Civil Courts rule supreme

Yesterday, MM Online published After Indira ruling, PAS wants Shariah courts open to non-Muslims ... so that they can claim their right according to Islamic guidelines, PAS’ legal and human rights bureau chief Datuk Mohamed Fadzli Hassan said today.

The Kelantan state executive councillor said that Islamic law has been proven to excel over the ages and will be “beneficial” for non-Muslims as well.

“We believe the time has come to open Shariah Courts for non-Muslims as well so that they can claim their rights according to Islamic guidelines,” he said in a statement.

Currently, Shariah courts nationwide have no jurisdiction over non-Muslims.

Mohamed Fadzli’s remarks follows a landmark judgment earlier this week in which a five-judge panel at the Federal Court unanimously ruled that unilateral conversions are unlawful.

The same panel of judges also ruled that matters heard in the Shariah courts are not beyond the jurisdiction of the civil courts.

Mohamed Fadzli said that the apex court ruling that also annulled the unilateral conversion of Hindu mother M. Indira Gandhi’s three children to Islam, is a “wake-up call” to strengthen the Shariah courts in the country.

“This ruling can be seen positively as a wake-up call to strengthen relevant Shariah enactments.”

Please see my take on the frightened panicky call by ulamak (PUM) for the Syariah Courts to be elevated to be on par with the Civil Courts in PPMM's dangerous proposals by stealth.

And would you believe it, Perak's Chief Mufti also called for the same thing. As reported in the Sun Daily he said, "The provisions of the Syariah Court needs to be enlarged so that it allows for non-Muslims to attend the trials, without restriction to only Muslims.

"The Syariah Court should also not be considered as an entity outside of the judicial institution, which places it at a lower position."

Do PAS and the Perak Mufti think we non-Muslims are dumbos?

They weren't altruistic at all in suggesting such an opening for nons to plea their cases in syariah courts, when they no doubt believe things won't go the way Indira Gandhi has won in a secular civil court but instead will go their exclusive-to-Muslim way.

Yes, those ulamaks are King Kiasu's.

To reiterate, we non Muslims have no confidence in the syariah courts, preferring 101% the civil courts, warts and all.

In a way those ulamaks could be said to be doing the exact reverse to the provisions of Constitution Article 121(1)(A).

Years back, it was said that a certain PM, wakakaka, instructed his AG to amend the Constitution to include Article 121(1)(A) which states that the civil court has no jurisdiction on syariah matters.

A couple of things to note:

(1) the Article was meant to ONLY deal with matters affecting Muslims who wanted to leave Islam, like teacher Abdul Rahim, and not constitutional cases where the religion of the deceased was still 'iffy', as per the case of Indira Gandhi's children or of the 'body-snatching case of the late M Moorthy, the 'hero' of Mouth Everest;

(2) it was obvious the civil courts in Moorthy's case had then 'forgotten' or refused to 'remember' or know this.

Then Malik Tabiaz, a human rights lawyer stated that such cross-religion cases like Moorthy's ocurred on a regular basis, where civil judges in earlier years, under the PM-ship of a certain fundamentalist Islamic Malaysian pahlawan, avoided or even rejected them the moment they caught a whiff of Islamic issue in them.

Thanks to the PM-then and his unilateral amendment of Article 121, many a spouse of unhappily married couple were broken-hearted by the loss of their children to the respective partner who switched to becoming a Muslim.

Indira Gandhi has been lucky and vindicated when justice was served for her by the Court of Appeal comprising federal Court President Tan Sri Zulkefli Ahmad Makinudin and his fellow judges, Chief Judge of Sabah and Sarawak Justice Richard Malanjum, Justices Zainun Ali, Abu Samah Nordin and Ramly Ali, who all came to a unanimous decision of the Panel's ruling.

Now, what is this about the amendment to Constitution Article 121 which had a sub clause (1)(A) added to it?

About thirty years ago, there was a bloke by the name of Abdul Rahim, a teacher, who challenged the syariah court’s power to prosecute him, because he said he was no longer a Muslim as he was practising the teachings of Qadiani, a Muslim sect in Punjab, India founded by Hadhrat Mirza Ghulam Ahmad.

The teachings of this sect had been declared as deviant by the Malaysian Fatwa Council, therefore Abdul Rahim argued in court that if he was following a deviant religion, surely he must no longer be a Muslim and not under the jurisdiction of the syariah court.

But syariah judge Sheikh Azmi Ahmad after hearing the teacher’s case, ruled that the syariah still had jurisdiction over him as the fatwa (religious edict) alone did not necessarily render him an apostate.

Abdul Rahim instead followed up by taking the matter to the Civil High Court which granted him a decree that he was no longer a Muslim and therefore not bound under the syariah court. Mind you, in those days the civil courts still had balls, but in all fairness, those judicial balls have come back as we witnessed in Indira Gandhi's case, wakakaka.

Anyway, that ruling on Abdul Rahman being no longer a Muslim caused a HUMONGOUS panic in teh government because it meant that any Malaysian Muslim could just leave Islam by following a sect pronounced as deviant by the Malaysian Fatwa Council.

Thus the PM of those day had the Constitution amended to include Article 121(1)(A) which states that the civil court has no jurisdiction on syariah matters.

But there were/are a couple of things to note:

(1) the Article was meant to deal with matters affecting Muslims who wanted to leave Islam, like teacher Abdul Rahim, and not cases like M Moorthy's where the religion of the deceased was still 'iffy';

(2) it was obvious the civil courts in M Moorthy's case had 'forgotten' or refused to 'remember' or even know this.

At that time Malik Tabiaz, a human rights lawyer stated that such cross-religion cases like M Moorthy's occurred on a regular basis, where civil judges avoided or even rejected them the moment they caught a whiff of Islamic issue in them.

In the Indira Gandhi's case regarding the illegal unilateral conversion of her children, Justice Tan Sri Zainun Ali (one of the 5 judges) reiterated the above remarks on Article 121(1)(A) on behalf of the Apex judicial panel.

MM Mail Online reported: Views that Shariah courts are the only venue to decide on conversions to Islam are “simplistic”, said the full Federal Court judgment in the case of M. Indira Gandhi.

In a landmark ruling on Monday, it said the civil courts have the exclusive jurisdiction to hear cases such as the Hindu mother’s challenge against the validity of her Muslim convert ex-husband’s unilateral conversion of their three children to Islam in 2009.

The emphatic wording was a clear departure from previous superior court decisions in which judges deferred to their Shariah counterparts in such matters, reinforcing the view that Islamic matters could only be resolved within the latter.

“It must be said that the judicial trend in the past have taken the position that since matters of conversion involves Islamic law and practice, it must follow that the Syariah Courts must have jurisdiction over such matters to the exclusion of civil courts.“With respect, this approach is unduly simplistic,” Justice Tan Sri Zainun Ali said in the Federal Court’s 100-page judgment sighted by Malay Mail. [...]

The Federal Court had, in Siti Hasnah’s case, based its decision on precedents when reaffirming that “it is settled law that the question of whether a person is a Muslim or not is a matter falling under the exclusive jurisdiction of the Shariah court”, Zainun said.

Expanding on the “unduly simplistic” approach of considering matters related to Islamic law to be solely for the Shariah courts, Zainun said the position ignores the broader constitutional context of Article 121 (1A) of the Federal Constitution.

Article 121 (1A) states that the civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts.

However, Zainun pointed out that the effect of Article 121 (1A) “is not to oust the jurisdiction of the civil courts as soon as a subject matter relates to the Islamic religion”.

Civil courts’ powers entrenched

Zainun noted that the civil courts’ authority under Article 121 (1) include pivotal or crucial components such as the powers of judicial review and interpretation of the Federal Constitution and legislation, adding that such powers are inherent in the civil courts’ constitutional role as the protection against unlawful laws and executive action.

This vested authority is part of the Federal Constitution’s basic structure, and cannot be removed from the civil courts or given to the Shariah courts, be it through amendments to the Federal Constitution, federal law or state laws.

“We take a firm stand on this — in that before a civil court declines jurisdiction premised on the strength of Article 121 (1A), it should first examine or scrutinise the nature of the matter before it. If it involves constitutional issues, it should not decline to hear merely on the basis of no jurisdiction,” the judgment said. [...]

Zainun’s judgment was unanimously backed by the other judges on the Federal Court’s five-man panel that included Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, and Federal Court judges Tan Sri Abu Samah Nordin and Tan Sri Ramly Ali.

This ruling is NOT new as previously I had published legal advice by the following 2 gentlemen:

Rosli Dahlan (rd@lh-ag.com) heads the Corporate & Commercial Disputes Practice Group at Lee Hishammuddin Allen & Gledhill who regularly appears at the High Court and appellate courts on public law issues.

Fawza Sabila Faudzi (fawza@lh-ag.com) graduated from the Ahmad Ibrahim Kuliyyah of Laws, International Islamic University Malaysia, and is currently a pupil-in-chambers with the firm

On 15 May 2015 they wrote in MM Online The position of the Shariah Court in the Malaysian legal system — Rosli Dahlan and Fawza Sabila Faudzi.

It's a very good paper which identifies very clearly and succinctly the secular nature of Malaysia as a nation (and PODAH to someone who had the brazen dictatorial nerve to declare in an unauthorised manner that "Malaysia is a fundamentalist Islamic nation") and the ultimate superiority of the Civil courts over other subordinate courts like the Syariah Courts. You may wish to read the article in full.

The selfish act of one powerful man can and have wrecked the lives of many.