High Court vs Syariah Court – a question of jurisdiction

The majority decision of the Court of Appeal in the Indira Gandhi case involving the custody of her children has suddenly triggered a nationwide shock and dismay, except among a few whose loyalty to the Federal Constitution is suspect.

Some politicians are now expressing concern that they should have done long ago, because, Indira’s case is not the first of its kind; it is a repetition of the justice having been denied in similar cases.

Non-Muslim mothers have been left with no legal remedy when their husbands - having secretly converted to Islam - also unilaterally changed the religion of their non-Muslim children.

The issue as to which court - the High Court created under the Federal Constitution or the Syariah Court created in accordance with the state constitution - has the jurisdiction in a situation like that of Indira's has been irking Malaysians, the judiciary and the legal profession.

This since the amendment to Article 121 removed the judicial power vested in the High Court by inserting a new Clause (1A) which stated that the High Court shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Court.

The late Professor Ahmad Ibrahim in his essay 'The Amendment to Article 121 of the Federal Constitution: Its Effect of Administration of Islamic Law' [1989] (2 MLJ xvii) pointed out that the, 'Syariah Court shall only have jurisdiction over persons professing the religion of Islam and in respect only of the matters included in the paragraph.

'The Syariah Court will therefore not have jurisdiction where one of the parties involved is a non-Muslim. For example, if the mother is a non-Muslim but the father is a Muslim, the matter could still be brought to the civil court and disposed of therein.'

Ahmad Ibrahim has clearly pointed out the effect of the amendment to Article 121 of the constitution. Both the parties must be of the Muslim faith and the matter in dispute has Islamic ingredients to take the matter away from the High Court.

It would be appropriate at this juncture to look at the distinct features of the civil courts created under Article 121(1) of the constitution and of the Syariah Court created by the state enactments.

The Court of Appeal and the Federal Court are creatures of the Constitution (see Article 121(1), (2) and (3) of the Federal Constitution), unlike the Syariah Court, which is a state creature and its jurisdiction is territorial and limited.

The jurisdiction of the civil court extends to the whole of Malaysia but not that of the Syariah Court.

Clear demarcation

The distinct jurisdictional features of the civil court and the Syariah Court were explained by Abdul Hamid Muhamad in Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor ([2007] 5 MLJ 101 (at pages 116-117).

Abdul Hamid said the civil court and the Syariah Court will have to look at the statute to see whether it has jurisdiction over the 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 Court 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.

Notwithstanding the clear demarcation on the jurisdiction and powers of the civil court and the Syariah Court and the authoritative pronouncements on the significant differences, another coram of the Federal Court, by a majority, came up with the decision to the effect that the Syariah Court is also created by the Federal Constitution.

This was in the case of Subashini a/p Rajasingam v Saravanan a/l Thangathoray, [2008] (2 MLJ 147). That was a decision inconsistent with the legal position in so far as the creation of the Syariah Court is concerned.

There are many other cases like Indira Gandhi’s, where the jurisdictional issue has been raised and no satisfactory answer has been found, although the civil court had pointed out that the legislature could bring an end to this continuing traumatising episode.

In this regard, the statutory provision introduced by the state enactments were not helpful because conversion of a minor can only be done, according to the Article 12(4) of the Federal Constitution, with the consent of the parent.

Since the word 'parent' is used, it has been assumed that the consent of a single parent would suffice, thereby ignoring the law that the ‘words and expression in singular include plural, the words and expression in the plural include the singular.’ (See section 4(3) of the Interpretation and General Clauses Act 1948 and 1967).

The state enactments vary as far as consent to convert a minor to Islam is concerned, for some state enactments say both parents must consent and some, either parent must consent.

It is suggested that the following points listed below be taken into consideration to put an end to this prolonging legal tussle that is not good for the people and the country as a whole.

Voluntary consent

There must be clear provisions on the issue of conversion of children under the age of 18. Both parents or the legal guardian must consent to the conversion of children under the age of 18.

The Syariah Court should not accept conversion by one parent who has converted to Islam when the other party to the non-Muslim marriage is still living and that marriage is still subsisting.

The Syariah Court seems to be content that so long one parent is a Muslim, the child is a Muslim taking after the father. What is being ignored is the fact that the parents were non-Muslims when the child was born, and so long one as of the parents remains non-Muslim, his or her rights to the child’s religious upbringing is not vitiated.

The High Court should decide the religious status of the child based on the wishes of the non-converting parent and also taking into consideration the well-being of the child.

Where the marriage between converted and non-converted spouses subsists, both must be consulted and their consent obtained when the conversion of their children under the age of 18 is accepted by the Syariah Court.

Article 12(4) of the Federal Court should be amended to read as follows: ‘For the purpose of Clause (3) (of Article 12) the religion of a person under the age of 18 years shall be decided by his parents or lawful guardian.’

In so far as Article 121(1) is concerned, it would be a prudent course to revert to its original position, for example, the judicial power of the federation shall be vested in the Court of Appeal and the Federal Court, with a proviso that where the parties are Muslims and the matter is within the jurisdiction of Syariah Court, the High Court shall have no jurisdiction.

The Law Reform (Marriage and Divorce) Act 1976 should be more specific and provide clear guidelines when one spouse converts to Islam and the other remains a non-Muslim. In this context, Section 51 should include the following provision:

Where one party to a marriage has converted to Islam and there are children of that marriage, and the other party, if still living, but has not converted to Islam, the converted party shall have no right to convert the children of the marriage to Islam until the voluntary consent of the non-Muslim party has been obtained.

The state legislature of the Administration of Islamic Law Enactments should not enact any law inconsistent with Articles 11, 12 and 121(1) of the Federal Constitution, especially when the conversion of a person under the age of 18 arises. The consent of both parents should be a condition precedent before any conversion takes place.

Where a spouse has converted to Islam during the subsistence of a marriage contracted when that spouse was a non-Muslim, the spouse who has not converted should immediately be notified and the Syariah Court should not take any step to invalidate that non-Muslim marriage or make any order affecting the non-Muslim children.

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K SILADASS is a practising lawyer.​ -Mkini