NOVEMBER 15 — The Malaysian Islamic Development Department (Jakim) director-general suggests that Article 121(1A) of the Federal Constitution makes it clear that civil courts “cannot discuss matters related to Islamic law.”

This was in response to the recent Appeal Court decision declaring section 66 of the Negri Sembilan Shariah Enactment void. This section punishes Muslim transgenders for cross-dressing.

Article 121(1A) of the Federal Constitution states that the civil High Courts of Malaya, Sabah and Sarawak “shall have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts”.

Shariah courts are set up under laws made by a State. These courts deal exclusively with Islamic law and the personal and family law of Muslims. The Negri Sembilan Shariah Enactment and its cross dressing prohibition is one such law; other states also have similar shariah enactments.

Applying section 121(1A), civil courts cannot deal with a matter within the jurisdiction of the Shariah court. This means that where the Shariah court has the exclusive jurisdiction to charge and try any Muslim on a matter (including for cross-dressing), then a civil court cannot assume the power to charge and try that person.

But this is not what the Appeal Court did. Instead, it examined the section in the state law to ascertain whether it was against any part of the Federal Constitution.

Indeed this is what a civil court is obliged to do when there is a challenge to any law (including a Shariah enactment). Article 74(3) of the Federal Constitution says that the power of the state to make laws “is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.”

And Article 4 of the Federal Constitution declares that it is the supreme law of the Federation; and any law inconsistent with it is void to the extent of the inconsistency.

So the Appeal Court rightly examined section 66 of the Shariah Enactment vis-à-vis specific provisions of the Federal Constitution. It concluded (on the basis of undisputed medical evidence  on ‘gender identity disorder’) that criminalising Muslim transgenders for cross dressing when they had no choice but to act in accordance with their instincts and emotions, went against several provisions of the Federal Constitution: including Article 5 (liberty - as they could be arrested if they stepped out of the house), Article 8 (on non-discrimination) and Article 9 (freedom of movement).

While it is perfectly permissible to evaluate whether the Appeal Court was right in its conclusion, it cannot be denied that the Court correctly exercised its powers to adjudicate upon the constitutionality of a provision in a state law, so as to assert the supremacy of the Federal Constitution. Else it would have abdicated its role.

In short, no law is immune from scrutiny by a civil court from being examined as to its consistency with the Federal Constitution.

Indeed Jakim – in suggesting that the Appeal Court could not exercise its jurisdiction based on Article 121(1A) – subscribes to the need to uphold the supremacy of the Constitution.

In this context, perhaps, it may wish to reconsider its contention that the Appeal Court violated Article 121(1A) of the Constitution.

On another note, Jakim also supports the setting up of a Shariah Appeal Council as an additional tier in the shariah judicial system.  This will give litigants before the shariah courts a further recourse for matters within their jurisdiction.

For purposes of clarity, it should be understood that this adding of an additional tier cannot affect the existing powers of the civil courts to adjudicate on the constitutionality of federal or state laws.

* G.S. Nijar is a professor at the Law Faculty, Universiti Malaya

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.