Lawyers have expressed concern about the gradual invasion of Shariah law into areas beyond Muslim family matters, a jurisdiction that Islamic courts were not meant to overstep.
Even as the recent case of a custody dispute between a Hindu woman and her estranged husband who had converted to Islam rages on, lawyers pointed out a spate of cases in which Shariah courts have acted beyond the scope of their powers.
Syahredzan Johan, a civil liberties lawyer, said there have been cases where the Shariah court has even attempted to pronounce judgement over corporations.
“This cannot be correct because the jurisdiction of the Shariah court is only exclusive to persons professing the religion of Islam. How can a company be considered Islam?” Syahredzan told The Malay Mail Online.
He cited two cases — a land dispute involving a company called Karambunai Corp Bhd and a property dispute involving Potensi Bernas Sdn Bhd, both of which began in 2007 in Sabah.
According to court documents, the Kota Kinabalu High Court ruled in the Karambunai case that the Shariah court had acted in excess of its jurisdiction by granting orders on the disputed land in Tuaran.
“In the instant case, the Shariah Courts which granted the impugned orders had even contravened the Shariah Court Enactment 2004 (‘the Enactment’). Section 26 of the Enactment clearly stated that they were not empowered to grant orders that affect the property of a non-Muslim,” said the court ruling.
In the Potensi Bernas case, the High Court in Sabah and Sarawak, Labuan, ruled that the Shariah court had gone beyond its jurisdiction by issuing an injunction against a company.
“The plaintiff company consisted of both Muslim and non-Muslim shareholders. The defendant’s contention that the Syariah High Court had jurisdiction over the plaintiff based solely on the fact that Datu Amir Kahar, a shareholder in the company, was a Muslim, was untenable.
Clearly the property was not a personal property of Datu Amir Kahar. It was not even registered in his name. It belonged to the company, which, being a creature of statute did not profess any religion. Only natural persons can profess a religion,” said the ruling.
The Shariah court has also extended its reach to even Christians.
The Penang Shariah Court convicted a Christian Indonesian called Halimah of “khalwat” (close proximity) in 2012.
The Shariah High Court, surprisingly, upheld the lower court’s decision and the case is now pending before the Shariah Court of Appeal.
Syahredzan stressed that the Shariah and civil courts have separate jurisdictions, whereby the former hears personal and family matters for Muslims and offences against Islamic precepts, like “khalwat”, while the latter adjudicates everything else.
Syahredzan noted that the Shariah court was considered “inferior” by some as it was a statutory body created by state enactments, while the civil High Court, Court of Appeal and Federal Court are constitutional bodies created by the Federal Constitution. The civil Magistrate and Sessions Courts were created by federal law.
“It's entirely possible for a state not to have a Shariah court. For you to abolish the Shariah court in a state, all you need to do is pass a state law. So in that sense, in terms of standing, it's not the same level as the civil courts,” he said.
Syarie lawyer Nizam Bashir said that while Shariah and civil courts operate in separate spheres and are “supreme” within their particular jurisdiction.
He noted, however, that the Shariah court appears to have expanded its jurisdiction beyond the limitations set by the Federal Constitution, notably in mixed-faith custody disputes and the conversion of children to Islam without the consent of both parents.
“Essentially, Shariah courts hear matters which have been expressly defined to be within its jurisdiction. The extent of the Shariah court's jurisdiction can be found in whichever Administration of the Religion of Islam Enactment/Act,” Nizam told The Malay Mail Online, citing examples like inheritance, marriage and divorce matters for Muslims.
COMING SOON TO AMERICA, IF CAIR GETS IT'S WAY.
READ MORE
http://ift.tt/1phOzmy
No comments:
Post a Comment