Does Malaysia need a constitutional court to resolve constitutional questions? Or does the Constitution already provide the answers? Legal experts present their case to SANTHA OORJITHAM.
THE week-long tussle over the burial of the late M. Moorthy raised more than the controversy of whether the former army commando was to be buried according to Muslim or Hindu rites.
Once again, it raised the question of whether the civil courts have jurisdiction and the power of judicial review over a Syariah court decision, especially if one or more of the parties is a non-Muslim. The Syariah court had ruled that Moorthy was a Muslim. High Court justice Datuk Raus Sharif then said that Article 121(1A) of the Federal Constitution did not give the High Court jurisdiction over matters under the Syariah court’s jurisdiction.
Since Moorthy’s widow, S. Kaliammal, had no right to be heard in the Syariah court, the rejection of her appeal to the High Court for the Kuala Lumpur Hospital to hand over his body to her left the widow with no legal remedy. The issue raised the question of whether Malaysia has parallel legal systems with no final arbiter. The Cabinet has said it will examine the options to avoid such controversies over questions of faith in the future and Prime Minister Datuk Seri Abdullah Ahmad Badawi said he was looking into the matter.
Legal experts have suggested removing or amending Article 121, setting up a constitutional court to adjudicate such constitutional questions and provide judicial review, or even merging the civil and Syariah legal systems.MP for Kota Baru and senior lawyer Datuk Zaid Ibrahim has been suggesting a constitutional court as far back as 2004, when he told the National Press Club: "Malaysians of all races and religious beliefs must be able to find comfort in a court of law that comprises jurists acceptable to them to resolve disputes and conflicts, whether on custody or the right to profess their faith or practise their customs based on the law of the land."More recently, de facto Law Minister Datuk Seri Radzi Sheikh Ahmad said there should be a special court to hear cases involving "sensitive issues" which civil and Syariah courts have been unable to handle, and not just constitutional problems.
But several legal experts claim that the Constitution already makes the civil courts the final arbiter."The concept of the rule of law requires that the civil courts would be the authority to adjudicate upon any dispute," says former Bar Council president Raja Aziz Addruse."What is needed is that the judges must appreciate what the rule of law entails and what their responsibility is, and not take the easy way out by saying they have no jurisdiction."But when the Constitution was amended in 1988 to insert Article 121(1A), the senior lawyer adds, "The amendment created a doubt as to whether the Syariah court, by virtue of its exclusive jurisdiction over Syariah law, was still subject to judicial review by the High Court."
A landmark case in 1999 was that of Soon Singh Bikar Singh, who applied to the High Court for a declaration that he was no longer a Muslim. The judge ruled that, considering Article 121(1A) among other things, the Syariah court had exclusive jurisdiction to determine whether or not a person had ceased to be a Muslim, and dismissed his application for want of jurisdiction. That decision was upheld by the Federal Court.From then on, notes Raja Aziz, "The courts have taken the stand that they would not interfere with the decisions of the Syariah court."
Universiti Teknologi Mara law professor Dr Shad Saleem Faruqi points out that Articles 4 and 128 of the Constitution give the Federal Court, the Court of Appeal and the High Court "the power to test and invalidate or nullify Federal or State legislation or executive action, on the litmus test of constitutionality".He cites 14 such cases involving legislation and hundreds of cases where the civil courts have invalidated executive action since 1957.The avenue of appeals within the native courts and Syariah courts has not worked well, the professor adds, saying that the civil courts should intervene whenever there is an error of law.
The Constitution gives the civil courts all the judicial powers necessary to give a remedy for every legal wrong suffered by a citizen, says K. Shanmuga, the legal adviser to the Malaysian Consultative Council on Buddhism, Christianity, Hinduism and Sikhism. "But case law has interpreted the Constitution restrictively so that those powers are forgotten," he says.Syariah Practising Lawyers Association president Muha- mad Burok argues: "We have here a parallel system of justice which has co-existed harmoniously for some time. We seldom had cases of overlapping jurisdiction although at one time, we had cases where the civil courts over-ruled the Syariah courts."The amended Article 121 clearly demarcates the powers and jurisdiction of each system, he says. "There is no need for a constitutional court because what is stated in the Constitution and written law is clear."Instead, he supports Shad’s suggestion that Malaysia revert to a unified system of courts."The superior civil courts should exercise jurisdiction over all matters but should have a Syariah division with scope for determining issues by Syariah experts," Shad proposes."Wherever there are issues of conversion involving one Muslim and one non-Muslim, there should be clear rules for the empanelling of judges so both sides are adequately represented."
The consultative council’s Shanmuga, however, says the civil and Syariah systems should never be merged. "Syariah courts apply Islamic law — a legal code that draws its inspiration from the theology and religious jurisprudence of Islam," he says."A law based entirely on an interpretation of the sacred texts of a religion cannot possibly be utilised to decide a dispute raised by a person who does not profess that religion," says Shanmuga. "The laws that govern us in our society should be laws made after the exercise of free will by our legislators, applying an independent mind and engaging with each other through the democratic process."
Meanwhile, Kaliammal’s counsel M. Manoharan has said the family has decided to appeal against the High Court decision "at all costs"."If there is no appeal, the matter cannot be decided," reckons Raja Aziz. "Get the Court of Appeal to decide, once and for all, whether or not they have jurisdiction."If, upon appeal, both the Court of Appeal and the Federal Court say the civil courts have no jurisdiction, says the lawyer, "then we have to amend the Constitution, not set up a constitutional court but to give civil courts back their original jurisdiction
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