The Syariah in Malaysia is now openly announced as superior to the civil courts.
|Syariah Court can decide on religious status|
|Saturday, 21 August 2010 10:33am|
|©The New Straits Times|
By V. Anbalagan
PUTRAJAYA: The Court of Appeal ruled that the Syariah Court is the competent authority to decide the religious status of Muslims and those whose conversion is disputed. It also held that a non-Muslim challenging a conversion could appear in the Syariah Court to set side any order.
Court of Appeal judge Datuk Zainun Ali who delivered the unanimous decision in dismissing the appeal by S. Kaliammal, the widow of M. Moorthy, said a High Court in 2005 was right in declining to hear the widow's application on grounds that it lacked jurisdiction.
Zainun said when a question arises whether one was a Muslim or not, "it is our view that the legislature has, by Article 121 (1A) of the Federal Constitution, placed the determination of this question in the sole jurisdiction of the Syariah High Court".
Zainun, who sat with Datuk Wahab Patail and Datuk Clement Allan Skinner, in her 14-page judgment said if there was a conflict between two judicial systems (civil and syariah) and they were irreconcilable, it was the intention of the constitution that the legislature should provide the remedy.
In December 2005, the widow sought legal redress in the High Court as the Federal Territory of Kuala Lumpur Islamic Affairs Council wanted to give Moorthy, a member of the first Malaysian team to scale Mount Everest in 1997, a Muslim burial.
Moorthy is said to have converted to Islam prior to his death on Dec 20, 2005, without informing his family.
The High Court declined to hear the case after the council produced an ex-parte syariah court order that Moorthy died as a Muslim.
Zainun said it was not for the civil court to go behind that (ex-parte) order of a court of competent jurisdiction to question the merit of the matter decided upon. She said it was argued that the council's appearance before the Syariah Court was a nullity because it had no locus standi.
"It is not for the civil court to determine who may or may not appear before the Syariah High Court in matters within its jurisdiction," she said, adding the assumption that a non-Muslim was barred from suing the Syariah Court arose from the provision the religious court had no jurisdiction over non-Muslims.
She said the question of jurisdiction, however, related to the power of the court to exercise compulsive authority over "a person or on a subject matter". She said the fact that a person who sought relief in a syariah court may not be a person who was subject to the compulsive authority of the religious court would not "in our view preclude such person from going to the Syariah Court through the council to obtain relief".
Zainun said Kaliammal was not prevented from applying to the Syariah High Court to try to set aside the ex-parte order and giving the religious court an occasion to address the relevant issues and deliver a fair decision.