KOTA KINABALU: Does Sabah have a state chief syarie judge?
This is an issue raised by a syariah lawyer, Hamid Ismail, in his statement yesterday, which highlighted that he had not received any reply from the Syariah Court regarding his enquiry about the status of the state chief syarie judge.
“Nearly two months have gone by since I issued a statement about the appointment of Datuk Ahmad bin Lakim as the Sabah State Chief Syar’ie Judge on 17th May 2019 but had yet to perform his judicial duties in Sabah.
“I did enquire via two letters to the Syariah Court about the status of the state chief syar’ie judge but I have not received any reply.
“As of today, I understand that Datuk Ahmad bin Lakim had retired. Hence, the issue is “Does Sabah have a state chief syar’ie judge now?” he asked.
Hamid also explained the importance of the physical existence and presence of a state chief syar’ie judge in Syariah Court.
“Besides heading the syariah courts, he (state chief syarie judge) must perform his statutory duties as prescribed in the Enactment of Syariah Court 2004.
“Those duties include recommending appointment of syariah judges of all levels (sections 6, 7 and 9), determining the panel of Syariah Court of Appeal (section 19(1)), and making regulations pertaining to Syariah lawyers (section 32). Without a state chief syar’ie judge here, these duties cannot be disposed of by other judges.
“For example, I have been informed that there will be a Syariah Court of Appeal sitting in Kota Kinabalu on the 21st of this month. Who will determine the panel of that court if there is no state chief syar’ie judge?” he further asked.
“Section 19(1) of the Syariah Courts Enactment 2004 prescribes that only the state chief syar’ie judge can determine the panel of that court. And section 19(3) makes it mandatory for the state chief syar’ie judge to be the chairman of every proceeding of the Syariah Court of Appeal.
“If the state chief syar’ie judge is unable to be the chairman, he must appoint the most senior Syariah Appeal Court or Syariah High Court judge to be the chairman. But how can such appointment be made if there is no state chief syar’ie judge? Thus, the sitting of the Syariah Court of Appeal in the absence of a state chief syar’ie judge is illegal,” he explained.
Apart from that, Hamid also said that Jabatan Kehakiman Syariah Malaysia (JKSM) has nothing to do with the appointment of state chief syar’ie judge and the State Government should not rely on JKSM for the said appointment.
“I have been informed that the office for Minister of Law and Native Affairs had recently written a letter to the Sabah Association of Muslim Lawyers (AMAL) explaining that the State Government had identified a candidate to be proposed to the Jabatan Kehakiman Syariah Malaysia (JKSM) in case the appointment of Datuk Ahmad bin Lakin could not be continued.
“I must say that legally, JKSM has nothing to do with the appointment of state chief syar’ie judge.
“In fact, the Syariah Courts Enactment 2004 does not recognize JKSM. Instead, Section 5(1) of the said Enactment states that the Yang di-Pertua Negeri may, on the recommendation of the Majlis Ugama Islam Sabah (MUIS), appoint a state chief syar’ie judge.
“Thus, it is the statutory duty of MUIS to recommend to the Head of State on the appointment of the state syar’ie chief judge. The State Government therefore should not rely on JKSM on such appointment,” he said.
He also emphasized that the Federal Government must not interfere with the administration of Syariah Court, however, circumstances had put the Syariah Court under the administration of the Federal Government.
“I believe that the State Government’s reliance on JKSM on this issue originates from a memorandum of understanding entitled Gunasama Dalam Perkhidmatan Mahkamah Syariah antara Kerajaan Persekutuan dengan Kerajaan Negeri Sabah. This agreement was signed on 19th June 2008 between the State Government and the Federal Government with intention to create a collaboration for the Syariah Court service between both governments.
“Unfortunately, the effect of this agreement has put the Syariah Court here to be under the Administration of the Federal Government.
“This is clearly in contravention of the Federal Constitution. Syariah Court is under the List II : State List to Schedule 9 in the Federal Constitution and hence, it is a state matter. Accordingly, the Federal Government must not interfere with the administration of Syariah Court.
“Another effect of the said agreement is that Syariah Courts here have adopted practice directions issued by Syariah Chief Judge of JKSM and syariah lawyers must comply with them. This is wrong and unlawful because our Syariah Courts Enactment 2004 does not recognize Syariah Chief Judge of JKSM.
“Since that post is not recognised by the law in Sabah, it is completely absurd and illegal for his directions to be adopted and enforced by the Syariah Courts here. This is another violation of the Federal Constitution.”
“I had written to the Chief Minister of Sabah to cancel the said agreement on the ground of the above violation. I hope our Chief Minister could take immediate action on it. I believe he will. Our State Government can administer the Syariah Court better. Let Sabahans do their things in their own ways. As of today, I keep asking myself, “Where is my Syariah Chief Judge?”