Justice For All
Recently there are many interesting and provoking views, opinions and thoughts posted on the website & printed media concerning the current jurisdictional conflict between the syariah and civil courts in Malaysia. There are also forums and gatherings held to discuss the issue. It mainly concerns about the legal remedies of the non-muslim spouse against his or her converted-muslim spouse.
The non-muslim spouses claim injustice have happened in their cases and will continue to happen if no change is made to the current position of the law. From time to time similar kind of case will crop-up and the decision will still be the same. Everyone knows about the doctrine of “stare decisis” wherein the lower court is bound by the higher court’s decision.
It is strongly argued that the non-muslim spouse will be at the receiving end in most cases. No court of law can help them in that situation. All because of the so called “jurisdiction” impasse. It is argued that we still have a lacuna in our law when it comes to that. But some argue that there is no jurisdiction issue as the High Court has enough power already to assist the non-muslims spouse.
To the ordinary Joe, he will ask his lawyer “where do I go from here”, “I also Malaysian and I pay taxes, why can I seek redress in court”. “I go to High Court, they say they have no power, I cannot go to Syariah Court coz I’m not a muslim”. As a matter of principle for non-muslims, they would not submit themselves to the Syariah or other religious court of law unless the Federal Constitution says so. And short of that, they are not obliged to do so. Even the muslim will not go to Hindu or Christian Court, if any.
I’m told that the situation is very sad, unfair and unfortunate to the non-muslims. Some muslim quarters blame the government and its short-sighted policy in managing the Islamic laws since day one. Apparently since the Independence Day 1957, our Federal Constitution only allows the applicability of Islamic laws on certain matters only such as family, marriage, divorce, inheritance etc. The so-called “list 2-State List of 9th Schedule” in the Federal Constitution. We must bear in mind that that our country is a secular state, whether we like it or not, secular laws will remain the prevailing laws.
At the risk of repetition, let me say that currently the Federal Constitution is the supreme law of the land. Not Syariah or other laws. Surely PAS does not prefer this situation.
The Tun Mahathir's government had made a significant amendment to Article 121 of the Federal Constitution in 1988 to give more fire power to Syariah Court by inserting Article 121 (1A), therefore any listed matter which comes under the Syariah Court, the High Court cannot interfere and cannot decide. I say good intention but bad planning, maybe.
One of my learned friends put to me a few queries; How could we run a Syariah Court here which is created by the Federal Constitution that is secular in nature? The Federal Constitution is not drafted by Reid Commission based on Islamic resources and by Islamic jurists. We cannot create a practical Syariah Court out of this secular thing. It will be chaos; it will be injustice sooner or later. What about the maintenance of the non-muslim wife from his converted-muslim husband, the legal custody and religion of the children, the status of dead bodies and burial process if they converted surreptitiously?
I believe Islam is most perfect, most fair and most everlasting. I believe I cannot practice Islam partly or some Islam only. I say Muslim must take and practice Islam in totality. Islam must stand on its own, not on the Federal Constitution.
I know of certain muslims in Malaysia who do not mind if the government wants to create a full-fledged Islamic state, they can live with that. PAS is pursuing this Islamic State since it abandoned the coalition of BN in 1976.
But currently, the High Court has to apply the current law applicable to the non-muslim, which is civil law. The Judges cannot expect them to go to Syariah Court. The High Court must help the non-muslim spouse no matter what. This is not a joke. The Federal Court should think of something to solve the impasse. I cannot agree that Article 121 (1A) is ultra virus to Article 11 or ambiguous as it only covers the Muslim and not all malaysian.
After that Federal Court's decision, if any, let the current government run to the Parliament to fix the problem in the Federal Constitution, in any event they have more than 2/3 majority control in Parliament as we speak. They can pass almost anything.
It is really not a good excuse for the Federal Court to say that they have no power to make law. We do not even ask them to do that. Actually the Federal Court has enough power to make a declaration on the question of any law in Malaysia.
So please do so my Lords and settle the impasse, please do not wait for the Yang Berhormat Executive as they are very busy with the Iskandar Development Region (IDR) and the 9th Malaysian Plan (9MP) for now.
The rights of ordinary and innocent people must be protected at all cost. That is the benchmark of a civilized country. Justice for all.
Good luck YB.
The non-muslim spouses claim injustice have happened in their cases and will continue to happen if no change is made to the current position of the law. From time to time similar kind of case will crop-up and the decision will still be the same. Everyone knows about the doctrine of “stare decisis” wherein the lower court is bound by the higher court’s decision.
It is strongly argued that the non-muslim spouse will be at the receiving end in most cases. No court of law can help them in that situation. All because of the so called “jurisdiction” impasse. It is argued that we still have a lacuna in our law when it comes to that. But some argue that there is no jurisdiction issue as the High Court has enough power already to assist the non-muslims spouse.
To the ordinary Joe, he will ask his lawyer “where do I go from here”, “I also Malaysian and I pay taxes, why can I seek redress in court”. “I go to High Court, they say they have no power, I cannot go to Syariah Court coz I’m not a muslim”. As a matter of principle for non-muslims, they would not submit themselves to the Syariah or other religious court of law unless the Federal Constitution says so. And short of that, they are not obliged to do so. Even the muslim will not go to Hindu or Christian Court, if any.
I’m told that the situation is very sad, unfair and unfortunate to the non-muslims. Some muslim quarters blame the government and its short-sighted policy in managing the Islamic laws since day one. Apparently since the Independence Day 1957, our Federal Constitution only allows the applicability of Islamic laws on certain matters only such as family, marriage, divorce, inheritance etc. The so-called “list 2-State List of 9th Schedule” in the Federal Constitution. We must bear in mind that that our country is a secular state, whether we like it or not, secular laws will remain the prevailing laws.
At the risk of repetition, let me say that currently the Federal Constitution is the supreme law of the land. Not Syariah or other laws. Surely PAS does not prefer this situation.
The Tun Mahathir's government had made a significant amendment to Article 121 of the Federal Constitution in 1988 to give more fire power to Syariah Court by inserting Article 121 (1A), therefore any listed matter which comes under the Syariah Court, the High Court cannot interfere and cannot decide. I say good intention but bad planning, maybe.
One of my learned friends put to me a few queries; How could we run a Syariah Court here which is created by the Federal Constitution that is secular in nature? The Federal Constitution is not drafted by Reid Commission based on Islamic resources and by Islamic jurists. We cannot create a practical Syariah Court out of this secular thing. It will be chaos; it will be injustice sooner or later. What about the maintenance of the non-muslim wife from his converted-muslim husband, the legal custody and religion of the children, the status of dead bodies and burial process if they converted surreptitiously?
I believe Islam is most perfect, most fair and most everlasting. I believe I cannot practice Islam partly or some Islam only. I say Muslim must take and practice Islam in totality. Islam must stand on its own, not on the Federal Constitution.
I know of certain muslims in Malaysia who do not mind if the government wants to create a full-fledged Islamic state, they can live with that. PAS is pursuing this Islamic State since it abandoned the coalition of BN in 1976.
But currently, the High Court has to apply the current law applicable to the non-muslim, which is civil law. The Judges cannot expect them to go to Syariah Court. The High Court must help the non-muslim spouse no matter what. This is not a joke. The Federal Court should think of something to solve the impasse. I cannot agree that Article 121 (1A) is ultra virus to Article 11 or ambiguous as it only covers the Muslim and not all malaysian.
After that Federal Court's decision, if any, let the current government run to the Parliament to fix the problem in the Federal Constitution, in any event they have more than 2/3 majority control in Parliament as we speak. They can pass almost anything.
It is really not a good excuse for the Federal Court to say that they have no power to make law. We do not even ask them to do that. Actually the Federal Court has enough power to make a declaration on the question of any law in Malaysia.
So please do so my Lords and settle the impasse, please do not wait for the Yang Berhormat Executive as they are very busy with the Iskandar Development Region (IDR) and the 9th Malaysian Plan (9MP) for now.
The rights of ordinary and innocent people must be protected at all cost. That is the benchmark of a civilized country. Justice for all.
Good luck YB.
posted by Hisyam at 6:20 PM
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