26 March 2007
Syariah court only for Muslims
THE Bar Council would like to respond to the comments made in the report “Non Muslims urged not to fear syariah court” (the Sun, March 23).
The Federal Constitution clearly provides that syariah courts “shall have jurisdiction only over persons professing the religion of Islam” (see paragraph 1, List II, 9th. Schedule). In addition, state laws that establish syariah courts have provided that the syariah courts shall only have jurisdiction in civil cases “in which all the parties are Muslims”.
The wisdom of these provisions embodied in the supreme law of the land, the Federal Constitution, lies in the firm and unarguable recognition that religion-inspired law cannot be applied to those who do not profess the faith that had inspired it.
Thus the arguments on whether or not justice will be done in accordance with religious doctrines, and whether or not non-Muslims should “fear” the syariah courts, are not the issue.
The issues are more fundamental than that, namely that the syariah courts do not have jurisdiction over non-Muslims in the first place, as spelt out in the Federal Constitution, and theological law cannot be applied to those who do not profess that religion.
There is a further point in that in most of the cases where these questions have arisen, the dispute involved parties who had contracted a civil marriage. It follows therefore that all matters relating to it ought properly to be resolved in the civil courts.
There is recognition of this in previously decided cases. A panel of five judges of the Supreme Court had in 1994 held that: “It would result in grave injustice to non-Muslim spouses and children whose only remedy would be in the civil courts if the High Court no longer has jurisdiction, since the syariah courts do not have jurisdiction over non-Muslims.”
The Supreme Court further held in that case that Article 121(1A) of the Constitution did not affect the jurisdiction of the civil court to hear the application for ancillary relief where a spouse had converted to Islam, meaning that the civil law on divorce and ancillary relief would continue to apply.
The Bar Council would commend this approach which, if adopted as it had earlier been, would go a long way towards resolving this currently vexed question.
Ambiga Sreenevasan
President
Malaysian Bar