Don: Syariah courts' jurisdiction still limited by constitution

Civil and syariah court judges have seemingly forgotten that the latter's jurisdiction is limited by the Federal Constitution, a law expert said.

Professor Shad Saleem Faruqi of Universiti Malaya, said this has made syariah courts behave as though they are immune from civil courts.

Shad highlighted how Article 121(1A) of the Federal Constitution states that syariah courts are not subject to civil courts only "of any matter within the jurisdiction of the syariah courts".

"But very conveniently many syariah court judges and civil judges have forgotten the word 'in matters within their jurisdiction'.

"This means syariah courts have become totally exempt from the jurisdiction of civil law. That's not what the law was (meant to do)," Shad said at a lecture in UM yesterday evening.

He said clause (1A) was added to Article 121 to prevent civil courts from ruling on matters concerning Muslim family law, such as when it comes to inheritance.

Under the constitution he said, syariah courts only had jurisdiction over 24 matters regarding Muslim family law, and one criminal matter where Muslims committed an act "against the precepts of Islam".

He further argued that just because syariah courts are exempt from civil judicial review in some matters, does not make it on par with civil courts.

Shad then stressed how syariah courts only have jurisdiction over Muslims, and that a non-Muslim can not opt to choose to subject themselves to syariah courts.

"I would like to subject myself to the (military) court martial. But the martial can't hear my case because I'm not in the military.

"Jurisdiction doesn't come from my consent, jurisdiction come from law," Shad said.

He said this while commenting on the custody battle between kindergarten teacher Indira Gandhi and her ex-husband Mohd Ridhuan Abdullah, who had unilaterally converted their three children.

Some have argued that the matter of custody should have been heard in the syariah courts.

The government, in an attempt to stop the unilateral conversion of children, had sought to table amendments to the Law Reform (Marriage and Divorce) Act.

However, the amendment was deferred at the 11th hour in the last parliament meeting.

Meanwhile, in an effort to solve jurisdictional disputes between syariah and civil courts, Shad briefly proposed that a judicial committee for the Conference of Rulers be established.

He said if a dispute arises, the attorney-general can refer it to the committee, who will then advise the Conference of Rulers on how to decide on the matter.

This he said, would be similar to how Britain's Privy Council used to advise the British monarchy on legal matters.- Mkini