Syariah Courts: Malaysia's Dual-Layer Legal System

A wife applying for fasakh and a trader claiming a debt of RM60,000 both begin their cases with a single form at a court counter. Yet they do not go to the same counter, their cases are not heard by the same kind of judge, and the law that determines their outcome comes from two different law-making bodies.

In Malaysia, the courts are not a single system. For Muslims, in matters of personal and family affairs, there is a court system that runs parallel to the civil courts — the syariah courts. The line between the two is not a matter of practice or choice; it is set by the Federal Constitution.

Why are there two court systems?

Article 3(1) of the Federal Constitution provides that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”

The power to administer Islamic law, however, rests not with the Federation but with the states. This flows from the division of powers in the Ninth Schedule of the Constitution, which lists the matters on which the federal government may legislate (the Federal List) and those on which state governments may legislate (the State List).

Matter	Under the power of	Reference
Civil courts (constitution and organisation)	Federation	Federal List, Item 4(a)
Islamic personal and family law; syariah courts	State	State List, Item 1
Islamic law in the Federal Territories	Federation	Federal List, Item 6(e)

Item 4(a) of the Federal List places under federal power “the constitution and organisation of all courts other than syariah courts”. It is that phrase “other than syariah courts” which separates the syariah courts from the federal court system.

Where do the syariah courts get their power?

The source is Item 1 of the State List. That item gives each state power over “Islamic personal and family law of persons professing the religion of Islam”, including Islamic law relating to succession, betrothal, marriage, divorce, maintenance, guardianship, gifts and so on, as well as “the constitution, organisation and procedure of syariah courts”.

The same item places two important restrictions on the syariah courts. Those courts:

• have jurisdiction only over persons professing the religion of Islam; and
• only over the matters listed in that item, and have no jurisdiction in respect of offences except in so far as conferred by federal law.

Because Islamic law is a state matter, each state enacts its own administration of Islamic law enactment to establish the syariah courts in that state. For the Federal Territories of Kuala Lumpur, Labuan and Putrajaya — which are under federal power — the syariah courts are established by Parliament through the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505).

How are the syariah courts organised?

In most jurisdictions, the syariah courts are organised into three tiers. Section 40 of Act 505, for example, provides for the establishment of these three tiers for the Federal Territories:

1. Syariah Subordinate Court — the court of first instance, presided over by a Judge of the Syariah Subordinate Court.
2. Syariah High Court — hears more serious cases and appeals from the Syariah Subordinate Court. Section 51 of Act 505 gives it supervisory and revisionary jurisdiction over all Syariah Subordinate Courts.
3. Syariah Appeal Court — hears appeals against decisions of the Syariah High Court in its original jurisdiction (section 52).

At the national level, the Department of Syariah Judiciary Malaysia (JKSM) plays a coordinating role. The official JKSM website describes itself as “an agency under the Prime Minister’s Department to coordinate and standardise the administration of syariah legislation and judiciary in Malaysia.” JKSM does not replace the state enactments; rather, it works towards uniformity between the different jurisdictions.

What can the syariah courts try?

The jurisdiction of the syariah courts is divided into civil (mal) and criminal.

Civil jurisdiction. This is the core of the syariah courts’ daily work — matters of personal and family affairs where all parties are Muslim. Section 46 of Act 505 lists the matters that the Syariah High Court of the Federal Territories may hear, among them:

• betrothal, marriage, reconciliation (ruju’), divorce, annulment of marriage (fasakh) and disobedience (nusyuz);
• maintenance of dependants, legitimacy, guardianship or custody (hadhanah) of children;
• division of, or claims to, jointly acquired property (harta sepencarian);
• wills or gifts made during the death-illness (marad-al-maut) of a deceased Muslim;
• gifts (hibah), endowments (wakaf) or vows (nazr); and
• the division and inheritance of testate or intestate property (faraid).

The monetary limit for the civil jurisdiction of the Syariah Subordinate Court is set by the respective enactment or act. In the Federal Territories, section 47 of Act 505 sets the limit at an amount or value of the subject matter in dispute not exceeding fifty thousand ringgit, or which is not capable of estimation in money. This limit may differ between states.

Criminal jurisdiction. This is where the most notable restriction lies. Item 1 of the State List states that the syariah courts “have no jurisdiction in respect of offences except in so far as conferred by federal law”. That federal law is the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).

Section 2 of Act 355 gives the syariah courts jurisdiction over offences against the precepts of the religion of Islam by persons professing that religion, “which may be prescribed under any written law” — but subject to the proviso that:

such jurisdiction shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding five thousand ringgit or with whipping exceeding six strokes or with any combination thereof.

This “3–5–6” limit is often referred to as the limit on the criminal jurisdiction of the syariah courts. Act 355 originally applied to the states of Peninsular Malaysia (section 1(2)), and was later extended to all states including Sabah and Sarawak through the Syariah Courts (Criminal Jurisdiction) (Amendment and Extension) Act 1989. (The details of the amending act and its date of coming into force should be verified against the official text.)

Note that each tier of court has its own criminal limit in the enactment or act that establishes it. In the Federal Territories, section 47 of Act 505 limits the Syariah Subordinate Court to offences whose maximum punishment does not exceed two thousand ringgit or one year’s imprisonment, or both — within the higher federal limit under Act 355.

Where is the line between the civil and syariah courts?

The line is set by Article 121(1A) of the Federal Constitution. It provides that the civil courts referred to in Article 121(1) “shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts.”

In other words, when a matter falls within the jurisdiction of the syariah courts, the civil courts cannot hear it. Article 121(1A) was inserted into the Constitution through the Constitution (Amendment) Act 1988 (Act A704) and, according to the amendment annotation in the reprint of the Constitution, came into force on 10 June 1988.

For a full comparison of the two systems — what each may hear and where they intersect — see civil courts and syariah courts.

What are the differing views?

This dual-layer system gives rise to several matters that are the subject of ongoing public discussion. This article presents the existence of that discussion descriptively, without taking sides.

Overlapping jurisdiction. Some cases touch on both systems at once — for example, when one spouse embraces Islam and questions arise about the custody of a child, or when a person’s religious status is disputed. Because Article 121(1A) separates the jurisdictions, the question of which court should hear a particular matter sometimes becomes a legal issue in its own right. There are various views on how such overlaps should be resolved.

The scope of criminal jurisdiction. The “3–5–6” limit under Act 355 has been the focus of proposals and public debate about whether, and how, the criminal jurisdiction of the syariah courts should be amended. There are those who support expanding that limit and those who raise concerns about it, including from the standpoint of the federal–state division of powers and the effect on non-Muslims. The current legal position remains as provided in Act 355.

This article takes no position in these discussions; it merely explains the existing legal framework.

Next steps

To understand the constitutional framework that underpins all of this, start with the Federal Constitution and the federal–state division of powers. For an overview of the five-tier civil court system that runs in parallel, see the hierarchy of Malaysian courts.

As an AI draft not yet reviewed by a human, the figures and section references in this article — especially the monetary limits on civil jurisdiction that differ between states — should be re-verified against the relevant state enactments before being relied upon for official purposes.