13 - Indigenous Interactions

Summary

In 1988, Malaysia’s Constitution was amended to separate the Syariah and civil jurisdictions of the courts. Henceforth, matters involving Syariah (Islamic religious law) would only be litigated in the Syariah courts and not the civil courts. This move proved problematic especially since the Federal Constitution regulates all fundamental rights and liberties – including the right to religious freedom – while religion is regulated by the constituent states. State legislatures are thus empowered to create and punish offences against precepts of Islam. This chapter analyses how common law principles of administrative law have been applied and developed in Malaysia by studying their interaction with the administration of Syariah law. More specifically, it asks: How do the civil courts exercise its powers of judicial review in cases involving Syariah and the exercise of powers by both secular and religious authorities in such cases? It traces the patterns of judicial application and assessment of key administrative law principles such as natural justice, reasonableness, and proportionality and argues that while English precedents continue to be cited, these same precedents are often jettisoned and modified when it conflicts with the political power and primacy of Islamic law.