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(1) There shall be two High Courts of co-ordinate jurisdiction and status,
namely-
In that article, the word courts refer to the two High Courts which
are High Court Malaya and High Court Sabah and Sarawak. Clause (1A) is
clearly to confer exclusive jurisdiction to the Syariah court to adjudicate
on any matter that has been lawfully vested by the law within the
jurisdiction of the Syariah court. Thus takes away from the two High
Courts and inferior courts jurisdiction over any matter within jurisdiction of
the Syariah Courts. It also prevents the civil courts from reviewing
decisions of the Syariah Courts.
The approach to be taken in determining the jurisdiction of the
Syariah court is the ‘subject matter’ approach and not the ‘remedy
prayed’ approach for example to look into the State enactments to see
whether or not the Syariah courts have been expressly conferred
jurisdiction on a given matter.
While Clause (1A) ousts the jurisdiction of the civil courts over a
matter which falls under the jurisdiction of the Syariah Courts, it does not
take away the jurisdiction of the civil courts to interpret any written law
enacted for the administration of the Islamic Law. Thus, the civil courts
have continued to interpret the relevant State Enactments (and Federal
Acts in the case of the Federal Territories; hereafter, only State
Enactments are mentioned for convenience) to determine whether a
matter falls within the jurisdiction of the civil courts or Syariah Courts.
Soon Singh and Lina Joy have resolved the jurisdiction problem
posed apostasy cases where all parties are Muslims. However, the Federal
Court decisions in these cases, and in Shaik Zolkaffily, have not resolved
all the jurisdictional problems arising from the coexistence of the civil and
Syariah Courts. Two factual situation raising jurisdictional problems have
been highlighted. They are: