Constitution has to be amended for Shariah court to be equivalent to Federal Court, lawyers say

(Malay Mail Online) – The Federal Constitution needs to be amended before Putrajaya can elevate the Shariah courts to be on par with the Federal Court, lawyers said today.

Even then, they warned the federal government that such an amendment, which requires two-thirds majority in Parliament, could be unconstitutional as it would violate the basic structure of the Federal Constitution which vests the judicial powers of the federation in the civil High Court.

“So practically speaking, I cannot see how this can be effectively implemented and enforced,” Bar Council constitutional law committee chair Firdaus Husni told Malay Mail Online.

“The Federal Constitution will first need to be amended to give the Shariah courts the same standing as the civil High Courts, Court of Appeal and the Federal Court. The Federal and State lists under the Ninth Schedule of the Federal Constitution will also need to be amended as currently the constitution, organisation, jurisdiction, powers and other related matters concerning the Federal Court are within the Federal list,” he added.

The Federal Constitution’s Ninth Schedule, List II State List says that Shariah courts only have jurisdiction over Muslims in Islamic, personal and family law matters like marriage and divorce.

Minister in charge of Islamic affairs Datuk Seri Jamil Khir Baharom was yesterday reported as saying that the plan to upgrade the three-tier Shariah judiciary system to a five-tier system — with the highest court being a Shariah Appeal Council — was reaching its conclusion after all states agreed to the upgrade.

Besides the Council, the other four tiers in the new proposed system would be the Shariah Lower Court, Shariah Middle Court, Shariah High Court, and an individual Shariah Court of Appeal for each state. The current three-tier system includes the Shariah Subordinate Court, Shariah High Court and the Shariah Court of Appeal.

Firdaus said additional tiers to the Shariah court system can be set up only within the respective states, stressing that Shariah courts only have jurisdiction at the state, not federal level.

Constitutional lawyer Nizam Bashir said the Federal Constitution’s Ninth Schedule, List II, limits the operation of Islamic law to individual states.

“The question is how can that power relating to Islamic law, with the aforementioned territorial limitation, now be relied upon to legislate a structure that operates beyond each state boundary. Seems unconstitutional to me, but let us see how the authorities navigate the issue,” Nizam told Malay Mail Online.

“A Federal Shariah Court will require an amendment to the Federal Constitution or at the very least, a legislation from Parliament. The only caveat to either the amendment or the introduction of new legislation from Parliament is that the authorities have to be mindful not to offend the basic structure doctrine, i.e. some features of the Federal Constitution cannot be altered through amendments by Parliament,” he added.

Nizam also said going by present laws and precedents, Shariah courts are only on par with the civil subordinate courts — the Sessions Courts and Magistrates’ Courts — citing the apex court’s decision in the Latifah Mat Zin 2007 case.

Constitutional lawyer New Sin Yew said it would be unconstitutional to amend the Federal Constitution or to enact legislation to create a Shariah equivalent to the apex court that has jurisdiction over constitutional issues.

“Parliament cannot amend the basic structure of the Constitution. Parliament cannot take away the judicial powers of the federation which were vested in the High Court,” New told Malay Mail Online.

“The Shariah Federal Court, if set up by legislation only, would still be an inferior court which cannot decide on constitutional matters,” he added.