Hornbill Unleashed

November 14, 2014

‘Create constitutional court above civil, syariah’

Filed under: Politics — Hornbill Unleashed @ 8:00 AM
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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 (left) 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.


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