Understanding Article 121(A) of the Constitution and the Jurisdiction of the Civil and Shari’ah Courts

Understanding Article 121(A) of the Constitution and the Jurisdiction of the Civil and Shari’ah Courts

1. In 1957, the Reid Commission assumed it unimportant. But Article 145 states that the Attorney General does not have powers over the Shari’ah court. Schedule 9 mentions the Shari’ah court.

2. The constitution is the basis of the nation; it! has historical and political foundations.

3. Islam was the law of the land in the beginning before colonisation. It must be remembered and emphasised that the shari’ah courts existed before the Constitution was drafted.

4. In 1965, the Shari’ah Courts Act states in detail the jurisdiction and limits of the Shari’ah court.

5. In 1988, article ! 121(A) was amended after years of demands, seminars and resolutions. This amendment reaffirms its clear separation without doubt. It ensures no encroachment of civil court judges into shari’ah matters.

6. In 1982, the Chief Justice stated that the Civil Court must respect the eminence of the shari’ah jurists in shari’ah matters. The 1988 amendment only reaffirms this.

7. In 1992, a SCJ stated that serious shari’ah issues need consideration by eminent jurists who are properly qualified in the field of Islamic jurisprudence. It is imperative that the determination on the issues requires substantial consideration of the Islamic law by relevant jurists qualified to do so. The only forum qualified to do so is the Shari’ah Court.

8. Subsequent cases show that the expression “the jurisdiction of the Shari’ah courts” refer to either (a) matters expressly provided in legislation on Islam (e.g. conversion), or (b) matters which can be implied from legislation on Islam (e.g. apostasy).

9. Neither the Civil nor the Shari’ah courts have power over each other nor is any of them higher than the other.

10. Any move to change this amendment will have grave effects on the justice system, political and other essential issues.

11. The current issue is really a need for Non-Muslims in seeking legal redress. It needs the study of legal avenues to establish that Islam is just. It is not a constitutional matter.

12. The current administration has to be improved to ensure that the system is just.

13. Every citizen needs to know and understand the constitution, the foundation of the nation in order to avoid confusion.