Wakaf: Conflict of jurisdiction between civil and syariah courts in Malaysia

Mahkamah SyariahCitation:

Md Dahlan, Nuarrual Hilal and  Latif, Hairuddin (2003) Wakaf: Conflict of jurisdiction between civil and syariah courts in Malaysia. Current Law Journal , 3 (2003). xiii-xxxiv. ISSN 0127-0699.

Abstract:

The jurisdiction of the syariah courts to hear matters involving wakaf is provided in List II to the 9th Schedule of the Federal Constitution (‘FC’) and the provisions in the respective states’ enactment on the administration of Islamic affair enactments (hereinafter referred to as ‘the said provisions’). Alas, this has otherwise been decided and negated by the civil court. Based on the case’s decided, even though the jurisdiction to hear wakaf exclusively is under the jurisdiction of the syariah court, yet the civil court vehemently decided otherwise, viz i t is under their domain. This clearly negates the importance of article 121 (1A) of the FC. This paper intends to study the decided cases involving wakaf since the inclusion of sub clause 1A to article 121 of the FC, which has bestowed on the syariah courts, exclusive and unfettered jurisdiction and power to adjudicate and determine their own matters as provided the said provisions and to identify the real legal and jurisprudential issues, causes and stumbling blocks which had hitherto barred the syariah courts from having the freedom and ability to decide on wakaf and further to give suggestion and solution in the problem of conflict of jurisdiction of between these courts, civil and syariah, in matters pertaining to the same. It is hoped that through the illumination of this paper on wakaf and its conflict of jurisdiction between both courts in Malaysia, will give us some insights as to how issues on wakaf and its disputes were and are currently determined.

Keywords: Syariah Court; Civil Court; Conflict of Jurisdiction; Wakaf; Malaysia

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