In the recent High Court’s decision in M.Moorthy’s case, Md. Raus Sharif J concluded that the civil courts have no jurisdiction over syariah matters and therefore have no rights to adjudicate the said case. The judgment concurred with that of the case of Lina Joy in the Court of Appeal.
Both courts relied essentially on Article 121(1A) of the Federal Constitution (FC) which states:
The courts referred in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.
Art 121(1A) is injunctive in nature, i.e. it "takes away" the High Court's jurisdiction in matters of the prerogatives of the Syariah Court (per Harun Hashim SCJ in Mohamed Habibullah). The intent of the said clause is settled but the issue now is what are the prerogatives of the Syariah Courts? Of this the said clause is silent.
Do the Superior Courts have Jurisdiction over Syariah?
Clause (1B) of the same Article 121 provides for the creation of an appellate court to be known as Court of Appeal with the following jurisdiction:
(a) jurisdiction to determine appeals from decisions of a High Court or a judge thereof ( except decisions of a High Court given by a registrar or other officer of the Court and appealable under federal law to a judge of the Court); and
(b) such other jurisdiction as may be conferred by or under federal law.
The Federal Court was created by Art 121 (2) and its jurisdiction was laid out in clauses (2)(b), 128(1) and 128(2).
Firstly, both superior courts, it was argued, like the High Court, did not have any jurisdiction concerning syariah matters. The Court of Appeal by virtue of 121 (1B)(a) can hear appeals against the decisions of the High Court, but since the High Court is subjected to the injunction in clause (1A), it logically follows that the appellate function of the Court of Appeal applies only as far as the injunction allows, i.e. if there are no syariah cases heard in the High Court, there will not be any appeal to the Court of Appeal pertaining to such cases.
Secondly, 121(1B)(b) provides that the Court of Appeal has adjudication functions granted “by or under federal law”. In subscribing federal law to List I of the Ninth Schedule, these laws will not include syariah laws which is under the prerogative of the State Assembly provided by List II.
The same argument goes for the Federal Court. Also the Federal Court it seemed was not vested with such powers in the provisions that created it.
Are these the best reading of the FC? Far from it.
Purpose of Art 121 (1A)
It is generally agreed and reasonably concluded that the Muslims desired to be governed and determined by the rule of syariah. It is inevitable that the Muslim ummah be accorded their right to the access of syariah justice through the courts, given the priority of Islam in this country. Before the addition of Clause (1A) however, this right to syariah court is often impeded, hindered or made difficult by the overriding power of the civil court (i.e. the High Court) on the jurisdiction of the syariah court. This overriding power was deduced from Art 121 Clause (1) prior to the introduction of Clause (1A) and the Courts of Judicature Act, 1964 (A91) specifically section 4 – In the event of inconsistency or conflict between this Act and any other written law other than the constitution in force at the commencement of this Act, the provisions of this Act shall prevail.
In order to settle the issue of the High Court’s frequent overriding of Syariah Court’s decision, Clause (1A) was introduced. It is not a power conferring clause but a settlement clause ( [1997] 3 MLJ 281). This means the said clause does not grant the Syariah Court certain jurisdiction but was to resolve the conflicting power of the concurrent civil-syariah courts system ([1999] 2 AMR). Md. Eusoff Chin CJ (Malaysia) opined that the introduction of Article 121(1A) was the result of the “concern among those entrusted with the task of administering Muslim law” over the power of ordinary court “to review and quite regularly reviewed, the decisions of Syariah Courts by certiorari”. He added that clause (1A) has the limited purpose of preventing the High Court “from exercising its power of judicial review over decisions of a Syariah Court”. This in effect is an each-to-its’-own settlement provision.
Effect of Art 121 (1A) on the Superior Courts
Prior to the introduction of Clause (1A), the High Court had power to review, and often did so, the decisions of the Syariah Court by certiorari. This would suggest to us therefore, the provisions of Clause (1) alone at that time were sufficient to grant power of review to the High Court. As such the above argument that Clause (1B)(b) – refer above – had limited the jurisdiction of the Court of Appeal to only the matters laid out in the federal list (Ninth Schedule) flawed greatly and did not consider the state of affair as provided by the wordings of Clause (1) before the introduction of Clause (1A):
“…the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.”
The bold wordings are the same as Clause (1B)(b) and I do not see any problem why the Court of Appeal, whose jurisdiction was not affected by Clause (1A) – The courts referred in Clause (1) [only] shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts – should not have the power to review the decisions of the Syariah Court by certiorari. I conclude that where there is no provisions the likes of Clause (1A), the superior courts have power over the Syariah Court’s jurisdiction through certiorari revisions. The consequence of this is of the greatest importance. Everyone, the Muslim man and the Christian man and the Hindu man, all Malaysians, will therefore have access to the two highest appellate courts in the land in all areas of the law. Syariah justice is not hindered and equality before the law is accorded to everyone (re Art 8 of the FC). Muslims and non-muslims alike will have the right of appeal upto the highest level where the application of the Constitution is assured.
Next: The Jurisdiction of the Syariah Court: Examining the State List
Meanwhile, elsewhere on the blogsphere...
Discordant Dude goes to High Court
Constitution talk in the Kopitiam?
Ganas (fiercesome) "law-breaker" family
Updates:
"If the plaintiff is non-Muslim, then it would be wrong of the Syariah Court to say that it has jurisdiction over a non-Muslim," Abu Talib said, adding that the problem arose because the courts "did not have the courage to interpret the law in the spirit of which it was written." - Tan Sri Abu Talib Othman, Malaysian Human Rights Commission chairman and former Attorney-General (read here)
