KUALA LUMPUR: Putrajaya’s plan to set up a syariah court that would have the same powers as the civil Federal Court is unconstitutional as religious courts were established out of state law, says law expert Professor Gurdial Singh Nijar. He said religious matters come under the state as accorded under the 9th Schedule of the Federal Constitution, which contains the lists of legislatures under state and federal powers.

“The constitution is the supreme law of the land. So this means that when it comes to Islamic laws, Islamic matters, these are governed by the state,” he told The Malaysian Insider.

Syariah 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.

Gurdial was commenting on a statement by Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom that Putrajaya is looking at setting up two more syariah courts with the same powers as the civil Federal Court, which is the highest court in the country.

Jamil, who is in charge of Islamic affairs, was reported by a Malay daily as saying that discussions on the matter with state religious councils have been ongoing for two years and they are looking at syariah courts that would have equal powers with the Federal Court.

Gurdial conceded, however, that this could be done and said the government could set up any number of syariah courts, but the fact remains that their powers would be limited to Islamic matters as provided in the constitution.

“They can get the same status but the subject matter would be limited to syariah matters only,” he said. “This means [the syariah courts] have control only over persons professing the religion of Islam, Islamic family laws and such.”

Bar Council National Young Lawyers Committee president Syahredzan Johan offered a similar view, saying Islamic laws are under the jurisdiction of the respective states and not the federal government.

“By setting up a Federal Syariah Court [would] encroach upon what should rightly be within the jurisdiction of the states,” he said.

“And this Federal Syariah Court cannot have the same powers as the Federal Court because of Article 121(1A) [which provides for the dual justice system].”

Like Gurdial, the lawyer also pointed out that syariah courts would only have jurisdiction in Islamic laws and only over Muslims.

“And most importantly, only the civil courts have jurisdiction to decide on constitutional issues,” he said.

The current syariah courts comprise the Syariah Subordinate Court, Syariah High Court and Syariah Appeals Court. — The Malaysian Insider

This article first appeared in The Edge Financial Daily, on November 14, 2014.