Civil courts can review Syariah Court cases'

Civil courts can review Syariah Court cases'
By Aniza Damis


Cases decided by the Syariah Court should be open for review by the civil high courts — one of the resolutions passed by a Parliamentary Roundtable discussion today on judicial powers over religious matters. The discussion centred on the controversial Article 121(1A) of the Federal Constitution, which since 1988 prohibits civil high courts from having jurisdiction over Syariah Court matters.

The roundtable, comprising several Members of Parliament, lawyers and senior representatives of non-Muslim religious organisations, was called following the controversy over whether Everest climber M. Moorthy, who died recently was a Muslim convert.

The debate also sparked a tussle over funeral rights between the Federal Territory Islamic Religious Department (Jawi) and Moorthy's widow S. Kaliammal.

The conclusion of the roundtable discussion was that, while the civil courts did have jurisdiction over Islamic matters that affected non-Muslims, most of the time, the civil courts chose to "abdicate" its power to do so.

ABU TALIB: Courts did not have courage to interpret the law.

Further, Article 121(1A) caused confusion and hesitancy among the judiciary as to whether or not the civil courts did have jurisdiction over such matters.

Since this was the case, then laws needed to be amended to make the position clear to all parties involved.

"If you say that the jurisdictional problem is because of Article 121(1A), then let's repeal it," constitutional lawyer Malik Imtiaz Sarwar said.

Malik Imtiaz said ever since the power for judicial review was removed in 1988, the courts had chosen to read Article 121(1A) as meaning that the civil High Court could not look at Syariah Court matters, because there was no law that specifically allowed for it.

Malaysian Human Rights Commission (Suhakam) chairman and former Attorney-General Tan Sri Abu Talib Othman, who drafted the Article in 1988, said the law was only meant to prohibit the civil courts from having jurisdiction over matters which were solely within the jurisdiction of the Syariah Court.

However, "within the jurisdiction", as laid out in Schedule Nine of the Constitution, refers only to personal matters, and only to a person who professes the religion of Islam.

"If the plaintiff is non-Muslim, then it would be wrong of the Syariah Court to say that it has jurisdiction over a non-Muslim," Abu Talib said, adding that the problem arose because the courts "did not have the courage to interpret the law in the spirit of which it was written."

Malik Imtiaz said: "Right now, the High Court is taking the view that if it is anything to do with Islam, then they don't want to take it. This includes things which are not even law, but are rejected by the High Court because the State legislature has the power to make laws over the matter, and therefore, this counts as a Syariah Court jurisdiction.

"By reinstating Article 121(1), it will make things easier, because the courts will be emboldened, because they definitely know that they will have jurisdiction," Malik Imtiaz said.

Among the panelists were Opposition leader Lim Kit Siang, MP Datuk Zaid Ibrahim, and Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism vice-president Harcharan Singh.