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Syariah Courts Ordinance, 2001 is Malaysia State Ordinance, cited as State Ordinance Cap. 42 2001, currently marked in force and first recorded in 2001.
PREPARED AND PUBLISHED BY
THE COMMISSIONER OF LAW REVISION, SARAWAK
UNDER THE AUTHORITY OF THE REVISION OF LAWS ORDINANCE, 1992 2007
Date Passed by Dewan Undangan
Negeri
... ... ... ... ... ...
6th November, 2001
Date of Assent
... ... ... ...
10th December, 2001
Date of Publication in Gazette 27th December, 2001
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Opening note
Short title and commencement
⎯(1)
This Ordinance may be cited as the Syariah Courts
Ordinance, 2001.
This Ordinance shall come into force on such date as the
Chief Minister may, by notification in the *Gazette, appoint.
Interpretation
⎯(1)
In this Ordinance, unless the context otherwise requires⎯
“Chief Syariah Judge” means the Chief Syariah Judge appointed under section 4(1);
“Chief Syariah Prosecutor” or “Syariah Prosecutors”
respectively means the Chief Syariah Prosecutor or the Syariah
Prosecutors appointed under section 26(1) and (3);
“Civil Court” means any court constituted under Article 121
of the Federal Constitution [G.N. (N.S.) 885/57] or under section 3 of the Subordinate Courts Act 1948 [Act 92];
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“Court” or “Syariah Court” means the Syariah Appeal Court, the Syariah High Court or the Syariah Subordinate Court, as the case may be, constituted under section 3;
“Judge” or “Syariah Judge” means a Judge of the Syariah
Appeal Court, the Syariah High Court or the Syariah Subordinate
Court, as the case may be, appointed under section 5(1), 6(1) or 8(1);
“Majlis” means the Majlis Islam Sarawak established under section 3 of the Majlis Islam Sarawak Ordinance, 2001 [Cap. 41];
“Peguam Syarie” means a person who has been admitted as a
Peguam Syarie under section 28;
“Religious Enforcement Officer” means the Religious
Enforcement Officer appointed under section 27, and includes the
Chief Religious Enforcement Officer and Assistant Religious
Enforcement Officers;
“repealed Ordinance” means the Ordinan Mahkamah
Syariah, 1991 [Ord. No. 4/91];
“State” means the State of Sarawak.
All words and expressions used in this Ordinance and not defined in this Ordinance but defined in the Majlis Islam Ordinance,
2001 [Cap. 41] or in any other written law for the time being in force shall have the meanings assigned to them respectively in that
Ordinance or other written law to the extent that such meanings do not conflict with Islamic Law.
Constitution of Syariah Courts
⎯(1)
The
Yang di-Pertua
Negeri may, on the recommendation of the Majlis, by notification in the Gazette,
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constitute Syariah Subordinate Courts for the State at such places as he considers fit.
The Yang di-Pertua Negeri may, on the recommendation of the Majlis, by notification in the Gazette, constitute a Syariah High
Court for the State.
The Yang di-Pertua Negeri may, on the recommendation of the Majlis, by notification in the Gazette, constitute a Syariah
Appeal Court for the State.
The Yang di-Pertua Negeri may, on the recommendation of the Chief Syariah Judge, prescribe in writing a code of ethics which shall be observed by the Chief Syariah Judge and all Judges of the
Syariah Court.
Appointment of Chief Syariah Judge
⎯(1)
The
Yang di-Pertua
Negeri may on the recommendation of the Majlis, appoint a Chief Syariah Judge.
A person is qualified for appointment under subsection (1)
if⎯
has for a period of not less than ten years before his appointment, been a Judge of the Syariah High
Court or a Kadi or the Chief Registrar or the Chief Syariah
Prosecutor of a State or sometimes one and sometimes another; or
A person who, immediately before the commencement of this section, was appointed the Chief Syariah Judge under the repealed
Ordinance shall, on the commencement of this section, continue to hold office as the Chief Syariah Judge as if he had been appointed under subsection (1).
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The appointment made under subsection (1) shall be published in the Gazette.
Appointment of Judges of the Syariah Appeal Court
⎯(1)
The
Yang di-Pertua
Negeri may, on the recommendation of the Majlis, appoint not more than seven Muslims to constitute a standing panel of Judges of the Syariah Appeal Court.
A person is qualified for appointment under subsection (1)
if⎯
has for a period of not less than ten years before his appointment, been a Judge of the Syariah High
Court or a Kadi or the Chief Registrar or the Chief Syariah
Prosecutor of a State or sometimes one and sometimes another; or
The standing panel under subsection (1) shall be for a period of three years and any person appointed thereto is eligible for reappointment.
Every appointment made under subsection (1) shall be published in the Gazette.
Appointment of Judges of the Syariah High Court
⎯(1)
Yang di-Pertua Negeri may, on the recommendation of the Majlis, appoint Judges of the Syariah High Court.
A person is qualified for appointment under subsection (1)
if⎯
has for a period of not less than ten years before his appointment, been a Judge of a Syariah
Subordinate Court or a Kadi or the Chief Registrar or a
Registrar or the Chief Syariah Prosecutor or
Syariah Prosecutor of a State or sometimes one and sometimes another; or
A person who, immediately before the commencement of this section, was appointed the Judge of the Syariah High Court under the repealed Ordinance shall, on the commencement of this section, continue to hold office as a Judge of the Syariah High Court as if he had been appointed under subsection (1).
Every appointment made under subsection (1) shall be published in the Gazette.
Tenure of office of Judges of the Syariah Courts
⎯(1)
Subject to subsections (2) to (6), the Chief Syariah
Judge appointed under section 4, a Judge of the Syariah Appeal Court appointed under section 5(1) and a Judge of the Syariah High Court appointed under section 6(1), shall hold office until he attains the age of sixty five years or such later time, not being later than six months after he attains that age, as the Yang di-Pertua Negeri, on the recommendation of the Majlis, may approve.
A Judge of the Syariah Appeal Court or the Syariah High
Court may at any time resign his office by writing under his hand addressed to the Yang di-Pertua Negeri but shall not be removed from office except in accordance with the following provisions of this section.
If the Chief Syariah Judge represents to the Yang di-Pertua
Negeri that a Judge of the Syariah Appeal Court or the Syariah High
Court ought to be removed on the ground of⎯
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any breach of any provision of the code of ethics prescribed under section 3(4); or
inability from infirmity of body or mind or any other cause, properly to discharge the functions of his office, the Yang di-Pertua Negeri shall appoint a tribunal in accordance with subsection (4) and refer the representation to it, and may on the recommendation of the tribunal remove such Judge from office.
There shall be a tribunal which shall consist of not less than five persons who are Muslims and who hold or have held office as a Judge of the Federal Court, the Court of Appeal or the High Court of Malaysia, and the tribunal shall be presided over by the member according to the order of their appointments to an office qualifying them for membership.
Pending any reference and report under subsection (3), the
Yang di-Pertua Negeri may, on the recommendation of the Chief
Syariah Judge, suspend such Judge from the exercise of his functions.
Subject to this section, the Yang di-Pertua Negeri may provide for the terms of office, resignation and removal from office of the Chief Syariah Judge.
Notwithstanding subsection (1), the validity of anything done by the Chief Syariah Judge or a Judge of the Syariah Court shall not be questioned on the ground that he had attained the age at which he was required to retire.
Appointment of Judges of the Syariah Subordinate Courts
⎯(1)
The
Yang di-Pertua
Negeri may, on the recommendation of the Chief Syariah Judge, appoint, from amongst members of the State Public Service, Judges of the Syariah
Subordinate Courts.
Every appointment made under subsection (1) shall be published in the Gazette.
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Appointment of a Chief Registrar, a Registrar and Assistant
Registrars
The Yang di-Pertua Negeri may, on the recommendation of the Chief Syariah Judge, appoint from amongst members of the
State Public Service, a Chief Registrar of the Syariah Appeal Court, a
Registrar of the Syariah High Court and Assistant Registrars of the
Syariah Subordinate Courts.
Jurisdiction of Syariah High Court
⎯(1) A Syariah High Court shall have jurisdiction throughout the State and shall be presided over by a Judge of the
Syariah High Court.
Notwithstanding subsection (1), the Chief Syariah Judge may sit as a Judge of the Syariah High Court and preside over such
Court.
The Syariah High Court shall⎯
in its criminal jurisdiction, try any offence committed by a Muslim and punishable under the Majlis Islam Sarawak
Ordinance, 2001 [Cap. 41], the Islamic Family Law Ordinance,
2001 [Cap. 43] or under any other written law for the time being in force which prescribes offences against the precepts of the religion of Islam, and may impose any punishment provided for such offence; and
in its civil jurisdiction, hear and determine all actions and proceedings if all the parties to the actions or proceedings are
Muslims and the actions or proceedings relate to⎯
betrothal, marriage, ruju’, divorce, annulment of marriage [fasakh], nusyuz, or judicial separation [faraq]
or any other matter relating to the relationship between husband and wife;
any disposition of, or claim to, property arising out of any of the matters set out in subparagraph (i);
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the maintenance of dependants, legitimacy, or guardianship or custody [hadanah] of infants;
wills or death-bed gifts [marad-al-maut] of a deceased Muslim;
gifts inter vivos [hibah], or settlements made without adequate consideration in money or money’s worth by a Muslim;
the determination of the persons entitled to share in the estate of a deceased Muslim or the shares to which such persons are respectively entitled;
other matters in respect of which jurisdiction is conferred by any written law.
Jurisdiction of Syariah Subordinate Courts
⎯(1) A Syariah Subordinate Court shall have jurisdiction throughout the State and shall be presided over by a Judge of the
Syariah Subordinate Court.
The Syariah Subordinate Court shall⎯
in its criminal jurisdiction, try any offence committed by a Muslim under the Islamic Family Law Ordinance, 2001
[Cap. 43], the Syariah Criminal Offences Ordinance, 2001 [Cap.
46] or under any other written law for the time being in force which prescribes offences against the precepts of the religion of
Islam for which the punishment provided by such Ordinances or other written law does not exceed three thousand ringgit, or imprisonment for a term of one year or both, and may impose any punishment provided for such offence;
in its civil jurisdiction, hear and determine all such actions and proceedings as a Syariah High Court is authorized to
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hear and determine, if the amount or value of the subject-matter in dispute does not exceed three hundred thousand ringgit or is not capable of estimation in terms of money.
The Yang di-Pertua Negeri may, on the recommendation of the Chief Syariah Judge, from time to time by notification in the
Gazette, extend the jurisdiction of the Syariah Subordinate Courts.
Appeals to the Syariah High Court
⎯(1) An appeal shall lie to the Syariah High Court from any decision of a Syariah Subordinate Court⎯
in its criminal jurisdiction, by the prosecution or by the person convicted, and such appeal may be against an acquittal, a conviction or a sentence or any of them;
by any person aggrieved by the decision, if the amount claimed is not less than one thousand ringgit;
in all cases involving any decision as to personal status, by any person aggrieved by the decision;
in all cases relating to maintenance of dependants, by any person aggrieved by the decision, but no appeal shall lie against a decision made by consent; and
On any appeal, the Syariah High Court may⎯
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in a criminal matter, dismiss the appeal, convict and sentence the appellant, order the trial Court to call for the defence or make further inquiry, enhance or alter the nature of the sentence, order a retrial, or alter or reverse any order of the trial
Court;
in a civil matter, confirm, reverse or vary the decision of the trial Court, exercise any such powers as the trial Court could have exercised, make such order as the trial Court ought to have made, or order a retrial.
Application for leave to appeal
⎯(1) An appeal or application for leave to appeal under section 12(1)(c) shall be made to the Syariah High Court in such manner as may be prescribed, but in any event within fourteen days from the date of the judgment, order or decision in respect of which the decision was made or, in the event that the applicant was not on that date aware thereof and could not by the exercise of reasonable diligence have become so aware, within fourteen days from the date such judgment, order or decision came to his knowledge.
The Syariah High Court may, on hearing any application for leave to appeal, on special ground extend the time for appealing, notwithstanding that it may have expired.
Inheritance certificates
If, in the course of any proceedings relating to the administration or distribution of the estate of a deceased Muslim, any court or authority, other than the Syariah High Court or a Syariah
the shares to which such persons are respectively entitled,
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the Syariah Court may, at the request of the court or authority, or on the application of any person who claims to be a beneficiary or his representative, and on payment of the prescribed fee, certify the facts found by it and its opinion as to the persons who are entitled to share in the estate and as to shares to which they are respectively entitled.
Supervisory and revisionary jurisdiction of Syariah High Court
Subordinate Court, is under a duty to determine⎯
⎯(1) The Syariah High Court shall have supervisory and revisionary jurisdiction over all Syariah Subordinate Courts and may, if it appears desirable in the interest of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceeding, whether civil or criminal, in any
Syariah Subordinate Court, call for and examine any records of such matter or proceeding and may give such directions as justice may require.
Whenever the Syariah High Court calls for the records of any matter or proceeding under subsection (1), all proceedings in the
Syariah Subordinate Court on the matter or proceeding in question shall be stayed pending further order of the Syariah High Court.
Jurisdiction of the Syariah Appeal Court
⎯(1) The Syariah Appeal Court shall have jurisdiction to hear and determine any appeal against any decision made by the
Syariah High Court in the exercise of its original jurisdiction.
When an appeal from a decision of a Syariah Subordinate
Court has been determined by the Syariah High Court, the Syariah
Appeal Court may on the application of any party grant leave for the determination by itself of any question of law of public interest which has arisen in the course of the appeal and the determination of which by the Syariah High Court has affected the result of the appeal.
When leave has been granted by the Syariah Appeal Court it shall hear and determine the question allowed to be referred for its determination and make such order as the Syariah High Court might have made and as it considers just for the disposal of the appeal.
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Supervisory and revisionary jurisdiction of Syariah Appeal Court
⎯(1) The Syariah Appeal Court shall have supervisory and revisionary jurisdiction over the Syariah High Court and may, if it appears desirable in the interest of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceeding, whether civil or criminal, in the Syariah High
Court, call for and examine any records of such matter or proceeding and may give such directions as justice may require.
Wherever the Syariah Appeal Court calls for the records of any matter or proceeding under subsection (1), all proceedings in the
Syariah High Court on the matter or proceeding in question shall be stayed pending further order of the Syariah Appeal Court.
Composition of Syariah Appeal Court
⎯(1) An appeal in the Syariah Appeal Court shall be heard and disposed of by the Chief Syariah Judge, who shall be the chairman for every proceeding of the Syariah Appeal Court, and two other Judges of the Syariah Appeal Court as the Chief Syariah
Judge may determine from amongst members of the standing panel of
Judges of the Syariah Appeal Court appointed under section 5(1).
Notwithstanding section 5, the Chief Syariah Judge may appoint any Judge of the Syariah High Court to be a member of the
Syariah Appeal Court for any particular proceeding if the Chief
Syariah Judge considers it desirable to do so.
The Chief Syariah Judge shall⎯
if the appeal before the Syariah Appeal Court is against the decision that he made whilst sitting as a Judge of the Syariah
High Court; or
if he is unable to be the chairman of the Syariah Appeal
Court for any other reason,
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appoint the most senior of the Judges of the Syariah Appeal Court to be the chairman.
Decision by majority
The appeal shall be decided in accordance with the majority opinion of the members of the Syariah Appeal Court.
Continuation of proceedings in
Syariah
Appeal
Court notwithstanding absence of Judge
⎯(1) If, in the course of any proceeding, or, in the case of a reserved judgment, at any time before delivery of the judgment, any
Judge of the Syariah Appeal Court hearing the proceeding is unable, through illness or any other cause, to attend and complete the proceeding or otherwise exercise his function as a Judge of that
Syariah Appeal Court, then, if both parties consent, the hearing of the proceedings shall continue before, and judgment or reserved judgment, as the case may be, shall be given by, the remaining Judges of the Syariah Appeal Court, and the Syariah Appeal Court shall, for the purposes of the proceedings, be deemed to have been properly constituted.
In any such case as is mentioned in subsection (1), if there is no unanimous decision by both of the remaining Judges, the appeal shall be re-heard.
If under subsection (1) both parties do not give their consent, or more than one Judge is unable, through illness or any other cause, to attend and complete the proceeding or otherwise exercise their functions as Judges of that Syariah Appeal Court, the appeal shall be re-heard.
Open court
⎯(1) All trials in the Syariah Court shall, subject to any other written law and subsection (2), be open to the public.
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Notwithstanding subsection (1), a Syariah Court may order that the whole or any part of any proceeding before it be held in camera if it is satisfied that such order would be in the interest of justice and propriety.
Seals of Courts, language and records
⎯(1) Each Syariah Court shall have and use as occasion may require a seal of such nature or pattern as the Yang di-Pertua Negeri may, by notification in the Gazette, prescribe.
The Malay language shall be the language for all proceedings in the Syariah Court but the Syariah Court may in the interest of justice allow the use of any other language.
All documents or notes of proceedings may be in the Jawi or Romanised script.
Each Syariah Court shall keep and have in custody a complete and correct records in respect of all actions or proceedings before it, a complete and correct accounts in respect of all finances of the Syariah Courts and shall account for all moneys received in the manner provided by this Ordinance.
Jurisdiction does not extend to non-Muslims
No decision of the Syariah Appeal Court, the Syariah High
Court or any Syariah Subordinate Court shall involve the right or the property of a non-Muslim.
Reciprocal action and process of Court
⎯(1) Where a Syariah Court in any State in Malaysia issues a warrant or summons, whether civil or criminal, as the case may be, on a matter within its jurisdiction under the provisions of any law in force in that State, to be executed or served on any person who is or is believed to be in the State, the Chief Syariah Judge or a Syariah Judge may endorse the warrant or summons and such warrant or summons may be executed or served on such person as if the warrant or summons had been issued by a Syariah Court in the State according to the provisions of this Ordinance.
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Where a Syariah Court in the State issues a warrant authorizing the arrest of any person, or summons calling any person to appear in a Syariah Court, and such person is or is believed to be in any other State in Malaysia and such warrant or summons is executed or served on such person in accordance with the provisions of any law in force in that State, the warrant or summons shall, for the purpose of this Ordinance, be deemed to have been duly executed or served as if the execution or service had been effected in the State.
Where a Syariah Court in any State in Malaysia makes an order or a judgment under the provisions of any law in force in that
State against a person and such person is or is believed to be in the
State, the Chief Syariah Judge or a Syariah Judge, if satisfied that the order or judgment was duly issued or made by a competent Syariah
Court in any State in Malaysia, may endorse the order or judgment and such order or judgment may be executed or served on such person, as if it had been an order or a judgment lawfully issued or made by any Syariah Court in the State according to the provisions of this Ordinance.
A warrant, summons, order or any other process of Court issued or made by the Syariah Court under this section shall contain the seal and signature of the Chief Syariah Judge or the
Syariah Judge or an authorized officer of the Court.
Protection of Judges, Court officials, etc.
⎯(1) No Chief Syariah Judge or Syariah Judge shall be liable to be sued in any Syariah Court or Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, nor shall any order for costs be made against him, provided that at the time he in good faith believed himself to have jurisdiction to do or order the act complained of.
No officer of any Syariah Court or other person bound to execute the lawful warrant, order or other process of Court of the
Chief Syariah Judge or a Syariah Judge shall be liable to be sued in any Syariah Court or Civil Court for the execution of such warrant, order or other process of Court.
Appointment of
Chief
Syariah
Prosecutor and
Syariah
Prosecutors
⎯(1) The
Yang di-Pertua
Negeri may, on the recommendation of the Majlis, appoint a person who is qualified to be a Judge of the Syariah High Court to be the Chief Syariah Prosecutor.
The Chief Syariah Prosecutor shall have power exercisable at his discretion to institute, conduct or discontinue any proceeding for an offence before any Syariah Court.
The Majlis may, on the recommendation of the Chief
Syariah Prosecutor, appoint fit and proper persons from among the members of the State Public Service to be Syariah Prosecutors.
The Syariah Prosecutors shall act under the general control and direction of the
Chief Syariah Prosecutor and may exercise all or any of the rights and powers vested in or exercisable by the Chief
Syariah Prosecutor, except rights and powers expressed to be exercisable by the Chief Syariah Prosecutor personally.
Appointment of Chief Religious Enforcement Officer and
Religious Enforcement Officers
The Majlis may, on the recommendation of the Director of the Islamic Religious Department, appoint from among the members of the State Public Service a Chief Religious Enforcement Officer and
Religious Enforcement Officers to carry out the investigation of offences under the Majlis Islam Sarawak Ordinance, 2001 [Cap. 41]
or under any other written law which prescribes offences against the precepts of the religion of Islam.
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Peguam Syarie
Syariah Judge may, on payment of the prescribed fee, admit any person having sufficient knowledge of Islamic Law to be Peguam
Syarie to represent parties in any proceeding before a Syariah Court.
The Chief Syariah Judge may make rules⎯
to provide for the procedure, qualification and fees for the admission of Peguam Syarie; and
Notwithstanding subsection (1)⎯
any person appointed under section 3 of the Legal Aid
Act 1971 [Act 26], may act as Peguam Syarie representing any party to any proceeding in a Syariah Court if the party could have been represented by him in the
Civil Court by virtue of the Advocates Ordinance [Cap. 110 (1958
Ed.)] without such member or person having to be admitted as an advocate under that Ordinance.
Notwithstanding subsections (1) and (2), any person who has been admitted as a Peguam Syarie under any written law in force in any State in Malaysia may, on payment of the prescribed fee, be admitted as a Peguam Syarie in the State on application being made by him to the Chief Syariah Judge accompanied by evidence of his admission as a Peguam Syarie in that other State.
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A person who, immediately before the commencement of this section, was admitted as a Peguam Syarie under the repealed
Ordinance shall, subject to this Ordinance, be deemed to have been admitted to be a Peguam Syarie and shall be entitled to appear in any
Syariah Court on behalf of any party to any proceeding before the
Syariah Court.
Notwithstanding anything contained in any other written law, no person, other than a Peguam Syarie or a person mentioned in subsections (3) and (4), shall be entitled to appear in any Syariah
Court on behalf of any party to any proceeding before the Syariah
Court.
⎯(1) The Ordinan Mahkamah Syariah, 1991 [Ord. No. 4/91]
is repealed.
Upon the date of commencement of this Ordinance, all the powers of the Syariah Courts constituted under the repealed
Ordinance shall be taken over or exercised by the Syariah Courts constituted under this Ordinance and any reference in any written law or otherwise to the Syariah Courts constituted under the repealed
Ordinance shall be deemed to be a reference to the Syariah Courts constituted under this Ordinance.
Any proceeding, action, claim or liability made, instituted, filed, commenced or incurred in or before the Syariah Court constituted under the repealed Ordinance prior to the date of commencement of this Ordinance, shall be deemed to be continued or have been incurred as if that Syariah Court had been properly constituted under this Ordinance.
21
All rules of court and other subsidiary legislation made under, and any act lawfully done under or by virtue of, the repealed
Ordinance shall, in so far as such rules of court or subsidiary legislations are not inconsistent with this Ordinance, be deemed to have been made under or by virtue of this Ordinance, and shall continue to remain in force until amended, repealed, rescinded, revoked or replaced under or by virtue of this Ordinance.
22
Amending Law
Short Title
In force from
Swk. L.N. 153/2003 … Date of Commencement of the
Ordinance 1.12.2004
[List of Amendments]