SHARIAH COURTS HAVE NO POWER TO INTERPRET CONSTITUTION, EX-JUDGE SAYS

(Malay Mail Online) – Civil law takes precedence in cases of overlap with the Shariah legal system, according to retired Court of Appeal judge Justice Datuk Mohd Hishamudin Yunus.

Hishamudin said that in of cases jurisdictional conflict, it would be wrong for a civil court judge to abdicate his duties to Shariah counterparts as that the Islamic courts have no jurisdiction to interpret civil law.

“It is outside the jurisdiction of the Shariah Court to interpret the Constitution or to determine the interpretation of a non-Shariah legislation, or to determine a non-Shariah legal issue,” he said in an interview with The Star published today.

“Of course, the civil court judge must hear the case. It would be wrong for the judge to pass the matter to the Syariah Court.

“If the need arises, he can hear the case with the assistance of a Shariah expert. But the Shariah expert has to come by way of an expert witness,” he added.

When asked whether he supported the idea of having Shariah court judges advise civil court judges on matters pertaining to Islamic law, Hishamudin said he would prefer Shariah expert witnesses. 

In Malaysia, the overlap between civil and Shariah courts have often resulted in messy legal tussles especially with cases involving custody battles of children with Muslim convert and non-Muslim parents.

Since 1995, Malaysia has ratified only three UN human rights conventions: the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities.

Minister in the Prime Minister’s Department Nancy Shukri recently announced that the Attorney-General’s Chambers (AGC) will amend three acts to resolve the conflict of jurisdiction between the Shariah court and Civil court.

The acts to be amended are the Law Reform (Marriage and Divorce) 1976 (Act 164), Administration of Islamic Law (Federal Territories) Act 1993 (Act 505) and Islamic Family Law (Federal Territories) Act 1984 (Act 303).