LETTER | It’s about time a statement is made from the bench of the highest court of the land that the syariah courts are not “inferior” to civil courts.

The syariah courts are state courts, but should they be, or are they, “inferior courts”?

The syariah courts’ subject matter jurisdiction includes, among others, divorce and matrimonial causes, guardianship of infants, and the person and property of infants.

These are subject matters over which the civil High Court - a superior court - exercises jurisdiction and not the subordinate courts - the session courts and the magistrate’s courts, which the Federal Constitution calls “inferior courts”.

As a matter of fact, subject matter jurisdiction of the civil High Court once included the custody of children - Muslims and non-Muslims. Then, the syariah courts were established under state enactments with jurisdiction regarding the custody of Muslim children.

However, in Myriam vs Mohamed Arif [1971] 1 MLJ 265, the High Court held that it still had jurisdiction regarding custody of Muslim children. Hence the amendments to the Constitution vide the Constitution (Amendment) Act 1988 which, among others, introduced a new clause 1A to Article 121.

Now, a quick look at Australia - a federation like Malaysia - informs us that while the High Court of Australia is the highest in the Australian court hierarchy and the Federal Court of Australia hears civil disputes governed by federal laws, each state and territory in the Federation of Australia has a court hierarchy of its own.

The court hierarchy in each state and territory varies, but all states and territories have a Supreme Court, which is the highest court within that state or territory.

There are also appellate courts within the hierarchy - the Court of Appeal (in civil matters), or the Court of Criminal Appeal (in criminal matters).

These are state courts but not inferior courts.

And so shouldn’t the syariah courts.

The syariah courts, properly invested with such jurisdiction on the marital status of Muslims, legitimacy and custody, and guardianship of Muslim children, should not be and are not inferior courts.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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