Friday, January 12, 2007

Jurisdiction And Law: Syariah Courts

The syariah courts have no jurisdiction over non-Muslims. This is beyond doubt. In allowing for the creation of the syariah courts, the Constitution limits its jurisdiction to persons professing the religion of Islam. This has been judicially recognized by the Supreme Court (a decision handed down in 1994 in Tang Sung Mooi).

What then do we make of suggestions that non-Muslims should appear before the syariah courts in disputes involving Muslim and non-Muslim parties? My view is that the suggestion is wholly untenable and has no basis in law. There are several reasons for this.

First, as noted above, the Constitution has limited the jurisdiction of the syariah courts. The jurisdiction of a court is, in effect, the mandate of the court. This mandate, given or conferred by law, delineates and defines the types of matters that can be dealt with by a particular court. For instance, it is abundantly clear that a syariah court has the jurisdiction and power to deal with the dissolution of marriages solemnized under Islamic law.

The Constitutional limitation is, in general, mirrored in legislation that vests jurisdiction and power in the syariah courts. This legislation usually provides for situations where all parties are Muslims.

Second, and as a corollary to the first point, the syariah court only has jurisdiction over and the power to deal with matters that fall within its jurisdiction. This jurisdiction is given, or vested, by law enacted by the State Legislative Assemblies or, where the Federal Territories are concerned, by Parliament. It is crucial to take not that until and unless law is enacted, there is in effect no law to be applied. The common fallacy where the syariah courts are concerned is that these courts apply Islamic law, syariah or hukm syara’, in the wider sense i.e. principles of Islamic law as determined by the ulama and set out in scholarly texts. This is not the case. The Constitution, in defining ‘law’ does not include the wider syariah corpus.

It is the erroneous assumption that ‘unwritten’ (or un-enacted) syariah law or the established principles of hukm syara’ can be applied in the syariah courts that has led to the insistence that some matters must, or can only, be dealt with by the syariah courts, notwithstanding the absence of any written law to that effect. This assumption in turn has been used to justify a position that has led to a denial of access to justice for non-muslims caught in so called conflict – syariah in tension with civil – situations.

As an attempt to address the obvious injustices, the suggestion has been made that non-muslims appear before the syariah court. As is pointed out below, this suggestion is disingenuous and purports to validate, and entrench further, an entirely erroneous interpretation of the law.

Third, it is a trite principle of law that jurisdiction cannot be enlarged by ‘submission’. A non-Muslim cannot confer jurisdiction on a syariah court simply by agreeing to submit or appear before it. The constitutional limits are explicit and do not provide for such ‘submission’. Any proceedings as such involving non-Muslims in a syariah court are, in my view, unconstitutional and of no legal effect whatsoever.

Fourth, in the ‘conflict’ cases – Rayappan, Murthi or Shamala – the non-Muslims concerned want a remedy. Even if it were possible for a non-Muslim to ‘appear’ before a syariah court, at most this would be to give information to the syariah court as witnesses (although I have my reservations. How is a non-Muslim witness ‘regulated’ by the syariah court. It has no jurisdiction to cite a non-Muslim for contempt let alone the power to administer an oath to such a person). This does not address the grievance of the non-Muslims concerned as the syariah court would not be in any position to grant a remedy to the non-Muslims. This is why I said earlier that the suggestion is disingenuous as it masks the fact that the proceedings will, for all purposes, still be a proceeding involving only the Muslim parties.

Lastly, the suggestion also obscures the fact that in many cases, the issues involved are not within the jurisdiction of the syariah courts. The argument is commonly made that the issues are matters falling within the ambit of the hukm syara’ or syariah law as and such fall wihttin the ambit of the syariah courts' jurisdiction. However as noted above, this is not enough. The Constitution declares itself as the supreme law (Article 4(1)). The provision of Islam being the religion of the Federation (Article 3(1)) has been judicially recognized (Che Omar Che Soh) as being of ceremonial significance and is subject to other provisions of the Constitution.

In this vein, matters strictly within the jurisdiction of the syariah courts would not give rise to any conflict. We never hear of difficulties where divorces or custody disputes between Muslim parties are concerned. Or where there are disputes as to inheritance between Muslim parties. We only hear of difficulties were the syariah court is being pitted against the civil courts, more usually in situations where there are non-Muslim parties involved. This is indicative as, in my view, this reflects an aspiration on the part of some quarters to see an enlarged syariah court jurisdiction. I have said before that there is nothing objectionable about this aspiration. My only concern is that the objective be achieved through constitutional process. Only then will the interests of all parties be safeguarded.


12 comments:

Stanford Law said...

MIS,

agree with your argument that syariah courts have no jurisdiction over non-Muslims. but the conundrum still remains for apostasy cases like lina joy.

however, the preliminary question of whether a person is a muslim or not - the pre-condition to the syariah court's exercise of jurisdiction over any given person - must b first resolved.

the current debate, as we all know, is about WHO/WHICH court should decide, civil or syariah.

most state syariah legislation (correct me if i'm wrong - i'm not able to b exhaustive or accurate on this) do not explicitly say that murtad is not allowed, even though they already prescribe for its punishments. (usually by 'rehabilitation' [allegedly physical torture, including canning, n brainwashing] up to 3 years [not bcos the islamic authorities only require 3, but bcos that's the maximum jurisdiction given to shariah courts. they [especially the perak mufti] would have wanted DEATH.)

n anybody wants to guess what would b the outcome of someone applying for an 'exit (murtad) order' from the shariah court??

even though it's not explicitly so written, the shariah courts r applying the 'wider syariah corpus', as u said. the legality (let alone constitutionality) of this is highly questionable.


anyway, coming back to jurisdiction. should syariah court, whose jurisdiction is over muslims only, decide who is a muslim n therefore under its jurisdiction?

1, ceteris paribus, the 'temptation'/'incentive' to jealously guard the reach of its own jurisdiction would mean that the syariah court would b more likely than not include someone as a muslim. moorthy (ex parte, questionable affidavit averments) is a good example of that 'temptation'.

under normal (abnormal for ultra conservative muslim ulama, i guess) principle of common law, someone who has a stake/interest in the outcome of a case should not preside over it. this abnormal principle it's called natural justice.

but of course, the civil courts have been required to determine the issue of jurisdiction all the time, such as in cases involving foreign nationals, conflict of laws, etc. so, it's nothing special about what the syariah courts r doing here.

but the difference lies in the 'ethnic' (religiously speaking) or religion-specific, partisan, n non-universal nature of islamic law n islam itself. unlike the civil law, it's only for a SPECIFIC group of people, not for all.

n above all, islamic law is derived from a RELIGION, which in itself is at least CONTROVERSIAL, n ADVERSARIAL or even HOSTILE when it involves other religions. even the most politically correct muslims cannot deny that islam DOES say a lot of ugly things about other religions, n it has an ambition to domiate the world to the exclusion of all other kafir religions - just like the world's major religions, especially christianity.

given this reality (that islam has been MADE TO BE controversial by its legalization n politicization BY MUSLIMS THEMSELVES), no muslim should complain that many non-muslims r frightened by/fear islamic laws, even if they might revere n respect the religion of islam. it should not b that difficult to comprehend n empathize with this if muslims really make an honest effort to put themselves into the shoes of non-muslims, or imagine themselves facing the same lina joy-moorthy problems in a christian country which has biblical courts applying the same prohibition of apostasy as what the syariah courts in this country r doing now.

so, the civil courts r the neutral (or at least MORE neutral) n less controversial venue for deciding this preliminary question, EVEN IF the syariah courts ARE applying article 11 when they hear the murtad applications. (the problem is, they r NOT.)


2, syariah courts somehow have come to accept the view that apostasy is a sin to b punished in this world (as well as hereafter), n that god would appreciate their assistance in playing god by rejecting most/all applications for 'exit order' -- even if it means rewritting 2.256 to read "Let there be no compulsion in religion (for kafirs only; for muslims, it's okay to compel)."

therefore, to argue that only syariah courts could grant exit orders, so lina joy n her murtad comrades should go to the syariah courts n not the civil courts is a big FRAUD, downright DECEPTIVE.

it's like asking non-muslims who want to eat pork to go to a halal restaurant, or to decree that except the mosques, every other place in the country is prohibited to sell alcohol or have gambling activities - even though the mosques might not b prohibited to have this kind of activities, we all know that THEY WILL NEVER do it.

so, the laws we have now (asking murtad to get 'exit orders' from syariah courts) is just civil court's beating-around-the-bush way of saying 'NO' to murtads. (although, someone should try to go to the civil court AFTER his murtad application has been rejected by the syariah court [or facing serious delays in getting it heard, just like nyonya tahir] n use that as a CONCLUSIVE EVIDENCE to show to the civil courts that syariah courts do not grant 'exit orders', DUH!! for the civil courts to decline jurisdiction THEN would b placing them on a face to face collision/confrontation with article 11. they'll have to say 'bugger off' to article 11 when that case is staring at their face.)


3, while many muslims argue why r murtads like lina joy 'so afraid of' going to syariah courts, why don't we ask the same question but change the subjects around: WHY ARE MUSLIIMS SO AFRAID OF ALLOWING MURTADS TO GO TO THE CIVIL COURTS?

after all, we have muslim judges (over 90% of them!!) in civil courts but ZERO kafir kadi in syariah courts, n civil courts hav recognized islamic law as part of the law of the land n expert evidence could b called to assist the courts. surely, civil courts is the best venue for all concerned, muslims, non-muslims n 'doubtful' muslims alike.


but as it stands now, i wonder how many of us actually realize that our laws have effectively allowed the jpn to b THE authority to decide whether we r subject to syariah court jurisdiction!!! (by stating 'islam' on mykad.) one word of 'islam' mistakenly placed on your mykad n the makcik at nrd could turn your life (n death!!! n those of your loved ones!!!) into hell... u'll have to beg the halal restaurant to sell u pork (until the beef come n gone...)!!!

(i've argued earlier in your earlier posts that the state islamic authorities/legislation have taken away muslims' constitutional freedoms n rights thru the BACKDOOR, resulting in TWO 'constitutions' governing the muslims n dhimmis/kafirs, respectively.)

in other words, we have left such FUNDAMENTAL matters of how u LIVE AND DIE (muslim or not) in the hands of some CIVIL SERVANTS of a mundane-sounding ('registration') government department!!!

can anyone else see how RIDICULOUS this is, or is it just me?????

Anonymous said...

Again, me the first one to comment. Not really a comment just a thought about likely problem to emerge in the future.

Ok as I was discovering who is getting what in the case of someone dies intestate (actually I thot it was inter state and always wondered why?!).

His/hers property divided according to s 6 of Distribution Act.

Now let's say I am underaged and my father dies. And there were no one else for the property to be distributed like spouse brother etc..etc. Then I will be getting all the property S6(1)c. Ok now if he was a muslim convert and I am not, then I get nothing, right?.

But then if I die (a non-muslim) my muslim dad gets everything, correct?

Now let's include spouse, parents to the above examples and what we have Muslims enjoy both sides of the world.

Let's say, my father is a muslim (say, a secret convertion), mummy, brother, sister and me and one muslim brother.

When my dad dies his proerty ( say 1million worth) will be distributed according syariah law and my muslim brother would get all or something like that. Rest of ,if I can say crudely, bang balls. Now let's say my mum dies (non muslim) and her property was worth say 10 million. So now dad and brother also get a share.

I am sure the governemnt didn't mean this to happen. AG,pls correct the situation before to many other problems crop up.

Littlebird

Tommy Peters said...

Dear Malik, forgive me if my thread does not relate to your post. I’m just happy I found your blog and I’m trying very hard not to admire or even recognize your courage and of your brothers-at-law such as Das and Harris, not to mention the gallant efforts of your friends at Hakam, but I can’t - which brings me to a comment I made in response to the death threat you earned for your participation in the Lina matter last year which the police have yet to make any headway, but that’s another issue.

Sometime ago, an award was bestowed upon a teenage boy for gallantly rescuing a girl from drowning in a mining pool. A politician asked that the effort of the teenager be glossed over but the apathy of the throng by the pool witnessing two lives at risk, be highlighted instead. The politician said it was not a rash act but a normal human impulse of the boy when he moved to protect the life of a fellow human being.

Malik, reading the lowest common denominator, you are no different from the boy. Lina’s rights were challenged and you stepped in. It was a normal human impulse – nothing extraordinary – you owed Lina - I would just shake your hand and ask you to be on your way - which brings me to the throng by the pool – your brothers-at-law for starters, who appear to be at an arms length when sensitive issues arise.

A question - which I hope is not too loaded - Malik, do you actually receive open support of your bar brothers when you take on such sensitive briefs ?

Stanford Law said...

to everyone,

i SINCERELY APOLOGISE for the use of the word 'hell' in my earlier comments, which seemed to suggest that i think being subject to islamic law in this country is like living in hell.

that was NOT my intended meaning - i only realized it upon re-reading my comments AFTER they have been published.

my intention was to use the word 'hell' figuratively, to mean 'in a mess' n have to go thru a lot of trouble (to change the religious designation, ONLY FOR THOSE WHO WANT TO CHANGE).

once again, i'm DEEPLY SORRY for this slip of my mind, without exercising greater care and attention in asking myself how my comments could be misinterpreted. please forgive me for any offence caused.

the relevant part of my comments should read:

"one word of 'islam' mistakenly placed on your mykad n the makcik at nrd could turn your life (n death!!! n those of your loved ones!!!) into +++ A BIG MESS +++ ..."

thanks for allowing me to correct this, MIS.

wishuponastar said...

Dear Malik,
You wrote,
"....this reflects an aspiration on the part of some quarters to see an enlarged syariah court jurisdiction..."

I feel the syariah judges have some sort of inferiority complex.They feel civil law is of Western and Christian origin.When Muslim legal minds like Malik(yourself),Zaid Ibrahim and Prof.Shad Saleem Faruqi could understand the jurisdiction of Islamic Law in Malaysia so well how could it be the Syariah judges and some of the Civil Court judges seem to be perpetually perplexed?.


When Fed.Consti declares itself as the Supreme Law of the Federation how could state based Syariah Law create so much confusion?

It is the overtly emotional Syariah judges and their cowardly contemporaries at the Civil Bench who are the cause of the confusion.
If and when The Federal Constitution is respected as the Supreme Law of this nation only then Malaysians can dream of democracy or equallity.Until then Equality,unity and nationality are all mere seasonal jargons that would jingle generously during Merdeka Day celebrations or General Elections.

Anonymous said...

Yes constitutionally, the syariah court has no jurisdiction over non-Muslim but the truth is the issue is the ambition and goals of the Syariah system itself. The truth is Syariah system does put much weight to the jurisdication defined by the constitution. Hell, its doubtful, their proponent even respect the Constitution itself above the Syariah. The Syariah system is not just legal, its also political and probably more even.

So in the end it still boils down to whether one respect secularity and separation of power of state and religion. If you do than the legality is clear, if you don't there is nothing to talk about. Its about what want and power only..

The fact that non-Muslim in this country is subjecting themselves to the Syariah should send an alarm bell to the legal profession that the very role of law and legality is being messed up by politics.

Its about the politics of law versus power i.e., political power. Not a constitutional or legal issue..

Taufiq Khalid said...
This comment has been removed by a blog administrator.
Taufiq Khalid said...

To answer Tommy Peters, who wrote; "A question - which I hope is not too loaded - Malik, do you actually receive open support of your bar brothers when you take on such sensitive briefs ?"

Well, I do. As a brother of the bar and of the same faith. I am pretty insignificant and perhaps this blog is not a real show of 'open support', but I am proud to see our friend taking on his work. After all, it is within his rights, and indeed some might say under the cab rank rule, his duty.

Our good friend, Imtiaz may be labelled by his critics as a so called 'liberal' Muslim undermining the sacred laws. In my uneducated opinion, I believe he is a traditionalist. He is far more 'traditionalist' Muslim because he believes in promises and sincerity.

The promise i refer to is the social contract which is the Federal Constitution. And the sincerity is in reference to the sincerity of faith.

To undermine both will inevitably lead to social chaos and personal hypocracy. The sacred laws are not an end by themselves, but is there to protect the essence of the faith, ergo sincerity and certainty. An old friend of mine once described the relationship between the sacred laws (shariat), the tarikat, and the knowledge of God (the latter two i would like to refer to as 'tasawwuf' or reflection, which is not the correct technical term but i hope you get what i mean).
He referred to the sacred laws as a fence, within which there is a garden which is the self-reflection, and the flowers that bloom therein as knowledge of self, leading to knowledge of God.

I am saddened that sincerity has become a footnote in the debate, when it should be the core of the arguments. Those who chooses to disregard sincerity or devalue its significance, are either too concerned to lose in the 'numbers' game concerning converts or have simply no idea as to what they are fighting for. They are the 'modernists', not you!

So we now have so many people fighting to defend the fence, but few who care to look into the garden, and consider the reasons for their struggle... It is almost funny except that the consequences of their ignorance can be tragic and does no favour to the faith that they profess to defend.

Malik Imtiaz Sarwar said...

Thank you everyone for the input, I appreciate it all. I will be responding as time permits in future posts or in response to specific points. Thanks for dropping by Taufik. Look forward to hearing from you again.

Tommy Peters said...

Dear Taufiq, you wrote (emphasis mine), “Our good friend, Imtiaz may be labelled by his critics as a so called 'liberal' Muslim undermining the sacred laws. In my uneducated opinion, I believe he is a traditionalist. He is far more 'traditionalist' Muslim because he believes in promises and sincerity … The ‘promise’ i refer to is the social contract which is the Federal Constitution. And the sincerity is in reference to the sincerity of faith”.

Thank you for your warm insight. Where have you been all this time! Where most hold opinions of others, you hold your own.

Taufiq, I’m a little outside to comment but reading a bit, I see no provision for a ‘liberal’ muslim, just an ‘observant’ one, period. The text makes no bones about a promise to any social contract but the Qur’an which, as it is divinely sanctioned, is increasingly being worn in the public domain which is exactly why Malik’s profession has to exist in our secular environment.

This is an exhaustive topic but I believe Malik is closing this thread. Hopefully Taufiq, you will enlighten us elsewhere.

賀淑芳 said...

I am curious about these case. I wish to know more about it. Can I attend at any syariah court scene to watch the whole process? I am not Muslim. How can we get to know when there is a case such as non-muslim apply for getting out of Islam case going on in any syariah court? Is it OPen for public? Thanks you.

賀淑芳 said...

Dear Malik,

Thanks you for your writings. I am curious about these cases,I wish to know more about it, especially the cases appeal for getting out of Islam. Is it possible for me(I am not Muslim) to watch the cases going on in the syariah court? How can we get to know the time, date & venue of it? Thanks you. From:Ho Sok Fong