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Wednesday, January 31, 2018

Shariah courts not on equal footing with civil courts, says Federal Court

The appointment of civil court judges is done under the constitution but that of shariah judges is done by state rulers, and the constitutional safeguards for judicial independence do not apply in respect of shariah courts, says justice Zainun Ali.
Zainun-Ali-indiraPETALING JAYA: Civil court judges have power and jurisdiction to interpret the constitution, laws and review decisions of public authorities as their appointments come under the Federal Constitution, the Federal Court said.
On the contrary, Justice Zainun Ali said, Shariah Court judges were not on equal footing with the judges in the superior courts (High Court, Court of Appeal and Federal Court) as the former were appointed by the rulers of the respective states after consultation with the relevant state religious councils.
Notably, she said, shariah courts were not constituted in accordance with the provisions of Part IX of the Federal Constitution entitled “The Judiciary.”
“The constitutional safeguards for judicial independence, including the mechanism for the qualifications, appointment, removal, security of tenure and remuneration of judges, do not apply in respect of shariah courts,” Zainun said in her 101-page judgment which set aside the conversion certificates of kindergarten teacher M Indira Gandhi’s children.
Superior court judges are appointed by the Yang di Pertuan Agong on the advice of the prime minister after consulting the Conference of Rulers.
It is also compulsory for these judges to take their judicial oath to preserve, protect and defend the constitution.
Zainun said it was evident from the marked differences in the establishment and constitution of the civil and shariah courts that the two courts operated on a different footing altogether.
“Thus the perception that both courts (civil courts and shariah courts) should exercise a mutually reciprocal policy of non-interference may be somewhat misconceived and premised on an erroneous understanding of the constitutional framework in Malaysia,” she said.
Zainun said both clauses (1) and (1A) of Article 121 of the Federal Constitution only illustrated the respective regimes in which each court operated.
“What they (clauses (1) and (1A) Article 121 illustrate is that both the civil and shariah courts co-exist in their respective spheres, even if they are dissimilar in the extent of their powers and jurisdiction, in that the civil courts are possessed of powers, fundamental and intrinsic, as outlined in the constitution,” she said.
She said it was the civil courts that were seised with jurisdiction and inherent powers to review decisions of public authorities, interpret the constitution and laws passed by parliament and state legislatures.
In its landmark ruling on Monday, the Federal Court decreed that the civil courts had jurisdiction to hear cases when aggrieved parties questioned any conversion to Islam.
Following this ruling, the certificates of conversion issued by the Perak Registrar of Muallafs on Tevi Darshiny, Karan Dinesh and Prasana Diksa were set aside after these were declared null and void.
The Federal Court also ruled that both living parents must consent to conversion even though one spouse had embraced Islam.
The five-man bench was chaired by Court of Appeal president Zulkefli Ahmad Makinudin, and included justices Richard Malanjun, Zainun Ali, Abu Samah Nordin and Ramly Ali.
Zainun delivered the unanimous judgment. -FMT

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