Syariah Courts (Criminal Jurisdiction) Act 1965

Syariah Courts (Criminal Jurisdiction) Act 1965
Parliament of Malaysia
An Act to confer jurisdiction upon Courts constituted under any State law for the purpose of dealing with offences under Islamic law.
Citation	Act 355
Territorial extent	Throughout Peninsular Malaysia
Enacted by	Dewan Rakyat
Date passed	3 March 1965
Date enacted	1965 (Act No. 23 of 1965) Revised: 1988 (Act 355 w.e.f. 1st December 1988)
Enacted by	Dewan Negara
Date passed	9 March 1965
Date effective	1 April 1965
Legislative history
Bill introduced in the Dewan Rakyat	Muslim Courts (Criminal Jurisdiction) Bill 1965
Bill citation	D.R. 1/1965
Introduced by	Abdul Rahman Ya'kub, Minister of Lands and Mines
First reading	1 March 1965
Second reading	3 March 1965
Third reading	3 March 1965
Bill introduced in the Dewan Negara	Muslim Courts (Criminal Jurisdiction) Bill 1965
Bill citation	D.R. 1/1965
Introduced by	Abdul Rahman Ya'kub, Minister of Lands and Mines
First reading	9 March 1965
Second reading	9 March 1965
Third reading	9 March 1965
Amends
Muslim Courts (Criminal Jurisdiction) (Amendment) Act 1984 [Act A612] Malaysian Currency (Ringgit) Act 1975 [Act 160] Syariah Courts (Criminal Jurisdiction) (Amendment and Extension) Act 1989 [Act A730] Interpretation (Amendment) Act 1997 [Act A996]
Related legislation
List II of the State List of the Ninth Schedule to the Federal Constitution
Keywords
Syariah Court, criminal jurisdiction
Status: In force

The Syariah Courts (Criminal Jurisdiction) Act 1965 (Malay: Akta Mahkamah Syariah (Bidang Kuasa Jenayah) 1965), is a Malaysian laws which enacted to confer jurisdiction upon Courts constituted under any State law for the purpose of dealing with offences under Islamic law. The Syariah Courts invested with jurisdiction over persons professing the religion of Islam.

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.

Structure

The Syariah Courts (Criminal Jurisdiction) Act 1965, in its current form (1 January 2006), consists of only 3 sections and no schedule (including 3 amendments), without separate Part.

• Section 1: Short title and application
• Section 2: Criminal Jurisdiction of Syariah Courts
• Section 3: Validation

Background

From 1980s, PAS (Pan-Malaysian Islamic Party) and UMNO (United Malays National Organisation), the two leading Malay-Muslim political parties have been competing to be the greater representative of Islam to boost their Islamic credentials in the eyes of the Malay electorate. Given the multi-religious composition of the governing coalition, Barisan Nasional (BN), UMNO which is the leading party of BN cultivates its image as the promoter of a moderate, modernist form of Islam and contrasts itself against the purportedly backward, traditional brand of Islam as propounded by PAS. ^[1]

UMNO entailed the campaign to inculcate the so-called ‘Islamic values’ and the incremental efforts to ‘Islamise’ the government institutions as negara Islam. Institutions such as the International Islamic University of Malaysia (IIUM) were set up to develop intellectual backing and training in support of the policy. From the early 1980s, the calls to ‘Islamise the laws’ of the country were made by Islamist groups.^[2]

In 1986, the Lord President, Mohammed Salleh Abas speaking at a seminar entitled ‘Towards Islamisation of Laws’ organised by ABIM (Angkatan Belia Islam Malaysia or the Islamic Youth Movement), explained that Islamisation of laws in the country should not be done drastically such that it would cause much alarm, confusion and unhappiness; rather ‘the best changes are those which are imperceptible’. In the same seminar, ABIM asked that ‘Islamic Laws be the basis of legislation in Malaysia’.^[3] It is significant that the ‘gradual approach’ to implement Syariah law was also affirmed by a minister in the Prime Minister’s Office, A.H. Othman in 1992. ^[4]

Due to the lack of interest on the part of federal government, attempts at ‘Islamising’ federal law to make it ‘more consistent with Islamic norms’ have not been so successful.^[5] On the other hand, attempts at carving out ‘an autonomous Islamic area of the legal system’ at the state level have been relatively successful.^[6]

This ‘success’ is derived largely from the 1988 constitutional amendment inserting clause 1A to Article 121, which stipulates that civil courts shall have no jurisdiction over matters under the competence of Syariah courts. Although the new clause was meant to prevent the challenges against Syariah court verdicts on litigation over Muslim family and inheritance issues in civil court, its evolving interpretation has had far reaching impact on non-Muslims on issues such as conversion and the adjudication of the religious status of a person deemed as Muslim, as well as on the resolution of inter-religious conflicts over child conversion and custody.^[7] The clause is now used to argue that the civil court cannot intervene in any subject matter related to Islam that falls within the legislative list of the state (as provided in Schedule 9 List II No 1 of the federal constitution), even if the case involves non-Muslim litigants over whom the Syariah court has no jurisdiction and hence the remedy cannot be sought in Syariah court.

In 1984, the Syariah Courts (Criminal Jurisdiction) Act of 1965 was amended to increase the maximum sentences that the Islamic legislation and Syariah courts are empowered to impose, from six months of jail term or a fine of RM1000 or both, to three years of imprisonment, RM5000, or six strokes of canning, or a combination of the three.^[8] The Syariah judiciary systems were also upgraded in each state to a three-tiered structure, and various training facilities were put in place to prepare human resources to staff the various functions and positions in the syariah judiciary system including the judges, for which IIUM has been assigned a key pioneering role.^[9]

In 1997, the Department of Islamic Development Malaysia (also known as Jabatan Kemajuan Islam Malaysia, or JAKIM) was established to oversee the development of Islamic policy and legislation. In the next year, the federal government also set up a Department of Syariah Judiciary of Malaysia (also known as Jabatan Kehakiman Shariah Malaysia, JKSM) to assist in streamlining the administration of the Syariah courts in various states. Indicative of the attempts at further expansion of the Islamic bureaucracy was the announcement in 2014 that JAKIM had been advocating since 2011 for the upgrade of the Syariah court to a five-tier system to be at par with its civil counterparts.^[10] Incidentally, Deputy Minister in the Prime Minister’s Department in charge of Islamic Affairs, Asyraf Wajdi Dusuki also stated on 31 May 2016 that the current priority of the federal government is to upgrade the current three-tiered syariah court system to five-tiered as the civil judiciary system.^[11]

Given this driving force to progressively render Islamic laws a greater role in the Malaysian legal system, it can be understand that the push to enhance the jurisdiction of the Syariah Court has been in the making for some years, not merely in the context of hudud implementation or just by PAS politicians but also by other Islamic social and institutional actors.

In September 2001, Dr Mahathir Mohamed also controversially declared that Malaysia was already a negara Islam based on a list of criteria set at a seminar of ulama gathered by him to validate his claim. This claim was understandably disputed by PAS, who propounds its own version of an Islamic State. For them, the legislation of the hudud law which involves unconventional punishment such as limb amputation and death by stoning occupies a central place in this vision. When PAS controlled the state governments of Kelantan and Terengganu, it managed to enact these laws respectively in the states of Kelantan in 1993 and Terengganu in 2002. However, no attempt was made to implement these enactments deemed as going against the Federal Constitution on numerous aspects. Although the UMNO President and the Prime Minister then, Dr Mahathir Mohamed, was forthright in expressing his objection to its implementation, UMNO state leaders had not attempted to abolish the enactment upon winning back their control over the Terengganu state government.

The important difference in the current round of attempts by PAS to implement hudud, is a change in the attitude of top UMNO leaders. Notably, Prime Minister Najib himself has said publicly that the federal government has never rejected hudud as the divine law, but many issues and obstacles needed to be addressed before the Islamic law could be implemented in Malaysia.^[12] Both the Minister and Deputy Minister in charge of Islamic Affairs are known to have expressed positive attitude towards PAS’ current endeavour as will be explained.

Current Amendment

On 24 November 2016, PAS President Abdul Hadi Awang proposed a new amendment to Act 355 proposes to increase the Syariah Court’s sentencing power to no more than 30 years of jail term, 100 lashes or Rm100,000 fine.^[13]

References

External links

• Syariah Courts (Criminal Jurisdiction) Act 1965 This article incorporates text from this source, which is in the public domain.