Repealing Article 121 (1A) of the Federal Constitution, which provides a clear dichotomy between the jurisdiction of syariah and civil courts, is not the panacea for inter-religious disputes.

"I believe that this provision should not be disturbed," said former Syariah court judge Sheikh Azmi Ahmad.

Cases within the syariah purview should not be allowed to be tried in civil courts and vice versa. There would be a lot of confusion if there is no clear dichotomy here, he added.

However, he said the real question here is who could determine whether a case is best heard in a syariah or civil court.

To address this, the former judge said the Constitution should be amended to make way for the establishment of a Constitutional Supreme Court which could decide on the matter.

"This court will decide whether a case should be heard at the civil or syariah courts. Such courts are called Tamyiz in Arabic and exist in countries in the Middle East and Europe and have proven to work," he added

His proposal is similar to that of lawyer and Umno politician Zaid Ibrahim, who earlier suggested the establishment of a final arbiter - a court that is not perceived as a Muslim or kafir court.

The debate on the problems caused by Article 121 (1A) was rekindled by the controversial circumstances surrounding the death of former army commando M Moorthy.

Despite his widow S Kaliammal claiming he was a practicing Hindu, he was buried according to Muslim rites after the High Court stated that it had no jurisdiction to review a Syariah Court's ruling on the case.

Pro-active stand

Meanwhile, Sheikh Azmi claimed that the proposal to establish the apex court was not new as civil and syariah law experts had discussed and proposed the idea in the past.

"However, the establishment of such a court can only be realised if the country's legislators take a pro-active stand because this involves amending the Constitution. The ball is in their court," he added.

The former Penang mufti also claimed to have tried the case that led to the amendment of the Constitution and the insertion of Article 121 (1A).

"It was the case of one 'Cikgu Abdul Rahim' who had challenged the syariah court's power to prosecute him on the basis that he was no longer a Muslim as he was practising the teachings of Qadiani which had been declared as deviant by the Fatwa Council.

"The case was heard before me and I ruled that the syariah has jurisdiction over him as the fatwa (religious edict) alone did not necessarily render him an apostate. He then took the matter to the civil High Court which granted him a decree that he was no longer a Muslim and therefore not bound under the syariah court," he recalled.

It was following this ruling that the Constitution was amended to insert Article 121(1)(A) which states that the civil court has no jurisdiction on syariah matters, he added.

Also voicing support for the setting-up of a constitutional court was Syarie lawyer Yusmadi Yusof.

He said the government must seriously consider establishing the court as inter-religious disputes could be addressed in a systematic manner.

The apex court must comprise of not only the best civil and syariah judges but also renowned law academics to ensure the credibility of the decisions made, he added.

"We have seen in the past where civil law judges like the late Harun Hashim, Prof Ahmad Ibrahim and Syed Agil al-Barakbah who delivered excellent judgments when invited to sit at the Syariah Court of Appeal. So I believe we can make this work," he noted.

Seeking redress

While awaiting for the legislators to take steps in establishing the proposed constitutional court, Sheik Azmi said non-Muslims should not shy away from seeking redress at the syariah court.

"As far as representation is concerned, a non-Muslim can always get a syarie lawyer to represent him. Anyone - Muslim or not - who has deep knowledge and qualifications in syariah law can apply to be a syarie lawyer.

"In the event that he is not able to find a suitable syarie lawyer, he can represent himself," he added.

He believed that the implementation of syariah laws can be in line with justice if the opposing parties of different faiths are committed.

"When I was Penang mufti in 1996, there was a Chinese Muslim who came to me and asked whether his mother who had recited the kalimah syahadah (Islamic declaration of faith) just two hours before her death is a Muslim. I replied that so long as the kalimah was properly witnessed his mother was a Muslim in the eyes of the religion."

He said a dispute arose when the man's elder siblings insisted that their mother be buried in a Chinese cemetery.

"However after a discussion, we managed to appease both parties. The body was cleansed according to Islamic rites. She was then taken to the Chinese cemetery and buried according to Islamic rites witnessed by her non-Muslim relatives.

"This is according to my wisdom . I believe she was accorded the proper burial and at the same time her family was not denied performing the rituals they believe their mother deserved," he said.

Another syarie lawyer Fahda Nur Ahmad Kamar said present Syariah laws must be amended to insert a clear provision stating that non-Muslims are allowed to submit to syariah laws.

"This is because allowing non-Muslims to seek justice within Islamic law is not against the religion," she said.

She added that although there are no rules barring non-Muslims from seeking redress at syariah courts, a clear provision would boost confidence.

"I remember a few years ago I witnessed a Syariah High Court hearing arguments from a Chinese man who complained that he was denied access to his illegitimate children with a Muslim partner. After hearing the man's argument, the court ruled that the father be given visitation rights," she said.

However, she recognised the anxiety that would exist on the part of non-Muslims in syariah proceedings as to its impartiality.

"(But) what makes them think they will get better treatment in a civil court where the credibility of some judges have been questioned. Was not the term kangaroo court coined for the civil courts?" she noted.