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• Court’s decision ‘a welcome relief’
• Nazri: Question of syariah-civil court jurisdiction in Pak Lah’s hands

In the recent past, the nation has been confronted with a series of issues that straddle the civil/syariah jurisdictional divide.

This problem affected both Muslims and non-Muslims, and was faced by ordinary citizens in situations that often involved family matters, including those relating to children. While the Courts grappled with the jurisdictional issues, ordinary people faced traumatic situations, with children often being the worst victims.

In the light of these recent trends, the landmark Federal Court decision in Latifah Bte Mat Zin handed down yesterday is welcome relief. This decision clarifies the law for both Muslims and non-Muslims, and clarifies what matters may be properly dealt with by the respective Courts. It has meticulously examined the Federal Constitution, its history and previously decided cases, before coming to the conclusions stated. The Bar Council would commend the Federal Court in handing down this timely judgment that gives emphasis to the importance of acting in conformity with the Federal Constitution. (Please click here to download the Federal Court's Judgment)

The Judgment has dealt with the effect of the relevant constitutional provisions and the position of the Civil Courts and Syariah Courts under the Constitution, and has also satisfactorily resolved the question as to whether implied power can be a source of jurisdiction in this context.

This decision also brings about some certainty (and with that less anxiety and anguish to Muslims and non-Muslims) as to where parties may go to pursue their legal remedies.

There is however one possible area of concern. The Federal Court judgment envisages a situation where there may be matters that are outside the jurisdiction of both the Civil and the Syariah Courts. In other words there could be situations where there is no available remedy in either court. This is an issue of access to justice.

It is resolved in certain situations which are covered in previous decisions of the Court, for example in Tan Sung Mooi [1994] a decision of the then Supreme Court which held that the Civil Courts would have jurisdiction where one of the parties was a non-Muslim. However it may not be resolved in other situations. This therefore has to be comprehensively addressed either by the Courts or by Parliament as suggested in the Judgment.

Ambiga Sreenevasan
President
Malaysian Bar

26 July 2007

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