The
author view that the conflict of criminal jurisdiction arise because there are
overlapping of offences provided in Penal Code and enactment of syariah
criminal offences in the state. I agree with the statement made by the author
because when there are 2 laws provide the similar offence, the confusion
occurred which court has the jurisdiction to try that offence either syariah
court or civil court. The federal government and the state government claim
that they have jurisdiction on this matter. Here is the point of conflicting
over the criminal matters arise. As an example, if the party who commit the
offence is a muslim, the accused person should be prosecuted under which laws
either Syariah Criminal Offences or Penal Code or other federal laws.
In
fact there are many examples of provisions under syariah criminal offences that
overlap with federal offences such as gambling which also provided under the
Federal Gaming Tax Act 1972, giving false evidence which is also covered by
section 191 of the Penal Code, abetment which overlaps with section 107 to 114
of the Penal Code and also liwat as discussed by the author in his article.
In
my observation, although we have 2 kind of laws with regard to the same
criminal offence, it is not contravene to our federal constitution. The state
have the jurisdiction to create an offence against precept of Islam which is
bind over the muslim only by virtue of item 1 of List II of the Ninth Schedule
of the Federal Constitution whereas the federal also has the power to enact criminal
law which is bind over the muslim and non muslim by virtue of item 4 of List I
of the Ninth Schedule of the Federal Constitution. I think both law can be
enforced together. In fact this situation create a good phenomenon in our legal
system because-
(1) it wider the scope of prosecution whereby it will give a choice to
the prosecutor either to prosecute the accused under the syariah criminal
offences or Penal Code or other Federal laws. This practise in line with section
59 of the Interpretation Act 1948 and 1967 [Act 388] which states as follows:
“Where any act or omission constitutes
an offence under two or more written laws, or under a written law and at common
law, the offender shall be liable to be prosecuted and punished under either or
any of those laws or at common law, but shall not be liable to be punished
twice for the same offence.”.
(2) the accused person maybe sentenced with more severe sentence due
to the limited jurisdiction. By virtue of Schedule Ninth, List II, Federal has
enact the law named Syariah Courts (Criminal Jurisdiction) Act 1965 [Act 355]
which limit the jurisdiction of syariah court. The Act provide jurisdiction of
Syariah Courts as follows:
“The
Syariah Courts duly constituted under any law in a State and invested with
jurisdiction over persons professing the religion of Islam and in respect of
any of the matters enumerated in List II of the State List of the Ninth
Schedule to the Federal Constitution are hereby conferred jurisdiction in
respect of offences against precepts of the religion of Islam by persons
professing that religion which may be prescribed under any written law:
Provided 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.”.
The
author in his writing put a case of Sukma
Darmawan Sasmitaat Madja V. Ketua Pengarah Penjara Malaysia & Anor High
Court Malaya, Kuala Lumpur Abdul Wahab Patail J [Criminal Application No:
44-110-98] 7 November 1998 as
an example of conflict in criminal matters.
I
agree with the judgement given in the above case when the court decide that the
syariah court does not have an exclusive jurisdiction over the liwat matter
because instead of having the liwat provision in Syariah Criminal Offences
Act/Enactment Penal code also provided the provision which has the same nature
as liwat in section 377D. Because of this overlapping, the syariah court does
not have the exclusive jurisdiction over the liwat matter so that the civil
court has the jurisdiction to hear that case. Furthermore there is provision
under Article 75 of the Federal Constitution which mention about the
superiority of the federal laws over the state laws. The Article states as
follows:
“If
any State law is inconsistent with a federal law, the federal law shall prevail
and the State law shall, to the extent of the inconsistency, be void.”.
Having
this article in our Federal Constitution, make it as a strong arguement to try this case before
the civil court not a syariah court because the Penal code as a federal law
will prevail over the syariah criminal offences as a state law.
What is
the solution?
In
my observation based on the conflicts discussed above, I agree with the
suggestion given by the author especially in promoting the harmonisation
between civil and syariah law. I think it is the best approach to be done in
our situation now.
Besides
that the following things may be taken into consideration in order to solve the
civil and criminal matters:
(1)
Islamisation
of all the laws in Malaysia.
All the laws enacted in our country
must be in line with hukum syarak because our Federal Constitution which is the
Supreme law of the Federation has recognised Islam as the religion of
Federation in article 3. Furthermore the Islamic law based on the revealation
from Allah s.w.t and it is suitable with the nature of human being and can be
practised at all times and towards all the people either muslim or non muslim.
The Islamic law is complete and covers all aspect of lives. We should refer bck
to our history whereby the Islamic law has been successfully practised the
Islamic laws and malay custom as the laws of the states. Thats why in th case
of Ramah
v Laton, The Appeal Court in Selangor decided that Islamic law is the
law of the land and the court should recognised and applied that laws.
In the book of Administration of
Islamic laws also suggested that there should be a provision in the Federal Constitution
to state that “Any law which is inconsistent with the Islamic law shall, to the
extent of the inconsistency, be void”
If we manage to Islamise all the laws
according to Islamic law and hukum syarak, the conflicts between civil court
and syariah court may be avoided. I think the concept of Islamisation can be
done in our civil laws because the application of Islamic civil law suitable to
be applied to muslim and non muslim
(2) Wider the interpretation of Islamic law
The effort to wider the
interpretation of Islamic law also maybe the good suggestion in order to
resolve the conflict between civil and criminal law. As an example in the case
of Majlis Agama Islam Pulau Pinang v. Isa Abdul Rahman [1992] 2MLJ 244,
although the case fall within the ambit of Islamic matters, since there is no
remedy for injunction provided in the Administration of Muslim Law Enactment
1959 (Penang), the Supreme Court held that the High Court had jurisdiction over
the case.
In
our observtion although there is no express provision about the remedy for
injunction in the Administration of Muslim Law Enactment 1959 (Penang), since the
subject mater involve is wakaf which is the Islamic matters as specified in
item 1, schedule Ninth, List II of the Federal Constitution, then the syariah
court should try that case. In Federal Constitution clearly state that wakaf
under jurisdiction of syariah court, so although there is no express provision
about the remedy for injunction in wakaf matter but as long as it relates to
wakaf, we should wider the words wakaf to extend it application to all matters
related to it includes injunction.
The effort to wider the interpretation
of Islamic law has successfully been done in the case of Sulaiman Takrib V Kerajaan Negeri
Terengganu; Kerajaan Malaysia (Intervener) And Other Cases [2009] 2CLJ
54, Federal Court decide that 'Precepts
of Islam' include 'law' or 'Shariah'. In order to interprete the word “precepts
of Islam” 3 opinions of the 'experts' were take into account whereby the
experts agree that precepts of Islam cover three main domains ie, creed or
belief ('aqidah'), law ('shari'ah) and ethics or morality ('akhlak') and precepts
of Islam are derived from the Qur'an and Sunnah.
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