IN THE HIGH COURT IN SABAH AND SARAWAK AT SIBU
DIVORCE PETITION NO.33–16 OF 2007
IN THE MATTER OF SECTIONS 53 & 54 OF THE LAW REFORM
(MARRIAGE AND DIVORCE) ACT 1976 (ACT 164)
YONG FUAT MENG … Petitioner
CHIN YOON KEW … Respondent
9a Jalan Abd Aziz
81900 Kota Tinggi
BEFORE THE HONOURABLE JUDICIAL COMMISSIONER
Y.A. DR. HAJI HAMID SULTAN BIN ABU BACKER
IN OPEN COURT
1. This is my judgment in respect of the issue of jurisdiction to hear the petition filed by the petitioner who has embraced Islam nearly 20 years after the solemnisation of his marriage under the civil law. The respondent (wife) is still a non–Muslim.
2. The real issue before deciding the petition and granting the relief is to decide whether the civil court has jurisdiction in light of Section 51 of Law Reform (Marriage and Divorce) Act 1976 (LRA 1976), which says that when one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce. The section reads as follows:
“(1) Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce:
Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of the conversion.
(2) The Court upon dissolving the marriage may make provision for the wife or husband, and for the support, care and custody of the children of the marriage, if any, and may attach any conditions to the decree of the dissolution as it thinks fit.
(3) Section 50 shall not apply to any petition for divorce under this section.”
In this case, the problem is that the petitioner who had converted has filed the
petition, which will appear to be non permissible under the above section and/or
s.3 of the said LRA 1976.
3. The second issue is whether the civil court has jurisdiction to entertain the petition when s.44 of Islamic Family Law Ordinance 2001, Sarawak (ILFLO 2001) states:
“(1) The renunciation of Islam by either party to a marriage or his or her conversion to a faith other than Islam shall not by itself operate to dissolve the marriage unless and until so confirmed by the court.
(2) The conversion to Islam by either party to a non–Muslim marriage shall not by itself operate to dissolve the marriage unless and until so confirmed by the court.”
(Similar provisions are found in other states, Family Law Ordinance and court
here means syariah court).
4. There are a number of decisions of the civil court which has dealt with the issue of jurisdiction in relation to conversion in the area of marriage, apostasy, death etc; some of them are as follows: (1) Tan Sung Mooi (F) v. Too Miew Kim  3 CLJ 708 (Supreme Court), (2) Subashini a/p Rajasingam v Saravanan a/I Thangathoray And Other Appeals  2 MLJ 147 (Federal Court),(3) Dalip Kaur v. Pegawal Polis Daerah, Balal Polls Daerah, Bukit Mertajam & Anor  1 MLJ I (Supreme Court), (4) Soon Singh Bikar Singh v. Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor  2 CLJ 5 (Federal Court), (5) Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Yang Lain  3 CLJ 557 (Federal Court), (6) Kamariah Au & Yang Lain v. Kerajaan Negeri Kelantan & Satu Lagi [20041 3 CLJ 409 (Federal Court), (7) Sia Kie Hin v Jabatan Agama Islam Wilayah Persekutuan  1 MLJ 504 (Federal Court), (8) Mohamed Habibullah Bin Mahmood v. Faridah Bte Dato Talib  2 MLJ 793 (Supreme Court), (9) MajIls Ugama Islam Pulau Pinang dan Seberang Peral v. Shaik Zolkaffily Shaik Natar & Ors  3 CLJ 289 (Federal Court), (10) Faridah Begum Bte Abdullah v. Sultan Haji Ahmad Shah Al Mustain Billah lbni Almarhum SuJtan Abu Bakar Ri’ayatuddin Al Mu’adzam Shah (Sued In His Personal Capacity)  2 CLJ 159 (Special Court), (11) Sultan of Johore v. AbuBakar Tunku Aris Bendahara and Others  AC 318 (Privy Council), (12) Meor Atiqulrahman Ishak & Ors v. Fatimah Sihi & Ors  4 CLJ 1 (Federal Court), (13) Ramah Binti Ta’at v. Laton Binti Malim Sutan (1927) 6 FMSLR 128 (Supreme Court), (14) Che Omar Bin Che Soh v. Public Prosecutor  2 MLJ 55 (Supreme Court), (15) Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor  2 MLJ 241 (Federal Court), (16) Latifah Bte Mat Zin v. Rosmawati Bte Sharibun & Anor  5 MLJ 101 (Federal Court), (17) Commissioner For Religious Affairs, Trengganu & Ors v Tengku Mariam binti Tengku Sri Wa Raja & Anor  1 MLJ 222 (Federal Court),(18) Majlis Agama Islam Pulau Pinang v. Isa Abdul Rahman & Satu Lagi  2 MLJ 244 (Supreme Court), (19) Nordin bin SalIeh v Kerajaan Negeri Kelantan & Anor  3 MLJ 344 (Supreme Court), (20) Azizah Bte Shaik Ismail & Anor V. Fatimah Bte Shaik Ismail & Anor  2 MLJ 529 (Federal Court).”
I have read the said judgments. I have also gone through standard text books of eminent scholars in Islamic Jurisprudence while writing this judgment, in particular: (i) Mahmassani, S. (1987). The Philosophy of Jurisprudence in Islam. Translated by Farhat J. Ziadeh. Malaysia: Penerbitan Hizbi, (ii) Coulson, N.J. (1964). A History of Islamic law. Edinburgh University Press, (iii) Anderson, N. (1976). Law reform in the Muslim world. Great Britain: The Athlone Press, (vi) Hameedullah Khan, Mohammad (1991). The Schools of Islamic Jurisprudence. New Delhi: Kita b Bhavan, (v) Rahim, A. (1992). Islamic History. Delhi: Royal Publishers & Distributors., (vi) Hamilton, C. (1994). The Hedaya. Reprint. Delhi: Kitab Bhavan, (vii) Qadri, A.A. (1986). Islamic Jurisprudence in the Modern World. Delhi: Tas Company). The difficulty in issues relating to jurisdiction has also been highlighted by the present Chief Justice, Y.A.A Tun Abdul Hamid Mohamad in Ng Siew Pian vs. Abd. Wahid bin Abu Hassan, Kadi Daerah Bukit Mertajam & Satu yang lain  2 MLJ 425 and Latifah Bte Mat Zin v. Rosmawati Bte Sharibun & Anor  5 MLJ 101).
5. In view of article 121(1A) of the Federal Constitution, I have no hesitation to say here that syariah court has absolute jurisdiction, when the dispute is between born Muslims, to hear any dispute relating to Islamic law or the personal law of Muslims, as enunciated in para 1 of list 2, schedule 9 of the Federal Constitution (Schedule 9); And which has been enacted by the state legislature and is not contrary to Islamic Law or personal law of Muslims (see Section 139 of ILFLO 2001). As to other matters, inclusive of matters relating to conversion, the civil courts may have jurisdiction, and it all depends on the facts of the case. Further, it must be emphasised here that neither the syariah court nor the civil court is the supreme decision maker on issues relating to Islam as the Federal Constitution has empowered HRH the Rulers, I will say as the last bastion, to consider the problem, asses the consequence, evaluate alternative, and need be advance the remedy.
Further, I will state that the Federal Constitution gives ample power to HRH the Rulers, to exercise equity in the best interest of the nation and make decision on case by case basis, whether the matter involves petty issues such as change of name or major issues like conversion to Islam or diversion from Islam. And in all matters, because of the dominant provision in the Federal Constitution which prohibits state legislature from enacting any provision contrary to Islamic law or personal laws of Muslim which I shall deal with shortly. Because, equity in Islam is a sacrosanct command of Allah and I have dealt with it in some detail in the case of Malayan Banking Berhad v. Ya’akup bin Oje & Anor  5 CLJ 311,  6 AMR 135,  6 MLJ 389. In crux, equity in Islam plays a significantly important role in the Administration of Justice, than the common law. In England one may say, “where the law fails equity may save”. However, pursuant to various Quranic injunctions, it can be safely said in Islam, “equity is the fulcrum of justice”. Support for my proposition is found in a number of Quranic commands. I have dealt with it to some extent in Malayan Banking Berhad (supra), the relevant part of which reads as follows:
“Central to the concept of Islam is Justice. All transactions whether it is judicial, political, commercial or private etc. are subject to this concept. In the Qur’an, (al–Hijr: 85) states that:
“We created not the heavens, the earth, and all between them, But for just ends. And the Hour is surely Coming (when this will be manifest).So overlook (any human faults) With gracious forgiveness.”
This concept has been emphasised in various places in the Holy Qur’an. [See the Qur’an (al–Maidah: 8); Qur’an (an–Nisaa: 20 135); Qur’an (ad–Dukhan: 38–39); Qur’an (an–Nisaa: 58) and Qur’an (an–Nisaa: 105); Qur’an (al–Baqarah: 213); Qur’an (ash–Shura: 15); Qur’an (an–Nisaa: 107); Qur’an (Sad: 26); Qur’an (al–Hadid : 25)]. In Islam, man is seen to be the servant (abd) and vicegerent of Almighty. He has specific duties and obligations to perform in relation to Allah, to himself, to nature, to the religion, to his relatives and to the community. Islamic ethos demands that a Muslim abides by the messages of the Holy Qur’an, follow the Sunnah of the Prophet (Pbuh) and accept the rulings of recognised religious scholars of the past. A Muslim is imposed with a greater duty and responsibility and must abide by this ethos to achieve fallah (success). Justice in Islam is part of Allah’s attribute and to stand firm for it is to be a witness to Allah. [See the Qur’an (an–Nisaa: 135)]. In the Qur’an, (al–Maidah: 8) it is asserted that:……………
Learned author, Ahmad Qadri (1982) aptly summarises the concept of justice by stating that justice in Islam is much higher than the so called distributive and remedial justice of Aristotle, the natural justice of the Anglo–American Common Law, the formal justice of the Roman Law, or any other man–made law. Moreover, he says that it searches out the innermost motives of man, because he has to act as in the presence of God, to Whom all things, acts, and motives are known. It is trite that Islam is against all kinds of injustices and warns the wrongdoers. Support for this proposition can be found in many of the verses in the Holy Qur’an.…………”
The founding fathers of our Federal Constitution have entrusted with full wisdom the full scope of equity with HRH the Rulers. Besides, the empowerment in relation to Islam is consonant with the Quranic Injunctions, in particular, the Qur’an (al–Nisaa: 59) which states:
“O ye who believe! Obey Allah, and obey the Messenger, And those charged with authority among you. If ye differ in anything, among yourselves, refer it to Allah and His Messenger, If ye do not believe in Allah, And the Last Day: That is best, and most suitable for final determinations.”
6. After having read the above cited judgments, and the manner the provisions of
the law and constitution were interpreted, I take the view that the common law
methodology of interpretation of statutes or constitution which was applied in
those cases do not cater for interpretation of constitution or statutes when
religious principles or doctrines or concepts etc become the subject matter of
the decision. Further, civil court has also not considered the issue as to
whether article 121(1A) can be strictly applied to only persons who are born
Muslim and litigation relating to born Muslims; and whether there is an
exception when it relates to converts and disputes entangled with non–Muslims as
a result of conversion. This is in spite of the fact that, in the judgments of
the civil court, it is clear that when it involves dispute relating to converts
and non–Muslims, the civil court has entertained the application and/or have
stated that the application can be entertained. When the Federal Constitution
states Islam is the religion of the Federation, failure to take into
consideration Islamic principles and laws when interpreting statutes or
constitutions in matters relating to the religion of Islam is likely to create
confusion, criticism and hardship to the public.
7. I will explain this further in my judgment, but for a start in relation to this case, I can safely say that it is common knowledge under the personal law of a Muslim, as enunciated by the Holy Qur’an, (al–Mumtahana:10), that once a person embraces Islam his or her previous marriage to a non–Muslim immediately dissolves. There are no requirements under the Islamic law or personal law of a Muslim to seek a declaration from the syariah court and that is protected and fortified by articles 3 and 11 and schedule 9 of the Federal Constitution.
8. In contrast to the explicit Quranic injunction section 44(2), ILFLO, 2001, and it’s like in other states, the ordinance says it must be confirmed by the syariah court. Prima facie this section and I observe many other sections in the state ordinance of various states, inclusive of that which relates to administrative procedures, consents etc and penal provision for failing to comply with such provisions cannot be truly said to be Islamic law or personal law of the Muslims. In consequence, it is an infringement of constitutional rights of Muslims as protected under the above said article. However, to be fair to the State Legislatures, they have foreseen the possibility of such errors and to overcome this fundamental problem, they have enacted specific provision to address this problem. In Sarawak, it is found in section 139, of ILFLO, 2001 which reads as follows:
“(1) Any provision or the interpretation of any provision in this ordinance which is inconsistent with Islamic Law shall, to the extent of such inconsistency, be void.
(2) If the event of a lacuna or where there is any matter which is not expressly provided for in this ordinance or in any rules made under this ordinance, the syariah court shall refer to Islamic Law.”
9. Similar provisions are found in other states in their state ordinance.
However, our courts in deliberating equipollent section, like section 44(2) of
ILFLO 2001 in various state ordinance have only interpreted the cold letters of
the statute without giving full recognition to the Quranic injunctions and the
provisions of the Federal Constitution, although Islam is the Religion of the
Federation and all Muslims are entitled to practice their faith according to
Islamic law and the personal law of the Muslims; and to assert that in the
instance of a Muslim having embraced Islam, it is not necessary under the
personal law of the Muslim to seek dissolution of his or her marriage in the
syariah court; to that extent that section is void, or superfluous in line with
such provision like section 139 of ILFLO 2001. In light of Article 3 and in
interpreting statutes, failure to exercise Islamic Jurisprudence promptly has
caused much confusion. Therefore, it has become necessary for me in consequence
of judicial precedent to deal with the cases and reason out my judgment on the
issue of jurisdiction. This has also become no easy task, and, in consequence, I
am grateful to En. Saferi Bin Ali from the State Attorney General Chambers for
having assisted this court. I also benefited from the opinion of the learned
counsel Dr. Mohd. Rafie Bin Mohd. Shafie, a well–known senior practitioner of
the Malaysian Bar who has carved a name and niche for himself in syariah
practice and on whose opinion, the petitioner’s counsel has relied on in full. I
am also grateful to the learned counsel En. Hanif Khatri, a well–known
practitioner of the Malaysian Bar who has appeared in the Federal Court in some
related cases in this area of law. He has given me all relevant case authorities
dealing with this issue.
10. As I had mentioned earlier, the petitioner has relied heavily on the opinion of the learned counsel Dr. Mohd. Rafie. The petitioner’s submission can be summarised as follows:
State Attorney Generals Chambers
“I wish not to elaborate further on the History of the laws that governed the Civil and Syariah courts in this country and their respective jurisdiction. I wish to submit that the law on the issues of jurisdiction before us has been settled in the case of Subashini Rajasingam v. Saravanan Thngathoray & other appeals  2 CLJ 1.
In the above mentioned case, Nik Hashirn FCJ in delivering the majority judgment of the court said...”by contracting the civil marriage, the husband and wife were bound by the 1976 Act in respect to divorce and custody of the children of the marriage, and thus, the civil court continues to have jurisdiction over him, notwithstanding his conversion to Islam”.
The above statement clearly shows that the Civil Courts has the jurisdiction to decide on cases in which a petitioner regardless whether he is a convert or not, filed for divorce under the 1976 Act. In the case before us, since the marriage was registered under a civil marriage and governed by the 1976 Act this Honourable Court therefore has the jurisdiction to hear the petition.
Nik Hashim FCJ in his judgment also stated that the status of the parties at the time of the marriage is the material consideration for the purpose of determining the question of jurisdiction. He had also earlier stated that the High Court (in Subashini’s case) had exercised its civil jurisdiction with regard to the matter under section s. 24(a) of the Courts of Judicature Act 1964 which states that the jurisdiction of the High Court shall include the jurisdiction under any written law relating to divorce and matrimonial causes. The phrase “any written law relating to divorce and matrimonial causes” must include the 1976 Act.
Section 24 of the Courts of Judicature Act 1964 states the specific Civil Jurisdiction of the High Court. It is clear therefore that since the Petitioner and Respondent were lawfully married under Civil Law, they must submit to the requirements of the same law when they wish to dissolve their marriage.
The Petitioner and Respondent must also adhere to the Civil Law on maintenance and custody of the children from the said marriage.
The petitioner, whose Muslim name is Mohammad Syafirul Amri Abdullah would not succeed in the Syariah Court to dissolve his marriage as the respondent, who is a non–Muslim, had no locus in the Syariah Court.
Therefore the Petitioner has come to the right court in applying for his marriage to be dissolved.
Abdul Aziz Mohammad FCJ in paragraph 147 page 88 in his judgment stated “The dissolution of the marriage in this case, which is a non–Muslim marriage, and matters consequential or ancillary thereto, including maintenance, custody of children and other ancillary reliefs, are not matters within the jurisdiction of the Syariah Courts. Therefore cl. (1A) of art. 121 does not apply to deprive the High court of its Jurisdiction under s. 51 of the Law reform act. The High Court has the exclusive jurisdiction “.
My Lord, Though Subashini’s case was regarding section 51 of the Law Reform (Marriage and Divorce) Act 1976, it does not mean that the decision of the Federal Court on the issue of jurisdiction could not be applied in the case before us.
I humbly submit that the decision on jurisdiction in Subashini’s case can be applied by this Honourable Court in the case filed by the Petitioner herein.
As it is My Lord, from the case of Subashini we can clearly be sure that in matters where a Petition for divorce has been filed by a party who has converted to Islam, the High Court has the exclusive jurisdiction to decide on the matter and to grant the dissolution of marriage. It has also the exclusive jurisdiction to decide on the order for maintenance, custody of children and other relief that the party to the proceeding has brought up during the hearing of the petition.
My Lord, I have had the opportunity to seek the opinion of Dr. Mohd Rafie Bin Mohd Shafie, who is a renown Syariah Legal Practitioner from the Malaysian Bar.
It is in the considered opinion of Dr. Rafie that the Civil Court has jurisdiction to hear the petition to dissolve the Civil Marriage of the Petitioner under the Law Reform (Marriage & Divorce) Act 1976 irrespective of the Petitioner conversion to Islam after filing the said petition.
According to Dr. Rafie, the Petitioner’s act of conversion does not have the effect of taking away the jurisdiction of the Civil Court.
He further added that the Respondent is not prejudiced by the Petitioner’s petition and subsequent conversion to Islam as the parties are no more together. In fact the respondent will be prejudiced if the court were to rule that the court has no jurisdiction.
A non Muslim marriage does not automatically dissolve upon one of the parties converting to Islam, therefore by contracting the Civil Marriage the Petitioner and Respondent were bound by the Law Reform (Marriage and Divorce) Act 1976 in respect of divorce, maintenance and custody of the children of the marriage and thus the Civil Court continues to have jurisdiction.
Dr. Rafie in his opinion also stated that Order 92 rule 4 of the Rules of High Court 1980, provided that the courts have inherent powers to make orders to prevent injustice to parties.
Based on the above arguments and opinions it is humbly submitted that the Civil High court has jurisdiction to dissolve the Petitioner marriage which was contracted when both parties were non Muslim under the Law Reform (Marriage and Divorce) Act 1976.
I therefore humbly pray that the said marriage between the Petitioner and the Respondent be dissolved and also for an order in terms for the prayers stated in the petition dated 12th February 2007.”
11. The submission of En. Saferi bin Ali inter alia can be summarised as follows:
(a) It is the intention of Parliament by Article 121(1A) of the Federal Constitution to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court. (see Supreme Court decision on Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib  2 MLJ 793)
(b) Nevertheless, the issue on the conflict of jurisdiction of the civil court as against the Syariah court has always come to the forefront. As Abdul Hamid Mohamad, FCJ in a recent case of Latifah bte Mat Zin v. Rosmawati bte Sharibun & Anor  5 MLJ 101 pointed out at page 108 that:–
“The problem has arisen and has become more serious over the last two decades. Courts, the civil courts as well as syariah courts have had to grapple with this problem. While a judgment settles the case before the court, it creates other problems in subsequent cases.”
The court at page 116–117 further observed: –
“The point to note here is that both courts, civil and syariah, are creatures of statutes. Both owe their existence to statutes, the Federal Constitution, the Acts of Parliament and the State Enactments. Both get their jurisdictions from statues i.e. Constitutions federal law or State law, as the case may be. So, it is to the relevant statutes that they should look to determine whether they have jurisdiction or not. Even if the syariah court does not exist, the civil court will still have to look at the statutes to see whether it has jurisdiction over a matter or not. Similarly, even if the civil court does not exist, the syariah court will still have to look at the statute to see whether it has jurisdiction over a matter or not. Each court must determine for itself first whether it has jurisdiction over a particular matter in the first place, in the case of the syariah courts in the States, by referring to the relevant State laws and in the case of the syariah court in the Federal Territory, the relevant Federal laws. Just because the other court does not have jurisdiction over a matter does not mean that it has jurisdiction over it. So, to take the example given earlier, if one of the parties is a non–Muslim, the syariah court does not have jurisdiction over the case, even if the subject matter falls within its jurisdiction. On the other hand, just because one of the parties is a non–Muslim does not mean that the civil court has jurisdiction over the case if the subject is not within its jurisdiction.”
(c) Section 3 and 3(3) of LRA 1976 states:
“This Act shall not apply to a Muslim or to any person who is married under Islamic law and no marriage of one of the parties which professes the religion of Islam shall be solemnized or registered under this Act; but nothing herein shall be construed to prevent a court before which a petition for divorce has been made under section 51 from granting a decree of divorce on the petition of one party to a marriage where the other party has converted to Islam, and such decree shall, notwithstanding any other written law to the contrary, be valid against the party to the marriage who has so converted to Islam.”
When the above provision is read with section 51 of LRA 1976, the said Act LRA 1976 does not apply to a Muslim.
(d) The Federal Court in a majority decision, delivered by Nik Hashim FCJ, inter alia held that:
“Assuming that the wife’s petition was properly before the court i.e. it was filed three months after the conversion, then my view is that the High Court would have the jurisdiction to hear and determine the petition for divorce and the application for ancillary reliefs under s 51 of the 1976 Act even though the husband had converted to Islam before her petition for divorce had been filed in the High Court and that he had already commenced the proceedings in the Syariah Court.”
The Court further held:
“I agree with learned counsel for the wife that the status of the parties at the time of the marriage is the material consideration for the purpose of determining the question of jurisdiction. In Kamariah bte All dan lain–lain v Kerajaan Negeri Kelantan dan satu lagi  1 MU 197, the appellants claimed by a statutory declaration that they were no longer Muslims in August 1998. They were sentenced to imprisonment on 5 October 2000 for failure to abide by the order of the Syariah Court of Appeal relating to the offence under Undang–Undang Majlis Agama Islam dan Adat Istiadat Melayu Kelantan which they had committed before August 1998. The appellants contended that as they were no longer Muslims, the Syariah Court had no jurisdiction over them. Therefore, the issue was whether the appellants must be Muslims when they were sentenced in October 2000. In resolving the issue, the Federal Court (Ahmad Fairuz Chief Justice, Mohd Noor Ahmad, PS Gill Rahmah Hussain FCJJ and Richard Malanjum JCA (as he then was)) concluded that notwithstanding their claim to no longer being Muslims, the material time for determining the question of jurisdiction was the time when the offence were committed and at that time the appellants were Muslims”.
At para 20 of his judgment (page 169), the Court further declared that:
“But in the present case, the husband had converted to Islam and had filed the proceedings in the Syariah High Court for dissolution of the marriage and the custody of the converted son. By embracing Islam, the husband and the son became subject to Muslim personal and religious laws and it is not an abuse of process if he, being Muslim, seeks remedies in the Syariah High Court as it is his right to do so.”
At para 22 (page 170), the Court opined that:
“In the present case, there is no impediment for the converted spouse i.e husband, to appear in the divorce proceeding in the High Court albeit as the respondent, as the jurisdiction of the High Court extends to him unlike the Syariah Court which restricts its jurisdiction to persons professing the religion of Islam only.”
(e) It is therefore, in Subashini’s case (supra), the wife (non–Muslim party) who applied to the High Court pursuant to s 51 of the 164 Act. The Federal Court held that it has jurisdiction to hear the case taking into account the fact that even assuming the wife’s petition was properly submitted before the court and the status of the parties at the time of the marriage was the material consideration for the purpose of determining the question of jurisdiction.nce, it is no doubt that the High Court has jurisdiction to dissolve the marriage contracted under and by virtue of 164 Act above although the other party has converted to Islam, following the principles laid down in the Federal Court in Subashini’s case.
However, in the present case, it is the petitioner who is a Muslim, and who has applied to this High Court pursuant to s 51 of the 164 Act. It is not the wife, who is the non–Muslim, who is the petitioner, as was in Subashini’s case. Thus, it would appear that the above principles should be distinguished from the present case.
As far as the case authorities are concerned, the facts are not similar to the present case, where in this case, it is the petitioner, who is a Muslim, who had applied to the High Court by virtue of s 51 of 164 Act to dissolve the marriage which was contracted in accordance with the said Act.
(f) At this juncture, I refer once again to the case of Ng Siew Pian vs. Abd. Wahid bin Abu Hassan, Kadi Daerah Bukit Mertajam & Satu yang lain  2 MLJ 425 which I had referred to earlier at para 4.1 (vi) (1) of my submission dated 9th June, 2008. Perhaps it could be of assistance to this Court, since at page 431, the Court said:–
“Sebaliknya, adakah Mahkamah Tinggi mempunyai bidang kuasa untuk membubarkan perkahwinan berkenaan jika permohonan dibuat di Mahkamah Tinggi?
Jawapannya terdapat dalam s 51 Akta Membaharui Undang– Undang (Perkahwinan dan Perceraian) 1976:
51(2) Where one party to a marriage has converted to Islam, the other who has not so converted may petition for divorce:
Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of conversion.
Perlu diambil perhatian bahawa seksyen ini membolehkan pihak yang tidak memeluk agama Islam membuat permohonan membatalkan perkahwinan itu. Seksyen ini nampaknya tidak memberi hak kepada pihak yang memeluk agama Islam untuk memohon.”
The Court further held:
“Walau bagimanapun, jika pihak yang tidak memeluk Islam memohon maka, Mahkamah Tinggi mempunyai bidang kuasa membicarakannya, walaupun pihak satu lagi beragam Islam, kerana bidang kuasa Mahkamah Tinggi meliputi semua orang, tidak kira apa agamanya atau tidak beragama langsung”.
At page 432, Abdul Hamid J (as he then was) illustrated a circumstance where in the instance the non–converted does not apply to the High Court:–
“Tetapi, bagaimana jika pihak yang tidak memeluk agama Islam tidak memohon, tetapi pihak yang memeluk agama Islam hendak memohon? Di mahkamah manakan ia hendak memohon? Dia tidak boleh memohon di Mahkamah Tinggi. Mahkamah Kadi pula tidak mempunyai bidang kuasa untuk membicarakan kes itu kerana satu pihak bukan beragama Islam. Di sini nampaknya terdapat satu ‘lacuna’ yang patutlah badan perundangan memberi perhatian dan membuat pindaan–pindaan yang perlu. Jika saya boleh mencadangkan, elok rasanya kuasa diberi kepada Mahkamah Tinggi untuk membubarkan perkahwinan seperti itu kerana perkahwinan itu bukan perkahwinan Islam, dan biasanya pun Mahkamah Tinggilah yang mempunyai kuasa membubarkan perkahwinan bukan Islam.”
The above case had illustrated a situation where in the converted Muslim party applied to the High Court as the Petitioner has in the present case, and the High Court had jurisdiction to hear the matter.
(g) Suriyadi b. Halim Omar, J (as he then was) in Tey Siew Choo @ Nur Aishah Tey binti Abdullah v. Teo Eng Hua  3 AMR observed the case before him and stated that:–
“The legal point to be disposed by me, is whether the petitioner could petition for an order of divorce under the Law Reform (Marriage And Divorce) Act 1976 (Act 164), even though already converted to Islam. In Malaysia separate systems of family and personal law exist for Muslims and non–Muslims. Under item 4(e) in List I (Federal Legislative List) in the Ninth Schedule of the Federal Constitution, is provided therein the legislative jurisdiction of Parliament in respect of family law for non–Muslims. Parliament similarly has the authority to legislate on Islamic family law but confined to the Federal Territory. Without the necessity of having to delve in depth, suffice if I may say that Muslims are dealt with under the Syariah law and the relevant Enactments of the respective States. A conflict of personal law may occasionally arise when one of the contending parties convert to Islam or even apostate, hence the matter at hand.”
At the conclusion of his judgment and having regard to the facts of the case, the learned Judge held that a converted petitioner is equally entitled to petition for a divorce under the Act. However, it is to be noted that in that case, the dissolution of civil marriage was made pursuant to s. 54(1)(d) of the Act, as adverted by the petitioner and which was not contested.
(h) In the case of Shamala a/p Sathiyaseelan v. Dr. Jeyaganesh a/I C Mogarajah  2 MLJ 241, Faiza Tambi Chick, J (as he then was), was of the opinion that the civil court has jurisdiction to hear the case. The fact that the defendant’s husband has converted to Islam does not change the status of their civil marriage. The defendant’s husband’s obligation under the Hindu marriage cannot be extinguished or avoided by his conversion to Islam.
However, considering section 51 of the 164 Act (the Law Reform), the judge held that:
“Therefore, the defendant husband is regarded as having committed a matrimonial offence thereby enabling the plaintiff wife who has not so converted to petition for divorce. The effect of the law is that the defendant husband cannot obtain a divorce at all. The defendant husband cannot obtain a divorce under the Act as s 51 only gives right to apply for divorce to the party who has not converted to Islam, i.e. the plaintiff wife.”
It is to be observed that in Subashini’s case (referred to in the earlier submission) the Federal Court asserted that:–“A non–Muslim marriage does not automatically dissolve upon one of the parties converted to Islam. Thus, by contracting the civil marriage, the husband and wife were bound by the 1976 Act in respect to divorce and custody of the children of the marriage, and thus, the civil court continues to have jurisdiction over him, notwithstanding his conversion to Islam.”
On the dissolution order by the Syariah Court, the Federal Court opined:–
“To my mind, the dissolution order of the civil marriage by the Syariah High Court by virtue of conversion would have no legal effect in the High Court other than as evidence of the fact of the dissolution of the marriage under the Islamic law in accordance with Hukum Syarak. Thus, the non–Muslim marriage between the husband and wife remains intact and continues to subsist until the High Court dissolves it pursuant to a petition for divorce by the unconverted spouse under s 51 (1) of the 1976 Act.”
(i) If the court is to follow Abdul Hamid J (as he then was) in Ng Siew Pian (supra) which transpired on a situation similar to that of the petitioner in this case, then, the High Court has jurisdiction to dissolve the marriage. Or, if this court were to adopt Tey Siew Choo @ Nur Aishah Tey binti Abdullah’s case but not on the grounds of conversion to Islam as provided in s 51, then, the marriage could be dissolved by this court on other grounds. It is to be noted that in Subashini’s case, the Federal Court has to answer the complaint by the counsel for the husband on the constitutionality of s 51 where it was argued that it was unjust and ultra vires of art 8 (1) of the Constitution and therefore void for it only allows the unconverted non– Muslim spouse to become the petitioner. At para 17 (page 167) the Court held that s 51(1) does not violate art 8 of the FC therefore is not void as complained. The classification created by s 51(1) is a reasonable classification as the persons in the non–converting category are treated equally as are persons in the converting party.
Based on the above, the conclusion at 4.1 (iii) above, the Federal court recognized the fact that there was a complaint on the equality where at the end of the day, the Court was of the view that s 51(1) which only allows the non–converted party to petition is constitutional and not void.
(j) It is therefore our view that the High Court has jurisdiction to dissolve the marriage contracted under and by virtue of 164 Act, although the other party has converted to Islam, following the principles laid down in the Federal Court in Subashini’s case; provided that the application is made by the non–converted (non–Muslim party) as the existing law provides only to the non–Muslim party to apply under section 51 of the said Act. Further, as the Federal Court in Subashini’s has held that, there is no impediment for the converted spouse to appear in the divorce proceeding in the High Court albeit as the respondent, as the jurisdiction of the High Court extends to him unlike the syariah court which restricts its jurisdiction to persons professing the religion of Islam only. These Chambers is also aware that there is still an attempt to amend s 51 of 164 Act. However, the law, until it is amended, only gives the right to the non–converted party to apply for the dissolution of the marriage contracted under the said Act and not to the converted Muslim party. However, it is to be noted that, the Federal Court in Subashini’s case also clearly held that by embracing Islam, one is subject to Muslim personal and religious laws and it is not an abuse of the process if he, being Muslim, seeks remedies in the Syariah High Court as it is his right to do so.
Question by court
(k) Can the syariah legislation regulate the practice of Islam when under the personal law, once the person converts, it automatically dissolved the marriage. In that sense, is section 44(2) ultra vires the personal law of Islam or the Federal Constitution?
(1) From the Islamic law perspective, if a married man embraces Islam but his wife fails to convert to Islam, the marriage in question ceases to subsist on the date of the husband’s conversion. In other words, the marriage will automatically dissolved because if it is otherwise, would tantamount to illegal cohabitation (zina).
(2) However, in that sence, would section 44(2) of the Islamic Family Law Ordinance, 2001 ultra vires the personal law of Islam and/or the Federal Constitution?
(3) It is submitted that, the said provision does not contravene the personal law of Islam and/or the Federal Constitution for the said section merely provides for the confirmation by court.
(4) The requirement for the confirmation by court as provided in s 44(2) of the said Ordinance is only for the purpose of administration or regulation of the practice of Islamic personal law.
(5) In any event and if there is any lacuna, of which there is none here, the court shall refer to Islamic law as provided for in section 139(2) of the said Ordinance viz :–
Reference to Islamic law
“If the event of lacuna or where there is any matter which is not expressly provided for in this Ordinance or in any rules made under this Ordinance, the syariah court shall refer to Islamic Law.”
(6) Islamic law would render such marriage dissolved but for the purpose of the said Ordinance, the syariah court is empowered to confirm such dissolution.
Question by court
(l) Who is to determine any provision of the syariah enactment/Ordinance is valid under the federal Constitution?
AnswerQuestion by court
(1) Item 4(k) of List 1 gives power to legislate to Parliament on matters to ascertain the Islamic law and other personal laws for purposes of federal law.
(2) In contrast, the state is empowered to legislate on matters of Islamic personal law provided under item 4 (e) (ii) of List 1 and Item 1 of List II.
(3) In both respects, the determining authority as to the validity of any syariah legislation be it an Act passed by Parliament or an enactment/Ordinance passed by the State Legislature, can only be with the Federal Court.
(4) This issue has been answered by Abdul Hamid Mohamad, CJ in the case of Abdul Kahar bin Ahmad dan Kerajaan Negeri Selangor Darul Ehsan [permohonan no 1 Tahun 2007], where in this case the court was posed with a question on whether the Federal court or Syariah court is seized with jurisdiction to decide whether the provisions of the State Enactments are in accordance with the provision of the Federal Constitution.
(5) The Federal Court referred to its judgment in Latifah bte Mat Zin (supra), where at page 123, his Lordship said:
“Interpretation of the Federal Constitution is a matter for this court, not the syariah court”.
(6) The Federal court went on to say that, Art 121(1A) of the Federal Constitution does not confer jurisdiction on syariah court to interpret the Constitution to the exclusion of the Federal Court.
(7) The court further held that Art 128 (1) which provides that:–
“128. (1) The Federal Court shall, to the exclusion of any other court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jurisdiction –
(a) any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter to which Parliament or, as the case may be, the Legislature of the State has no power to make laws; and”
clearly gives the effect that, it is the matter for the Federal Court and not the syariah court to decide whether the impugned provisions are within the scope that the State Legislature has jurisdiction to make or not and whether they are valid or otherwise.
(9) See also sections 84 and 85 of Court of Judicature Act, 1964.
(m) Is personal law restricted to the laws of the sects as well as mazhab and there can’t be any regulatory measures to restrict the scope of personal law. If so, will it infringe the Federal Constitution?
(1) The answer to the first limb is in our view is in the affirmative, that is to say, Islamic personal law is restricted in reference to the laws of the sects as well as mazhab.
(2) On the regulatory measures of the second limb, the issue should not arise in respect of Injunction (hukm) which are clearly spelt out in the Qur’an and Sunnah. Other than those as aforesaid, the personal law may be restricted.
(3) In this regard, it is to note that s 39 of the Majlis Islam Sarawak Ordinance, 2001 provides that the Majlis shall ordinarily follow the accepted views (qaul muktamad) of the Mazhab Syafie but the Majlis is also empowered to follow the qaul mukatamad of the other mazhab if the situation so warrants. i.e it is not repugnant to the public interest, provided that special sanction of Yang di–Pertua Negeri is obtained.
(4) In other words, Majlis may follow any of the accepted views of the 4 mazhabs, if by doing so doesn’t lead to a situation which is repugnant to the public interest.
(5) In the premises, the issue of infringement of the Federal Constitution in our view does not arise.
Islam and Federal Constitution
12. Islam as everyone understands, is the religion of Muslims. The Holy Prophet had answered what Islam is, which is documented in authoritative text like Sahih ul–Bukhari and Sahih Muslim. The learned author Sultan S.M. Darulssalam, Birmingham (2nd ed. 2004) says:
“In Shahih ul–Bukhari and Sahih Muslim there is a Hadith in which Jibrael appears before Allah’s Massenger and asked about Islam saying: “What is Islam”? Allah messenger said:
“Islam is to testify that there is no God to be worshipped but Allah and that Muhammad is the Messenger of Allah, to perform the prayers, to pay the Zakat, to fast in Ramadan, and to make the pilgrimage to the House (the Ka’bah in Makkah) if you are able to do so.”……………
Imam Bukhari and Muslim also related on the authority of Abdullah bin Umar. Allah’s Messenger said:
“Islam is built on five pillars: Testifying that there is no god but Allah and that Muhammad is the Messenger of Allah, performing prayers, paying the Zakat, fasting in the month of Ramadan and making pilgrimage (Hajj) to the House (the Ka’bah in Makkah), if you are able to do so.”
However, the Federal Court in Che Omar Bin Che Soh v. Public Prosecutor  2
MLJ 55 held:
“(1) the term “Islam” or “Islamic religion” in Article 3 of the Federal Constitution in the context means only such acts as relate to rituals and ceremonies;
(2) during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only. It is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word “Islam” in the context of Article 3;
(3) it should thus appear that not much reliance can be placed on the wording of Article 3 to sustain the submission that punishment of death for the offence of drug trafficking or any other offence will be void as being unconstitutional.
Tun Salleh Abas L.P inter alia observed:
In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word “Islam” in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.
It would thus appear that not much reliance can be placed on the wording of Article 3 to sustain the submission that punishment of death for the offence of drug trafficking, or any other offence, will be void as being unconstitutional.
We, therefore, do not consider important to discuss cases cited by counsel on the question of death penalty being contrary to Islamic perception.
It is the contention of Mr. Ramdas Tikamdas that because Islam is the religion of the Federation, the law passed by Parliament must be imbued with Islamic and religious principles and Mr. Mura Raju, in addition, submitted that, because Syariah law is the existing law at the time of Merdeka, any law of general application in this country must con– B form to Syariah law. Needless to say that this submission, in our view, will be contrary to the constitutional and legal history of the Federation and also to the Civil Law Act which provides for the reception of English common law in this country.
A great deal of argument was spent to say that the law must be just, and the Proclamation of Independence was cited as an authority. There is of course no need for us to go further than to say that the standard of justice naturally varies from individual to individual; but the only yardstick that the court will have to accept, apart from our personal feelings, is the law that was legislated by Parliament.
We thank counsel for the efforts in making researches into the subject, which enabled them to put the submissions before us. We are particularly impressed in view of the fact they are not Muslims. However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law. Perhaps that argument should be addressed at other forums or at seminars and, perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.”
It must be emphasised here that the Islamic Jurisprudence and/or community will
not accept any definition which has already been dealt with by the Holy Qur’an
and/or the Holy Prophet. On the same note, there will be little resistance when,
for the purpose of explaining the Quranic text or teachings of the Holy Prophet,
jurists explaining in wider detail, provided it is strictly confined to the
parameters of the said original source. For our purpose, the definition of Islam
in the Federal Constitution can only be one as promulgated by the Holy Prophet
which is simple and straight forward and will be understood by all persons and
cannot be objectionable to any person because it is the faith of the Muslim
community through out the world and the said five pillars are actually the
pillars of Islam nothing more and nothing less. And those who subscribe to the
five pillars are Muslims.
13. Islamic principles, law, madhabs and personal laws (Bird’s eye view)
Islamic principles and law, divine in origin, has no race or language barrier. Islam being a universal religion imposes an obligation on Muslims to live within the precinct of Islamic Constitution as set out in the Holy Qur’an. No form of compromise can be recommended to a Muslim. Unlike other major religions, Islamic jurisprudence has developed an advanced legal code based on religious injunctions contained in the Holy Qur’an and the Sunnah. Al–Qur’an, (ash–shura: 13) states:
“He had ordained (syariah) for you that religion which the commanded unto Noah, and that We inspire in thee (Mohamed), and that which We commanded unto Abraham and Moses and Jesus”
Al–Qur’an, (al–Jathiya: 18) states:
“And now have we set thee [O Mohamed] on a clear road of (our) commandment (shariatin–min–al–amr); so follow it and follow not the whims of those who know not”
From the above verses, it is not difficult to appreciate the sentiments of the Muslim community for wanting to be ruled and governed by Islamic principles and law. It should be emphasised that Islamic law is only applicable to Muslims and not to others. It is common knowledge that the Holy Prophet had stated:
“leave alone the non–Muslims and whatever they believe in”
The Muslim jurists have classified the Islamic law under two heads: (i) Religious Law (Tashriyi) and (ii) Secular Law (Ghair–tashri yi). The purely religious part of the law forms Islamic personal law as stipulated by the Holy Qur’an and preaching and practice of the Holy Prophet and endorsed by the relevant Imams of the madhabs. The secular portion of the law (civil or criminal), which is a need and necessity for good governance of the country, is common to all nations and was never seen as a part of Islamic law or personal law of Muslims. In some Muslim countries, even the secular part is labelled as Islamic law, notwithstanding that it may not be part of the religious law. The secular part applies to all, Muslims and non–Muslims alike. The learned authors of Fatawa–i–Alamgiri observe:
“Non–Muslim subjects of a Muslim State are not subject to the laws of Islam”.To understand and appreciate Islamic Jurisprudence one needs to have some knowledge in respect of the two main juristic schools of jurisprudence in Islam. They are the sunni school and the shia school. The sunni school has four main divisions called madhabs. They are Hanafi, Shafi, Hanbali and Maliki. It is said that about eighty percent of the total Muslim population of the world are sunni Muslims and the majority of them are Hanafis followed by Shafis. Iman Shafi founded the Shafi school and was well known for his progressive and modern views. Vast majority of the Muslims in Malaysia are Shafis.
According to sunni school, there are four chief sources of Islamic law. They are the Holy Qur’an, Ahadis and Sunnah, Ijma and Qias. The Holy Qur’an is the paramount source of Islamic law and expressed revelation of Allah. The Ahadis means what the Prophet said. The Sunnah means the physical deeds of the prophet. The Ahadis and Sunnah are regarded as the second most important source of Islamic Jurisprudence after the Holy Qur’an. Ijma is the consensus of the companions and followers of the Prophet i.e. the agreement of the jurists among the followers of the Holy Prophet in a particular age on a particular question. Imam Shafi had rejected Ijma as the consensus of the scholars and reconstructed it as the consensus of the Muslim community. Qias is referred to as analogical deduction based on the sound reasoning from the sources of syariah law. Qias was applied when the three sources of syariah law namely, the Holy Qur’an, the Ahadis and Sunnah and Ijma could not adequately answer certain issues. There are other secondary and subsidiary sources of syariah law; however, those will not be mentioned here. Laws for good governance of the state were never advocated as personal law of the Muslims.
It must be emphasized here that during the early years of the religion of Islam,
the primary source of Islamic jurisprudence was specifically confined to the
Holy Qur’an, the teachings and practice of the Holy Prophet and thereafter the
guidance shown by the companions of the Holy Prophet. Nearly two centuries later
or so the juristic schools came into existence. Despite the juristic schools
there are many Muslims who are not aligned to any of the madhabs. However, when
reference is made to personal law of a Muslim, it extends only as much as to the
original source and the development by application of Ijma or Qias etc by
various madhabs. It does not extend to administrative laws or civil or criminal
laws in practice in various Muslims states for the good governance of the
country, even though it may have been under the guise of syariah law.
Federal Constitution and Personal Law of Muslim
It is trite that by virtue of article 3 of the Federal Constitution, Islam is the Religion of the Federation. And any Muslim, and/or what ever madhab he/she comes from, he/she is entitled to practice according to his/her madhab his/her personal law and this is protected by article 11(1) and (3) which says:
“(1) Every person has the right to profess and practice his religion and, subject to clause (4), to propagate it.
(3) Every religious group has the right:
(a) to manage its own religious affairs;
(b) to establish and maintain institutions for religious or charitable purpose; and
(c) to acquire and own property and hold and administer it in accordance with law.”
Further, the reading of para 1 of list 2 schedule 9 of the Federal Constitution only allows the state legislatures to enact Islamic law and personal and family law of persons professing Islam; and the provision therein to make procedure for syariah court can only relate to procedure relating to conduct of trial and not administrative procedures or restriction which are contrary to Islamic law or the personal law of Muslims or are not found in any madhabs. The said schedule 9, reads as follows:
“Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non–charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public places of worship, creation and punishment of offences by persons profesing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.”
Thus, it is clear from the above articles 3, 11(1),(3) and schedule 9 of the
Federal Constitution that there is total freedom to practice the religion of
Islam and the state legislatures are restricted from regulating the practice of
the religion of Islam in the original form.
An example of a provision of the state syariah enactment which attempts to regulate the practice of the personal law of the Muslim is section 44(2) ILFLO 2001, for the reasons which I had adumbrated earlier. The test for the validity of any provisions of the state syariah ordinance of any state, pursuant to the schedule in my view is that whether the said provision is Islamic law or the personal law of the Muslim i.e at least one of the madhabs. This test is succinctly incorporated in all the state syariah ordinances and in Sarawak ILFLO 2001, Section 2 states:
“Islamic Law” means Islamic Law according to Mazhab Syafie or according to one of the Mazhab Maliki, Hanbali or Hanafi as may be determined by the Majlis”
The same phrase wit