NOVEMBER 18 — Creating Shariah superior courts will only perpetuate the already confusing legal system and make a mockery of the system

The announcement of Minister in Prime Minister Deparment, Datuk Seri Jamil Khir Baharom to create a Shariah court system parallel to the civil court up to the Federal Court level is a move, which not only goes against the Federal Constitution but also is bound to create more confusion and mockery in our concurrent court system.

On one hand, the Federal Constitution clearly upholds the rights of Muslims to be governed by Shariah law although the understanding of Shariah as provided by the Constitution is limited to those under List II in the Ninth Schedule of the Constitution and then deriving from the List, those gazetted by state authorities (i.e. the principle of the exclusivity of jurisdiction of the Shariah courts).

On the other hand, Constitution also upholds the rights of both Muslims and non-Muslims alike to appeal to the highest courts in the land, i.e. the Court of Appeal and the Federal Court.

Even with the current situation where the exclusivity of jurisdiction of the Shariah courts as well as the non-interference of the civil-Shariah courts against each others at the general court level, are spelled out by the Constitution and case laws, confusion still abounds.

In the current system, the loop-sidedness of justice is evident; non-Muslims, even though not professing submission to Shariah laws, are subjected to the Shariah court in some situations (notably cases of child custody). This clearly goes against superior court decisions such as in Sukma Darmawan, where the Federal Court held that “the Shariah Courts have jurisdiction only over persons professing the religion of Islam” and that offences triable by the Shariah Court are those where “all parties including the witnesses are of the Islamic religion”.

Even the authority themselves are confused as to which decision to follow, as in the latest case of M. Indira Ghandi where the police refused to act on the decision of the civil court due to a conflicting decision from the Shariah court.

The creation of Shariah superior courts also risks paving the way for the expansion of religious laws in the country, where the courts’ decisions become binding without any further recourse. Is this not “hudud-isation” in another name?

Without resolving these problems, and in these highly partisan times for our country, the Barisan Nasional government’s plan can only be said to be gravely irresponsible and must be abolished. It will not only further perpetuate and aggravate the existing confusion, but will also make a mockery of both the civil-Shariah legal systems and the concept of justice in our country. 

* Stephen Sim is Member of Parliament for Bukit Mertajam.

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