Friday, May 23, 2008

A Further Note On Jurisdiction And Syariah Courts

The Federal Court handed down a decision yesterday on the question of the jurisdiction of the syariah courts in the case of Abdul Kahar Ahmad v Government of Selangor & Others. The Federal Court confirmed that it is the Federal Court that has jurisdiction over matters pertaining to the interpretation of the Federal Constitution and the competence of the legislatives bodies to make law, even where such law pertains to Islam. In so concluding, it reiterated its decision in Latifah Mat Zin that the jurisdiction of the syariah courts is as delineated by the Federal Constitution and as vested by enacted law.

I have written about the case before on this blog. Kahar has commenced proceedings in the Federal Court to challenge the validity of certain provisions of Selangor law going to the binding nature of gazetted fatwas (without having passed through the State Legislative Assembly) and the criminalization of certain acts for being offences against the 'precepts of Islam' (this is a constitutional requirement; Kahar amongst other things contends that it is not an offence against the precepts of Islam to act contrary to fatwa as a fatwa is mere opinion).

The Majlis Agama Islam Selangor (MAIS) had applied for leave to intervene as an interested party. The Federal Court allowed the application (Tun Fairuz was then the Chief Justice and chaired the panel that granted leave; we opposed the application as the underlying proceedings concerned only the question of legislative competence). MAIS then applied for a stay of proceedings in the Federal Court on the ground that only the syariah court was competent to decide whether the offences concerned were against the precepts of Islam. This was notwithstanding the fact that the the Federal Constitution itself employs the phrase in delimiting the competence of the State Legislative Assembly to make laws pertaining to Islam.

We opposed the application on the basis that the Federal Constitution clearly empowers the Federal Court to determine proceedings of this nature. We further argued that there was no question of any of the parties, save Kahar himself, being within the jurisdiction of the syariah court as MAIS, the Government of Selangor and the Federal Government were not 'persons professing the religion of Islam'. The Federal Court however did not think it necessary to rule on the latter point.

The Star reports the decision today ('Federal Court to hear application by 'prophet'). It is reproduced below.

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PUTRAJAYA: The Federal Court is the right court to hear a 57-year-old self-proclaimed prophet’s application to challenge certain provisions in Selangor’s Syariah Criminal Offences Enactment.

The apex court decided this yesterday when it dismissed an application by the Selangor Islamic Religious Council (Mais) for an order that the issue be decided by the Syariah High Court.

As such, the suit by Abdul Kahar Ahmad to challenge the legality of the five sections of the enactment he is charged under will continue at the Federal Court.

Chief Justice Datuk Abdul Hamid Mohamad, in his judgment, said there was nothing in the Constitution to say (the Constitution’s) interpretation was within the jurisdiction of the Syariah court.

The Syariah court’s jurisdiction, he added, was confined to the matters enumerated in the state list of the Constitution and as enacted by the respective states.

Court of Appeal President Justice Zaki Tun Azmi and Justice Zulkefli Ahmad Makinudin, who sat on the three-man bench with the Chief Justice, concurred with his decision.

Abdul Kahar was charged in the Shah Alam Syariah High Court in August 2005 with five offences under the Selangor Syariah Criminal Offences Enactment.

He pleaded not guilty to all the charges.

Among other things, he is accused of declaring himself a prophet and for ridiculing the practices of Islam.

The next hearing date is fixed for May 28.

Abdul Kahar is seeking to declare certain sections of the Selangor Syariah Criminal Offences Enactment and the Islamic Religious Administration (Selangor) Enactment null and void.

The Star, 23th May 2008

2 comments:

desiderata said...

Sdr Malik:

I am copying your Post for a new website under development -- www.cpiasia.org -- under the Centre for Policy Initiatives. Tks in advance:)

Your last line of date -- May 24, 2008--should it read as May 23, no? -- YL, Desi

Malik Imtiaz Sarwar said...

Thanks, Desiderata. Corrected and please go ahead.