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Amend constitution to resolve jurisdiction conflict

The issue of conflict of jurisdiction between the civil courts and the syariah courts has been standing unresolved for many years. The recent case of S Deepa whose child was allegedly abducted by her Muslim convert ex-husband is not the only controversy that revolves around this issue, but yet another case that adds on to the long list of the likes of M Indira Gandhi, S Shamala and R Subashini.

The root cause of this issue is the existence of a grey area between Article 121(1) and Article 121(1A) of the federal constitution which was caused by the constitution amendment in 1988. The constitutional amendment in 1988 has led to the removal of the words “the judicial power of the Federation shall be vested in two High Courts” and the insertion of the new Article 121(1A).

Article 121(1) of the Federal Constitution now reads as follows:

          

“There shall be two High Courts of co-ordinate jurisdiction and status, namely -

(a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

(b) one in the States of Sabah and Sarawak, which shall be known as  the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;

(c) (Repealed),

and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.”

And the new Article 121(1A) inserted into the federal constitution provides as follows:

“The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts.”

In cases involving personal law such as divorce where the parties are all Muslims, there is no issue as these are clearly matters that fall within the jurisdiction of the syariah courts and it is not right for the civil courts to interfere.

However, the problem arises in cases where a spouse converts to the faith of Islam thereby causing a spouse to be a Muslim and the other remains a non-Muslim. In cases like this which involve personal law, as far as our federal constitution is concerned, the issue of jurisdiction is unclear as to whether the civil courts or the syariah courts should have jurisdiction.

Avoid any further controversy

It is the view of the MCA Youth legal bureau that this conflict of jurisdiction ought to be resolved by our Parliamentarians through an amendment to the federal constitution. And this ought to be carried out by Parliamentarians from both sides of the political divide as soon as possible to avoid any further controversy like that had happened to the likes of S Deepa, M Indira Gandhi, S Shamala and R Subashini.

Further, the MCA Youth legal bureau is of the opinion that the amended federal constitution must, in effect, empower the civil courts to resolve such disputes as the marriages concerned are registered under the civil law and thus the issue of custody ought to be decided by the civil courts using the civil law.

The fact that one spouse has converted to the faith of Islam shall not be the ground for such disputes to be resolved by the syariah courts. In addition to that, the syariah courts shall not have jurisdiction as it does not, and cannot, have the power to decide on the interests of non-Muslims.

In view of the above, the MCA Youth legal bureau therefore urges the government and our Parliamentarians to forthwith propose and make amendments to the federal constitution to put an end this long outstanding issue.


CHOO WEI SERN (ERIC) is MCA Youth legal bureau chairperson.

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