Constitution doesn’t allow Shariah version of Federal Court, Bar Council official says

By admin-s On Nov 15, 2014

(MMO) – The Federal Constitution does not permit for a Shariah equivalent of the Federal Court, a Bar Council official said yesterday when stressing that Islamic courts are only on level with the civil subordinate courts.

Bar Council constitutional law committee chair Firdaus Husni cited the Federal Court decision in the 2007 case of Latifah v Rosmawati, in which the country’s highest court ruled that the civil superior courts ― the High Courts, Court of Appeal and Federal Court ― were established by the Federal Constitution, while the Shariah courts were formed under state laws.

“In fact, the position of the Shariah courts, in this respect, is similar to the session courts and the magistrates’ courts,” Firdaus told Malay Mail Online, quoting the ruling.

In Malaysia’s civil court system, the Federal Court is the most senior court and final venue of appeal while the magistrates’ courts are the most junior.

She said Article 3(1) of the Federal Constitution, which states that Islam is the religion of the federation, did not mean that Malaysia is an Islamic country as Article 4(1) stipulates that the constitution is the supreme law of the federation, and not the Quran or hadith.

“Further, Article 3(4) does not allow for Article 3(1) to override the rest of other provisions in the Constitution,” said Firdaus.

Article 3(4) states that nothing in the Article derogates from any other provision of the constitution.

The Malaysian Islamic Development Department (Jakim) on Wednesday confirmed that Putrajaya is planning to upgrade the current three-tier Shariah court system to a five-tier system, with the proposed highest court ― called the Shariah Appeal Council ― on par with the civil Federal Court.

While the civil High Court in Malaya, High Court in Sabah and Sarawak, Court of Appeal and Federal Court constitute a federal judicature, the Shariah courts are state courts that have jurisdiction only within their individual states.

The federal Islamic authority also said a working paper on its proposal was presented back in 2011 at the National Council for Islamic Religious Affairs Malaysia and subsequently to the 14 state religious councils.

Firdaus said if the government wished to set up more Shariah courts, it can only be done within the respective states.