To the issue of the exclusive jurisdiction of

To
start off with the facts of the case, the appellant, Sukma Darmawan Sasmitaat
Madja was charged with the offence of gross indecency under Section 377D of the
Penal Code. On trial, he pleaded guilty and admitted the facts tendered by the
prosecution in support of the charge. He was then convicted and sentenced to a
term of imprisonment of six months by the Kuala Lumpur Session Court.1

The
offence was also an offence under the Syariah Criminal Offences (Federal
Territories) Act 1997 (‘the Act’) and triable by the Syariah Court. Thus, the
issue of the exclusive jurisdiction of the Syariah Courts were raised only when
he applied for a writ of habeas corpus. He contended that the Sessions Court
had no jurisdiction to try him on the charge preferred against him by claiming
that being a Muslim, only the Syariah Courts had jurisdiction to try him for
the offence of “liwat” under the Syariah Criminal Offences (Federal
Territories) Act 1977. The application on behalf of the appellant for habeas
corpus was dismissed by the High Court and in consequence he appealed to the
Court of Appeal, which decided that the offence for which the appellant had
been convicted and sentenced of was within the trial and sentencing
jurisdiction of the session’s court and the appeal was dismissed. 

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However,
the appellant then appealed against that decision to the Federal Court and the
appeal was centered on Article 121(1) and (1A) of the Federal Constitution. The
Federal court in approaching the issue agreed that Article 121(1A) “was to stop
the practice of aggrieved parties coming…… to get the High Court to review
decision made by Syariah courts. The learned judges were on the view that in
interpreting the clause (1A) of Article 121, it is wrong to examine the clause
in such isolation. The clause should also not be construed literally since a
literal interpretation would give rise to consequences which the legislature
could not have possibly intended. Clauses (1) and (1A) of art 121 should
therefore be construed together and a construction consistent with the smooth
working of the system which art 121 purports to regulate should be adopted.  

Below to be quoted the judgement of Chief Justice
Eusoff Chin, the presiding judge of the Federal Court which states:

“We agree with the views expressed by the Court of
Appeal on the necessity of article 121(1A) being introduced into article 121 of
the federal Constitution. It has to stop the practice of aggrieved parties
coming to the High Court to get the High Court to review the decisions made by
Syariah Courts.

“Decisions of Syariah Court should rightly
be reviewed by their own appellate courts. They have their own court procedure
where the decisions of a court of a kathi or kadhi besar are appealable to
their Court of Appeal. Since the Syariah courts have their own system, their
own rules of evidence and procedure which in some respects are different
from those applicable to the civil courts, it is only appropriate that the
civil court should refrain from interfering with what goes on the Syariah
Courts.”

The
court then proceeded to apply ‘the provisions of sections 59 of the
Interpretation Act so that where an act or omission is an offence under two or
more written laws the offender may be prosecuted and punished under any of
those laws, so long as he is not prosecuted and punished twice for the same
offence’. The final decision of the court is that ‘where an offender
commits an offence triable by either the civil court or a Syariah court, he may
be prosecuted in either of those courts’.

The
Federal court judges therefore agreed with and confirmed the decision of the
Court of Appeal, thus dismissing the said appeal. Therefore, it can be seen
that although the application was in a form of a writ of habeas corpus, the
outcome of the application turned on the interpretation of Article 121(1A) of
the Federal Constitution.

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