'Have special courts to handle Muslim, non-Muslim cases'

A Court of Appeal judge has proposed the setting-up of special courts in states, when there are cases involving syariah matters between Muslims and non-Muslims.

Justice Hamid Sultan Abu Backer said provisions in state law indicate that in all state syariah legislation, if the issue is to be decided involving a Muslim and a non-Muslim, the jurisdiction does not lie with the Syariah Court.

“Common sense will dictate that it has to fall under the civil courts and convoluted jurisprudence does not help. If some comfort need to be given to litigants in hybrid cases, it does not stop the Chief Justice Arifin Zakaria from directing special courts to hear syariah matters between Muslims and non-Muslims with judges conversant in both the laws.

“It also does not stop the CJ from liaising with the attorney-general to amend the Courts of Judicature Act to allow the chief syariah judge of the state or his representative to sit in civil courts with two other judges – one a Muslim and another a non-Muslim – to reach a decision. I must say, such a situation will only arise when the person is a convert and not born and bred as a Muslim,” he said.

Justice Hamid said although such cases of intertwining jurisdiction may only be a handful in a year, at present, it violently shakes the civil as well as Syariah Courts' administration of justice in terms of public perception and confidence, and also causes disharmony.

For litigants who are born Muslims, the judge said it is without doubt that the Syariah Court has the sole jurisdiction in this country.

However, Justice Hamid opined that it will not be wrong in jurisprudence to obtain the consent of constitutional functionaries to have one court based on the federal system, to deal with matters relating to converts and non-Muslims to arrest the nation’s woes in this area of jurisprudence.

He further noted that the case involving K Pathmanathan @ Mohd Ridhuan Abdullah and M Indira Gandhi, is an example of the scrutiny the judiciary is facing.

He said this in his dissenting judgment of not allowing Pathmanathan's appeal.

Despite this, Pathmanathan won the appeal when the appellate court in Putrajaya ruled that it is within the realm of the Syariah Court which could rule on the legality of the conversion of the three children.

Justice Hamid further wrote in the 74-page judgment that if the simple methodology of having a special courts set up to resolve the issue, it would help promote racial harmony, and respect for the government and government agencies as well as provide satisfaction for litigants in the administration of justice in Malaysia.

“It is a recipe to avoid adverse global or public perception,” he said in the minority judgment.

The country had seen religious tussles in cases like Lina Joy, former Everest climber M Moorthy, S Shamala vs Dr M Jeyaganesh and R Subashini vs T Saravanan. These are some of the well-known cases, which saw no solutions in sight. -Mkini