Finding the right balance


  • Letters
  • Sunday, 30 Nov 2008

Would it be practical and acceptable for syariah and civil laws to merge into a single law system applicable to both Muslims and non-Muslims?

IF there had been cars during Caliph Umar Ibn al-Khattab’s time, the caliph would have made rules on driving.

“Had he done that, I am quite sure that today, those rules would be known as the ‘Syariah or Islamic Road Traffic law’,” says former Chief Justice Tun Abdul Hamid Mohamad.

Added burden: There is concern that a merger of the syariah and civil courts will further strain the already overburdened civil courts.

“Had he fixed a speed limit, that might be known today as the ‘Syariah or Islamic speed limit’ and, probably, different mazhabs would have different speed limits!”

As for slavery, adds Abdul Hamid, Prophet Muhammad and Islam did much to improve the life and rights of slaves although Islamic law did not outlaw slavery then.

“Today, slavery is outlawed. Would anyone say that outlawing slavery is un-Islamic? Would anyone say that a modern Islamic state must reintroduce slavery to be Islamic?”

Declaring that no one has been able to answer his questions, he says in his typically wry fashion: “To determine whether our law is Islamic or syariah-compliant, we should not be looking backward 1,500 years and comparing whether our present law is the same as the law then. The test should be whether it contravenes any syariah principle.”

The former CJ was sharing his views when speaking at the Harvard Law School earlier this month on Harmonisation of Common Law and Syariah in Malaysia: A Practical Approach.

Abdul Hamid goes on to say that a law need not be “medieval or Arabic to be Islamic”. In fact, Islamic law is any law that is not un-Islamic.

Going by his definition of “Islamic law”, he declares that “a big chunk of the law that I am administering in the common law court is not un-Islamic after all.”

Abdul Hamid was stirring the hornets’ nest by developing an argument in favour of a merger of the civil and syariah courts in Muslim-majority countries.

After all, he adds, syariah laws were drafted by common law lawyers like the late Cambridge-trained Tan Sri Ahmad Ibrahim and himself, as a state legal adviser at the time. They took the existing laws in the civil courts as the basis to “work on, remove or substitute the objectionable parts” to make them Syariah-compliant and enacted as laws.

Tun Azmi: ‘We will try not to causeconflict and will find an amicableunderstanding’

However, Abdul Hamid’s paper has drawn criticism from Muslims and non-Muslims - but for different reasons.

There are some Muslims who fear the loss of their right to be governed by their personal law. And many non-Muslims fear that a compromise today would pave the way for Islamisation tomorrow, much like letting a camel stick his nose in the tent before the whole body follows.

The “harmonisation” of courts is an important issue that needs to be addressed, especially since then premier Tun Dr Mahathir Mohamad pronounced Malaysia to be an Islamic state – although a 1988 Supreme Court decision states the opposite – and similarly held views in all three arms of government have worsened the controversy over the policy to make all laws syariah-compliant.

But most non-Muslim groups seize up at the term “harmonisation” because it conjures a taking over of civil laws by syariah law.

First to object is Datuk Leong Tang Chong, chairman of the MCA Legal Bureau, who says a merger would compel and subject non-Muslims to syariah jurisdiction.

Trying to assuage the concern, Syariah Court Judge and Syariah Judicial Department director-general Datuk Ibrahim Lembut gives his assurance that Islam will not discriminate against any race or religion if the two courts merged.

Does the Federal Constitution allow for a merger of the two courts and a harmonisation of the two laws?

International Islamic University constitutional (IIU) law Prof Dr Abdul Aziz Bari says no.

“Malaysia is a federation and Islam is, constitutionally, a matter for the states. Don’t forget that the Malay Rulers are the head of Islam in their states.”

Tun Abdul Hamid: ‘A big chunk of the lawthat I am administering in the common lawcourt is not un-Islamic after all’

On a practical note, he says a merger would strain the already overburdened civil courts.

On the harmonisation of syariah and civil laws, he adds: “Abdul Hamid’s views have only served to confuse an already confusing state of affairs.

“The problem with this idea is it proceeds from the premise that all laws are un-Islamic, which I think is either inappropriate or outright wrong.

“Even assuming some of them go against Islamic values, this can be done by exempting Muslims.

“But non-Muslims should be allowed to make a choice. This has been the way and I think it should remain the way.”

Senior constitutional lawyer Datuk Dr Cyrus Das says an amalgamation of the two laws to create a single basic law applicable to all Malaysians would be unconstitutional.

Noting that syariah law is religious law, he says the constitution guarantees that the religious law of one community will not be applied to another.

“This is implicit in Article 11. What cannot be done directly cannot also be done indirectly.”

Dr Das says the Constitution envisages that the two laws are to be administered by different courts. A merger would have to mean the abolition of Article 121(1A), introduced in 1988 to reinforce the position that syariah law is to be administered only by the syariah courts, he adds.

It’s uncertain, however, whether political will would exert itself because Ibrahim had said a special committee had talked of harmonising the laws but it is still a long way “before we can merge the two court systems.”

Common Law and personal law

Abdul Hamid’s predecessor Tun Ahmad Fairuz Sheikh Abdul Halim caused a stir in July last year when he urged for common law to be abolished. He proposed at the conference at Ikim that the status of Islamic laws be enhanced in the Malaysian and international legal systems.

Nothing further has developed since, though.

To Dr Abdul Aziz, Islam is already part of the system and so a harmonisation or Islamisation of the laws is unnecessary. He says the idea had its roots in Pakistan where Muslims form more than 90% of the population.

Not many know that Abdul Hamid had made the same suggestions in 1996 in re Lim Chan Seng, as a High Court judge. They came to naught, he says, because of three reasons: it was “too sensitive”; the political ramification of amending the Federal and State constitutions; and state governments and Rulers would have to give up some of their power.

Senior lawyer Pawancheek Marican, an adjunct law professor at IIU, reckons Abdul Hamid’s suggestion will come to nought as it would involve tinkering with the federal and state constitutions.

“This would be politically infeasible as it would impinge on state powers over matters of religion.

“Note the current controversy over the fatwa on yoga; the states know that even if the fatwa by the National Fatwa Council is jurisprudentially correct under the Syariah, it is not legally binding on the states until they adopt it and gazette it.”

Leong says there would be less conflict in inter-faith issues if judges in the civil courts had not abdicated their powers.

Attorney General Tan Sri Abdul Gani Patail has tried to help by getting a group of civil and syariah lawyers/experts to find a solution to inter-religious family law conflicts.

Pawancheek, a member of this special committee, says a consensus has more or less been reached at one level.

“There is a consensus between Muslim and non-Muslim groups that matters arising out a civil marriage where one spouse later converts to Islam – maintenance, custody, religion of the child – should go to a civil court.

“There is no consensus as yet on the substantive law that should be applied to the parties.”

In opening an international conference on comparative law at the Islamic Science University last week, current Chief Justice Tan Sri Zaki Tun Azmi said the judiciary would find a mid-way solution to satisfy both the civil and syariah legal systems.

“We will try not to cause conflict and will find an amicable understanding.”

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