Shariah court that has same powers as civil Federal Court unconstitutional, says expert

Law expert Professor Gurdial Singh Nijar says religious courts are established out of state laws and therefore it will be unconstitutional for them to have the same powers as the civil Federal Court. – The Malaysian Insider file pic, November 13, 2014.

Putrajaya's plan to set up a Shariah court that would have the same powers as the civil Federal Court is unconstitutional as religious courts were established out of state law, said law expert Professor Gurdial Singh Nijar.

He said that religious matters come under the state as accorded under the 9th Schedule of the Federal Constitution, which contains the lists of legislature under state and federal powers.

"The constitution is the supreme law of the land. So this means that when it comes to Islamic laws, Islamic matters, these are governed by the state," he told The Malaysian Insider.

Shariah courts in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya are governed by a law passed by Parliament while religious courts in other states are governed by state enactments.

Gurdial was commenting on a statement by Minister in the Prime Minister's Department Datuk Seri Jamil Khir Baharom that Putrajaya was looking at setting up two more Shariah courts to enable them to have the same powers as the civil Federal Court, which is the highest court in the country.

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 have been ongoing for two years and they were looking at Shariah courts that would have equal powers with that of the Federal Court.

Gurdial admitted, however, that this could be done and said the government could set up any number of Shariah courts, but the fact remained that its powers would only be limited to Islamic matters as provided in the constitution.

"They can get the same status but the subject matter will be limited to Shariah matters only," he said.

"This means that it will have control only over persons professing the religion of Islam, Islamic family laws and such."

Bar Council's National Young Lawyers Committee president Syahredzan Johan (pic, right) offered a similar view, saying that Islamic laws are under the jurisdiction of the respective states and not the federal government.

"By setting up a Federal Shariah Court, this will encroach upon what should rightly be within the jurisdiction of the states," he said.

" And this Federal Shariah Court cannot have the same powers as the Federal Court because of Article 121(1A) (which provides for the dual justice system)."

Like Gurdial, the lawyer also pointed out that Shariah courts would only have jurisdiction in Islamic laws and only on Muslims.

"And most importantly, only the civil courts have jurisdiction to decide on constitutional issues," he added.

The current Shariah Courts comprise the Shariah Subordinate Court, Shariah High Court and Shariah Appeals Court.

Former Federal Court judge Datuk Seri Gopal Sri Ram had previously said that in the Malaysian legal system, the constitution was the supreme law and laws passed by Parliament and state assemblies were subordinate to it.

"Shariah courts cannot be ranked the same as the civil court as the religious courts are established by state laws," he had said.

Sri Ram said Parliament and state assemblies had no power to make laws which were in conflict with the constitution.

- TMI