Putrajaya will take over Hadi's bill, PM says

UMNO AGM Prime Minister Najib Abdul Razak said the government will "take over" PAS president Abdul Hadi Awang's bill to amend the Syariah Courts (Criminal Jurisdiction) Act 1965.

"I urge all not to politicise the matter. It is a Private Member's Bill, which will be taken over by the federal government," Najib, who is also Umno president, said in his policy speech at the Umno general assembly today.

He did not elaborate how it will be "taken over" by the government.

Najib said that Nov 24, the day Hadi tabled his motion seeking leave to table his bill, was a "historic" day.

Despite the two parties traditionally being rivals, PAS has, in recent years, been accused of colluding with Umno, particularly on matters concerning Islamic law.

Meanwhile, minister in charge of Parliament affairs Azalina Said Othman confirmed that the government will be "taking over" the bill during the second reading.

"Marang (Hadi) has to first finish the motion and it would be debated and voted and that means the first reading is completed and the government will pick up.

"There will be a statement and the government will pick it up as a second bill and (minister in charge of Islamic affairs) Jamil Khir (Baharom) will read it as a government bill," she told reporters at the sidelines of the Umno annual general assembly today.

The process will take place in March, she said.

Won't affect non-Muslims

Hadi's bill seeks to raise the sentencing limit of the syariah court from a maximum RM3,000 fine, six strokes of the whip and five year jail limit to maximum 30 years' jail, RM100,000 fine and 100 strokes of the whip.

On Nov 22, Deputy Prime Minister Ahmad Zahid Hamidi briefed Muslim MPs on Hadi's bill.

During the meeting, it was decided that a proposal would be submitted to Najib to urge him to form a parliamentary select committee, consisting of Muslim and non-Muslim MPs, to review the bill after it is tabled in Parliament.

BN component parties MCA, MIC and Gerakan said they would oppose the bill in its current form, arguing that it is unconstitutional.

Gerakan said the bill would create a parallel system alongside civil law, but Najib said this would not happen.

"To the non-Muslims, don't worry because you will not be subject to it and the government is reviewing if there will be dualism in penalties," Najib said.

While Hadi's motion to seek leave to table the bill was read on Nov 24, the Marang MP will only elaborate on his motion to the Dewan Rakyat during its next sitting in March next year.

‘UnIslamic to sneak Shariah punishments into legal system’

KUALA LUMPUR: Trying to “sneak Shariah punishments” into the legal system without open debate and a comprehensive understanding on the implications is “unIslamic”, says an Islamic scholar.

“You don’t see it, you don’t feel it. Yet one day, you’ll just wake up and find yourself in a much more Islamic state than you ever imagined,” Professor Abdullahi A An-Na’im said at a press interview organised by G25 at a hotel here today.

“If you want to do it, do it openly with a clear understanding where people can debate, accept or reject freely,” he added.

Abdullahi said this in response to PAS’ Private Member’s Bill which seeks to empower the Shariah Court to impose any form of hudud punishment under Islamic law, except the death penalty.

He said this was strange when hudud does indeed prescribe the death penalty and wondered if the exclusion of the death penalty was based on PAS’ definition of hudud.

“So you are redefining hudud from the way it exists for your own political expediency,” the Sudanese-born scholar from Emory University in Atlanta, Georgia, said.

In some parts of the Middle East which implement hudud laws, the death sentence is handed down to those convicted of adultery and apostasy, among others.

PAS is currently pushing for hudud to be implemented in Kelantan. Its president Abdul Hadi Awang has tabled a bill seeking to amend the powers of the Shariah court which would pave the way for the controversial law to be implemented in the East Coast state.

Non-Muslims cast wary eye on Syariah Index

The Index, mooted by Prime Minister Najib Abdul Razak, is seen as further evidence of the trend towards creeping Islamisation in the country.

FMT

KUALA LUMPUR: The Syariah Index, mooted by Prime Minister Najib Abdul Razak to expand the role of Syariah law in Malaysia, is seen by non-Muslims as further evidence of the increasing trend toward Islamisation in the country. Non-Malays including Muslims form slightly less than half the population while the Malays form 50.4 per cent of the population, according to the latest statistics.

The Government is under pressure not only from PAS, the Islamist Opposition, but also from within Umno which leads the ruling Barisan Nasional (BN) coalition, according to Rian Maelzer in a CCTV report. “Kelantan wants to implement hudud law for criminal offences except rape.”

“Hudud, which prescribes punishments such as amputations and stoning, has won the support of Umno in Kelantan.”

The new Syariah Index will measure Government compliance with Islamic principles in areas such as law, the economy, politics and social issues and highlight areas for improvement.

Many Muslims, according to CCTV, want to see changes in Malaysia’s secular system which accommodates Syariah as family law applying only to Muslims. “Secular laws govern civil and criminal matters.”

There has been talk of a Syariah Apex Court system equal to the civil courts.

“We welcome the Syariah Index because our expectation is to expand Syariah to all fields we have in Malaysia, not only in the financing system, in the family matters, but to cover all aspects of daily life,” Jufitri Joha from Muslim Youth Movement told CCTV.

Political scientist Wong Chin Huat, among those quoted, lamented that the issue was between a “Malaysia for all and one for some”.

Legal experts interviewed pointed out that the secular Federal Constitution would have to be amended to significantly expand the role of the Syariah. “It can only happen if Umno and PAS work together.”

Zaid: No court higher than the civil court

According to former de facto law minister Zaid Ibrahim, a judge at a civil court should not say that a remedy cannot be found here at a High Court.

Zaid, who was present at the Kuala Lumpur High Court to hear the verdict in the Kassim Ahmad matter, said he had been brought up to recognise that there is only one court system in Malaysia - namely, the civil court.

Describing the whole country's law situation as being in disarray, Zaid noted that he was not surprised with today's decision.

"The Syariah Court is considered the subordinate court, which is inferior. A judge at a civil court should never say that the remedy is not here (at the High Court), as there is no such thing," he added.

"If you want to dismiss (an application) based on the facts, it is all right. If you want to dismiss it based on the law, make sure it is the right law.

"But in this country, there is no court higher than the civil court. There is no remedy that one could get anywhere else except the civil court," Zaid stressed.

Throughout the verdict, Justice Asmabi Mohamad did not rule on the possible constitutional violations raised by Kassim's (right) lawyer, following the Federal Territory Islamic Department’s act of arresting him outside their jurisdiction at his home in Kulim, Kedah.

In dismissing the 82-year-old’s judicial review, Justice Asmabi ruled that Kassim should seek remedy at the Syariah Court.

However, Zaid pointed out that constitutional issues should be decided by the civil courts and not the Syariah Court.

This is because civil courts are empowered to interpret on constitutional issues.

Shariah index to be tabled in February – Bernama

The government will table in February 2015 the shariah index which evaluates the country's achievements in implementing the demands of shariah, said Datuk Seri Najib Razak.

The prime minister said a taskforce made up of religious experts from the International Islamic University of Malaysia (IIUM) and Islamic Development Department (Jakim) were responsible for preparing the shariah index.

In his winding-up speech at the Umno general assembly today, the Umno president said the index will evaluate to what extent Malaysia, under the leadership of the party, had protected the religion, mind, descendants, life and property based on the five requirements of Maqasid Shariah.

"When we have tabled the shariah index for Malaysia, we can also do the same for other Muslim countries.

"Hopefully we can show that the country, under Umno's leadership, has truly upheld and spread the Islamic principles," he said. – Bernama, November 29, 2014.

Converting spouses adding to conflict between civil and Shariah courts, says AG

KUALA LUMPUR, Nov 19 — The bitter dispute over the religious status and custody rights to children in a marriage that turns sour after one of the spouses embraces Islam is creating new conflicts between the civil and Shariah courts, Tan Sri Abdul Gani Patail has said.

The Attorney-General (AG) noted that such cases then become controversies as it involves the jurisdiction of two distinct court systems and could risk Malaysia's multicultural harmony as they have led to claims of “racial discrimination”, adding that law reforms meant to solve such problems have yet to be approved.

"Inter-racial marriages have given rise to a new conflict between civil law and Shariah law in relation to the unilateral conversion as well as custody issues of minor children where only one spouse converts to Islam.

“The increasing number of cases has also raised allegations of racial discrimination by the courts and authorities. The anguish to the families cannot be overstated and that is a fact.

“In this regard, the failure of the converting spouses to resolve the family arrangements prior to conversion and in fact, attempting to use the different jurisdictions of the civil and Shariah courts to their advantage, jeopardises not only family harmony but potentially national harmony,” the top government lawyer said according to his written speech from the ILKAP National Law Conference 2014 last week.

Abdul Gani said the problem of enforcing conflicting orders from the civil courts and Shariah courts in such disputes then calls into question the Attorney-General’s Chambers (AGC) and the police’s integrity, adding that this would hamper their ability to effectively carry out their duties.

Abdul Gani did not name any examples of such court cases, but there are two high-profile cases that have hit national headlines — the cases of non-Muslim mothers Indira Gandhi and Deepa Subramaniam, where both women’s Muslim convert ex-husbands ran off with their children.

In both cases, the Muslim convert ex-husbands cited the Shariah court orders granting child custody to them when refusing to comply with the civil court’s child custody orders in favour of their former spouse.

Despite recovery orders from the Ipoh High Court and Seremban High Court directing the police to act to find and return the abducted children to the non-Muslim mothers, the police have declined to take action and are now seeking the courts’ clarification instead.

Both cases did not involve spouses from different races, but the line between race and religion can sometimes be blurred in Malaysia as a Malay is constitutionally defined as one who professes the religion of Islam, among other things.

Abdul Gani said proposed amendments to three laws were mooted in 2009 to ensure that matters such as child custody and child maintenance would be decided by the court where the marriage was registered.

“These amendments, however, remain pending,” he said, without elaborating further.

He listed down the three laws of Law Reform (Marriage and Divorce) Act 1976, the Islamic Family Law (Federal Territories) Act 1984 and the Administration of Islamic Law (Federal Territories) Act 1993.

Lawyers have argued that child custody matters for a marriage that was initially between two non-Muslims should be decided by the civil courts even if a spouse later converts to Islam.

This is because a marriage that started out as a civil union should end or have any related issues ruled upon in the civil courts, instead of the Shariah courts for marriages between two Muslims, the lawyers said.

* NOTE: An earlier version of this article had inaccurately reported the Attorney-General as saying interracial marriages put national harmony at risk. The erroneous report was unintentional and has since been removed. Malay Mail Online apologises for the misreporting.

- See more at: http://www.themalaymailonline.com/malaysia/article/converting-spouses-adding-to-conflict-between-civil-and-shariah-courts-says#sthash.xxo0C0HJ.dpuf

'Muslim MPs must back Federal Syariah Court'

 

Ikatan Muslimin Malaysia (Isma) ulama council has urged Muslim leaders – especially the lawmakers – to support the formation of the Federal Syariah Court.

The council chairperson Prof Aznan Hasan said today it is compulsory for all Muslim MPs to support the motion if it is tabled at the Dewan Rakyat.

Aznan said Muslim leaders should support the issue in the interest of Islam and Muslims, and not based on their political interest.

“For the non-Muslims, the Isma council urges them to respect that Islam is the religion of the Federation as stated in the Federal Constitution. Islam has a special position and this has to be respected by all.

“Hence, efforts to question the religion's standing in Malaysia is an attempt to disrupt the peace which we have today,” Aznan said in a statement today.

He was commenting on a proposal by the Minister in the Prime Minister's Department Jamil Khir Baharom on having a five-tiered syariah court system compared to the present three, which includes the formation of a Federal Syariah Court.

Support for 'equal jurisdiction'

Jamil was quoted to have said the government is waiting for a decision from the various state Islamic councils on establishing these courts to strengthen the syariah judiciary.

Presently, courts within the syariah system include the Lower Syariah Court, Syariah High Court, and the Syariah Court of Appeal which operate in the various states.

Each state has jurisdiction over Islam, which falls within the state’s powers.

Jamil says the Federal Syariah Court will have the same jurisdiction as the civil Federal Court.

DAP and MIC, among other political parties, are said to oppose such formation.

Aznan said Isma supports its formation and efforts to strengthen the syariah judiciary in an attempt to improve the Syariah Court in the country.

He also reiterated the NGO's support of any effort for the syariah system to have equal jurisdiction as the civil courts.

"For me, the effort is one way to uplift Islam from the legal aspect, and also to avoid any conflict in decisions made by the syariah courts which are challenged in the civil courts," he said.

A case for Syariah court

The Star
by M. MAGESWARI

KUALA LUMPUR: Only the Syariah court has the exclusive jurisdiction to deal with the case against academician Kassim Ahmad for insulting Islam, the High Court heard yesterday.

Federal counsel from the Attorney-General’s Chambers submitted yesterday that Kassim’s application for an order to quash a decision by the Federal Territory Islamic Religious Department (Jawi) to prosecute him for allegedly insulting Islam should be deemed as academic.

Senior Federal Counsel Suzana Atan submitted that the civil court has no jurisdiction to deal with matters related to Islam.

“We submit that it is a matter where only the Syariah court has the exclusive jurisdiction to deal with,” she argued before High Court judge Justice Asmabi Mohamad.

Suzana submitted that it was clearly stated in the Ninth Schedule of the Federal Constitution.

Federal Counsel Maisarah Juhari submitted that Kassim’s application for a judicial review concerning the issuance of his warrant of arrest and search warrant, as well as the decision of Jawi to prosecute him for allegedly insulting Islam should be deemed as academic.

“It is academic as the applicant has been charged in the Syariah High Court,” she said.

Maisarah said if Kassim was dissatisfied with all procedures leading to his prosecution in the Syariah court, he could make use of the Syariah High Court’s revisionary and supervisory power to review and make relevant direction over the matter as justice required.

She said the contention that Kassim was not informed of his charges is a total lie and that it could be noted from the police report lodged on March 26.

Kassim filed the application on June 26, to get a court order to quash the decision of Federal Territory Syarie chief prosecutor Ibrahim Deris to charge him at the Putrajaya Syariah High Court in March.

Kassim is seeking an order for the High Court to assess compensation for the trauma, fear, losses, difficulty and damage to his reputation and good name due to Jawi’s alleged wrongful arrest and prosecution.

He had named Minister in the Prime Minister’s department (Islamic affairs) Datuk Seri Jamil Khir Baharom, Ibrahim, Jawi and the Government as respondents.

Among others, Kassim is applying to the court to set aside the action of the Jawi’s enforcement officers in raiding and seizing his publication materials as well as for arresting him in Kedah.

However, Kassim’s lead counsel Rosli Dahlan argued that Jawi’s actions in prosecuting his client for allegedly insulting Islam were illegal.

Among others, Rosli argued that Jawi had created its own document with a tampered date and claimed that there was a first information report in the case against Kassim.

Rosli argued there was inconsistency on the period of Kassim’s detention and it could be noted in the time stated in the police report and the respondents’ affidavit with regard to his arrest.

He said that Jawi acted in bad faith by depriving Kassim of his liberty without due care, caution and responsibility when it, despite knowing that he is an 82-year-old, subjected him to detention for more than 27 hours. Justice Asmabi set Dec 19 to deliver her decision on the judicial review application.

Malaysian state mulls guillotine as punishment for thieves

The Times Of India

KUALA LUMPUR: A minister in Malaysia's Kelantan state has suggested that a 'mini' guillotine could be used to amputate those convicted of stealing in the Muslim state, which is ruled by a fundamentalist party.

The guillotine, similar to that used to behead French King Louis XVI and his queen Marie Antoinette in 1793, is being considered by leaders of the state who are keen to implement Islamic Hudud law which seeks severe punishment for thieves and rapists, which include amputation.

The fundamentalist Pan-Malaysian Islamic Party (PAS) led state's hudud law technical committee, said to be facing problems finding suitable methods to amputate limbs of those convicted of stealing, is considering this 'mini' form of the guillotine as an option.

The party chairman Amar Abdullah said he would suggest to the panel to use such a contraption which would not need a surgeon to operate.

Kelantan deputy Chief minister Mohd Amar said despite the negative reactions to getting surgeons to amputate the limbs of offenders, the committee was still mulling the idea, Star said today.

"The surgeon must first agree to carry out the procedure but he is likely to face the wrath of the Malaysian Medical Association for violating the Hippocratic Oath," he said.

The guillotine was fast, effective and required only one person to operate, two others to hold down the offender and a doctor to ensure the punished person does not drastically suffer from the punishment, he said adding that the judge who meted out the sentence must also be present.

"I will make extensive studies on the method used during the French Revolution in the 18th century when guillotines were used to sever the heads of those sentenced to death," he was quoted as saying by The Star.

Kelantan intends to table two private member's Bills in Parliament for Hudud laws to be implemented and enforced in the state from next year.

Currently, under Article 76A of the Federal Constitution, crimes such as stealing, robbing, causing hurt, rape and murder come under the Penal Code.

Former Prime Minister Mahathir Mohamad has sais PAS wanted to implement hudud in Kelantan to win votes.

"PAS is doing this just to gain political mileage, it is not about Islam," online portal Malaysia Insider said.

"There is no justice if hudud is implemented because the hands of a Muslim thief are cut while a non-Muslim spends two months in prison. Is that justice? If it is not justice, then it is not Islamic," Mahathir said.

'Stop talk on forming Syariah Federal Court'

 

After DAP berated BN parties for remaining silent on the cabinet discussion to set up a Syariah Federal Court. MIC Youth has broken its silence saying it will alter the secular nature of the federal constitution.

MIC Youth chief Sivarraajh Chandran urged the government to stop any discussion on the matter as it is improper to impose "God’s law" over secular law, because “human beings cannot act in the name of God”.

“It is manifestly clear in the federal constitution that Islamic law is limited to state enactments and that they have no federal jurisdiction,” Sivarraajh (right) said in a statement today.

To push through with the legal amendments, Sivarraajh said, at the very least a referendum should be held to see whether people really want a Syariah Federal Court.

Sivarraajh was responding to a Berita Harian report that quoted Minister in the Prime Minister’s Department Jamil Khir Baharom as saying that a proposal for five-tier Syariah court system is being discussed, including by the Council of Rulers.

This includes a Syariah Appeal Council or a Syariah Federal Court, which would have similar powers with the civil Federal Court.

Yesterday DAP supremo Lim Kit Siang slammed MCA and Gerakan ministers for not objecting to plans that were purportedly discussed during the cabinet meeting last Friday.

Instead of objecting during the cabinet meeting, Lim said, the BN parties would relegate the job to their lower rung leaders to raise at Parliament.

'Syariah has limits'

Sivarraajh pointed out that under the constitution, states have the power to legislate about 20 areas related to Islamic law and personal law, but subject to limitations.

“Although Article 3(1) (of the Federal Constitution) provides that ‘Islam is the religion of the federation’, Article 3(4) says ‘Nothing in this Article derogates from any other provision of this constitution’...

“This means that Article 3(1) does not override any other provision of the constitution, including the many fundamental rights in Article 5 to 13,” Sivarraajh said.

Articles 5 to 13 refer to the constitution’s provisions for, among others, the right to life and liberty, equality before the law, freedom of movement, freedom of speech, and freedom of religion.

Syariah not a Federal matter

Islamic laws and Islamic matters fall under the jurisdiction of the states.

FMT

KUALA LUMPUR: Gerakan has expressed surprise on a statement by Minister in the Prime Minister’s Department, Jamil Khir Baharom, that the religious authorities in the country, all state bodies, are currently engaged in a discussion to equate the Syariah Court System with the Civil Court System.

“It’s unconstitutional. It is clear that under the Ninth Schedule, List II – State List of the Federal Constitution, Islamic laws and Islamic matters fall under the jurisdiction of the states,” said Baljit Singh who heads Gerakan’s Central Law and Human Rights Bureau.

“The existing linear relationship of Malaysia’s court system and judiciary cannot be altered.”

Baljit pointed out that Syariah Courts are set up under state laws, while civil courts including the High Courts, Court of Appeal and Federal Court are established under the Federal Constitution.

“We can establish a Constitutional Court that exists in countries like Germany and Thailand to deal with matters of high constitutional importance including the conflict of law arising from the overlapping of Syariah and civil law,” said Baljit.

At present, the Federal Court sits as the Constitutional Court.

Under the Federal Constitution, Native and Syariah Courts are inferior courts. Inferior laws, including those passed by the state assemblies, can be ruled invalid to the extent of their inconsistency with the superior law, the Federal Constitution.

Shariah court that has same powers as civil Federal Court unconstitutional, says expert

Putrajaya's plan to set up a Shariah court that would have the same powers as the civil Federal Court is unconstitutional as religious courts were established out of state law, said law expert Professor Gurdial Singh Nijar.

He said that religious matters come under the state as accorded under the 9th Schedule of the Federal Constitution, which contains the lists of legislature under state and federal powers.

"The constitution is the supreme law of the land. So this means that when it comes to Islamic laws, Islamic matters, these are governed by the state," he told The Malaysian Insider.

Shariah courts in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya are governed by a law passed by Parliament while religious courts in other states are governed by state enactments.

Gurdial was commenting on a statement by Minister in the Prime Minister's Department Datuk Seri Jamil Khir Baharom that Putrajaya was looking at setting up two more Shariah courts to enable them to have the same powers as the civil Federal Court, which is the highest court in the country.

Jamil, who is in charge of Islamic affairs, was reported saying in Malay daily Berita Harian that discussions on the matter with state religious councils have been ongoing for two years and they were looking at Shariah courts that would have equal powers with that of the Federal Court.

Gurdial admitted, however, that this could be done and said the government could set up any number of Shariah courts, but the fact remained that its powers would only be limited to Islamic matters as provided in the constitution.

"They can get the same status but the subject matter will be limited to Shariah matters only," he said.

"This means that it will have control only over persons professing the religion of Islam, Islamic family laws and such."

Bar Council's National Young Lawyers Committee president Syahredzan Johan (pic, right) offered a similar view, saying that Islamic laws are under the jurisdiction of the respective states and not the federal government.

"By setting up a Federal Shariah Court, this will encroach upon what should rightly be within the jurisdiction of the states," he said.

" And this Federal Shariah Court cannot have the same powers as the Federal Court because of Article 121(1A) (which provides for the dual justice system)."

Like Gurdial, the lawyer also pointed out that Shariah courts would only have jurisdiction in Islamic laws and only on Muslims.

"And most importantly, only the civil courts have jurisdiction to decide on constitutional issues," he added.

The current Shariah Courts comprise the Shariah Subordinate Court, Shariah High Court and Shariah Appeals Court.

Former Federal Court judge Datuk Seri Gopal Sri Ram had previously said that in the Malaysian legal system, the constitution was the supreme law and laws passed by Parliament and state assemblies were subordinate to it.

"Shariah courts cannot be ranked the same as the civil court as the religious courts are established by state laws," he had said.

Sri Ram said Parliament and state assemblies had no power to make laws which were in conflict with the constitution. – November 13, 2014.

- See more at: http://www.themalaysianinsider.com/malaysia/article/shariah-court-that-has-same-powers-as-civil-federal-court-unconstitutional#sthash.xI0f4YR2.dpuf

'Create constitutional court above civil, syariah'

 

Law expert Abdul Aziz Bari has proposed the formation of a constitutional court that will be above the civil and syariah courts to resolve any lingering disputes.

The Universiti Selangor (Unisel) academician suggested this in response to a call by Minister in the Prime Minister's Department Jamil Khir Baharom for the formation of a Syariah Federal Court.

Aziz, a former law professor at the Universiti Islam Antarabangsa (UIA), said Jamil (right) may not be aware of the repercussions of his suggestion in asserting that both the civil federal and syariah federal courts will have equal powers.

The minister’s statement, he said, would have far-reaching implications not only on the courts but also on the country's constitutional system.

Aziz said the minister's proposal for both courts having equal powers had to be taken as a proposal from Prime Minister Najib Abdul Razak.

"Najib may now affirm or deny it. Curiously, the Islamic Development Department (Jakim) has declined to comment over the matter," he said.

Later, the Malay Mail Online reported that Jakim director-general Othman Mustafa confirmed that the proposal for a five-tiered syariah court system has been on the table since 2011.

In that proposal, the highest religious court would be the Syariah Appeal Council or the Syariah Federal Court.

Needing a constitutional amendment

Aziz said the Federal Court is now effectively the constitutional court, as it rules on issues pertaining to the constitution.

He said a new constitutional court would be above all other courts, whether civil or syariah.

"The new constitutional court could be based on the German model that has been followed in some Asean countries, including Indonesia, Thailand and several Indo-China states.

"The move towards forming a constitutional court will not be easy, as it requires amendments to the federal constitution and Umno-BN simply don't have the majority," he said.

Any amendment to the federal constitution requires a two-third vote from Parliament. BN lost the majority in 2008 and again in last year's general election.

Berita Harian today reported Jamil as saying he was waiting on the decision by the various state Islamic councils for a five-tiered court system, like the civil courts, to strengthen the syariah judiciary.

At present, there are the Lower Syariah Court, Syariah High Court and the Syariah Court of Appeal in the various states.

Jamil said the two additional courts proposed are the Middle Syariah Court and the Syariah Appeal Council or the Syariah Federal Court, which would have similar powers with the Civil Federal Court.

The minister said the proposal was still under discussion and approval by the Rulers Council, which is getting an explanation over this proposal from the respective state Islamic councils.

Islamic law is subject to the Federal Constitution, Court of Appeal says in transgender case

Malay Mail 

KUALA LUMPUR, Nov 11 ― State Islamic laws cannot violate Malaysians’ fundamental freedoms that are protected in the Federal Constitution as legislations contradicting the constitution are deemed void, the Court of Appeal said in its written judgment on a landmark transgender case.

A three-judge panel of Malaysia’s second highest court ruled that Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992, which prohibits Muslim men from cross-dressing, was unconstitutional and void as the state law contravened a slew of fundamental liberties, which are personal liberty, equality, freedom of movement and freedom of expression.

“Reading Art. 74(3) and Art. 4(1) together, it is clear (and this legal position is not disputed) that all State laws, including Islamic laws passed by State 11 legislatures, must be consistent with Part II of the Federal Constitution (which guarantees the fundamental liberties of all Malaysians),” the Court of Appeal wrote in its brief judgment.

Article 74(3) of the Federal Constitution states that the power to make laws is subject to conditions or restrictions imposed by the constitution.

Article 4(1) of the Federal Constitution says the constitution is the supreme law of the federation and that laws inconsistent with it shall be void.

The appellate court ruled last Friday in favour of three Muslim transgender men ― Muhamad Juzaili Mohd Khamis, Shukur Jani and Wan Fairol Wan Ismail ― who were convicted of cross-dressing under the Negri Sembilan shariah law that punishes Muslim men who wear women’s attire with a fine not exceeding RM1,000, or jail of not more than six months, or both.

The court panel ― comprising Justices Datuk Mohd Hishamudin Yunus, Datuk Aziah Ali and Datuk Lim Yee Lan ― had said the law was discriminatory as it failed to recognise men diagnosed with gender identity disorder (GID).

In its written judgment, the Court of Appeal noted that the evidence by two psychiatrists and one clinical psychologist on the three transgender men who suffer from GID, or who identify themselves as women, was not rebutted.

According to psychiatrist Dr Ang Jin Kiat, cross-dressing is intrinsic to the nature of the three men suffering from GID and their condition is incurable.

The court also cited evidence from consultant psychiatrist Dr Deva Dass, who said a man suffering from GID feels he should have been the other gender, a “female spirit trapped in a male body”.

The appellate court pointed out that Section 66 of the Negri Sembilan Shariah Criminal Enactment did not provide an exception for those who suffer from GID.

“As a consequence, section 66 places the GID sufferers in an untenable and horrible situation,” said the court.

“They could not dress in public in the way that is natural to them. They will commit the crime of offending section 66 the very moment they leave their homes to attend to the basic needs of life, to earn a living, or to socialise; and be liable to arrest, detention and prosecution. This is degrading, oppressive and inhuman,” the court added.

The Court of Appeal further noted that the Negri Sembilan Mufti’s opinion that a Muslim man dressing as a woman violated Islamic precepts failed to address GID sufferers.

“What is the position in Islam as to the appropriate dress code for male Muslims who are sufferers of GID, like the appellants?” the court questioned.

Religious court on collision course with civil court over Kassim Ahmad’s case

A shariah court is insisting on proceeding with activist Dr Kassim Ahmad's case despite an ongoing judicial review, his lawyer said today.

Counsel Rosli Dahlan said the court wanted the trial to begin on October 20, where Kassim had been alleged to have insulted Islam and defied the religious authorities.

Rosli said he was informed by a religious court official in Putrajaya yesterday and that the case would go on as fixed because the Federal Territories shariah chief prosecutor Ibrahim Deris and the Federal Territories Islamic Religious Department (Jawi) were not agreeable to an adjournment.

"The irony is that Ibrahim and Jawi are parties to the judicial review filed by my client. I am dumbfounded why the religious court wants the matter to go on, based on the insistence of interested parties," he told The Malaysian Insider.

On July 24, the Court of Appeal ruled that the High Court has the jurisdiction to hear Kassim's judicial review application to challenge the shariah prosecutor’s decision to charge him with insulting Islam.

The High Court has fixed November 17 to hear the judicial review application.

Rosli said following the Court of Appeal's ruling, religious authorities and the government had asked for some time to file their court papers before the High Court could hear the merit of the case.

"We have no problem with that but we are not deliberately delaying the proceedings because we need to obtain the decision of the civil court first.”

Rosli said he may file an application to stop the Monday's proceedings in the religious court.

A three-man Court of Appeal bench, chaired by Datuk Balia Yusof Wahi, in allowing Kassim's appeal, had said the conduct of (the Federal Territories shariah chief prosecutor) Ibrahim and Jawi could be scrutinised.

On July 14, judge Datuk Zaleha Yusof allowed the Attorney-General’s preliminary objection against the judicial review, citing that the subject matter was within the exclusive jurisdiction of the religious court.

However, Balia said a shariah criminal matter did not come within the meaning under the Federal Constitution.

"Shariah offence is only an offence against the precept of Islam," he had said, adding that the bench was bound by a 1988 Supreme Court ruling in the case of Mamat Daud vs public prosecutor.

The bench chaired by the then Lord President Tun Salleh Abas said all offences created under state shariah enactments were for violation against precepts of Islam.

The offences include consumption of alcohol, eating and drinking in public during day time in the fasting month, and going against a fatwa by religious authorities.

"It is not a criminal matter and therefore subject to judicial review," Balia added.

Kassim, 81, had filed a leave application for judicial review on June 26 and had named Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom, Ibrahim, Jawi and the government as respondents.

He is seeking, among others, an order to strike out Ibrahim's decision on March 27 to prosecute him for allegedly insulting Islam and defying the religious authorities.

He wanted his case in the Shariah Court to be suspended, pending the decision of the judicial review.

Kassim also wanted all actions and decisions by Jawi enforcement officers who raided and seized his publication materials, as well as detaining him from Kedah to the Federal Territories, to be revoked.

He sought a declaration that the action by the Jawi officers and the prosecution against him was ultra vires and contravened the provisions in the Federal Constitution, Federal Territories Shariah Acts and Kedah Shariah Enactments.

Kassim also sought a declaration that the offence of violating a fatwa (edict) issued in the Federal Territories only applied to Muslims in that locality. – October 16, 2014.

- See more at: http://www.themalaysianinsider.com/malaysia/article/religious-court-on-collision-course-with-civil-court-over-kassim-ahmads-cas#sthash.tLkTN9UK.dpuf

Al Qaeda Rebels to Try UN Peacekeepers Under 'Divine Law'

UK-based monitoring group reveals Al Qaeda-linked Al-Nusra Front rebels say they will put 45
captive Fiji troops on Islamic trial.

The 45 UN peacekeepers from Fiji who were abducted by Al Qaeda-linked Al-Nusra Front rebel forces on the Syrian side of the Golan Heights last Wednesday are to "stand trial" under sharia (Islamic law), according to a Britain-based monitoring group.

Rami Abdul Rahman, head of the Syrian Observatory for Human Rights, said that the commander of Al-Nusra Front has declared that the 45 peacekeepers will be tried under "divine law," according to Asharq Al-Aswat as cited by Yedioth Aharonoth.

It was revealed on Monday that the rebels issued three demands for the release of the peacekeepers: to be taken off the UN terrorist list, delivery of humanitarian aid to parts of the Syrian capital Damascus, and compensation for three of its fighters it says were killed in a shootout with UN officers.

In response, the 15 members of the UN Security Council on Wednesday demanded the "immediate and unconditional release" of the Fijians, denouncing their abduction "in the strongest terms."

The statement added that "there can never be any justification for attacks on or the detention of UN peacekeepers." Fiji has issued a similar statement calling for the release of its soldiers.

In addition to the 45 Fijian troops, 72 Filipino troops were surrounded by the rebel forces; however, the two units of soldiers from the Philippines managed to escaped over the weekend into Israel.

The Fijians and Filipinos are part of the UN Disengagement Observer Force (UNDOF) established in 1974 to maintain the ceasefire between Syria and Israel forces in the Golan, and oversee the implementation of a disengagement agreement.

The Israeli-Syrian border has been growing increasingly tense, as fighting between Syrian President Bashar Assad's forces and rebel forces has occasionally spilled over.

Just on Thursday afternoon the IDF returned fire on a Syrian army position after a mortar shell struck Israeli territory. Several mortar shells have hit Israeli territory in recent weeks, and the IDF shot down a Syrian drone last week after it strayed into Israeli airspace.

Kassim Ahmad fails to stay syariah proceeding

The court also set October 20 for trial

PUTRAJAYA: Former political and social activist, Dr.Kassim Ahmad who was charged for insulting Islam, today failed to prevent the Federal Territories Syarie chief prosecutor from pursuing his case in the Syariah High Court here.

A three-member panel chaired by Court of Appeal president Md Raus Sharif rejected Kassim’s application to stay the Civil High Court’s refusal of his application to challenge the prosecution’s decision of having charged him in the Syariah High Court.

Kassim is seeking a stay to prevent the prosecution from pursuing the case in the Syariah Court pending disposal of his appeal over the Civil High Court ruling.

Justice Md Raus who heard the stay application with Justices Linton Albert and Wira Mohtarudin Baki said the bench agreed with submissions by senior federal counsel Nor Hisham Ismail that stay should not be granted and the court had fixed July 24 to hear Kassim’s appeal over the High Court ruling.

“As I said, the matter is before the Syariah Court. The application for stay is dismissed. You can ask for an early date for the appeal,” said Justice Md Raus to counsel Rosli Dahlan, who represented Kassim.

On July 14, the Kuala Lumpur High Court in dismissing Kassim’s leave application for a judicial review to challenge the prosecution’s decision of having charged him in the Syariah High Court, ruled that the civil court had no jurisdiction to hear the application and the matter was also within the exclusive jurisdiction of the Syariah Court.

High Court judge Zaleha Yusof made the ruling after allowing the preliminary objection by the Attorney-General’s Chambers against Kassim’s leave application.

Kassim, 81, filed the application at the Putrajaya Syariah High Court on June 26, seeking among others, a writ of certiorari order to strike out the Syarie chief prosecutor’s decision on March 27 to prosecute him for insulting Islam and defying the religious authorities,

He also requested that his case proceedings in the Syariah High Court be suspended pending the decision of the judicial review.

Kassim also applied for an order to quash the action and decision of Jawi (Federal Territories Islamic Religious Department) enforcement officers who had allegedly raided, ransacked and seized his published materials, as well as inspected, detained and removed him from Kedah to the Federal Territory .

He also applied for an order to strike out any arrest, search and confiscation warrants and bond attached thereto, a declaration that the action of the Jawi officers and the prosecution against him were ultra vires and contravened the provisions in the Federal Constitution, Federal Territories Syariah Acts and Kedah Syariah Enactments, and a declaration that the offence of violating a “fatwa” (edict) issued in the FT only applied to FT residents.

In the Syariah High Court today, Syarie judge Azzeman Omar fixed Oct 20 to 22 to try the case of Kassim who had pleaded not guilty to three charges against him.

Azzeman fixed the dates after rejecting the preliminary objection from Rosli made on May to postpone the case hearing and for the third charge not be read to his client.

In his decision, Azzeman said the Syariah Court had the jurisdiction to hear and decide on the case.

On the first charge, Kassim is alleged to have insulted Islam in his speech made at a seminar on “Kassim Ahmad’s Thoughts: An Evaluation of the Roadmap of the Malays and Malaysia for the Next 30 Years”.

In the second charge, he is alleged to have quoted from two of his books titled, “Hadith: A Review” and “Hadith: A Reply to Critics” which have been banned by the Federal Territories fatwa (edict).

Kassim had initially faced two charges but today, the third charge was read out against him, in which he is alleged to have questioned the wearing of the hijab (head-cover) by Muslim women, saying that “hair is not part of the aurat”(parts of a woman’s body which should not be exposed, according to Islamic teachings).

He is alleged to have committed all the offences at the Perdana Global Foundation premises in Precinct 8, here, between 9am and 5pm on Feb 16 2014.

The offences come under Section 7(b) of the Syariah Criminal Offences (Federal Territories) Act 1997 and Section 9 of the same Act, whereby he faces a fine not exceeding RM3,000 or a jail term of up to two years, or both, upon conviction.

Syarie senior prosecutor Che Saufi Che Husin appeared for the prosecution while Kassim was represented by Syarie lawyer Zaini Zainol. -Bernama

Don’t let civil courts touch Shariah rulings, syarie lawyers urge CJ

The Chief Justice should direct civil courts not to entertain conversion and custody cases previously
decided under the shariah system, said the Malaysian Syarie Lawyers Association.

It said this would prevent the apparent jurisdictional conflicts on such matters.

The group’s president, Musa Awang, suggested Chief Justice Tun Arifin Zakaria issue the circular in accordance with the decision by the National Fatwa Council in 2009, which decided that minors are automatically Muslims and must be raised as such when a parent converts into Islam,.

“Article 12(4) of the Federal Constitution also stated that the religion of an individual below the age of 18 is decided by a parent, and that does not need to be amended,” said Musa in statement to Sinar Harian.

Musa was responding to the Seremban High Court’s decision in granting S. Deepa, a Hindu, the full custody of her two children, who were converted by their father N. Viran who now goes by Izwan Abdullah.

Izwan, had snatched their six-year-old son two days after the custody was awarded insisting that he too had full rights to the children based on previous Shariah Court order.

Authorities declined to pursue the Muslim convert father, citing the conflicting orders.

Musa insisted that the orders issued by both courts have equal standing.

Civil lawyers pointed out, however, that it was unconstitutional for the Shariah court to decide matters concerning non-Muslims.

A disturbing dichotomy

The Star
Reflecting On The Law 
by SHAD SALEEM FARUQI

We need to cool things down a bit to resolve the sad saga of legal conflict due to religious issues.

THE domestic discord between a fractious couple (which between it made 35 police reports against each other during the last two years) has metamorphosed into a national, religious and racial controversy that has besmirched the name of many public institutions including the courts and the police.

We need to cool things down a little bit, see issues with some detachment and accept that in every country where legal pluralism is allowed, some painful conflicts of jurisdiction are unavoidable. The law in every land is a maze, not a motorway. Its multiplicity, diversity and conflicting hierarchies create a thicket that is never easy to traverse.

In our federal system, federal laws clash with state laws and the legal scene is quite turbid.

At the state level, syariah enactments of one state conflict with enactments of another state and reciprocal enforcement of each others’ judgment is an unfulfilled dream. Within the boundaries of a state, especially in Negeri Sembilan, Sabah and Sarawak, competition exists between custom and religion.

In Sabah and Sarawak, the rivalry between Native courts and Syariah courts is intense but is kept diplomatically discrete.

The most painful, unedifying and politically charged disputes are between civil and Syariah courts. They jar our landscape now and then and disturb our national harmony. What is not well known is that the clashes are not always between Muslims and non-Muslims.

Sometimes it is Muslims challenging the jurisdiction of the Syariah courts. For example in Latifah Mat Zin v Rosmawati Sharibun (2007) there was a dispute between the daughters of the deceased and his widow over the joint account of the husband and the wife. At contention was whether the civil High Court or the Syariah court has jurisdiction?

Occasionally there are objections to Syariah courts assuming jurisdiction on marriages contracted abroad between Muslims under foreign law.

Relating to non-Muslims, the most heart-wrenching dispute is about the religion of a deceased when there is information that prior to his death he had secretly converted to Islam.

Another tragic and intractable issue is the custody of children when one party to a non-Muslim marriage converts to Islam and opens the door to a jurisdictional clash.

This is what happened in the Deepa-Izwan case. The root cause of the jurisdictional conflict is Article 121(1A) of the Federal Constitution which states that the civil High Courts and inferior courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

Another problem is sections 3 and 51(1) of the Law Reform (Marriage and Divorce) Act (LRA) 1976. Section 3 states that the Act shall not apply to a Muslim. Section 51(1) states that if one party to a civil marriage has converted to Islam, the other party may petition the civil court for divorce.

Shockingly, this means that the converting party has no right to apply for dissolution of his marriage that was contracted under civil law.

As Izwan was not subject to the LRA, he rightly went to the Syariah court for dissolution and ancilliary relief – much to the detriment of Deepa whose hard-won civil court order for custody of her two children was short-lived when the ex-spouse in defiance of the High Court order forcibly removed one child from her custody.

This was not the first case of its sort but it has left a deep impact on our conscience. We need urgently to repair our frayed social fabric damaged by such disputes. My suggestions are tentative, subjective and open to revision.

First, the constitutional scheme of things in 1957, that the Syariah courts shall have jurisdiction only over persons professing the religion of Islam, should be reiterated.

Second, the Muslim volksgeist that their religious law should apply to them should, however, be respected. The radical solution that legal dualism should be abolished and there should be one uniform family law for all citizens is untenable. People have a right to live by their personal laws.

Even countries like the UK allow the Jews to apply their personal laws in defined fields.

Third, the federal government should engage with moderates of all communities and resist the cynical (and hitherto successful) effort to close down all discussion on “sensitive issues”.

Fourth, the country as well as our official religion suffer disrepute when Islam is instrumentalised by some converts to gain quickie divorces and obtain easy custody and guardianship over their children to the detriment of the non-converting spouse.

Conversion is their right but they must respect the Federal Court ruling in Subashini a/p Rajasingam v Saravanana (2008) that a non-Muslim marriage does not dissolve automatically upon one party’s conversion to Islam. The civil courts continue to have jurisdiction.

Fifth, the government had a few years ago taken initiative to draft new legislation to resolve inter-religious family disputes. The Bill met stern opposition from some Muftis and some members of the Conference of Rulers and was shelved.

It is time to revive the Bill after adequate consultation. Sweeping problems under the carpet is not doing our nation any good.

Sixth, the government should rely on Article 130 to refer to the Federal Court for the court’s opinion all questions that have arisen about the working of Article 121(1A).

This article was inserted to resolve disputes between Syariah and civil courts but has brought in its wake new dilemmas. That’s life and the law. Good laws often lead to undesired and undesirable consequences. We need to go back to the drawing board and begin anew.

> Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.

Pinda undang-undang, bolehkan bukan Islam hadir ke Mahkamah Syariah, kata peguam Islam

Persatuan Peguam Muslim Malaysia (PPMM) menggesa agar kerajaan meminda undang-undang bagi membolehkan individu bukan Islam dibenarkan menghadiri sesi perbicaraan di Mahkamah Syariah bagi menuntut keadilan.

Presiden PPMM, Datuk Zainul Rijal Abu Bakar ketika mengulas berhubung isu hak penjagaan anak beragama Islam oleh ibu beragama Hindu berkata, terdapat pertindihan perintah antara Mahkamah Syariah dan Mahkamah Sivil dalam isu yang berlaku di Seremban itu.

"PPMM menyeru agar undang-undang dipinda bagi membolehkan orang bukan Islam dibenarkan hadir ke mahkamah syariah bagi menuntut keadilan kerana keadilan Islam adalah bersifat sejagat," katanya.

"Negara Brunei Darussalam contohnya hanya mensyaratkan sekurang-kurangnya satu pihak beragama Islam sahaja bagi menghadiri prosiding di mahkamah syariahnya," tambah Zainul Rijal dalam kenyataan di Kuala Lumpur.

Kerani dari Seremban, S Deepa sebelum ini menerima hak penjagaan dua anaknya oleh Mahkamah Tinggi, sekaligus mengenepikan keputusan Mahkamah Syariah Seremban yang sebelum itu memberikan hak penjagaan kepada bapa mereka yang memeluk Islam.

N Viran, yang menukar nama kepada Izwan Abdullah bagaimanapun melarikan anak mereka, Mithan, 6, sehari selepas keputusan berkenaan dibuat Mahkamah Tinggi.

"Berilah peluang kepada kedua belah pihak menyelesaikan pertikaian mereka di mahkamah dan pihak yang tidak berkenaan tidak perlu beremosi di dalam menghadi kemelut sebegini," kata Zainul Rijal.

Beliau berkata lagi, oleh kerana hal ini berkaitan kekeluargaan, adalah tidak molek pihak berkuasa menggunakan tindakan undang-undang termasuk mendakwa Izwan atas apa jua tuduhan.

"Terdapat pelbagai penghakiman mahkamah tertinggi negara yang memutuskan isu-isu sebegini yang boleh dijadikan rujukan," katanya.

Beliau berkata, isu agama anak tidak diputuskan di dalam penghakiman yang diberikan oleh Mahkamah Tinggi Seremban, tetapi suatu fatwa telahpun dikeluarkan oleh Mufti kerajaan Negeri Sembilan berhubung keislaman anak-anak tersebut.

"Izwan tidak boleh dikenakan dakwaan menghina mahkamah kerana beliau mempunyai perintah hak jagaan yang sah dikeluarkan oleh Mahkamah Syariah Seremban.

"Perintah tersebut berkuatkuasa sehinggalah ianya dibatalkan," katanya .

Viran, bekerja sebagai pemandu lori meninggalkan Deepa dan anak-anaknya tiga tahun lalu dan memeluk Islam menggunakan nama Izwan.

Deepa kemudian mendapati anak-anaknya, Sharmila (Nurul Nabila) 9, dan Mithran (Nabil), 6, diislamkan tanpa pengetahuannya pada April.

Selepas Mahkamah Tinggi memberikan hak penjagaan kepadanya pada Isnin, Izwan bagaimanapun pada Rabu pergi ke rumah Deepa di Jelebu dan merampas anak lelaki mereka.

Deepa berkata kepada polis beliau gagal menghalangnya kerana pakaiannya tersangkut pada pintu kereta dan diseret.

Malah, beliau turut mendakwa bekas suaminya turut menendangnya.

Polis bagaimanapun, berkata mereka tidak akan bertindak terhadap laporan terbaru Deepa kerana dua mahkamah memberikan hak penjagaan kanak-kanak terhadap ibu dan bapa mereka.

Zainul Rijal berkata, sebagai seorang mualaf yang terdahulunya berkahwin secara sivil melalui Akta Membaharui Undang-Undang (Perkahwinan Dan Perceraian) 1976 Izwan tidak diberikan hak melalui Seksyen 51 Akta tersebut untuk membubarkan perkahwinan sivilnya.

Oleh yang demikian, beliau melaksanakannya di bawah Enakmen Undang Undang Keluarga Islam (Negeri Sembilan) 2003.

Suruhanjaya Ong yang menggubal Akta Membaharui Undang-Undang, khususnya Seksyen 51 tersebut berprasangka buruk terhadap mualaf yang memeluk Islam sehingga 'menghukum' mualaf tersebut tidak mempunyai hak memfailkan perceraian berbanding pasangan yang tidak memeluk Islam.

"Sebagai seorang yang menganut agama Islam, Izwan tertakluk kepada perintah Mahkamah Syariah dan mempunyai obligasi menjaga maqasid al shariah termasuklah hifz al deen (menjaga agama)," katanya. – 12 April, 2014.