Conflict of Jurisdiction Between Malaysian Civil and Syariah Courts in the Issuance of Declaration of Death: A Way Forward

Abstract

When someone is missing for some time, his next of kin has a legal right to request for a court order to determine, among others, his or her marital status, maintenance issues of the spouse and children, and the legal status of his assets. This can be done through a decree from the court on the person’s death. Once this decree is obtained, the marital and property status of the missing person could be ascertained accordingly. Malaysia is a commonwealth country that apply a dual system of law, i.e. common law and Islamic law that are respectively implemented in the civil and syariah courts. Both legal systems have provisions in the issuance of the decree for presumption of death. Section 108 of the Evidence Act 1950 empowers the civil court to issue the decree after 7 years of one’s missing. This provision is a statute of general application and applicable to both Muslim a non-Muslim as regards to the property status of the missing person. Section 80 of Syariah Court Evidence (Federal Territories) Act 1997, on the other hand, gives a jurisdiction to the syariah court to issue the decree as regards to a Muslim who is missing for 4 years for the determination of the status of his marriage. These two laws provide different time frames of waiting period and totally different types of procedures. So far Section 80 is only used for the determination of the missing’s marriage. However, of late, there are many calls especially from the syariah fraternity for the syariah court to issue the decree as regards to the missing’s inheritance. By referring to the existing legal provisions, this research aims to study the possibility of the syariah court to exercise this jurisdiction from constitutional point of view. This research also looks at the extent of the civil courts’ principles and procedures to be adopted by the syariah courts. To accomplish this, the paper adopts a qualitative and comparative research paradigm and employs a library-based methodology. This paper also highlights the common law and syariah perspectives on the substantive and procedural aspects of the practice with harmonization approach between the laws. Ultimately, it will propose to the relevant authorities on the most practical steps for the syariah court to exercise this jurisdiction.