Hudud 6: Jurisdiction

In 1988, an amendment was made to Article 121(1) of the federal constitution with the result that the High Court no longer derived authority from the constitutional itself, but from such “powers as may be conferred by or under federal law”. The significance of this amendment is that the separation of powers is diminished as the judiciary has been rendered subservient to parliament. Further, in another amendment made that year, a new clause (1A) was inserted into Article 121 that stating that “The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” Regardless of the merits or demerits of this new autonomy of Sharia in Malaysian state law, it seems clear that the civil courts now can not interfere in matters which fall within the jurisdiction of the syariah courts. As Shanmuga Kanesalingam notes however, a problem  seems to have arisen where the federal judges have been asked to rule on situations in which  the syariah courts  may have overstepped their boundaries. The current interpretations of Article 121(1A) reveal the judges of the civil courts understand that they can no longer intervene. This disavowal of the judges of their own authority leaves a lacuna of justice at the boundary of muslim/ non-muslim interactions in contemporary Malaysian life. A category of such cases is the Syariah dissolution non-Muslim marriages registered under civil law in situations where one spouse had converted to Islam, with implications for the status of children of those marriages. Indeed, in such cases, the orders of the Syariah courts are being enforced  against non-Muslims. While it is debatable whether non-muslims have the locus standi to speak on justice for their muslim peers of the increased punitive powers brought by the law presently making its way through parliament, it is absolutely clear that all Malaysians should raise questions and concerns about such increased powers in the light of the federal judges abrogation of their own authority at the interstices of muslim/ non-muslim relations in our country.