automatically dissolve a non-Muslim marriage under
the civil law. Hence, notwithstanding the conversion, the petitioners marriage to
the respondent, in so far as the civil marriage was concerned, remained
unaffected and still subsisted. That being so, it required judicial pronouncement
to end the marriage.

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Way Forward

40.

There is no doubt that the judicial decisions highlighted above have

recognized that the syariah courts have jurisdiction in matters relating to Islam
but the decisions have also exposed inadequacies and shortcomings not only in
the state enactments but also federal law.

There are no provisions on

conversion out of Islam in these enactments (with the exception of the enactment
applicable to Negeri Sembilan), neither is there any provisions on remedies or
relief such as injunction and declaration therein which as shown in the cases
above have led the civil courts to assume jurisdiction to determine the matter. In
order to avoid any challenge in the future on the ground of lack of jurisdiction on
the part of the syariah courts to determine the question of conversion, clear and
adequate provisions should be incorporated into the state enactments to confer
jurisdiction on the syariah courts both on the subject matter provided in item 1 of
the State List and on the remedies.

41.

It is to be noted that all state enactments relating to the administration of

Islamic law contain provisions on conversion including the requirement of a newly

convert to register his conversion with the Registrar and the issuance of a
certificate to him. To strengthen the provisions and to avoid any future dispute on
the status of his religion especially when the convert dies, a provision requiring
the convert or the religious authority to notify the family of the convert should also
be added to these enactments.

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42.

Custody of children and inheritance can be a contentious issue in

conversion cases involving a spouse of a non-Muslim marriage. One possible

solution to this problem perhaps can be achieved by way of a requirement in the
law for the converting spouse to fulfill at the time of his conversion all his or her
obligations and responsibilities under the non-Muslim marriage in accordance
with the law governing such marriage. Amendment of section 51 of Act 164 may
be necessary to incorporate clear and unequivocal provisions to allow
applications to be made under sections 76 and 77 thereof by spouses to nonMuslim marriages.

43.

As regards the non-Muslim marriage, the amendment of section 51 of Act

164 should also provide for both spouses to petition for divorce. But subsection
46(2) of Act 303 has to be amended as well in order to avoid any overlapping
jurisdiction between the syariah courts and civil courts. The existing provisions
can cause hardship to the convert spouse in particular when it is the wife who
converts as it will be difficult for her to petition for a divorce and to contract a new
marriage with a Muslim.

44.

Notwithstanding the above, it must also be remembered that in a dispute

over a persons faith especially when he dies often one party who is not a Muslim
is involved thus raising the question whether the syariah courts have jurisdiction
to hear the matter. The non-Muslims may not feel comfortable to appear before
the syariah courts even as witnesses. On the other hand, the determination of
the matter before the civil courts is governed by strict rules of evidence and
procedure which may prolong the proceedings hence a delay in burial of the

26

deceased person. Taking into account the fact that apostacy and the issue of a
persons faith are sensitive to Muslims and non-Muslims a solution has to be
found. Perhaps it is now an appropriate time to consider forming a body such as
a Consultative Committee as an alternative to the syariah courts and civil courts
to determine the religious status of a deceased person. Such body will comprise
a chairman and a representative of the body or association of religion of the
disputing party. The consultation process shall take the form of a private dispute
resolution process in which a neutral person namely the chairman helps the
parties to reach a negotiated settlement.

Conclusion

45.

The demarcation of jurisdiction between the syariah courts and civil courts

with the starting point being the Federal Constitution itself has seen an interaction
between syariah and civil law and in the process helped evolve in what we see
today a parallel system of justice in Malaysia. The issue of jurisdiction of the
syariah courts always involves jurisdictional conflict between the syariah courts
and the civil courts and this tussle for jurisdiction between both courts is certain to
continue if nothing is done to resolve it. Admittedly this issue can be emotive
because the disputes usually involve ones faith, status, family and parties of
different faiths. The problem is further compounded by the fact that Islam and the
constitution, organization and procedure of syariah courts are state matters which
make any enactment of legislation and exercise of executive authority on the
same outside the purview of the federal legislative and executive authorities
respectively. There are undoubtedly problems within the system, but the system

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is here to stay and accordingly it deserves a detailed study because of its

importance to the Muslims and equally the non-Muslims in Malaysia. We have to
move forward and through judicial pronouncements, improvement in the law
either by way of amendments or enactment of new legislation as well as effective
enforcement thereof the system can be strengthened and improved further.

DATO IDRUS BIN HARUN

ATTORNEY GENERALS CHAMBERS
MALAYSIA

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