Shariah judiciary in some states now have a new level with a Supreme Court — but what does it do?

KUALA LUMPUR, Sept 3 — Recently, the Kedah State Legislative Assembly tabled and passed a Bill for the establishment of a Shariah Supreme Court to ensure a fairer justice process for Muslims.

Last month, a similar bill to have four levels of Shariah Courts was also tabled and passed by the Sabah State Legislative Assembly in what was described as a highly anticipated initiative to empower the Muslim community.

Nevertheless, Perak was the first state to set up a Shariah Supreme Court in December 2018 by providing a new layer of the appeal process.

But where and how does the Shariah Supreme Court fit into our judiciary system, with the Shariah courts running concurrently with the civil ones?

Where do Shariah Courts stand?

In Malaysia, the Shariah Court system is one of the two separate court systems — the other being the Civil Courts — which exist in the general Malaysian legal system.

Shariah Courts, which have limited jurisdiction only over Muslims in matters relating to Islamic laws, are primarily established by individual state laws or enactments.

By convention, the setting up of a Shariah Court is done by way of a state gazette from the respective state’s Malay ruler, the Yang di-Pertua Negeri (Sabah and Sarawak) or the Yang di-Pertuan Agong (Penang and Melaka).

This is usually done after consultation with the respective state’s Islamic Religious Council.

To enable the creation of a Shariah Supreme Court, either the state constitution or enactment have to be amended, as demonstrated in the case of Kedah, Sabah and Perak.

Despite their status as a state court, Article 121 and Article 145 of the Federal Constitution (FC) stipulates that the civil courts and the Attorney General shall have no power over matters within the Shariah courts, respectively.

Article 74(2) of the FC prescribes that Islamic laws and matters, including the establishment of Shariah Courts, fall under the purview of the respective states as provided in the FC’s Ninth Schedule, List II - State List.

How a Supreme Court helps justice

The inclusion of a Supreme Court in a state’s Shariah judiciary structure will undoubtedly enhance the administration of justice by offering litigants an additional right of appeal.

For cases initiated in the Shariah High Court, parties presently only have one opportunity to appeal.

With the Supreme Court’s inclusion, parties would now have two opportunities for appeal.

In Kedah’s case, Menteri Besar Datuk Seri Muhammad Sanusi Md Nor was quoted as saying the amendment was in line with Sultan of Kedah Al-Aminul Karim Sultan Sallehuddin Sultan Badlishah’s decree to empower the Shariah Court.

In May, Sultan of Pahang Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah also proposed that his state government establish a Shariah Supreme Court to further streamline Shariah laws in the state.

Meanwhile on the federal level, Prime Minister Datuk Seri Anwar Ibrahim previously told the Parliament that the government agreed to establish a special committee sanctioned by the Conference of Rulers to elevate the status of the Shariah Court.

A sticking point in Shariah offences

Lawyer Andrew Khoo, who is co-chair of the Bar Council Constitutional Law Committee, said the setting up of a Shariah Supreme Court does not address the lingering issue: the lack of a uniformed and clear definition on what constitutes an offence against the precepts of Islam.

“Under the Ninth Schedule, the states are allowed to draft offences against the precepts of Islam, but to me the definition must be on a federal level and not defined by the state, otherwise each state would do things differently (by having different criminal offences).

“I do not think that is correct. I think there has to be some uniformity or a federal definition of what is a precept and once that is understood then the state Shariah criminal justice system can really move forward,” he told Malay Mail recently.

He also said while the FC does allow for the setting up of a state Islamic criminal justice system, it did not specify how the Shariah Court tier structure would be defined.

“The Ninth Schedule’s List II does not mention the court structure and these are matters developed by the states in their own state enactment and so far no one has raised the issue of whether or not this can be done,” he said.