Law updates - Religion (Malaysian law unless otherwise stated)

*Abbreviations  
HC = high court  
COA = court of appeal 
FC = federal court
 
Kaliammal a/p Sinnasamy v Pengarah Jabatan Agama Islam Wilayah Persekutuan (Jawi) & 2 Yg Ln [HC]

Ng Wan Chan may be distinguished from the facts of the instant matter in view of the existence of the Syariah Court order, which clearly determines that the deceased was a Muslim named Mohamad b Abdullah. The Syariah Court is the court with the competency and jurisdiction to determine the validity of the deceased's conversion to Islam. Civil courts lack the jurisdiction and may not review a decision of the Syariah Court. The Administration of Islamic Law (Federal Territories) Act 1993 (the Act) has clear provisions as to conversion to Islam and thus, the court competent to determine these issues would be the Syariah Court and not the civil courts. This is in line with Article 121(1A) of the Federal Constitution, which provides that the civil courts do not have jurisdiction pertaining to any matter where the Syariah Courts have been conferred jurisdiction under any written law. Although the applicant attempted to show that the deceased did not at all live as a Muslim, those were matters in relation to Islamic law and the jurisdiction to determine such issues were within that of the Syariah Court and not the civil courts. In the circumstances, only prayer (a) of the applicant's originating summons could be granted, i.e. that she be declared the deceased's legitimate wife at the time of his death.

Pendakwa Raya v Mohd Noor bin Jaafar [HC]

The letter of authorisation was given by the learned DPP to a syarie officer to conduct prosecution in the Magistrate's Court and Sessions Court in Malacca. The officer was from the Islamic Religious Department, which was a Government department as envisaged in s 377(b)(3) of the CPC, and conduct of the prosecution in relation to the charge was also subject to the control and direction of the PP. Pursuant to an amendment, vide Enactment No 8 of 2003, the word "Director" in s 34(1) and (2) of the Enactment was substituted with the words "Public Prosecutor" so that the PP's power to give consent or authorisation to prosecute is vested in the PP in consonance with Article 145(3) of the Constitution, where the expression "PP" would include a DPP. The decision in Abdul Hamid v PP [1956] MLJ 231 held that the general words "rights and powers" appearing in s 376(3) of the CPC need not be construed as requiring the consent of the PP personally but that a DPP was permitted to do so. The letter authorising the officer from the Islamic Religious Department to conduct the prosecution in the Magistrate's Court was valid and constitutional. Section 33 of the Enactment expressly provides that a magistrate shall have the jurisdiction to try an offence under the same. The vesting of this jurisdiction in the Magistrate's Court was consistent with federal law as provided by s 85 of the Subordinate Courts Act 1948. Since the jurisdiction to try the offence had been expressly conferred upon a magistrate, it meant that it was not a matter in which the Syariah Court enjoyed exclusive jurisdiction. There was therefore no contravention of Article 121(1A) of the Constitution. Since the subject matter concerned the registration of an Islamic religious school and not the precepts of the religion of Islam, there could be no doubt that the Malacca State Legislature had clearly intended to exclude the subject matter from the jurisdiction of the Syariah Court and instead conferred the jurisdiction on a magistrate. Sections 33 and 34 of the Enactment, when tested against Article 121(1) and (1A) of the Constitution were valid and constitutional.

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