Syariah — Islamic law as a State matter in Malaysia's legal system

Bahasa Malaysia: Syariah / Syarak · English: Syariah (Islamic law) · 中文: 伊斯兰教法

“Syariah” is a term, not a single court, and not a single Act. In everyday conversation it refers to the religious law of Islam. In Malaysia’s legal system, the term has a more precise standing: Islamic law and Syarak law are a State matter, and each State administers it through its own enactment and its own Syariah Court.

This article explains the term and that standing descriptively, drawing solely from the text of the constitution and statutes. It does not comment on any case.

A State matter, not a federal matter

The Federal Constitution divides law-making power between Parliament and the State Legislature through the lists in the Ninth Schedule. Islamic law falls within Item 1 of List II (the State List).

That item places within State power, among other things, Islamic law and the personal and family law of persons professing the religion of Islam — including succession, betrothal, marriage, divorce, maintenance, guardianship, gifts (hibah), wakaf, zakat, fitrah and baitulmal — as well as “the constitution, organization and procedure of Syariah Courts”.

Under Article 74(2), the State Legislature may make laws on any matter in the State List. So each State passes its own enactment, and each State’s Syariah Court exists under that enactment.

The Federal List draws the same line from the opposite direction. Item 4 of List I gives Parliament power over “the constitution and organization of all courts other than Syariah Courts”. In other words, the text of the Constitution itself separates the Syariah Courts from the federal court structure.

Three limits on the jurisdiction of the Syariah Courts

Item 1 does not merely confer power; it also sets boundaries. It provides that the Syariah Courts

have jurisdiction only over persons professing the religion of Islam

and only in respect of matters listed in that item, and have no jurisdiction over offences except so far as conferred by federal law.

Three limits — all of them enshrined in the Constitution:

Limit	Meaning
Who	Only persons professing the religion of Islam
What	Only matters listed in Item 1
Offences	Only so far as conferred by federal law

The first two limits are cumulative: a matter must involve a Muslim and be included in that item’s list.

The criminal limit set by Parliament

Because Item 1 states that the Syariah Courts have no jurisdiction over offences “except so far as conferred by federal law”, the criminal part of the Syariah Courts’ jurisdiction depends on one Act of Parliament: Akta Mahkamah Syariah (Bidang Kuasa Jenayah) 1965 (Akta 355).

Section 2 of Akta 355 confers jurisdiction over offences against the precepts of Islam by persons professing that religion, subject to the following limits:

Punishment	Limit under Akta 355, section 2
Imprisonment	Not exceeding 3 years
Fine	Not exceeding RM5,000
Whipping	Not exceeding 6 strokes
Combination	Any combination of the above punishments, within those limits

A State enactment may set a lower limit, but may not set a higher limit, because that power derives from federal law.

Article 121(1A)

Clause (1A) of Article 121 was inserted into the Constitution and came into force on 10 June 1988. It provides that the courts referred to in Clause (1) — namely the High Court (the civil courts) — have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

That clause is a jurisdiction exclusion directed at the civil courts. It does not itself define what the jurisdiction of the Syariah Courts is — that definition sits in Item 1 and in the State enactment (or, for the Federal Territories, in federal law). Nor does it create an appeal route between the two systems.

Three tiers of courts, in every State

Each State builds the same three-tier shape, under its own enactment:

Tier	Name
Lower	Mahkamah Rendah Syariah
High	Mahkamah Tinggi Syariah
Appeal	Mahkamah Rayuan Syariah

Because each State enacts its own enactment, the value limit for mal claims and the details of procedure differ from one State to another — which is why “the Syariah Court limit” is never a single national figure. The only thing uniform across the country is the criminal limit in Akta 355.

At the national level, Jabatan Kehakiman Syariah Malaysia (JKSM), an agency under the Prime Minister’s Department, coordinates and standardises the administration of Syariah law and judiciary. It coordinates; it is not a court sitting above the State courts.

The Federal Territories exception

Item 1 begins with an exception: it does not apply to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya. There, because there is no State Legislature, the Syariah Courts are constituted through federal law — the Akta Pentadbiran Undang-Undang Islam (Wilayah-Wilayah Persekutuan) 1993 (Akta 505).

Common misconceptions

“Syariah means a single court for the whole country.” No. Each State constitutes its own Syariah Court under its own enactment; JKSM coordinates administration, and is not the country’s highest court.

“The Syariah Courts may hear any dispute involving a Muslim.” Item 1 imposes two cumulative limits — a person professing the religion of Islam and only matters within that item. Matters outside that list fall outside its jurisdiction.

“Article 121(1A) makes the Syariah Courts superior to the civil courts.” That clause is a jurisdiction exclusion directed at the civil courts. It does not speak of rank, and it does not add anything to the list of matters in Item 1.

“Every State has the same sentencing limit.” The criminal limit in Akta 355 is national; the mal value limit, section references and procedure are set State by State.

What’s next

For the full picture of how Malaysia’s two court systems are separated, read civil courts and Syariah Courts. For the position of Islam within the Federation, see Article 3; and for how the Ninth Schedule divides federal and State power generally, see the Federal Constitution.