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Friday, November 21, 2014

Federal Shariah Court not feasible because of constitution, say lawyers

Malaysia is a secular nation and although Malay rulers have agreed to set up a Federal Shariah Court, lawyers say the Federal Court remains the final arbitrator. – The Malaysian Insider file pic, November 21, 2014.Malaysia is a secular nation and although Malay rulers have agreed to set up a Federal Shariah Court, lawyers say the Federal Court remains the final arbitrator. – The Malaysian Insider file pic, November 21, 2014.
It is not feasible to set up a Federal Shariah Court that would have the same powers as the highest civil court in the country, as the constitutional scheme does not provide for it, lawyers said.
They warned that any attempt to establish an apex religious court would mean the removal of some of the basic pillars of the Malaysian constitution.
The lawyers said that even if Parliament approved constitutional amendments for the purpose of setting up an apex religious court, it would pave the way for legal challenges by any citizen or interest groups in the civil court.
"The structure of the civil high courts is clearly provided in the constitution but the position of the Shariah courts is only briefly mentioned in the ninth schedule of the state list," he added.
He said there were 14 three-tier state Shariah courts beginning with the lower court, High Court and Appeals Court and all were confined to their respective jurisdictions.
Whereas the civil court system is uniform for the entire nation and is made up subordinate courts (magistrate’s and Sessions courts), High Court, Court of Appeal and the Federal Court.
"Even in the 14 religious court structures, there is no uniformity in the civil and criminal rules," Shukor said, adding that he could not see how a Federal Shariah Court would fit in unless a major amendment was made to the constitution.
He was referring to a recent statement by Minister in the Prime Minister's Department Datuk Seri Jamil Khir Baharom that Putrajaya was looking at setting up a Federal Shariah Court that had the same powers as the civil Federal Court.
Jamil, who is in charge of Islamic affairs, was reported saying in Malay daily Berita Harian that discussions on the matter with state religious councils had been ongoing for two years.
Shukor said the Malay rulers who were head of the Islamic religion in their states had agreed to set up the Federal Shariah Court.
"However, the power and authority of the rulers and councils will be diluted if such a court were to be set up.”
Lawyer Syahredzan Johan (pic) said the Sabah and Sarawak governments must also be consulted if any constitutional amendments affected the special safeguards arranged for both these territories, which joined the formation of Malaysia in 1963.
He said the religious courts currently functioned to handle disputes relating to family law of persons professing the religion of Islam and those offences that went against the precepts of the religion.
"Whereas the role of the civil court is wide and includes protecting the basic rights of citizens and defend the supremacy of the constitution," he said.
Syahredzan said there were clear pronouncements that civil court exercised supervisory powers over Shariah courts.
"This means the civil court is placed on a higher rank because our legal document is secular in nature.”
Syahredzan, who is a member of the Bar Council, said any attempt to place the religious court on a par with the civil court would surely affect the basis structure of the written law.
Lawyer Fahri Azzat, who was blunt in his comment, said the minister's remark was a knee-jerk response following the Court of Appeal's ruling on November 7 that struck down a provision in the Negri Sembilan criminal enactment as unconstitutional for punishing transgender who cross-dressed.
"The minister is speaking out of ignorance without knowing the constitutional, legal and political history of our country. Maybe, he made the statement to score political points among the Islamist crowd.”
However, lawyer Nizam Bashir said the minister had not given details about the aim and objective of setting up the Federal Shariah Court.
"If it is to deal with Islamic family laws like maintenance, then there is no problem.  It is a noble to act against husbands who refuse to support a wife and children by just moving out to another state.”
He said a religious court could not be on a par with the civil court as there must only be one arbitrator to decide on constitutional issues.
“Constitutional matters must be decided by civil court as Malaysia is a secular nation," he added.
He said Pakistan has a Federal Shariah Court which was set up in 1980 by the military to introduce greater Islamisation and the constitution was amended.
"The constitution there is subject to the Quran and Sunnah, unlike Malaysia. But even then their Federal Court is superior to the religious federal court as it is the final arbitrator."
- TMI

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