A study on the conflict of jurisdiction between civil and Syariah courts in Malaysia / Mohd Faisal Md Noor, Mohd Azlan Mashod and Muhammad Azwar Abd Manab

There are two systems of courts in Malaysia namely the civil courts and the Syariah courts. The civil courts were established under Article 121 of the Federal Constitution and the jurisdiction of these courts is also provided therein. On the other hand, the Syariah courts were established through Administration of Islamic Laws Enactments of all the respective states, and through federal law in the Federal Territories. Generally, the jurisdiction of Syariah courts is as laid out in Item 1, List II of the 9 Schedule of the Constitution.1 Before the introduction of Article 121(1 A) into the Constitution, the civil Courts may review decisions of the Syariah courts where in some instances the former had set aside the decisions of the latter such as in Myriam v Mohamed Ariff; Commissioner for Religious Affairs, Terengganu & Ors. v Tengku Mariam; Ainan Mahmud v Syed Abu Bakar;4 and Nafsiah v Abd. Majid.5 However, in Mohamed Saad bin MohdNor v Hasnah bte Ahmad,6 the civil High Court set aside the decision of the Magistrate Court concerning the custody of a child as decided by the Mahkamah Kadi (as it then was). The learned trial judge was of the opinion that the custody of child for Muslims fall under the jurisdiction of the Mahkamah Kadi and not the civil court.