LAWYERS have slammed the Perak mufti’s proposal that the shariah court be included in the state constitution and its provisions extended so that it is on a par with civil courts.

Harussani Zakaria today said the state government should make an amendment to include the court’s establishment in the state constitution, and proposed that the court’s provisions be extended to allow non-Muslims to attend hearings and for it to not be limited to only Muslims.

The mufti’s comments followed those of Muslim Lawyers Association president Zainul Rijal Abu Bakar, who yesterday said the Federal Court’s landmark decision in the unilateral conversion case involving M. Indira Gandhi “will be used as an excuse” for the government to reintroduce Clause 88A of the Law Reform (Marriage and Divorce) Act 1976.

He called for Muslims to reject any such proposal.

In a separate statement, he said the ruling should apply only to Muslims, with some “consideration” given to non-Muslims who were called to the shariah court.

The Federal Court had, on Monday, ruled that the conversion of Indira Gandhi’s three children to Islam by her ex-husband was null and void, ending a nine-year legal battle.

Legal experts say the proposals by Harussani and Zainal Rijal are not constitutionally viable.

“Both Harussani and Zainal Rijal need to be educated on constitutional law,” said Malaysian Bar constitutional law committee co-chairman Surendra Ananth.

“I would be happy to provide both of them with free constitutional law lessons,” said Surendra, who is currently pursuing a master’s in international human rights law at Oxford University.

Surendra said while the state could provide for the jurisdiction of the shariah court, it could do so only within the narrow confines of Item 1 of the state list, and could not increase the court’s jurisdiction beyond Item 1.

“Unlike civil courts, the shariah court has no inherent power. It can only do what Item 1 of the state list allows it to do. It cannot do more.

“As such, the shariah court is a mere inferior tribunal that can be abolished at any time if the state wants it,” said the constitutional and human rights lawyer.

Civil courts, on the other hand, are constitutional bodies.

“They have the inherent jurisdiction to review all public bodies, including Parliament and the executive (branch). They are the guardians of the constitution,” said Surendra.

The inherent powers of the courts could not be removed or limited by any organ, including Parliament, said Surendra, adding that the independence of the courts “is required in any functioning democracy”.

“Therefore, any attempt to place the shariah court on a par with civil courts would be outright unconstitutional.

“Even an amendment to Item 1 of the state list, to allow the state to do so, would be unconstitutional, as it would violate the basic structure of the constitution.”

Lim Wei Jiet, deputy co-chairman of the Malaysian Bar’s constitutional law committee, said while it may be technically possible to amend the state constitution, all shariah rulings were ultimately bound by Article 121(1A) of the federal constitution.

On whether it is constitutionally possible to amend the Perak constitution to allow the shariah court to be a part of it, he said: “At first glance, it seems possible. The power to enact the shariah court and its jurisdiction lies in the state legislature, as seen in the state list under Article 74 of the federal constitution.”

The human rights and constitutional lawyer said the state legislature could either pass a state enactment or amend the state constitution to incorporate any provision regarding the shariah court.

“But the more important point is this – with respect, the Perak mufti’s suggestion of incorporating the shariah court in the state constitution does not elevate the power of the shariah court in any way than it already is, in other words, in the state enactment.

“It doesn’t matter whether the power or jurisdiction of the shariah court can be found in the state constitution or state enactment.”

Lim said Monday’s landmark ruling, “no matter how and where it is constituted”, meant that the shariah court:

i) may not exercise the inherent powers of civil courts;

ii) is confined to the subject matter and persons in the state list; and,

iii) must be provided for under the relevant state legislation.

“And, these three principles are distilled from Article 121(1A) of the federal constitution. Any state constitution cannot override the federal constitution, which is the supreme law of the land.” – February 1, 2018.