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Court’s decision
‘a welcome relief’
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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