Shafee: Civil courts should deal with interfaith disputes

comments     Koh Jun Lin     Published     Updated

The Syariah courts should only have jurisdiction in religious matters where both parties involved are Muslims, argued prominent lawyer Muhammad Shafee Abdullah.

In other cases where at least one party is a non-Muslim, he said it is the civil courts that should have jurisdiction.

"The Federal Court - in interpreting what is Syariah law and what is not Syariah law - in my respectful opinion has not been courageous enough to hold the view that the Syariah Court can only have jurisdiction if the matter is a pure Syariah matter, namely both parties are Muslims," he said, while stressing that this is his personal opinion.

Shafee, who is the chairperson of the Asean Intergovernmental Commission on Human Rights (AICHR), was speaking at a seminar today on the National Human Rights Action Plan (NHRAP) that is being developed.

He urged participants at the forum, who are predominately civil servants, to bring this matter up for discussion in drafting the NHRAP, in hopes of finding a satisfactory solution to the controversy.

He said if the Syariah Court were to preside over a matter where at least one party is a non-Muslim such as interfaith child custody battles, the court would face issues compelling the non-Muslim party to attend Syariah Court hearings.

"The answer can be perhaps this: This is not a pure Syariah matter, because it becomes a conflict of law (issue).

"So it should go to the normal courts, namely the High Court, the Court of Appeal, and the Federal Court," he said.

He pointed out that even in these courts, most of the judges are Muslims themselves and are therefore familiar in Syariah matters.

This had already been done before, he said, citing the child custody battle of Myriam against Mohamed Ariff in 1971, which had gone through the civil courts all the way to the apex court although both parties are Muslim.

"They (the judges) are learned in the aspects of Syariah law, and if Syariah law has an element of conflict of law, our normal courts are more than competent to resolve it.

"So cases like Lina Joy and all that can be easily resolved without a fuss," he said.

Lino Joy had mounted a legal challenge against the National Registration Department to change her religious status from "Muslim" to "Christian", but after much controversy, the Federal Court ruled against her in 2007.

Ink more human rights conventions

On a another matter, Shafee also urged the participants to consider having Malaysia to sign up to more human rights conventions, such as the International Covenant on Civil and Political Rights, the UN Convention against Torture, and the Rome Statute of the International Criminal Court.

He said he disagreed with former attorney-general Abdul Gani Patail's position that ratifying the Rome Statute in Malaysia would compromise Malaysia's sovereignty, saying that the International Criminal Court (ICC) only deals with large-scale crimes such as genocide.

In any case, he said it would still be good to ratify the Rome Statute because should a future Malaysian leader commits genocide, it would be difficult to prosecute him locally.

A possible hurdle however, he told the participants, is the financial cost of ratifying the Rome Statute – US$2 million (RM8.6 million) per year, for membership in a sluggish ICC.

Following the shoot-down of Malaysian Airlines MH17 flight in Ukraine last year, there had been renewed calls for Malaysia to ratify the Rome Statute, as it could have been used to prosecute to perpetrators if Malaysia had been a signatory at the time.

The Malaysian government had asserted that existing laws are sufficient to bring the perpetrators to justice.

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