KUALA LUMPUR, Nov 15 — Malaysia’s foremost Islamic authority pointed out today that the Federal Constitution expressly forbids Islamic matters from being discussed in any civil court, in a response to an appellate court’s recent decision on the rights of Muslim transgenders.
According to national news agency Bernama, Malaysian Islamic Development Department (Jakim) director-general Datuk Othman Mustapha said any failure to adhere to Article 121 (1A) of the Constitution could cause confusion.
“The provision on the matter is clear. It is there and other courts cannot discuss matters related to Islamic law.
“But, because it has been requested, let’s wait for the appeal by the Negeri Sembilan Islamic Religious Council (Mains),” he was quoted saying in Kuantan.
“As the Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom had said prior to this, the Federal Territory Islamic Religious Council and those from other states will intervene in the appeal proceedings later,” he reportedly added.
Othman was commenting on the Court of Appeal’s recent decision to declare Section 66 of the Shariah Criminal Enactment (Negeri Sembilan) 1992, which prohibits cross-dressing by Muslims, as unconstitutional.
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”.
On the powers of the Court of Appeal, however, Article 121(1B) states that the appellate court has the “jurisdiction to determine appeals from decisions of a High Court or a judge thereof; and such other jurisdiction as may be conferred by or under federal law”.
Several days after the judgement, Mains said it would soon file its application to challenge the judgement, but gave no indication on the date.
“At the moment, the date has not been set. We will go ahead with the appeal only when we are ready.
“We appreciate every comment and suggestion presented, and hope the Muslim community will support the effort of Mains and the state government,” Mains secretary, Kamal Amran Kamarudin was quoted by Malay daily Sinar Harian as saying in a report.
Jakim has also since confirmed a plan by Putrajaya to elevate the country’s Shariah courts to equal their civil counterparts, saying on Thursday that a working paper on the bid was presented as far back as 2011.
According to the department, the current three-tier Shariah judiciary system will be upgraded to a five-tier system, with the highest court being a Shariah Appeal Council.
The current three-tier system includes the Shariah Subordinate Court, Shariah High Court, and the Shariah Court of Appeal.
Shariah courts are set up under state laws, while civil courts ― the High Courts, Court of Appeal and Federal Court ― are established under the Federal Constitution.
The Court of Appeal released last Tuesday a written judgement saying that state Islamic laws cannot violate Malaysians’ fundamental freedoms that are protected in the Federal Constitution, as legislations contradicting the constitution are deemed void.
Malaysia practises a dual-track legal system, with secular civil courts that apply universally and a Shariah version that only binds and acknowledges Muslims.
