KUALA LUMPUR, April 19 — Lawyers have expressed concern about the gradual invasion of Shariah law into areas beyond Muslim family matters, a jurisdiction that Islamic courts were not meant to overstep.
Even as the recent case of a custody dispute between a Hindu woman and her estranged husband who had converted to Islam rages on, lawyers pointed out a spate of cases in which Shariah courts have acted beyond the scope of their powers.
Syahredzan Johan, a civil liberties lawyer, said there have been cases where the Shariah court has even attempted to pronounce judgement over corporations.
“This cannot be correct because the jurisdiction of the Shariah court is only exclusive to persons professing the religion of Islam. How can a company be considered Islam?” Syahredzan told The Malay Mail Online.
He cited two cases — a land dispute involving a company called Karambunai Corp Bhd and a property dispute involving Potensi Bernas Sdn Bhd, both of which began in 2007 in Sabah.
According to court documents, the Kota Kinabalu High Court ruled in the Karambunai case that the Shariah court had acted in excess of its jurisdiction by granting orders on the disputed land in Tuaran.
“In the instant case, the Shariah Courts which granted the impugned orders had even contravened the Shariah Court Enactment 2004 (‘the Enactment’). Section 26 of the Enactment clearly stated that they were not empowered to grant orders that affect the property of a non-Muslim,” said the court ruling.
In the Potensi Bernas case, the High Court in Sabah and Sarawak, Labuan, ruled that the Shariah court had gone beyond its jurisdiction by issuing an injunction against a company.
“The plaintiff company consisted of both Muslim and non-Muslim shareholders. The defendant’s contention that the Syariah High Court had jurisdiction over the plaintiff based solely on the fact that Datu Amir Kahar, a shareholder in the company, was a Muslim, was untenable.
Clearly the property was not a personal property of Datu Amir Kahar. It was not even registered in his name. It belonged to the company, which, being a creature of statute did not profess any religion. Only natural persons can profess a religion,” said the ruling.
The Shariah court has also extended its reach to even Christians.
The Penang Shariah Court convicted a Christian Indonesian called Halimah of “khalwat” (close proximity) in 2012.
The Shariah High Court, surprisingly, upheld the lower court’s decision and the case is now pending before the Shariah Court of Appeal.
Syahredzan stressed that the Shariah and civil courts have separate jurisdictions, whereby the former hears personal and family matters for Muslims and offences against Islamic precepts, like “khalwat”, while the latter adjudicates everything else.
Syahredzan noted that the Shariah court was considered “inferior” by some as it was a statutory body created by state enactments, while the civil High Court, Court of Appeal and Federal Court are constitutional bodies created by the Federal Constitution. The civil Magistrate and Sessions Courts were created by federal law.
“It's entirely possible for a state not to have a Shariah court. For you to abolish the Shariah court in a state, all you need to do is pass a state law. So in that sense, in terms of standing, it's not the same level as the civil courts,” he said.
Syarie lawyer Nizam Bashir said that while Shariah and civil courts operate in separate spheres and are “supreme” within their particular jurisdiction.
He noted, however, that the Shariah court appears to have expanded its jurisdiction beyond the limitations set by the Federal Constitution, notably in mixed-faith custody disputes and the conversion of children to Islam without the consent of both parents.
“Essentially, Shariah courts hear matters which have been expressly defined to be within its jurisdiction. The extent of the Shariah court's jurisdiction can be found in whichever Administration of the Religion of Islam Enactment/Act,” Nizam told The Malay Mail Online, citing examples like inheritance, marriage and divorce matters for Muslims.
Earlier this week, retired Court of Appeal judge Datuk Mohd Noor Abdullah provoked uproar with his view that the Shariah court should have jurisdiction over child support and custody disputes between a non-Muslim and the spouse who has converted to Islam, even if the couple’s marriage was registered at the civil court, and thus should open its doors to hear non-Muslims in such cases.
He also insisted that Islam is the pre-eminent religion in Malaysia, citing Article 3(1) of the Federal Constitution which states that Islam is the “religion of the federation”.
But Nizam stressed that according to the Supreme Court ruling in the Che Omar Che Soh 1988 landmark case, the status of Islam as the religion of the federation only relates to state rituals and ceremonies.
New Sin Yew, constitutional lawyer with BON, Advocates, said that under Article 121(1) of the Federal Constitution, the Shariah court does not have equal standing with the civil High Court, Court of Appeal or Federal Court.
“It is an inferior court as provided under the constitution, like the industrial court, penghulu court, consumer claims tribunal, and the home buyers tribunal,” New told The Malay Mail Online.
He also noted that the Shariah court had overstepped its jurisdiction in the Indira Gandhi case by granting custody of the couple’s children to the Hindu woman’s estranged husband who had converted to Islam.
“The Shariah court can only grant custody orders in respect of Muslim marriages. The marriage in Indira Gandhi is a civil marriage under the LRA,” New said, referring to the Law Reform (Marriage and Divorce) Act 1976.
In the Indira Gandhi case, the Ipoh High Court had granted Indira full custody of her three children and annulled their Islamic conversion certificates, declaring it unconstitutional to force a minor to embrace a different faith without the consent of both parents.
Similar to Indira, S. Deepa is also caught in a bitter child custody dispute with her estranged husband, N. Viran, who had converted to Islam.
Last week, the Seremban High Court granted the Hindu woman full custody of her two children ― a nine-year-old daughter and a six-year-old son — while the Shariah Court had given her estranged husband custody instead, after he converted their children to Islam last year without her consent or knowledge.
Datuk Zainul Rijal Abu Bakar, president of the Malaysian Muslim Lawyers Association, said it was a fallacy to perceive the civil court as being above the Shariah court.
“The Shariah court and civil court are at par. Both the courts should be complementing each other and not be competing with each other,” Zainul Rijal told The Malay Mail Online.
“Maybe in terms of remuneration of judges, infrastructure and facilities, yes, the civil court is bigger. But in matters within the jurisdiction of the Shariah court, the civil court has no business,” he added, citing Article 121(1A) of the Federal Constitution.
He said that Article 121(1A) was introduced in 1988 during the Mahathir administration to prevent the civil court from interfering or canceling Shariah court orders, which had mainly occurred in child custody disputes involving Muslims.
The lawyer noted that in those cases, Muslims who were unhappy with the Shariah court decision ran to the civil court to seek a more satisfactory outcome.
On the contentious status of Islam as the “religion of the federation”, Zainul Rijal interpreted the Federal Constitution as saying that the “Islamic position should take priority against any other religions in Malaysia”.
“However, there is a safeguard here in that any other religions may be practised in peace and harmony. This constitutional guarantee is actually redundant because Islam itself protects and allows people of other faiths to practise their religions. In no circumstances in Islam is a non-Muslim forced to convert to Islam,” the lawyer added.
