The document summarizes two court cases regarding the jurisdiction of civil and syariah courts in Malaysia to determine matters relating to a person's religion. In the first case, the High Court held that under the Federal Constitution, civil courts cannot interfere with or set aside orders from Syariah courts, as their jurisdictions are separate. The second case involved competing claims over the body of a deceased man from his Hindu wife and the Majlis Agama Islam. The Syariah Court had ordered the body be buried according to Islamic rites, but the High Court dismissed the wife's attempt to nullify his conversion to Islam, holding that it had no jurisdiction to review Syariah Court decisions or determine matters of Islamic

1. Review of Syariah Court Decisions by
the High Court
by:
Noor Atikah binti Noor Abidin
Ummi Nur Hazirah binti Shahrom
Ainul Mardhiah binti Mohd Saidi
Nur Atheefa Sufeena binti M.Suaree
Fatimah Zahra binti Mohd Kamal

2. CASE 1
In Genga Devi a/p Chelliah vs Santanam a/l
Damodaram (2001) 2 AMR 1485(HC), an applicant
who had embraced Islam obtained an order for
custody of a child from the Syariah Court in Alor
Setar. The respondent (the mother) who was a Hindu
asked for a declaration that the order was ultra vires
and null and void. The court held that Article 121(A)
of the Federal Constitution provides that the civil
courts cannot interfere with matters within the
jurisdiction of the Syariah courts, let alone set aside
an orderof the Syariah court. Their jurisdictionis
separate.

3. CASE 2
KALIAMMAL A/P SINNASAMY vs
MAJLIS AGAMA ISLAM WILAYAH
PERSEKUTUAN, PENGARAH
HOSPITAL BESAR KUALA LUMPUR
and KERAJAAN MALAYSIA
RESPONDENT

4. 1.
The Appellant had applied for declarations, inter alia,
that her husband, the deceased, is a Hindu follower who
practised the custom and professed Hindu religion before his
death and that the deceased at the time of his death was not a
Muslim.
2.
The Appellant‟s affidavit in support of her application
stated, inter alia, that she had married the deceased on 25
November 1995 at Ramer Temple, Taman Selayang and
alleged that the deceased was professing Hindu religion and
practicing Hindu rites and customs at all times in his lifetime.
She further averred her deceased husband was involved in an
accident at Sungai Udang Army Camp in Malacca which had
resulted in his paraplegic condition and always suffered from
temporary loss of memory (as alleged by the Appellant, but no
medical proof). Since then, the deceased was wheel-chaired
bound and in coma until his death. However, according to
Supporting Affidavit of Chandiran a/l Periasamy, the deceased
was able to move on his own independently prior to his fall on
11 November 2005.

5. 3. On 1 December 2005, the Appellant was informed by one
Mejar Shukri bin Haji Yahaya that the deceased had converted
to Islam on 11 October 2004 and was registered as a muallaf
on 14 May 2005in accordance with the provisions of the
Administration of Islamic Law (Federal Territories) Act 1993
[Act 505]. Thereafter the deceased‟s registration as a muallaf,
there was no known application by him to denounce his faith.
Thus, in the event that he died, Majlis Agama Islam Wilayah
Persekutuan (the First Respondent herein) would be
responsible to arrange for his funeral rites.
4. The Director General Hospital of Kuala Lumpur (the Second
Respondent herein) declared that the deceased was dead on 20
December 2005. Consequently, the First Respondent„s officers
claimed the body of the deceased to be buried according to
Hukum Syarak but the family of the deceased restrained them
from taking and/or claiming the deceased‟s body.

6. 5. The Appellant instead of referring the matter to the First
Respondent had filed an Originating Summons to nullify the
deceased‟s conversion to Islam at the High Court on 21
December 2005.
6. Due to the dispute on the claim and the request from the
Second Respondent for an order from the public authority, on
22 December 2005 the First Respondent filed an application
with the supporting documents in Syariah High Court, for an
order to carry out arrangements for the deceased‟s funeral as a
fellow Muslim. The Syariah High Court had granted the order
sought by the First Respondent.
7. On the same day, a copy of Syariah Court‟s order was served
on the Second Respondent. The facts in the Syariah court‟s
order stated that the deceased, known as Mohamad Bin
Abdullah was a Muslim at the time of his death and his body
should be handed over to the First Respondent for Muslim
burial rites in accordance with Hukum Syarak.

7. 8.
However, due to the competing claims over the body of the deceased
and the advice given by the Legal Advisor‟s Office, Ministry of Health, the
deceased‟s body was kept in the custody of the Second Respondent
pending the outcome of the hearing of the Originating Summons in the
High court.
9. In her Originating Summons, the Appellant had prayed for the following
declarations:
(a that the Appellant/Applicant is a lawful wife to Moorthy a/l Maniam
(„deceased‟) until he died on 20 December 2005;
(b) that the deceased was a Hindu who practiced the custom and Hindu
religion prior to his death;
(c) that the deceased was not a Muslim at the time of his death; and
(d) that all documents of conversion of the deceased to the Islamic religion is
not valid in the eyes of law and to cancel the deceased‟s registration as a
muallaf.

8. • 10. The Appellant had also sought for an order
directing the Second Respondent and/or the Kuala
Lumpur General Hospital by itself and/or by their
agent and/or by their worker and/or by their
representative to hand over and/or to release and/or to
give the deceased‟s body immediately to the
Appellant for burial purposes and an injunction order
forbidding the First Respondent from taking or
claiming the deceased‟s body in any way whatsoever
from theSecondRespondent; and an interim
injunction order forbidding theFirst Respondent from
taking and/or claiming the deceased‟s body from the
Second Respondent and/or to restrain theFirst
Respondent from claiming the deceased‟s body in any
way whatsoever from theSecond Respondent until the
final decision by the High court.

9. 11. On 28 December 2005, the High Court allowed prayer (a) of the Appellant‟s
Originating Summons that the Appellant was the lawful wife of Moorthy a/l
Maniam („the deceased‟) until the date of his death on 20 December 2005. The
learned trial Judge however dismissed prayers (b), (c) and (d) of the Appellant‟s
Originating Summons.
12. In the learned trial Judge‟s judgment, the following are his Lordship‟s grounds –
a) Following the decisions of the High Court in Nor Kursiah Bte Baharuddin v.
Shahril Bin Lamin & Anor [1997] 1 MLJ 537 [see BOAR2R3, Tab 13] and the
Court of Appeal in Kamariah Bte Ali v. Kerajaan Negeri Kelantan, Malaysia dan
satu lagi [2002] 3 MLJ 657[see BOAR2R3, Tab 12], the learned trial judge held
that the High Court has no jurisdiction to review, or question the validity of the
decision made by the Syariah Court.
b) There are express provisions under the Administration of Islamic Law (Federal
Territories) Act 1993 [Act 505] that explain the procedure relating to conversion to
Islam. Thus, it follows that the competent court to determine any issue in relation to
conversion to Islam is the Syariah court.
c) The jurisdiction, to determine matters within the domain of Islamic law and to
assess any fact in relation to act to denounce one‟s Islamic faith such as the
allegation that the deceased had taken part in the Hindu religious ceremony, carried
out matters adverse to Islamic faith or failed to perform his duties as a Muslim,
should be with the Syariah Court and not the civil court.

10. c) The jurisdiction, to determine matters within the domain of
Islamic law and to assess any fact in relation to act to
denounce one‟s Islamic faith such as the allegation that the
deceased had taken part in the Hindu religious ceremony,
carried out matters adverse to Islamic faith or failed to perform
his duties as a Muslim, should be with the Syariah Court and
not the civil court.
13. Dissatisfied with the learned trial Judge‟s decision on the
matter, the Appellant appeal to this Honourable Court.

11. HUJAHAN PEGUAMCARA PERAYU:
1. The Appellant prays for the matter to be remitted back to
the High Court to be considered on the merit because the
learned trial judge has dismissed the application on an issue
of jurisdiction.
2. The learned trial judge has only relied on an ex-parte order
of the Syariah Court.
3. The Syariah Court does not have jurisdiction to order that
the deceased is a Muslim.
4. There was no evidence before the learned trial judge to say
that the deceased is a Muslim.Refer: Ng Wan Chan v.
Majlis Ugama Islam Wilayah Persekutuan & Anor [1991] 3
MLJ 174;-Refer: Ng Wan Chan v. Majlis Ugama Islam
Wilayah Persekutuan & Anor (No. 2) [1991] 3 MLJ 487

12. 5. The Appellant is a non-Muslim and therefore she has the right to be
heard in a civil court.
6. There is no document, beside the Syariah Court order, produced by
the Respondents to show that the deceased is a Muslim. There was
only an allegation by one Mejar Shukri bin Haji Yahya that the
deceased has converted to Islam but there was no affidavit affirmed by
Mejar Shukri before the learned trial judge. On the other hand, the
Appellant produced the deceased‟s Army Identity Card to show that
the deceased is a Hindu.
7. The 1st Respondent was acted mala fide when obtaining the order of
the Syariah Court.
8. The learned trial judge was erred in law when deciding that His
Lordship has no jurisdiction to hear the matter.
9. What the Appellant tried to seek from the learned trial judge is an
order to determine the status of religion of the deceased and not to
declared that he is a Muslim.
Refer: Zaina Abidin bin Hamid @ Maniam & Ors v. Kerajaan Malaysia
& Ors [2009] 6 MLJ 863
Refer: Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah Bukit
Mertajam & Anor [1992] 1 MLJ 1

13. HUJAHAN PEGUAM KANAN PERSEKUTUAN:
1. The 2nd and 3rd Respondents withdraw paragraph 2.4 of the 2nd and 3rd
Respondents Written Submission and adopting the principle in the case of
Williams v. Williams [1882] CD 659.
2. The prime contentious issue in this Appeal is relating to the issue on
jurisdiction to determine the validity of the deceased‟s conversion to Islam.
Thus, the issue to be considered is whether the Syariah courts or the civil
courts have the jurisdiction to determine the validity of the deceased‟s
conversion to Islam.
3. The learned trial Judge was correct to raise the question on whether the
High court has any jurisdiction to determine the validity of the deceased‟s
conversion to Islam or had committed an act contrary to Islamic teaching.
The learned trial Judge is cautious in not assuming the function as an
Islamic jurist to decide on those issues so related to question one‟s faith in
Islam.

14. •
4. The Syariah court has „inherent jurisdiction‟ in all matters
in item 1 List II Ninth Schedule to the Federal Constitution.
The Syariah courts jurisdiction include on matters pertaining
to Islamic laws, personal lawand determination of matters of
Islamic Law and doctrine. Even though there is no express
provision in the Administration of Islamic Law (Federal
Territories) 1993 (Act 505) conferring jurisdiction on the
Syariah Court to determine the validity of a Muslim‟s
conversion to Islam, if one were to divulge into details, one
would have found, in List II of the Ninth Schedule to the
Federal Constitution, the sentence “…determination of matters
of Islamic Law..”. This phrase, given its proper interpretation,
grants the Syariah court the inherent jurisdiction to invoke
Islamic Law, the powers and jurisdiction to adjudicate the
matter enumerated in item 1. Moreover, Part IX of Act 505
clearly explains the rules pertaining to “conversion to Islam”.
The provisions in Act 505 are part and parcel of matters listed
in item 1 of List II, Ninth Schedule of the Federal Constitution,
which squarely under the purview and the jurisdiction of the
Syariah courts.

15. 5. Even though the Act 505 did not directly or expressly confer the
jurisdiction to Syariah Court to determine the validity of the deceased’s
conversion to Islam, nowhere can one find the requirement in any of the
articles of the Federal Constitution, that a State has to enact a state law
for conferment of powers and jurisdiction to the Syariah court. Thus, once
constituted and to effectively carry out its functions, the Syariah court
must be clothed with the jurisdiction to adjudicate over matters included
in item 1 of the State List. It is impossible to enlist every detail of Syariah
issues under an act or enactment in order to confer powers and
jurisdiction to the Syariah court as Syariah affects every aspect of a
Muslim’s life and action.
Refer: Md Hakim Lee v. Majlis Agama Islam Wilayah Persekutuan, Kuala
Lumpur [1998] 1 MLJ 681
Refer: Majlis Ugama Islam Pulau Pinang dan Seberang Perai v. Shaik Zolkaffily
Shaik Natar & Ors [2003] 3 CLJ 289
6. It is settled law that the “wider approach” should be employed in
determining any conflict of jurisdiction between the Syariah court and the
civil court in Malaysia.
Refer: Md Hakim Lee v. Majlis Agama Islam Wilayah Persekutuan, Kuala
Lumpur [1998] 1 MLJ 681
Refer: Majlis Ugama Islam Pulau Pinang dan Seberang Perai v. Shaik Zolkaffily
Shaik Natar & Ors [2003] 3 CLJ 289

16. 7. The states have codified particular areas of Syariah for the
determination of applicable principles and procedures in
administering justice in the Syariah courts. The codification of
Syariah legislations is only for the purpose of clarity of
interpretation and uniformity of implementation in the Syariah
courts’ set-up in a federation state like Malaysia. The states are
empowered to legislate on Syariah matters enumerated in the
paragraph of item 1. Therefore, to effectively legislate and take
control of Islamic affairs, Syariah courts’ jurisdiction should followup on matters stated in the paragraph of item 1 in List II - the State
List.
8. In interpreting a constitution two points must be borne in mind.
First, judicial precedent plays a lesser part than is normal in matters
of ordinary statutory interpretation. Secondly, a constitution, being
a living piece of legislation, its provisions must be construed broadly
and not in a pedantic way- with less rigidity and more generosity
than other Acts.
Refer: Dato Menteri Othman bin Baginda & Anor v. Dato Ombi Syed
Alwi bin Syed Idrus [1981] 1 MLJ 29
Refer: Tan Sung Mooi v. Too Miew Kim [1994] 3 MLJ 117

17. 9. The purpose of the Ninth Schedule of Federal Constitution and particularly item 1 of the State List are to
ensure that Muslims continue to be governed by Islamic law on the subject matters stated under item 1
and to provide for the establishment of the Syariah courts. Therefore, this Honourable Court should give
full effect to the language used in the constitutional provisions in line with the purpose of the Federal
Constitution. Thus, Muslims should be governed by Islamic law on subject matters list down under item
1 of the State List and Islamic law as administered by the Syariah courts.
10. In order to determine whether the deceased‟s conversion is valid according to the law, the learned trial
Judge inevitably will engage himself with the question of validity of conversion according to Islamic law.
Thus, his Lordship is correct in abstaining himself from such engagement in the field of law of which he
has no jurisdiction to decide on. Since the Appellant prayers depend on one main issue; namely the
validity of the deceased‟s conversion to Islam, the learned trial Judge was correct in deciding that he has
no jurisdiction to adjudicate the matters before him.
Refer: Kamariah bte Ali dan lain-lain v. Kerajaan Negeri Kelantan, Malaysia dan satu lagi [2002] 3 MLJ 657
Refer: Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1
Refer: Mohamed Habibullah bin Mahmood v. Faridah bte Dato Talib [1992] 2 MLJ 793
Refer: Soon Singh Bikar Singh v. Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 2
CLJ 5
Refer: Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Yang Lain [2007] 3 CLJ 557

18. 11. Even though it is arguable that the civil court has jurisdiction to make any
order for a declaration according to the provisions of Court of Judicature
Act 1964, nevertheless it must be borne in mind that the subject matter for
determination in this case is one related to determination of Islamic Law i.e
pertaining to the determination of validity of one‟s conversion to Islam
which is not within the jurisdiction of the civil court. It was decided by the
Federal Court that to determine jurisdiction of court, subject
matterapproach should be employed instead of the remedy prayed for
approach.
Refer: Azizah Shaik Ismail & Anor v. Fatimah Shaik Ismail & Anor [2003] 4
CLJ 281
Refer: Majlis Ugama Islam Pulau Pinang dan Seberang Perai v. Shaik
Zolkaffily Shaik Natar & Ors [2003] 3 CLJ 289
12. Both Civil and Syariah courts are in parallel existence within the
Malaysian Legal system. The learned trial Judge was correct in his decision
that the High Court has no jurisdiction to question or to interfere with the
decision or order given by the Syariah Court. The High Court is in no
position to review the Syariah Court‟s decision.
13 The .insertion of clause (1A) into Article 121 of the Federal Constitution
clearly provides that there are two separate systems of courts in the
Federation namely civil courts and Syariah courts. Article 121 (1A)
provides that the civil courts shall have no jurisdiction to hear any matter
within the jurisdiction of the syariah court.