MANY lawyers view shariah courts as inferior courts.

Reference has rightly been made to the case of Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 to assert that.

In that case, Federal Court judge Abdul Hamid Mohamad (as he then was) said:

“[T]he civil High Courts, the Court of Appeal and the Federal Court are established by the Constitution itself. But, that is not the case with the shariah courts. A shariah court in a State is established or comes into being only when the Legislature of the State makes law to establish it, pursuant to the powers given to it by item 1 of the State List. In fact, the position of the shariah courts, in this respect, is similar to the Session Courts and the magistrates’ courts… which the Constitution calls ‘inferior courts’.”

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

The 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 magistrates’ courts, which the 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 shariah courts were established under state enactments with jurisdiction regarding custody of Muslim children.

However, in Myriam v 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 court in the Australian court hierarchy and the Federal Court of Australia hears civil disputes governed by federal laws, each state and territory in the Australian federation 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 it shouldn’t be the case with shariah courts.

The legislature needs to act. As Hamid in Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor said:

“The problem is, everyone looks to the court to solve the problem of the legislature. Judges too, (including myself), unwittingly, took upon themselves the responsibility to solve the problem of the legislature because they believe that they have to decide the case before them one way or the other.

“That, in my view, is a mistake. The function of the court is to apply the law, not make or to amend law not made by the legislature. Knowing the inadequacy of the law, it is for the legislature to remedy it, by amendment or by making new law. It is not the court’s function to try to remedy it.”

The shariah courts – at least those invested with such jurisdiction on marital status of Muslims, legitimacy and custody and guardianship of Muslim children – should not be inferior courts. – February 27, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.