MALAYSIAN LEGAL SYSTEM

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• FATIN FATIHAH BINTI SABDIN• SITI AMIRA BINTI AMIR HASSAN• NUR ARDILLA BINTI MOHAMMAD ALIAS

QUESTION ????

QUESTION NO.2Article 121(1A) is a provision to prevent

conflicting jurisdiction between the civil courts and the syariah courts. It is obvious that the

intention of Parliament by article 121 (1A) is to take away the jurisdiction of the high court In respect of any matter within the jurisdiction of

the syariah courts. In light of the above statement ,explain the conflict of jurisdiction between the syariah court and the civil court

which leads to the amendment of article 121 of the federal constituition.

Federal Constitution

Article 121-Judicial power of the federation(1A) – the court refered to in clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah court.

-There are conflicts occur between civil courts and syariah courts.-The conflict happen when civil court interfere the jurisdiction of syariah court-It also happens when civil court over ruled the decision of syariah court-Amedment (1A) had been added to article 121 to specific the jurisdiction of syariah court.

Example of casesAINAN V SYED ABU BAKAR- Legitimate child

NAFISAH V ABD MAJID- Breach of Marriage

MYRIAM V MOHAMMED ARIFF- Custody of child

AINAN V SYED ABU BAKAR

-S112 Evidence enactment was enforced on muslims.-court held: The evidence enactment is a statute of the general application and that all the inhabitants of the federated malay states are subject to its provisions whatever may be their race or religion.-In question of legitimacy in the case of the rule of muhammaden law

• S112 Evidence Enactment: provides that the birth of a child during a valid marriage or within 280 days after its dissolution ,it conclusive proof of legitimacy ,unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten.

• Islamic law: the shortest period of gestotian is the human species in 6 months.A child who born before 6 months is considered illegitimate.In this case, the child was born 3 months after the marriage

• The court applied the evidence enactment and held that the child is a legitimate child.

NAFSIAH V ABD MAJID

• Fact: on Aug 19,1963. Plaintiff alleged that the defendant had promised that he would marry her, the promised was made into writing,the plaintiff then claimed that the defendant was seducing her.As a result she was pregnant. On July 1964 , a child was born.So,the plaintiff claim for breach of promise to get marry with her.

• Judgement: Court held that the defendant had commited a breach of promise that asses damage at the sum of $1200

• In Islamic Law, plaintiff cannot sue the defendant because there is no provision for breach of marriage contract.

MYRIAM V MOHAMMED ARIFF

• FACT: The applicant had applied for the custody of her two infant children, a girl 8 years old and a boy 3 years old. The appellant and respondent were mother and father respectively of the 2 infants,had been divorced and both parties had since remarried. The issue before the court was whether the the applicant was still entittled to the custody of her children after she had duly consented to the order of the syariah court giving the custody of the 2 children to the respondent

• Islamic Law: If the mother had been remarried after divorce she has no right toward custody of her children.

• Civil court have decide that the mother still entitled for custody of her children eventhough she remarried.

• Conclusion : conflict happen when the civil court intefered and overulled the syariah court decision. Thus, the amendment be added.

• Article 121(1A) was primarily intended to ensure that decisions made by the syariah court are not reversed by the civil high court where there is a coordinate or concurrent jurisdiction although under different state islamic law and federal law.

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