Authored By: Siti Nur Fathihah Wilter
UITM
Abstract
Malaysia operates with a special legal system that uses both civil and Islamic legal traditions. This dual system, reflective of the country’s multicultural and multireligious population, often results in overlapping jurisdictions between civil and Shariah courts. While both systems are constitutionally recognized, tensions frequently arise due to ambiguities in their respective powers and boundaries. This article explores the constitutional framework underpinning both systems, the jurisdictional scope of each, and key legal authorities that highlight the inherent conflicts and potential resolutions within this legal duality.
Introduction
The coexistence of several legal systems within one jurisdiction is a defining feature of Malaysia’s legal system. The nation’s colonial past, cultural variety, and complex relationship between religion and the state are all reflected in this diverse framework. Fundamentally, Malaysia’s legal system consists of two distinct systems: Islamic law, which is applied in Shariah courts for Muslim-related problems, and civil law, which is mostly based on the English common law tradition.1
This dual system’s roots are in British colonial rule, when Muslim subjects were protected under Islamic personal laws while the larger legal system incorporated English legal norms.2 After independence in 1957, the Federal Constitution formalized this arrangement by assigning Islamic law and the jurisdiction of Shariah courts to the State List while maintaining the supremacy of federal civil law in most legal matters.3 As a result, Malaysia continues to operate under a system where different bodies of law govern different communities, depending on the subject matter and religious affiliation of the individuals involved.4
While this dual structure reflects the multicultural and multireligious fabric of Malaysian society, it often gives rise to jurisdictional conflicts and legal ambiguities, especially in areas where civil and Islamic legal domains intersect. Issues such as family law, conversion to or from Islam, inheritance, and child custody frequently involve overlapping jurisdictional claims, leading to complex legal disputes and inconsistent judicial outcomes.5 These conflicts bring up significant issues regarding the protection of individual rights under the law, the supremacy of the constitution, and the place of religion in the legal system.6
Consequently, the relationship between civil and Shariah courts in Malaysia remains a dynamic and evolving area of law, drawing increasing attention from legal scholars, practitioners, and policymakers. Understanding the legal, historical, and constitutional foundations of this dual system is essential to navigating its challenges and ensuring that justice is administered fairly and consistently for all Malaysians.
Constitutional Framework
Malaysia’s legal system is based on the Federal Constitution, which upholds the primacy of civil law.7 The Constitution is the ultimate law of the Federation, according to Article 4(1), and any post-independence legislation that conflicts with it will be null and void to the degree of the conflict.8 This supremacy applies equally to both civil and Islamic legal instruments, ensuring that all laws — whether federal or state, civil or religious — must conform to constitutional norms, particularly those guaranteeing fundamental liberties such as equality, religious freedom, and access to justice.9
Despite this broad civil framework, the Constitution also makes Islamic law legitimate, limiting its application to Muslims and to issues listed in the State List. The Ninth Schedule, together with Article 74(2), gives the State Legislature sole authority over “Islamic law and personal and family law of persons professing the religion of Islam.”10 This covers topics including religious crimes, inheritance (faraid), divorce, and marriage. The Shariah courts do not have inherent authority beyond that which is expressly granted; rather, they obtain their jurisdiction from these state laws.11
Article 121(1A) was added to the Constitution in 1988 as part of an amendment to further define the functions of the two legal systems. By declaring that the civil High Courts lack jurisdiction over cases under the purview of the Shariah courts, this clause establishes an exception.12 Although this article was intended to avoid meddling in Islamic legal affairs, it has generated a great deal of judicial and scholarly discussion, particularly in situations when civil and Shariah problems intersect or where the application of Shariah rulings may have an impact on non-Muslims or fundamental rights.13
The constitutional structure thus attempts to balance the autonomy of the Shariah courts with the supremacy of civil law while maintaining the judiciary’s role in protecting constitutional guarantees. The challenge lies in interpreting these provisions to respect religious sensitivities while upholding the rule of law and the constitutional rights of all Malaysians.
Article 3: Islam as the Religion of the Federation
The Constitution’s Article 3(1) affirms Islam as the Federation’s official religion while preserving others’ right to practise their own religion.14 This lays the groundwork for Muslims to apply Islamic law in their private affairs. However, any law, including Shariah law, must be in accordance with the Constitution’s requirements because of Article 4’s supremacy of the Constitution.15
Article 74 and Ninth Schedule
The federal and state governments have different legislative authorities under the Federal Constitution.16 Legislative authority is further defined under Article 74 and the Constitution’s Ninth Schedule.17 Parliament has jurisdiction over criminal law, civil and commercial law, and constitutional issues through the Federal List (List I). However, the State List (List II) stipulates that state assemblies may enact laws pertaining to Islamic law, but only in specific domains, such as offences against Islamic precepts and personal and family law for Muslims.18 Shariah courts are also created and empowered under this list.
Article 121(1A): Judicial Immunity of Shariah Courts
One of the most significant constitutional provisions affecting the jurisdiction of civil and Shariah courts is Article 121(1A).19 This provision, which was added by an amendment in 1988, states that civil courts cannot hear cases that belong to Shariah courts.20 While this provision was initially intended to respect the autonomy of the Shariah legal system, it has led to jurisdictional ambiguities in practice, especially when a legal issue affects both Muslims and non-Muslims or invokes constitutional rights.
Jurisdictional Scope of Shariah and Civil Courts
Civil Courts
Civil courts derive jurisdiction from federal law and have the authority to hear all matters except those expressly excluded by the Constitution.21 They cover a broad spectrum of legal areas, including criminal law, contract, tort, and constitutional law, which serve both Muslims and non-Muslims. The highest courts, which include the Federal Court, Court of Appeals, and High Courts, serve as the last arbiters of constitutional interpretation and rights defence.
Shariah Courts
In contrast, Shariah courts operate within the state legal framework and have jurisdiction solely over Muslims.22 Their authority includes matters such as marriage, divorce, inheritance, and religious observance. However, federal law, particularly the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355), restricts their jurisdiction. It sets a maximum sentence of three years in prison, a fine of RM 5,000, and six whippings.23 These constraints often restrict the Shariah courts’ ability to enforce Islamic law effectively.
Jurisdictional Conflicts and Landmark Cases
Despite these jurisdictional demarcations, conflicts frequently arise in areas such as family law and conversion cases. One notable example is the Federal Court case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan [2007] 3 CLJ 557.24 Born a Muslim, Lina Joy wanted her conversion to Christianity to be accepted by the law so she could wed a non-Muslim under civil law. Even though she was unable to get a declaration of apostasy from the Shariah system, the court determined that the matter of apostasy was solely within the purview of the Shariah courts.25 The case highlighted the tension between religious freedom under Article 11 and the jurisdictional exclusivity granted to Shariah courts by Article 121(1A).
Another landmark decision is Indira Gandhi v Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ 545, where the Federal Court ruled on the unilateral conversion of children to Islam by one parent.26 The court affirmed that civil courts have authority over constitutional questions, including those involving Islamic issues, by ruling that both parents must agree for a child to be converted.27 This decision clarified that civil courts are not completely ousted from matters simply because they intersect with Shariah law, especially when fundamental liberties are at stake.
In Latifah Mat Zin v Rosmawati Sharibun [2007] 5 MLJ 101, the Federal Court dealt with inheritance under Islamic law. The deceased was a Muslim, and the Shariah court had issued a faraid certificate. However, the civil court was asked to determine the distribution of the estate, which included property registered under civil law.28 The court held that while Shariah courts can issue faraid certificates, civil courts have jurisdiction to enforce these certificates concerning the administration of estates. This case demonstrates a pragmatic approach to jurisdictional overlap, encouraging cooperation rather than competition.
Challenges in Practice
These cases underscore the challenges posed by overlapping jurisdictions. Often, parties face prolonged legal battles due to confusion over the appropriate forum, leading to forum shopping and inconsistent outcomes.29 For instance, in cases involving child custody where one party converts to Islam, the Shariah court may grant custody to the Muslim parent while the civil court may decide otherwise, leading to enforcement issues and public dissatisfaction.
The inconsistency in the application of Islamic law across different states also exacerbates the problem. Since each state enacts its own Islamic law, interpretations and procedural rules can vary significantly, creating a patchwork of legal standards. This lack of uniformity undermines the predictability and coherence of the Shariah legal system and complicates inter-state legal issues.
Moreover, the limited punitive and remedial powers of the Shariah courts weaken their authority. Many legal practitioners and scholars have called for the amendment of Act 355 to enhance the jurisdiction and credibility of Shariah courts. However, such amendments are politically sensitive and must be approached with caution to avoid infringing upon constitutional rights and the supremacy of federal law.
Proposals for Reform
To address these challenges, several reforms have been proposed. First and foremost, the jurisdictional limits between civil and Shariah courts need to be more clearly defined by statute. This could involve federal guidelines to harmonize the interpretation and application of Islamic law across states. Secondly, the establishment of a specialized tribunal or jurisdictional mediation body could help resolve conflicts between courts and provide a mechanism for inter-court dialogue.
Judicial training and cross-appointment of judges between civil and Shariah courts could also promote mutual understanding and respect. By fostering a culture of cooperation, both systems can work in tandem to serve justice more effectively. Public legal education campaigns could further help citizens understand their rights and the appropriate legal avenues for their issues.30
Ultimately, while the dual legal system reflects Malaysia’s cultural and religious diversity, it must operate within a framework that ensures justice, equity, and constitutional integrity. The Federal Constitution remains the supreme legal authority, and all legal systems within Malaysia must conform to its provisions. As Malaysia continues to develop, a more coherent and harmonized relationship between civil and Shariah courts is essential for the effective administration of justice and the protection of fundamental liberties.
Conclusion
In conclusion, there are advantages and disadvantages to Malaysia’s coexistence of civil and Shariah courts. The system runs the risk of fragmentation and legal ambiguity even as it respects religious autonomy and plurality. To guarantee that Malaysia’s dual legal system operates efficiently and fairly for all of its inhabitants, it is imperative to strengthen the legal framework, improve judicial collaboration, and reassert constitutional supremacy.
REFERENCE (S)
Andrew Harding, The Constitution of Malaysia: A Contextual Analysis (Hart 2012) 16.
Farid Sufian Shuaib, Powers and Jurisdiction of Syariah Courts in Malaysia (LexisNexis 2003) 11.
Federal Constitution of Malaysia, art 74 and Ninth Schedule, List II.
Federal Constitution of Malaysia, art 4(1).
Federal Constitution of Malaysia art 74(2); Ninth Schedule, List II – State List. Federal Constitution of Malaysia, art 121(1A).
Federal Constitution of Malaysia, art 3(1).
Federal Constitution of Malaysia, art 4.
Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).
Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018] 1 MLJ 545;
Public Prosecutor v Kok Wah Kuan [2007] 6 CLJ 341.
Lina Joy v Majlis Agama Islam Wilayah Persekutuan [2007] 3 CLJ 557. Latifah Mat Zin v Rosmawati Sharibun [2007] 5 MLJ 101.
Nik Noriani Nik Badlishah, ‘Islamic Family Law and Justice for Muslim Women’ (Sisters in Islam 2003) 15.
Yvonne Tew, ‘The Malaysian Legal System: A Tale of Two Courts’(2011) Georgetown University Law Center
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2944&context=facpub accessed 11 April 2025
A L R Joseph, ‘Jurisdictional conflict between Islamic law and Civil laws in Malaysia’ (2007) Malaysian bar
https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/jurisdictional conflict-between-islamic-law-and-civil-laws-in-malaysia accessed 11 April 2025
Shad Saleem Faruqi, ‘BETWEEN TWO SHORES: courts, the constitution and the shariah’ (2020)
https://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal-S pecial-Issue/e-Archive/ctl/eFirstSALPDFJournalView/mid/513/ArticleId/1523/Citation/Journals OnlinePDF accessed 11 April 2025
1 Andrew Harding, The Constitution of Malaysia: A Contextual Analysis (Hart 2012) 16.
2 Farid Sufian Shuaib, Powers and Jurisdiction of Syariah Courts in Malaysia (LexisNexis 2003) 11.
3 Federal Constitution of Malaysia, art 74 and Ninth Schedule, List II.
4 Nik Noriani Nik Badlishah, ‘Islamic Family Law and Justice for Muslim Women’ (Sisters in Islam 2003) 5. 5 Yvonne Tew, ‘The Malaysian Legal System: A Tale of Two Courts’ (2011)
6 Shad Saleem Faruqi, ‘BETWEEN TWO SHORES: courts, the constitution and the shariah’ (2020)
7 Federal Constitution of Malaysia, art 4(1).
8ibid.
9ibid Part II.
10 ibid art 74(2); Ninth Schedule, List II – State List.
11 Farid Sufian Shuaib, Powers and Jurisdiction of Syariah Courts in Malaysia (LexisNexis 2003) 23. 12 Federal Constitution, art 121(1A).
13 Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018] 1 MLJ 545; Shad Saleem Faruqi, ‘BETWEEN TWO SHORES: courts, the constitution and the shariah’ (2020)
14 Federal Constitution of Malaysia, art 3(1).
15 Federal Constitution of Malaysia, art 4
16 ibid art 74.
17 Ibid art 74.
18 ibid Ninth Schedule, List II – State List.
19 Federal Constitution of Malaysia, art 121(1A)
20 ibid art 121(1A).
21 Public Prosecutor v Kok Wah Kuan [2007] 6 CLJ 341.
22 Nik Noriani Nik Badlishah, ‘Islamic Family Law and Justice for Muslim Women’ (Sisters in Islam 2003) 15. 23 Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).
24 Lina Joy v Majlis Agama Islam Wilayah Persekutuan [2007] 3 CLJ 557
25 ibid
26 Indira Gandhi v Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ 545
27 ibid
28 Latifah Mat Zin v Rosmawati Sharibun [2007] 5 MLJ 101.
29 Yvonne Tew, ‘The Malaysian Legal System: A Tale of Two Courts’ (2011) .
30 Farid Sufian Shuaib, Powers and Jurisdiction of Syariah Courts in Malaysia (LexisNexis 2003) 98.
