Constitution gives no licence to expand syariah jurisdiction, says ex-CJ

KUALA LUMPUR, Jan 14 — An amendment to Article 121 of the Federal Constitution does not empower syariah courts to take over the jurisdiction of civil courts, former Chief Justice Tun Abdul Hamid Mohamad said today, giving heft to the protracted conflict arising from Malaysia’s dual-track judicial system.

He said the amendment was “not a licence to expand the jurisdiction of Shari’ah Courts and to oust the jurisdiction of the civil courts.”

The Muslim-dominant country, which provides for syariah courts to run alongside civil courts, has created several grey areas due to an overlap of powers. 

The retired top judge noted that many people, especially syarie law experts, have been mistaken in the belief that clause (1A) in Article 121, which lays out the extent of judicial power, absolutely excludes civil courts from trying disputes that touch on Muslim rights.

Abdul Hamid (picture) said that many arguments have been put forward in legal conflicts that if an offence is within the jurisdiction of the syariah court, it is no longer to be tried in a civil court any more by virtue of Article 121(1A). 

“What about cases in which one party is a Muslim and the other is not?” he asked in his speech at a law conference in the city.

“Secondly, the amendment is not a licence to expand the jurisdiction of Shari’ah Courts and to oust the jurisdiction of the civil courts,” he said.

Abdul Hamid, who was chief justice between 2007 and 2008, recounted that the question had cropped up before the Court of Appeal nearly a decade ago in a sodomy conviction, saying that the courts had failed to address the issue of constitutionality of section 25 of the Syariah Criminal Offences (Federal Territories) Act 1997. 

“To me, that section is unconstitutional and void,” he said today.

Disputes of jurisdiction between the Islamic courts and the civil courts have been increasing of late especially in matters dealing with religious conversion and child custody as well as the latest ongoing storm over the right of non-Muslims to call their gods “Allah”, a word conservative Islamic scholars insist be reserved for their god.

Civil liberty activists and lawyers have noticed a trend that the judiciary has been putting Islamic law above all other laws in Malaysia, signalling an erosion of the Federal Constitution.

In his speech at the Conference on the Transformation of Security and Fundamental Rights Legislation, Rights and Responsibilities: Between Hope and Challenges, Abdul Hamid also said he disagreed with the Indian Supreme Court that some provisions of the Constitution cannot be amended because they were a fundamental structure of the law.

The former judge said that Malaysia’s highest law “is a living document” but warned that it was not for judges to rewrite the Constitution under the pretext of interpreting it.

Only elected lawmakers had the power to change it through an Act of Parliament, he said, highlighting that such is the practice of a democracy.

“I had said before: ‘No judge is a Parliament’. I still hold the same view,” he said.