BY V. ANBALAGAN, ASSISTANT NEWS EDITOR
Published: 29 June 2014
Civil courts, including the Federal Court, were established under the Constitution and have precedence over shariah courts, says a former Federal Court judge. – The Malaysian Insider file pic, June 29, 2014.
Civil courts take precedence over shariah courts by virtue of their creation under the Federal Constitution unlike the shariah court, which was established out of state law, a retired senior judge said, refuting the inspector-general of police’s contention that both courts were of equal status in his refusal to execute recovery orders from civil court in two interfaith child custody cases.
Former Federal Court judge Datuk Seri Gopal Sri Ram (pic, right) said shariah courts were subordinate to civil courts because they were enacted under state laws.
He said in the Malaysian legal system, the Constitution was the supreme law and laws passed by Parliament and state assemblies were subordinate to it.
He said the High Court of Malaya and the High Court of Sabah and Sarawak, the Court of Appeal and the Federal Court were established under the Constitution and not by an act of Parliament or a state enactment passed by a state assembly.
"Shariah courts cannot be ranked the same as the civil court as the religious courts are established by state laws.”
Sri Ram said Parliament and state assemblies had no power to make laws which were in conflict with the Constitution.
Tan Sri Khalid Abu Bakar had said police would not enforce shariah and civil court orders arising from two interfaith custody battles in Ipoh and Seremban.
In both cases, the non-Muslim single mothers had obtained custody orders from the High Courts.
They had also obtained recovery orders to compel police to locate their former husbands who had converted to Islam and return their children.
However, Khalid refused to execute the recovery orders, contending that both courts were of equal status and that Article 121 (1A) stated the shariah court status was similar to the civil court.
Sri Ram said the cause of all the confusion was the refusal to recognise that Article 121 (1A) merely delineated jurisdiction matter.
"It means, where the shariah court has jurisdiction, the civil court will not exercise its function to administer justice," he said.
However, he said it was for the civil court to decide who should exercise jurisdiction.
Sri Ram said if a shariah court dealt with a matter not assigned to it by federal law or state enactments, then it was for the High Courts to intervene.
Shariah courts in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya are governed by a law passed by Parliament while religious courts in other states are governed by state enactments.
"So, if a written law states that a shariah court has no jurisdiction over non-Muslims but it acts otherwise, then the High Court is entitled to exercise its supervisory power to intervene."
Sri Ram said any attempt to displace Article 121 would amount to interference in the basic fabric of the Constitution.
"Article 4 on the supremacy of the Constitution is the home of the doctrine of the basis structure of the supreme law.”
The clause states that the Constitution is the supreme law of the Federation and any inconsistent law passed after Merdeka Day will be declared illegal.
S senior lawyer said only the Constitution vested judicial power in the civil court and not the shariah court.
"The IGP is confused about this issue," said the lawyer, who spoke on condition of anonymity.
The lawyer said the problem in the present interfaith conversion cases was the refusal of the police to act on the recovery orders issued by the High Court.
"There is no issue about two conflicting custody orders given by the shariah courts and High Court," he said.
The lawyer said there were also no rival orders to challenge the recovery orders.
"It is clear that the police have to enforce the recovery order issued by a competent civil court.”
The High Court had granted clerk S. Deepa custody of Sharmila and Mithran, who had been converted to Islam by her ex-husband last year without her knowledge.
The judge allowed Deepa's application as only the civil court had jurisdiction over the matter and provide the relief for custody and dissolution of the couple's civil marriage.
However, the ex-husband Izwan Abdullah abducted Mithran, saying it was for the child's "protection".
Deepa then obtained a recovery order from the High Court on May 21 to get police to search for Izwan and Mithran.
In M. Indira Gandhi’s case, her ex-husband, Muslim convert Mohd Rizduan Abdullah, has also yet to hand over their youngest daughter to her despite a 2010 High Court order awarding custody of their three children to the mother.
Ridzuan has held on to Prasana Diksa since April 2009.
The Shariah High Court in Ipoh had in 2009 given Ridzuan custody of the three children after he unilaterally converted them to Islam.
However, in July last year, the Ipoh High Court quashed the conversion of the children and ruled that the certificates of conversion were unconstitutional.
The court also found Ridzuan guilty of contempt of court for failing to return Prasana to Indira.
Indira had also obtained a recovery order and warrant of arrest against Ridzuan. – June 29, 2014.