PUTRAJAYA: The proposal to use Syariah law to replace English common law in court proceedings should be studied thoroughly first, said Datuk Dr Abdullah Zin. The Minister in the Prime Minister’s Department said the move, if approved, should be done in stages. Lauding the proposal by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim, he said Syariah law gave importance to justice. 

It would also be a further development for Syariah law in the country in addition to introducing a uniform syariah law in all states, Dr Abdullah sai d yesterday. “We are already in the process of getting a uniform syariah law in all 14 states including the Federal Territory relating to family, administration and criminal law. “If there are more proposals for the development of Syariah law, they are most welcome but it should be done in stages,” he told reporters after opening the seminar on counselling for Muslim terminally ill patients here. 

Ahmad Fairuz had said that there was no need to use English common law after 50 years of independence, suggesting another procedure as a substitute. He said Sections 3 and 5 of the Civil Law Act permitted judges wide discretion to import English common law, equity and statutes into the legal system to fill gaps in Malaysian laws. 

Attorney-General Tan Sri Abdul Gani Patail also responded positively to Ahmad Fairuz’s proposal. 

On the seminar, Dr Abdullah said the Islamic way of treating terminally ill patients was not to tell them how many “months they had left to live”. “The Islamic way is to give them hope and the will to continue to survive and let them depend on their own physical strength to keep them alive,” he said.  

Basically what the Judge is saying is that the court should only apply the law and not create their own version based on interpretations. In essence, it is passing the buck to the parliment. The ball is in their court now. The legistators must clarify the ambiguities and not say that things are already clear, as they are apt to say.

Justice Abdul Hamid said there would be situations where the civil court would be asked to apply Article 121(1A) of the Federal Constitution to exclude the jurisdiction of the civil court.
“The civil court should not be influenced by such an argument. Clause 1(A) of Article 121 was not introduced for the purpose of ousting the jurisdiction of the civil courts. The question to ask is: Are such laws constitutional in the first place?” he said.

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

The Star version: Parliament must resolve tussle

source

By RAPHAEL WONG

PUTRAJAYA: Parliament must resolve the jurisdiction tussle between the civil courts and Syariah courts, which has become more serious over the last two decades, the Federal Court said.

Justice Abdul Hamid Mohamad said that after 50 years, these provisions needed to be reviewed and updated to meet the present circumstances, as the courts’ function was to apply the law, not make or amend it.

“These are not matters that the courts can solve as the courts owe their jurisdiction to statutes.

“It is for the legislature to step in, to decide as a matter of policy what should be the solution and legislate accordingly,” he said.

Justice Abdul Hamid made these remarks in his judgment in an inheritance dispute involving Muslims. His judgment was endorsed by the other two Federal Court judges Justices Arifin Zakaria and Augustine Paul.

Justice Abdul Hamid said the problem arose when the public looked to the court to solve the problem of the legislature and judges unwittingly take upon themselves the responsibility to solve it believing that they were compelled to do so.

“That, in my view, is a mistake. Knowing the inadequacy of the law, it is for the legislature to remedy it, by amendment or by making new laws. It is not the court’s function to try to remedy it,” he said.

He said that it was for legislature to tackle the problem of cases in which some of the issues fall within the jurisdiction of both the civil court and the Syariah Court.

“Neither court can assume jurisdiction over matters that it does not have just because it has jurisdiction over some of the matters arising,” he said.

Justice Abdul Hamid also said until the problem was resolved by legislature, the only way out was if in a case in the civil court where an Islamic law issue arose and fell within the jurisdiction of the Syariah Court, the party raising the issue should file a case there for determination of that specific issue.

He said that decision should then be applied by the civil court in determination of the case.

However, he said this would only apply if both parties were Muslims.

Justice Abdul Hamid said the problem would arise if one of the parties was a non-Muslim. Such an application could not be made to the Syariah Court as he or she would not be able to commence or even put up his or her defence.

“Actually, if laws are made by Parliament and the legislatures of the States are in strict compliance with the Federal (Constitution) List and the State (Constitution) List without any misunderstanding, there should not be any situation where both courts have jurisdiction over the same matter or issue,” he said.

Justice Abdul Hamid said there would be situations where the civil court would be asked to apply Article 121(1A) of the Federal Constitution to exclude the jurisdiction of the civil court.

“The civil court should not be influenced by such an argument. Clause 1(A) of Article 121 was not introduced for the purpose of ousting the jurisdiction of the civil courts. The question to ask is: Are such laws constitutional in the first place?” he said.

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

In yesterday’s case the Federal Court unanimously dismissed the appeal of Latifah Mat Zin against a Court of Appeal decision which ruled that the issues of gifts (hibah) and inheritances of Muslims are under the jurisdiction of the Syariah Court.

NST Version: ‘Take it to the civil court’
By : V. Anbalagan
source

PUTRAJAYA: The Federal Court has held that disputes between a Muslim and non-Muslim on family and religious matters should be settled in a civil court.

Judge Datuk Abdul Hamid Mohamad said the civil court was the right forum because non-Muslims could not commence action or appear in syariah courts.

“They can’t be present to defend themselves in the syariah courts.”

He said it was also not the function of the civil courts to review laws passed by parliament and state assemblies.

“The function of the court is to apply the law, not make or amend laws that were not made by the legislature,” he said.

Similarly, it was for the legislature to decide which issues fell under the jurisdiction of the civil court and syariah court.

The judge made these remarks in a 54-page judgment in deciding whether the money in two joint accounts of Datuk Sharibun Wahab and Latifah Mat Zin was subject to the Islamic law hibah (gifts).

Latifah, the third wife of the late Sharibun had claimed that the money was entirely hers as it was a gift.

Rosmawati and Roslinawati, daughters of the second wife of the deceased, claimed that the money belonged to the estate of Sharibun.

The High Court had ruled that the Islamic law of hibah did not apply.

On appeal, the Court of Appeal nullified the decision of the lower court and held that the matter should be heard before the syariah court since both parties were Muslims.

Hamid, who sat with judges Datuk Arifin Zakaria and Datuk S. Augustine Paul dismissed the appeal by Latifah.

Their decision was unanimous.

Hamid said both parties should go to the syariah court.

The judge said he was confronted again by the issue of conflict of jurisdiction between civil and syariah courts, a problem that arose and had become more serious over the last two decades.

“Both courts have to grapple with this problem. While a judgment settles the case before the court, it creates other problems in subsequent cases.”

Hamid said he was attempting to take a fresh look at the jurisdiction issue from a broad perspective since the federal constitution was now 50 years old.

The judge also reviewed 46 other judgments from 1970 to last year.

Hamid said there must be laws to vest jurisdiction in the High Court and the syariah court.

“Without enacted laws, there is no jurisdiction by both courts. This is because Article 121 (1A) only applies where there is law enacted to give jurisdiction to the courts.”

Hamid said that the legislative lists — what laws parliament and the state assemblies could pass — in the constitution only set out the areas in which laws could be made.

He said the Federal Court, the Court of Appeal and the High Court were creations of the constitution but that was not the case for syariah courts.

“In fact, the position of the syariah court is similar to the Sessions court and magistrate’s court. The constitution refers to them as inferior courts.”

Hamid said that it was for the state legislature to determine the jurisdiction of the syariah court on matters that had been mentioned in the state list.

“The syariah courts will have no jurisdiction if the the state legislature did not pass an enactment to give them the power,” he said.

Counsel Malik Imtiaz Sarwar, who appeared for Latifah, told reporters later that the judgment was remarkable as the judge clarified many of the ambiguities that caused many controversial cases in the last 10 years.

“It is also a strong statement on the supremacy of the constitution.”
Latifah claimed that the RM3mil held in joint accounts with her late husband Datuk Sharibun Wahab in two banks were intended to be given as hibah (gifts) to her.

Two daughters from a previous marriage, Rosmawati and Roslinawati Sharibun, claimed that they were beneficiaries to their father’s estate in accordance with Syariah law.