Syariah court’s criminal jurisdiction

 

The syariah courts are an integral part of the court system in Malaysia and are distinct from the civil courts as to their function and jurisdiction. These courts are designated as a specialist court with a three-tier court system, namely, the Syariah Subordinate Court, the Syariah High Court and the Syariah Appeal Court. 

The recognition of the syariah courts was largely due to Article 121(1A) of the Federal Constitution which excludes the jurisdiction of the civil courts in respect of any matter that comes within the jurisdiction of the syariah courts.

The historical origin of the syariah courts can be traced way before the Straits Settlements and the Malay states came under the British administration where the law applicable in these states was Muslim law, which had absorbed to some extent the rules of the Malay custom, and justice was administered in the Kathi's court with an appeal to the sultan.

However, during the British administration of these states, English law became the general law of the land, thus other courts were set up, in the Straits Settlements, by the introduction of the Charters of Justice in 1807 and 1826, and in the Malay states by the advice of the British resident/advisor, and the Kathi's court were relegated to a subordinate position.

The Court Enactment of 1905 of the Federated Malay States included the Court of Kathi and Assistant Kathi within the court system. The Court of Kathi and Assistant Kathi had very limited jurisdiction confined mainly to matters pertaining to marriage, divorce and in other matters stipulated in the surat kuasa (letter of authority). An appeal against the decision of the Court of Kathi and Assistant Kathi lies with the Magistrate's Court and the Supreme Court.

Further, the Courts Ordinance of 1948 made the civil court’s jurisdiction general wherein the Kathi’s Court was omitted from being part of the federal court system. The ordinance continued to apply throughout the federation until it was repealed and replaced by the Courts of Judicature Act 1964 and the Subordinate Courts Act 1948.

When Malaya achieved independence in 1957, the status of the Kathi’s Court was reduced to that of the state court. 

The Federal Constitution dividing legislative power between the federation and states, giving to the federation, the legislative power over civil and criminal law including the jurisdiction of the courts other than syariah courts and giving to the states the legislative power over a wide range of personal matters affecting the Muslims, and the syariah courts were mandated to have jurisdiction over these matters. The syariah courts jurisdiction was only over persons professing the religion of Islam.

In 1965, the Parliament enacted the Muslim Courts (Criminal Jurisdiction) Act 1965. The above act provided that the jurisdiction of the Muslim courts shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding six months or with any fine exceeding one thousand dollars or with both. It applied only to the states of Malaya. 

In 1984, the Muslim Courts (Criminal Jurisdiction) Act 1965 was amended where the court's criminal jurisdiction was increased to three years imprisonment, fine not exceeding five thousand ringgit or with whipping not exceeding six strokes or with any combination thereof.

The 1965 Act was revised in 1988 and renamed as the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) which was initially applied to the states of West Malaysia. However, vide the Syariah Courts (Criminal Jurisdiction) (Amendment and Extension) Act 1989, Act 355 was extended to "all the states of Malaysia".

The syariah courts cannot exceed the power vested on it by the Syariah Courts (Criminal Jurisdiction) Act 1965, a federal law. Undoubtedly, the syariah court’s criminal jurisdiction is a far cry compared to the court at the lowest tier of the civil jurisdiction ie, the first class Magistrate's Court. A first class magistrate is empowered to impose imprisonment up to five years, a fine up to ten thousand ringgit (RM10,000) and whipping up to twelve strokes.

Even the syariah judges have expressed concerns on the inadequacy of syariah courts criminal powers. In Syarie Prosecutor vs Mohd Zulkifli Bin Adam & Anor (2011), the accused persons were charged for committing khalwat and they pleaded guilty. Previously, they were convicted for the same offence and a fine of RM800 were imposed. The court noted that the accused persons herein had no remorse but have challenged the institution of the court. The earlier fine imposed on them by the syariah court hardly had any effect on them as they considered the punishment a meagre sum and viewed that each time they committed the offence they could get away with a mere fine. I

In other words, the accused persons do not take the sentence of the court seriously and this has resulted in the increase of such offences with scant regard to the laws.

Hence, the efforts by PAS in 2018 to introduce the private member’s bill in Parliament to enhance the criminal jurisdiction of the syariah courts. The bill is primarily intended to strengthen the position of the syariah courts by proposing an increase in its criminal jurisdiction to 30 years maximum imprisonment, fine up to a maximum of RM100,000 and rotan up to 100 strokes. 

For the bill to see the light of day, it must get a simple two-third majority namely, at least 112 votes out of the 222 votes in Parliament.

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ASHGAR ALI ALI MOHAMED is a law professor at the International Islamic University Malaysia (IIUM). - Mkini

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.