Mahkamah Syariah & Civil Court

Wednesday, April 4, 2007

Exordium

One couple went to seek justice as to who should have the custody of their child, the husband is a Muslim and the wife is a non muslim. The question is which court they should go?

a) Civil court

b)Syariah court

the answer seems to be = none of the above.

Article 121(1A) of Federal Constitution prohibits High Courts from interfering the matters which fall under the jurisdiction of Syariah Court. Whereas Syariah Court can only try those who are Muslim.

The husband would argue that the case of custody of a Muslim child is Syariah Court matter,whereas the wife cannot initiate an action in Syariah Court as she is not a Muslim, as Syariah court only tries Muslim parties.

Solution??

In my humble opinion, the only way this problem can be solved is to give Syariah Court the same status as the 2 High Courts. It means that Syariah court should be merged with the civil court and it shall become part of the civil court. With that, should an alien who is Muslim from Mars comes to Malaysia with his Non Muslim spouse,and they want to dissolve their marriage, no jurisdictional problem would arise.

How to do this? Our Art 121 reads "they shall be 2 High Courts of co-ordinate jurisdiction, namely High Court of Malaya and High Court of Sabah & Sarawak. The problem is simply solve by changing it to "there shall be 3 High Courts of co-ordinate jurisdiction, namely High Court of Malaya, High Court of Sabah & Sarawak and Syariah High Court..."

Problem?

Religion of Islam is a state matter, which means each and every state in the Federation of Malaysia governs Islamic law in the way they like.To merge the Syariah Court jurisdiction with the Civil court would require consent of Sultans as they are the Head of Islam in their respective States. Would they consent to give up their power to the Federal Government...?

0 comments :

Hakcipta terpelihara - Noor. Powered by Blogger.