Parliament must resolve the jurisdiction tussle between the civil courts and Syariah courts, which has become more serious over the last two decades, the Federal Court said.
Justice Abdul Hamid Mohamad said that after 50 years, these provisions needed to be reviewed and updated to meet the present circumstances, as the courts’ function was to apply the law, not make or amend it.
“These are not matters that the courts can solve as the courts owe their jurisdiction to statutes.
“It is for the legislature to step in, to decide as a matter of policy what should be the solution and legislate accordingly,” he said.
Justice Abdul Hamid also said until the problem was resolved by legislature, the only way out was if in a case in the civil court where an Islamic law issue arose and fell within the jurisdiction of the Syariah Court, the party raising the issue should file a case there for determination of that specific issue.
He said that decision should then be applied by the civil court in determination of the case.
However, he said this would only apply if both parties were Muslims.
Justice Abdul Hamid said the problem would arise if one of the parties was a non-Muslim. Such an application could not be made to the Syariah Court as he or she would not be able to commence or even put up his or her defence.
However, with the politicians tendency to politicize Islam it is left to be seen if they can evaluate the legislative need objectively. Any legislative amendment must safeguard the position of the civil courts as the highest courts in the country and not otherwise.
Recently, the deputy prime minister announced that Malaysia is an Islamic State and not a secular state. His interpretation was politically motivated. Secular is seen as a western jargon which is not acceptable to Muslims, he reckoned.
Except for MCA, the other component parties in BN did not strongly object his statement. His statement has caused rumblings amongst Malaysians who are keen to protect their secular lifestyle.