PETALING JAYA: Two prominent lawyers are split on solutions to the problems caused by the overlapping jurisdictions of the syariah and civil courts which have become a hot potato issue.
Muslim Lawyers Association president Zainul Rijal Abu Bakar said the way forward was a tribunal, comprising syariah and civil court judges, to resolve all disputes involving Muslims and non-Muslims.
He said this was as opposed to a constitutional amendment which was unlikely as it could only be achieved with a two-thirds majority in Parliament.
He said the tribunal would ensure the rights of Muslims and non-Muslims would be protected and a solution found through mediation. This was also less formal and uncomplicated.
He further explained that as a result of the country’s dual legal system, in which the syariah courts were exclusive to Muslims, overlapping of jurisdictions or the non-availability of justice also occurred in other areas.
“For example, if a non-Muslim wants to challenge the validity of waqf land, which he or she may have purchased, the non-Muslim would have no recourse in a syariah court because the law prevents non-Muslims from going to the syariah court.”
He said in the Federal Court judgement in the custody case of S. Deepa – who has vowed to raise her converted daugher as a Hindu – the law was clear that conversion could only be dealt with through the syariah courts.
“However, Deepa can file an application to the syariah court via a third party, such as the Jabatan Agama of her state, to determine whether the conversion was rightly done according to Hukum Syarak.”
Bukit Gelugor MP Ramkarpal Singh, on the other hand, said the proposed tribunal would not help resolve any interreligious custodial cases as, ultimately, a decision would have to be based on either syariah or civil law.
“We need a permanent and speedy solution and one way to do this would be through a constitutional amendment of article 121 (1A), which clearly separates the jurisdictions of the syariah and civil courts.”
Ramkarpal said the provision could be amended to grant civil courts limited jurisdiction in cases related to Islam in which a non-Muslim’s rights were affected.
He said the problem now was that the rights of non-Muslims were affected as they did not have a remedy in matters involving the syariah court as it was exclusively for Muslims.
“In Deepa’s case, if she wanted to challenge the conversion of her children, she would not be able to seek a remedy in the syariah court.”
Ramkarpal explained this was why the granting of leave to M. Indira Gandhi to appeal against the decision of the Court of Appeal on unilateral conversions of underage children in the Federal Court was so important.
“I am of the view that leave ought to be granted to Indira.”
In recent weeks, both the Indira and Deepa cases have been hotly debated by politicians and rights groups on whether justice had been served or not.