Does the Constitution define the status of Syariah Courts? – OMG!

In what follows, I shall abbreviate some of the words from the Constitution, to simplify without losing the meaning. I am looking at the meaning of the words in plain English though I am not a lawyer.

I think it is very important that every adult Malaysian gets to know what is written in the Constitution because we know there are devious minds who seek to misrepresent it, who think of it like the rules in a Monopoly game, to be broken and to cheat like they did as children.

The Constitution is a serious document and we must always guard against those who trifle with it.

How can we do that if we are not as familiar with it as we are with our favourite TV programmes? You can easily get a copy from your bookshop. Please get one today.

The judicial power of the Federation is defined in Part IX "The Judiciary", Article 121 of the Federal Constitution. This reads:

121. Judicial power of the Federation
(1)  There shall be two High Courts of co-ordinate jurisdiction and status, namely -
(a) one in the states of Malaya, based in Kuala Lumpur;
(b) one in the states of Sabah and Sarawak, based at such place as the Yang Di-Pertuan Agong shall determine;
And such inferior courts as may be provided by Federal law;
And the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under Federal law.
(1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

OBSERVATIONS:
1.0 Notice the structure of the defining paragraph (1). It refers specifically to the status of the High Courts. It refers in the closing, unnumbered sentences, twice, to certain inferior courts:
1.0.1   such as may be provided by Federal law;
1.0.2   having such jurisdiction and powers as may be conferred by or under Federal law.

1.1 The last, unnumbered sentence of Article 121 (1) also states that the High Courts shall have "such jurisdiction and powers as may be conferred by or under Federal law."

1.2  It is clear that, apart from the Appeals Court and the Federal Court specified later in clauses 121(1B) and 121(2), these are all the courts that express the judicial power of the Federation.

2.0 Clause (1A) means that matters exclusively concerning Muslims, eg. Muslim marriage, divorce or inheritance matters shall only be dealt with by Syariah courts whose jurisdiction lies only within those matters relating to Muslims. And no other court shall have jurisdiction in such matters relating only to Muslims.

That is all. It does not elevate the Syariah courts above the inferior court status.

Clause (1A) merely reiterated that whatever the scope of jurisdiction of the Syariah courts was, other courts shall have no jurisdiction there.

Do not forget, the scope of jurisdiction of Syariah courts can only be provided by the Constitution, as the Supreme Law of the Federation. They can operate only within such framework as the Constitution permits.

3. CONCLUSION: Article 121(1) serves to define the creation, the jurisdiction and the powers of the High Courts and all inferior courts, as may be provided for, or conferred by or under federal law.

Remember, the High Courts and ALL inferior courts of any name whatsoever, together with the Appeals Court and the Federal Court, constitute the judicial power of the Federation.

There is no place else in or out of the Constitution that some court can specially be created. It does not work that way, because we are not a banana republic.

Now, the Court of Appeal (Mahkamah Rayuan) is defined under Clause 121(1B) and the Federal Court (Mahkamah Persekutuan) is defined in Clause 121(2).

So, it is crystal clear that all Sessions Courts, Magistrates Courts and Syariah courts are caught under the category of "inferior courts", based on the last, unnumbered sentences of 121(1) and my Observation 1.0 above.

Ipso facto, the Syariah courts are inferior courts to the High Courts. Full stop. There is absolutely no question about it, based on the current wording of the Federal Constitution, which is the supreme law of the land.

The only additional proviso is under Clause 121(1A) which merely demarcates the boundaries of the Syariah courts (as determined by the Federal Constitution). By no stretch of the imagination can this demarcation be interpreted to elevate the status of the Syariah courts.

In fact, it circumscribes them further as inferior courts that can ONLY handle certain matters restricted to exclusively Muslims.

Yet on Friday June 13, Syarie Lawyers Association Malaysia president Musa Awang did exactly that.

Musa was reported in Malaysiakini as saying both the Syariah High Court and the civil High Court have equal footing based on Article 121 (1A) of the Federal Constitution, which gives both courts its powers.

In my opinion Musa has drawn the wrong conclusion. He should have looked at the structure of Clause 121(1) first.

He was also mistaken in saying that Clause 121(1A) gives "both" (presumably he was referring to Civil and Syariah courts) courts their powers.

As stated in Observation 2.0 above, Clause 121(1A) merely demarcates the jurisdiction of the Syariah courts and that no other court under Clause 121(1) shall act within that restricted jurisdiction. But it is silent about Clauses 121(1B) and Clause 121(2) which mean that the Appeal and Federal Courts can so act.

So, despite what you read, yes, the Syariah courts are inferior courts and in matters not relating exclusively to Muslim matters they are definitely inferior to the High Courts.

The Indira Gandhi case in Ipoh reflects how the High Court could even review a matter decided at a Syariah court, thus illustrating the relative status of the two courts.

1. The Syariah court awarded custody to the Muslim convert husband K. Pathmanathan@ Mohd Ridhuan Abdullah. A custody order must be binding on both parents. But since the wife M. Indira Gandhi remained a Hindu, the Syariah custody order is unenforceable on the non-Muslim wife. The Syariah court had in fact, acted beyond its jurisdiction. It was incompetent to make a custody order binding over a non-Muslim.

2. The Ipoh High Court rejected the argument that the Syariah court had jurisdiction. The Federal Court decision of Latifah binti Mat Zin was followed, pointing out that not only:
2.1   must the Court have been vested expressly with jurisdiction over the subject matter of dispute by legislation, but also;
2.2   all parties to the dispute must be Muslims. In this case, the wife Indira Gandhi was Hindu.

3.1   Prior to their defective conversion, the children were not Muslims. As such they would not fall within the jurisdiction of the Syariah court. To me, that is why the High Court could intervene and examine the details of the conversion and deem them defective, and also because it is a higher Court by virtue of the Constitution.

3.2   The High Court quashed the certificates of conversion of the children since it was common ground that they were not present and had not been able to utter in reasonably intelligible Arabic the two clauses of the affirmation of faith, and when uttering the same must be aware that they mean "I bear witness that there is no god but Allah and I bear witness that the Prophet Muhammad SAW is the Messenger of Allah". 

3.3   Subsequently the Ipoh High Court awarded custody of the non-Muslim children to the non-Muslim mother Indira Gandhi and later ordered the police to deliver the children to her. But one daughter has remained wrongfully in the father's custody.

In my opinion, the Inspector-General of Police is therefore wrong in not taking action based on the Ipoh High Court's ruling.

It seems a number of Malaysians are rather confused about the restricted jurisdiction of the Syariah courts and thought they were the highest courts in the country for any matters involving Muslims.

There is a definite timidity to act with courage and execute the law. Allowing partiality by public officials then starts a domino effect and allows the country to slowly slide into a state of anarchy.

- TMI