High Court not incompetent on Syariah matters
Fathima Idris writes admirably as a law graduate. My response is short as I believe Fathima in her enthusiasm for extending the jurisdiction of the Syariah Court to non-Muslims may not have considered the full impact of her suggestion.
The High Courts are superior courts of Malaysia. This is so in the Federal Constitution. The High Court has power to hear all matters where it has been given specific jurisdiction. The High Court, unlike the state syariah courts, also has that mystical 'inherent powers' special to all superior courts.
The High Court does not lack competence in Syariah matters as all lawyers who have accessed relevant cases on Article 121(1A) of the Federal Constitution will know. That premise - that the civil courts lack competence - being Fathima's main contention colours her arguments.
The English common law position of the father as guardian is no longer good law in England nor in other commonwealth jurisdictions like Canada and Australia. There is no reason why Malaysia should be bogged down by this common law principle.
Our Guardianship of Infants Act which embodies this common law principle (which Fathima did not mention because she might not have known of this) used to apply to Muslims but no longer so in most states because of a specific ouster clause in most state laws.
There is no specific state law at present which says that the father has the right to decide the religion of his minor children. There used to be such a law in Selangor, but that law is no longer in force due to a public outcry.
Non-Muslims cannot be sure right now if Syariah law would be in their favour if they are allowed to challenge infant conversions to Islam in the state Syariah court.
Perhaps Fathima needs to investigate the grievances of NGOs and be a little more involved on the ground.
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