Ding Jo-Ann, The Nut Graph

IN 2011, Islamic authorities raided a church suspected of proselytising to Muslims. In 2012, it was Borders and ZI Publications (ZIP), over Irshad Manji’s book Allah, Liberty and Love. These institutions are non-Muslim entities. Yet, because Islam or Muslims were somehow involved, this seemed to give licence to religious authorities to enter non-Muslim premises, conduct searches, confiscate items, carry out interviews and charge individuals.

It would seem that over the past years, the powers of the Islamic religious authorities have inexorably expanded. At the same time, non-Muslims and non-Muslim organisations, including the civil court, are often told they cannot intervene in matters pertaining to Islam.

But does the law give Islamic authorities an automatic say the moment Islam or Muslims are involved? Does only the syariah court have jurisdiction over Islamic matters?

Islam and syariah courts

To answer this question, let’s look at the Federal Constitution, the supreme law of the land, and judgements by the Federal Court, the highest court of the land.

The constitution tells us that not all matters relating to Islam fall under the syariah court’s jurisdiction. The constitution gives states the power to make laws on Islamic law, and personal and family law of persons professing the religion of Islam. The constitution’s ninth schedule spells out what this means by listing out matters such as succession, marriage, divorce and zakat. States also have the power to set up syariah courts to adjudicate on these laws.

But the constitution doesn’t give syariah courts exclusive jurisdiction over all Islamic matters. It only gives syariah courts powers to determine those matters spelt out in the ninth schedule, which states have legislated upon.

This was made clear in the 2007 Federal Court decision of Abdul Kahar Ahmad v Kerajaan Negeri Selangor. The Federal Court was petitioned to declare several state enactments pertaining to Islamic law invalid for being unconstitutional. The Majlis Agama Islam Selangor objected, stating this was a question for the Syariah Court, not the Federal Court.

Tun Abdul Hamid Mohamad, who was Chief Justice then, firmly rejected this. He said that nowhere in the constitution did it state that interpreting the constitution was something within the syariah courts’ jurisdiction. Conversely, the constitution does give the Federal Court exclusive power to determine whether any law is invalid, including laws pertaining to Islam.

The Majlis Agama had cited Article 121(1A), which states that civil courts will not have jurisdiction over matters within the syariah court’s jurisdiction. The Chief Justice said yes, that was correct. But if the syariah court didn’t have jurisdiction in the first place, as was the case in Abdul Kahar Ahmad v Kerajaan Negeri Selangor, then that article could not apply. Article 121(1A) was never meant to oust the civil court’s jurisdiction in existing areas in favour of the syariah court.