Pertanika J. Soc. Sci. & Hum.

25 (S): 309 - 322 (2017)

SOCIAL SCIENCES & HUMANITIES

Journal homepage: http://www.pertanika.upm.edu.my/

Towards an Apex Sharia Court in Malaysia

Shuaib, F. S.*, Kamal, M. H., Bustami, T. A., Othman, N. and Sulaiman, M. S.
Faculty of Laws, International Islamic University Malaysia (IIUM), 53100, Kuala Lumpur, Malaysia

ABSTRACT
Malaysia has 14 Sharia court systems. The main reason for this state of affairs is the
distribution of legislative powers under the Federal Constitution between the Federation
and the states where Islam and Islamic law are state matters. This paper looks at the
consequences of having several distinct Sharia court systems. The Sharia courts and the
laws differ from one state to another. This paper looks at the legal possibility of having
one apex court for all the 14 Sharia court systems to streamline the administration and
decisions of the Sharia courts.

Keywords: Federalism, Islamic law, legal system, Sharia courts

INTRODUCTION English common law, Islamic law and

Malaysia is a multiracial and multi-religious customary law. The judiciary in Malaysia
country in the region of Southeast Asia. is largely influenced by the common law of
For centuries, this country was the centre England and Islamic law. There are three
of amalgamation of many cultures, with court systems in operation, namely, the
people of different races and religions living civil court system, the Sharia court system
together.1 Malaysia has a unique blend of and the Native Court system. Unlike the
three distinctive legal systems, namely, civil court system in Malaysia, which is a
federalised court system, the Sharia court
system is primarily established by state law
(Shuaib, 2012). Therefore, Islamic law in
one state might differ from that of another
ARTICLE INFO
Article history: state.
Received: 24 January 2017
Accepted: 30 May 2017

E-mail addresses:
[email protected] (Shuaib, F. S.),
[email protected] (Kamal, M. H.),
1
We would like to acknowledge the assistance
[email protected] (Bustami, T. A.), rendered for this paper from a research grant
[email protected] (Othman, N.),
[email protected] (Sulaiman, M. S.)
(FRGS) awarded by the Malaysian Ministry of
* Corresponding author Education.

ISSN: 0128-7702 © Universiti Putra Malaysia Press

 Shuaib, F. S., Kamal, M. H., Bustami, T. A., Othman, N. and Sulaiman, M. S.

Civil Court System the High Court relating to both civil and
Before we consider the Sharia court system, criminal matters4 while the Federal Court
let us look at one of the major court systems hears appeals from the Court of Appeal.5
in Malaysia, namely, the civil court system. The Federal Court is the ultimate ‘appellate
In this system, there are superior courts court’ in all civil and criminal matters6 and
and inferior courts. The superior courts is a final interpreter of the law of the land
consist of the High Courts, the Court of and the Federal Constitution.7
Appeal and the Federal Court, which are
at the apex of our legal system, whereas The Native Court System
the Sessions Court and the Magistrates’ The Native Courts in Sabah and Sarawak
Court collectively form the inferior courts are established to hear and determine
or subordinate courts. The establishment disputes among natives in relation to native
of these courts is spelt out under Part IX of customary laws (Phelan, 2003). Thus, in
the Federal Constitution. The jurisdiction Sabah and Sarawak, in addition to the civil
of the courts in civil or criminal matters is courts and the Sharia courts, there are the
contained in the Subordinate Courts Act Natives Courts established under the Sabah
1948 (Revised 1972) and the Courts of Natives Courts Enactment 1992 and the
Judicature Act 1964 (Revised 1972). Sarawak Native Court Ordinance 1992.
There are two High Courts in Malaysia, Both the Natives Courts in Sabah and
one in West Malaysia, known as the High Sarawak hear cases arising from a breach of
Court in Malaya, and the other in East native law or custom, where all the parties
Malaysia, known as the High Court in are natives and the case involves native
Sabah and Sarawak. The two High Courts customary law.
in Malaysia have general supervisory
and revisionary jurisdiction over all the
The Sharia Court System
subordinate courts2 and jurisdiction to hear
appeals from the subordinate courts in civil The Sharia court system is one of the three
and criminal matters.3 The High Courts have separate court systems that exist in the
unlimited civil jurisdiction. Malaysian legal system (Shuaib, 2008a).
Under Article 121(1A) of the Federal
The other appellate courts are the
Constitution, exclusive jurisdiction in
Federal Court and the Court of Appeal.
matters with respect to Islamic laws is
The Court of Appeal hears appeals from

4
See Article 121(1B) of the Federal Constitution.
2
See sections 31 to 37 of the Court of Judicature 5
See Article 121(2) of the Federal Constitution.
Act 1964 (Revised 1972). 6
See sections 96, 97 and 87(1) of the Court of
3
See section 27 of the Court of Judicature Act Judicature Act 1964 (Revised1972).
1964 (Revised 1972). 7
See Article 128 of the Federal Constitution.

310 Pertanika J. Soc. Sci. & Hum. 25 (S): 309 - 322 (2017)
 Towards an Apex Sharia Court in Malaysia

conferred to the Sharia courts.8 There is a consists of the Sharia Court of Appeal,
parallel system of state Sharia courts that the Sharia High Courts and the Sharia
have limited jurisdiction over matters of Subordinate Courts. Administratively, the
state Islamic law (Sharia). The Sharia courts Sharia Subordinate Courts in every state
of the states and the Federal Territories are bound by orders from the Sharia High
were established by virtue of item 1 of the Courts. At present, there are 14 Sharia
State List of the Federal Constitution and Courts of Appeal in Malaysia, including
item 6(e) of the Federal List for the Federal one Sharia Court of Appeal in the Federal
Territories. 9 All states and the Federal Territories, functioning as the apex court in
Territories have their separate sets of the each state in dealing with appeals from the
Sharia Court system (Shuaib, 2015). These lower court.
are spelt out in the state enactments such as
the Administration of Islamic Law (Federal CONSEQUENCES OF HAVING
Territories) Act 1993 (Act 505) and the MULTIPLE SHARIA COURT
SYSTEMS
Administration of the Religion of Islam
(Selangor) Enactment 2003. Looking at the above description of the
The Sharia courts have jurisdiction Sharia court systems, it should be clear
over Islamic matters, and can generally that in Malaysia there are 14 Sharia court
pass sentences of not more than three years systems established under different laws.12
imprisonment, RM5,000 in fines and six The main reason for this situation is the
strokes of the cane.10 As established by distribution of legislative powers under the
the states, they have jurisdiction within Federal Constitution between the Federation
the respective state boundaries only.11 The and the states (Aziz, 2007). Islam and
hierarchy of the Sharia Courts in Malaysia Islamic law are state matters. Item 1 of the
State List of the Ninth Schedule, Federal
Constitution confers sole jurisdiction to
the state to enact Islamic law as applicable
8
Mohamed Habibullah bin Mahmood v
Faridah bte Dato Talib [1992] 2 Malayan Law to Muslims. With respect to the Federal
Journal 793. 9Ninth Schedule of the Federal Territories, Parliament has the legislative
Constitution power to enact Islamic law.13 Since Sharia
10
See section 2 of the Sharia Courts (Criminal courts are established under the State List,
Jurisdiction) Act 1965 (Revised 1988). Consider
a Bill to amend the Act to increase the power
of the Sharia courts brought by a Member of
Parliament, Abdul Hadi Awang, on 25 May, 12
See, for instance, the Administration of
2016; see Sharia Court (Criminal Jurisdiction) Islamic Law (Federal Territories) Act 1993
(Amendment) Bill 2016. (Act 505); the Administration of the Religion of
11
Sulaiman bin Takrib v Kerajaan Negeri Islam (Johore) Enactment 2003 (Enactment No
Terengganu (Kerajaan Malaysia, intervener) 16 of 2003); the Sharia Court Enactment 2008
and other applications [2009] 6 Malayan Law (Kedah) (Enactment No 08 of 2008/En.12).
Journal 354. 13
See item 6(e) of the Federal List.

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 Shuaib, F. S., Kamal, M. H., Bustami, T. A., Othman, N. and Sulaiman, M. S.

states have powers to enact their own laws states. For instance, a Sharia Court in the
and procedural matters. The outcomes Federal Territories has no jurisdiction to
of these legislative powers are the varied hear an application for jointly acquired
legislations, albeit slight, as well as the matrimonial property if an order for divorce
varied decisions of Sharia courts in the was granted by a Sharia court in Selangor.
states of Malaysia. This is because it is the Sharia court in
Selangor that has jurisdiction to grant a
Non-Uniformity of Laws related relief, such as an order for jointly
acquired property14, when granting an order
The different administration of the Sharia
for divorce. In short, if the court proceeds to
court systems in each state and the Federal
hear the dispute and makes a decision when
Territories produce several consequences.
it lacks the necessary territorial jurisdiction
The first is non-uniformity of laws. The state
to do so, the entire proceeding is illegal
has the power to impose its own laws in its
or void and any judgement made is liable
Sharia Court in dealing with the subject
to be set aside irrespective of whether the
matters that fall within its jurisdiction. Thus,
defendant objects to the jurisdiction or not.
one may find that the law of the Sharia Court
in one state might be different from that of
the other states. Territorial Limit of Orders
Another consequence is that the orders of
Territorial Limit of Jurisdiction a Sharia court in one particular state are
enforceable generally within the territorial
The second consequence, territorial
limit of that state only.15 This is due to the fact
jurisdiction, refers to the geographical
that the Sharia courts are established by the
limitation imposed on a particular court.
states, not the Federation. Thus, there may
For instance, in the civil court system,
be a problem in enforcing a judgement of a
a Magistrates’ court in Perak has no
Sharia court if one of the parties is residing
jurisdiction to hear and determine a cause
in another state. Similarly, the Sharia courts
of action which arose in the states of Sabah
of one state are not bound by the decision
and Sarawak. In similar vein, the Native
of Sharia courts from other states. There
Courts of Sabah and Sarawak have no
are also difficulties in serving summonses
jurisdiction to hear and determine a cause
of action outside their respective territorial
limits. This is stated in the Native Courts
Ordinance 1992 (Sarawak) and the Native 14
See section 122 of the Islamic Family Law
Courts Enactment 1992 (Sabah). (State of Selangor) Enactment 2003.
Similarly, the Sharia Court in one state
15
Kassim @ Osman bin Ahmad v Dato’ Seri
Jamil Khir bin Baharom Menteri di Jabatan
has no jurisdiction to hear and determine a Perdana Menteri (Hal Ehwal Agama Islam) &
cause of action which has accrued in other Ors [2016] 7 Malayan Law Journal 669.

312 Pertanika J. Soc. Sci. & Hum. 25 (S): 309 - 322 (2017)
 Towards an Apex Sharia Court in Malaysia

and warrants outside a state in which they means a person permanently living or
are issued and in enforcing a Sharia Court ordinarily residing in a particular area or
decision outside of the state. For instance, certified by the Syarie Judge as such.
maintenance orders made by a Sharia Court In contrast, the Islamic Family Law
is unenforceable outside the state. Although (Kedah Darul Aman) Enactment 2008
most of these problems have been resolved uses the term “bermastautin” for residence
through reciprocal enforcement of orders without translating it and provides that it
between the states, some states have still not means “permanently living or ordinarily
adopted the mechanism. bermukim in a particular area.” It also
has a provision on “bermukim,” which
Jurisdiction of the Court Depends on means “residing or living in a particular
Residence of the Parties place temporarily”. In addition, section
4 of the said Enactment provides that the
The next consequence is related to
Enactment shall apply to “all Muslims
jurisdiction. In relation to the different
who are bermukim in the State of Kedah
state administration of Sharia courts and
Darul Aman, or bermastautin in the State
their territorial jurisdiction, the jurisdiction
of Kedah Darul Aman but who are living
of Sharia courts depends on the residence
outside the state.” 16 In this respect, the
of the parties. For instance, section 4 of
application of Islamic Law in this state is
the Islamic Family Law (Federal Territory)
wider than in other states in Malaysia as it
Act 1984 provides: “Save as is otherwise
has jurisdiction not only on a resident but
expressly provided, this Act shall apply to
also a person living temporarily in the state
all Muslims living in the Federal Territory
of Kedah. Although on the face of it the
and to all Muslims resident in the Federal
Kedah Enactment may seem to be wider,
Territory who are living outside the Federal
the Federal Territories’ Act also provides
Territory.” It can be seen from this provision
that it is applicable to Muslims “living” in
that apart from being a Muslim, being a
the Federal Territories.
resident of one state is a requirement for a
person to initiate a case in the Sharia Courts.
Under section 2 of the Islamic Family Forum Shopping
Law (Federal Territories) Act 1984, Another consequence is forum shopping.
“resident” means a person permanently or When multiple courts seemingly have
ordinarily living in a particular area. The concurrent jurisdiction over a plaintiff’s
14 states of Malaysia, including the Federal cause, the plaintiff may choose a Sharia
Territories, provide a similar interpretation court from a state that will treat his or her
of residence. In Perlis, the interpretation cause most favourably. Some litigants prefer
of residence is slightly different, where
section 2 of the Islamic Family Law (Perlis)
Enactment 2006 provides that “resident” 16
Emphasis is the author’s.

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 Shuaib, F. S., Kamal, M. H., Bustami, T. A., Othman, N. and Sulaiman, M. S.

their legal case to be heard in the court Legal Possibility of Establishing an

which will apply the law more favourably Apex Sharia Court at the National
to their case. Level
In the case of Aishah bt Abd Rauf v The discussion so far has shown that the
Wan Mohd. Yusof bin Wan Othman,17 after existence of 14 Sharia court systems, while
the application for polygamous marriage faithful to the concept of federalism as
was dismissed by the Sharia Appeal Court agreed in the formation of the Federation of
in Selangor, the husband filed another Malaya and later Malaysia, causes problems
application in Terengganu, where he in the administration of Sharia justice. The
eventually succeeded in his application. creation of an apex Sharia court for the
This is the impact of the difference of federation may not solve all the problems,
requirements in both states in dealing with but may in the long run reduce them.
polygamous marriage. The setting up of an apex Sharia Court
at the national level in Malaysia has to take
Sharia Courts of One State Do Not into account the position of Islam under
Have to Follow the Decision of Sharia the Federal Constitution (Aziz, 2006).
Courts of another State for the Same Before we delve further into the issue, let
Parties in the Same Case us briefly look at the relevant provisions of
An example of a case where a Sharia court the Federal Constitution, particularly on the
did not have to follow a decision of another division of power between Parliament and
Sharia court from another state is the case state Legislatures, to fully understand the
of Aishah bt Abd Rauf v Wan Mohd. Yusof constitutional limitations and ultimately,
bin Wan Othman, 18 where the appellant to find ways to overcome such constraints.
succeeded in setting aside the application
to contract a polygamous marriage by the Federalism
respondent in the Sharia Appeal Court in One of the main problems in the setting up
Selangor. Dissatisfied with the order, the of an apex Sharia Court of Appeal is the
respondent filed another application in distribution of legislative and executive
Terengganu, where he eventually succeeded powers under the Federal Constitution (Aziz
in his claim. In this respect, what is crucial & Shuaib, 2009). There is no one entity that
is that the order issued by a Sharia court in has monopoly of legislative and executive
one state did not bind another Sharia court powers in Malaysia because Malaysia is a
in other states. new entity formed by the agreement of the
states (Fong, 2008). This system of a central
power, while at the same time maintaining
(1412) 7 Jurnal Hukum 152.
17 the existence of the partnering entities
(1412) 7 Jurnal Hukum 152.
18
is known as federalism. Federalism is a

314 Pertanika J. Soc. Sci. & Hum. 25 (S): 309 - 322 (2017)
 Towards an Apex Sharia Court in Malaysia

political organisation that brings together legislature has the power to make laws for
separate political units under an umbrella the whole or any part of the state.
of one political system but retains the Under Article 74, Parliament has the
integrity and uniqueness of each political exclusive power to make laws over matters
unit (Beri, 2003). Federal systems allow this falling under the Federal List, whereas each
by distributing powers between the central state, through its Legislative Assembly, has
and the constituent authorities in a way that legislative power over matters under the
preserves their existence and authority. State List.19 In addition, both Parliament and
The distribution of powers between the state legislatures share the power to make
central authority and state authority is found laws over matters under the Concurrent List,
in Article 74 of the Constitution, which but Article 75 provides that in the event of
it provides for the division of powers of conflict, federal law will prevail over state
these two authorities as found in the Ninth law.
Schedule of the Federal Constitution. Due to Another important article is Article
the nature of federalism, the determination 76, which identifies the legislative power
of legislative powers depends on the subject of Parliament to legislate laws for states in
matter concerned, whether it falls under the certain cases. This is the exception to Article
Federal List, the State List or the Concurrent 74 and it is in fact, a provision that plays
List. a crucial role in paving the way towards
establishing an apex Sharia Court. We shall
Distribution of the Legislative Power deal with this provision later.
between the Federation and the States Under the Ninth Schedule, the Federal
List has 26 paragraphs that set out the
Being a federation, legislative power is
matters in respects of which Parliament
distributed between the Federation and
has exclusive power to make laws. It
the states. The Constitution does this
by establishing three main Legislative
Lists in the Ninth Schedule, providing,
respectively, the schedule of matters with 19
There are supplements to the State List
respect to which the Federal Parliament (List IIA) and the Concurrent List (List IIIA)
(Parliament), the state legislature and both that apply only to Sabah and Sarawak. These
give the two states legislative powers over
of these bodies can enact laws. Part VI of
matters such as native law and customs, ports
the Federal Constitution is the segment and harbours (other than those declared to be
that specifically deals with the distribution federal), hydro electricity and personal law
of legislative powers. It starts with Article relating to marriage, divorce, family law, gifts
and intestacy. See for instance Ketua Pengarah
73, which provides for Parliament to hold
Jabatan Alam Sekitar & Anor v Kajing Tubek &
exclusive power to make laws for the whole Ors and Other Appeals [1997] 3 Malayan Law
or any part of the Federation while the state Journal 23.

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 Shuaib, F. S., Kamal, M. H., Bustami, T. A., Othman, N. and Sulaiman, M. S.

covers external affairs, defence, internal and procedure of Sharia courts (Aziz, 2007).
security to civil and criminal law and Is the state then the authority to establish
procedure and others. For the purpose of the apex Sharia Court since such a question
this study, the following may be noted: relates to matters in Item 1, namely, Sharia
Item 4 of the Federal List contains enlisted courts? A straight answer cannot be given
civil and criminal law and procedure and because generally, as stated under Article
the administration of justice, including: 73 of the Federal Constitution, state law is
“(a) constitution and organisation of all enforceable within the state territory. Thus,
courts other than Sharia Courts.” In this a state cannot enact a law applicable to the
respect, the Federal Government has the whole of the federation, as seems to be the
authority to enact laws on the constitution case in establishing an apex Sharia court at
and organisation of civil courts,20 but not to the national level.22 We will consider some
constitute Sharia courts. options in the following sections.
The State List under the Ninth Schedule
consists of 13 paragraphs which set out the LEGAL OPTIONS IN ESTABLISHING
matters in respect of which state legislature A FEDERAL SHARIA COURT OF
APPEAL
has exclusive power to make laws. This
includes Islamic Personal Law, local Several possible methods may be examined
government, state works and water, state to establish an apex Sharia court.
holidays and others. It also has a special
list supplemented for the states of Sabah Parliament Enacting Uniform Laws
and Sarawak known as List IIA. 21 One Firstly, although states have the legislative
thing that needs to be highlighted is that the power to legislate on Sharia courts, the
constitution, organisation and procedure of Federal Constitution allows Parliament
Sharia courts fall under the authority of the to enact state matters under certain
state legislature. circumstances. In this respect, paragraph
(b) Clause (1) of Article 76 of the Federal
Sharia Court Being under the State List Constitution provides that Parliament may
Item 1 of the State List of the Nine Schedule legislate for “the purpose of promoting
confers the power to the state legislature to uniformity of the laws of two or more
enact laws on the constitution, organisation states.” Article 76 further provides that “a
law made ... shall not come into operation

20
See the Courts of Judicature Act 1964
(Revised-1972) and the Subordinate Courts Act
1948 (Revised 1972). See for instance Ketua Pengarah Jabatan
22

21
Ketua Pengarah Jabatan Alam Sekitar & Alam Sekitar & Anor v Kajing Tubek & Ors and
Anor v Kajing Tubek & Ors and Other Appeals Other Appeals [1997] 3 Malayan Law Journal
[1997] 3 Malayan Law Journal 23. 23.

316 Pertanika J. Soc. Sci. & Hum. 25 (S): 309 - 322 (2017)
 Towards an Apex Sharia Court in Malaysia

in any state until it has been adopted by a enacting a specific enactment on the said
law made by the Legislature of that state, law. Furthermore, the said law must be
and shall then be deemed to be a state law regarded as a state law and not a Federal
and not a federal law, and may accordingly law, and can be amended or repealed by a
be amended or repealed by a law made by State Legislative Assembly.24
that Legislature.”
According to the Reid Commission, Conference of Rulers to Decree Uniform
the power of Parliament to legislate over Laws
states’ subjects is not meant to undermine
The Conference of Rulers as an institution
states’ wishes but to help states in drafting
that brings together the Head of States in
complicated legislation. The process of the
Malaysia should be fully utilised. Article
required adoption by the state of the relevant
3(2) of the Federal Constitution confers
Acts would ensure the sovereignty of the
power to the Ruler of every state to be the
states over the subject matters.23
Head of the Religion of Islam while the
Despite the fact that religion falls under
Yang Di-Pertuan Agong (YDPA) is the Head
the State List, Parliament is authorised to
of the Religion of Islam for states not having
enact laws on any matter provided in the
a Ruler such as Malacca, Penang, Sabah and
State List as embodied in paragraph (b)
Sarawak and also for the Federal Territories
Clause 1 of Article 76. This is a relevant
of Kuala Lumpur, Labuan and Putrajaya.
provision that can be invoked to promote
A glance at Article 3(5) of the Federal
uniformity of laws of all states in an
Constitution suggests that Parliament may
attempt to set up an apex Sharia court at
by law make provisions for regulating
the national level (Ibrahim, 2013). However,
Islamic religious affairs as well as setting
it needs to be borne in mind that laws on
up a Council to advise the YDPA on matters
Islamic matters require consultation with
relating to the religion of Islam. In this
state governments as stipulated under
regard, the Conference of Rulers may advise
Article 76(2) of the Federal Constitution.
the YDPA on matters relating to the religion
Additionally, a particular law may not
of Islam and on legislation related to Islam.
be enforced until and unless the State
The Conference of Rulers could be used
Legislative Assembly adopts the law by
as a unifying and legitimising mechanism
for states to arrive at an agreement in
establishing an apex Sharia court.
Para. 84. See also East Union (Malaya) Sdn
23 The National Council for Administration
Bhd v Government of the State of Johore & of Islamic Religious Affairs (Majlis
Government of Malaysia [1981] 1 Malayan
Law Journal 151. See also Lim Chee Cheng &
Ors v Pentadbir Tanah Daerah Seberang Perai
Tengah, Bukit Mertajam [1999] 4 Malayan Law
Journal 213. 24
Article 76(3) of the Federal Constitution.

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 Shuaib, F. S., Kamal, M. H., Bustami, T. A., Othman, N. and Sulaiman, M. S.

Kebangsaan bagi Hal Ehwal Agama Islam are the Heads of the Religion of Islam, it
‘MKI’) could be used to channel this is arguable that an amendment that extends
proposal to the Conference of Rulers.25 their power to establish Sharia courts for
Thus, the Conference of Rulers could be the whole Federation is invalidated by
used to fulfil the requirements of Article this requirement. Additionally, such an
76(1)(b) and 76(2), namely, on the purpose amendment requires the concurrence of the
of having a uniform law on the apex Sharia Yang di-Pertua Negeri of the states of Sabah
court and on consultation with the state and Sarawak as it would affect matters
government. that Parliament may not make into law, in
this case legislation on Islamic matters for
Constitutional Amendment the states.28 We will list out the proposed
amendment before any observation is made.
Another route that one may take in enabling
Parliament to establish an apex court
An amendment to clause (4) of Article
at the national level is by amending the
76 of the constitution. Ahmad Ibrahim
Federal Constitution to give such powers
suggests that this can be done by conferring
to Parliament. The Constitution may be
power to Parliament to enact laws on the
amended by Parliament under Article
constitution, organisation and procedure
159 of the Federal Constitution, which
of Sharia courts by inserting the words
generally requires the support of two
“membership, organisation, and jurisdiction
thirds of the total number of the House of
and powers of Sharia Court” after the words
Representatives and the Senate.26 However,
“local government” in Clause (4) of Article
if the amendment directly affects the
76 (Ibrahim, 2013).
privileges, position, honours or dignity of
the Rulers, the consent of the Conference
A new part IX(A) on Sharia judiciary.
of Rulers is required.27 Since the Rulers
The Federal Constitution is amended by
inserting a new part, namely, “Part IX(A)
Sharia Judiciary,” after “Part IX The
Judiciary,” which will specifically deal with
25
On MKI and uniformity of laws, see for instance
Johari, A. S. (2014). Ke arah merealisasikan the constitution and organisation of Sharia
penyeragaman penggubalan undang-undang Courts in Malaysia.
syariah di Malaysia: Pengalaman, pelaksanaan
dan kerjasama antara persekutuan dengan An amendment to Article 132 to include
negeri. In Seminar bidang kuasa perundangan
syariah: Penyeragaman oleh persekutuan judicial and Sharia law service. Article
vs pelaksanaan oleh negeri: “Lesson learnt 132 of the Federal Constitution is amended
and the way forward”, Putrajaya: Attorney
General’s Chambers.
26
Article 159(3) of the Federal Constitution.
27
Article 38(4) of the Federal Constitution. 28
Article 161E(1)(c) of the Federal Constitution.

318 Pertanika J. Soc. Sci. & Hum. 25 (S): 309 - 322 (2017)
 Towards an Apex Sharia Court in Malaysia

by adding a paragraph (a) on “the judicial CONCLUSION

and Sharia law service” after paragraph “(b) There are several legal obstacles in
the judicial and legal service”. establishing an apex Sharia Court at the
national level. The very nature of the
A new Article 138A to establish a Sharia Federation of Malaysia, which provides
judicial and legal service commission. limited autonomous powers to states on
Article 138 is amended by inserting Article matters of Islam, makes interference and
138A after Article 138 to provide for a Sharia diminishes such powers as being delicate
Judicial and Legal Service Commission. and sensitive. The distribution of executive
and legislative powers under the Federal
Amendment to the Ninth Schedule to Constitution provides for Islamic matters,
provide legislative power to Parliament. which include the Sharia courts, to be under
The Ninth Schedule of the Federal the powers of the states.
Constitution is amended by replacing the However, the Federal Constitution itself
phrase “other than the Sharia Court” in Item envisages a situation where Parliament may
4(a) list I under the Federal List with the be allowed to legislate on state matters.
phrase “constitution and organisation of all Nevertheless, in order to protect the limited
courts including Sharia Courts”. autonomous powers that states have, such
One might wonder how an appeal legislation may require concurrence and
from Sharia courts can be brought to such adoption by state governments and their
a court. Generally, an appeal can be made legislature. Be that as it may, it is still
to the Sultan of a particular state, who will a viable option coupled with the use of
then refer the matter to the Federal Sharia the Conference of Rulers and the MKI
Appeal Court for the court to give its as unifying and legitimising vehicles for
advisory opinion. Here, the decision of the national-level decisions on Islam.
Court would be the decision of the Sultan. A more drastic enabling method to
In the context of Sharia courts, the courts establish an apex Sharia court at the national
can “advise” the state religious authority, level is by amending the Constitution to give
namely, the Sultan, concerning the decision the required powers to Parliament. However,
of the appeal. In order to maintain the it is our view that this would be contrary to
relationship between the appeal and the state the concept of federalism agreed to by the
from where it originates, a judge from that states at the formation of the Federation of
state should be one of the members of the Malaya and then Malaysia, and, realistically,
panel sitting to decide the appeal (Shuaib, it would be very difficult to obtain the
2008b). required consent of the Conference of
Rulers.

Pertanika J. Soc. Sci. & Hum. 25 (S): 309 - 322 (2017) 319
 Shuaib, F. S., Kamal, M. H., Bustami, T. A., Othman, N. and Sulaiman, M. S.

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