Shariah High Court has same powers as civil court, Federal Court told

 

SIS Forum Malaysia argues that any judicial review of a law passed by Parliament and the state assemblies can only be heard before a civil High Court.

PUTRAJAYA: The Shariah High Court in Selangor has powers power to that of the civil court to hear judicial review cases involving Muslims and Muslim religious authorities, the Federal Court heard today.

State legal adviser Salim Soib said the religious court acted as check and balance for aggrieved parties who were affected by a decision.

“Like the civil court, the Shariah High Court is also there to dispense justice,” Salim said in his submission before a nine-member bench chaired by Chief Justice Tengku Maimun Tuan Mat.

However, he said, there is slight difference as the shariah court only entertained judicial review on matters that touched on Islam in the state.

“The Selangor Islamic Religious Council (MAIS) and various committees were set up to advise the Sultan, who is head of the religion, and to protect the sanctity of the faith,” he said.

He said MAIS and other committees must be classified as “artificial individuals” who professed the Islamic faith, to appear in the religious court to seek remedy by way of a judicial review.

Salim was responding to SIS Forum Malaysia, a company registered and run by Muslims, that is challenging the competency of the Selangor state assembly to pass a law that allows the state Shariah High Court to review fatwa issued by the state religious authorities.

Last year, the apex court allowed leave to SIS to have its complaint heard as a requirement under Article 4(3) of the Federal Constitution.

SIS wants a declaration that the state legislature cannot pass Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003.

Section 66A states that the Shariah High Court in the state has the jurisdiction to hear judicial reviews against the decisions of state religious councils or committees.

SIS argued that any judicial review of a law passed by Parliament and the state assemblies can only be heard before a civil High Court.

The application was filed early last year after the Kuala Lumpur High Court dismissed SIS’s judicial review application against a Selangor religious authority’s fatwa labelling the group as deviant in 2019.

The High Court held that SIS had to appear before the religious court to report its grievances since the court had the authority to entertain a judicial review application.

Meanwhile, lawyer Zainur Zakaria, who represented MAIS in its capacity as an intervener, submitted that the laws passed by Parliament did not give the civil court exclusive jurisdiction to hear judicial review matters.

“Judicial review is a procedural law. MAIS and ‘artificial Muslims’ can go to the religious court,” he said.

Lawyer Mohamed Haniff Khatri Abdulla, who appeared with Zainur, said MAIS had referred at least two cases for judicial review since the Section 66A came into force in 2015.

Lawyer Malik Imtiaz Sarwar, who represented SIS, submitted that the shariah court could only entertain individual Muslims on complaints relating to personal matters.

“Only the civil court has exclusive jurisdiction to hear complaints of the decision-making process by public authorities,” he said.

Malik, who was assisted by A Surenthra Ananth and Fahri Azzat, said the 9th Schedule of the Federal Constitution vested the civil court jurisdiction over civil, criminal and the administration of justice.

He said the civil court has inherent power to hear judicial review applications as decided by a number of Federal Court judgments.

Malik said shariah courts had no constitutional safeguards unlike the civil court as prescribed in the constitution.

“It is an irresistible conclusion that the Selangor state assembly cannot vest judicial review power on the shariah court,” he said.

The bench has reserved judgment.

Other members on the panel were Court of Appeal president Rohana Yusuf, Chief Judge of Malaya Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and Federal Court judges Mohd Zawawi Salleh, Vernon Ong Lam Kiat, Zaleha Yusof, Harmindar Singh Dhaliwal and Rhodzariah Bujang. - FMT