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M. Bakri Musa

Seeing Malaysia My Way

My Photo
Location: Morgan Hill, California, United States

Malaysian-born Bakri Musa writes frequently on issues affecting his native land. His essays have appeared in the Far Eastern Economic Review, Asiaweek, International Herald Tribune, Education Quarterly, SIngapore's Straits Times, and The New Straits Times. His commentary has aired on National Public Radio's Marketplace. His regular column Seeing It My Way appears in Malaysiakini. Bakri is also a regular contributor to th eSun (Malaysia). He has previously written "The Malay Dilemma Revisited: Race Dynamics in Modern Malaysia" as well as "Malaysia in the Era of Globalization," "An Education System Worthy of Malaysia," "Seeing Malaysia My Way," and "With Love, From Malaysia." Bakri's day job (and frequently night time too!) is as a surgeon in private practice in Silicon Valley, California. He and his wife Karen live on a ranch in Morgan Hill. This website is updated twice a week on Sundays and Wednesdays at 5 PM California time.

Sunday, February 05, 2006

The Judicial Conundrum of Shari'a and Secular Coourts

The Judicial Conundrum of Shari’a and Secular Courts
M. Bakri Musa

[Personal note: Following my essay, I posted a well written piece by Chez1978. I agree with the essence of his arguments. Shari’a affects us all, Muslims and non-Muslims; it behooves us all to be informed.]

The literature on Shari’a is voluminous, and can be classified in two broad categories. The first, written mostly by Muslims educated in the traditional mode, is long on description but woefully short on analysis. These scholars have great influence in the Muslim world. Second are by those, Muslims and non-Muslims, trained under Western liberal education. Their scholarships are rigorous and analytical. Unfortunately, they are often dismissed as being influenced by the “Orientalists.”

One of the best treatises is Abdullah An-Naim’s Toward An Islamic Reformation, published by Syracuse University Press. In Malaysia, we had the intellectual giant, the late Ahmad Ibrahim. Though trained as a lawyer at Cambridge, he was highly respected by Malaysian Islamists. I recommend two additional references: Salbiah Ahmad and Shad Saleem Faruqi. Salbiah is a Malaysian social activist, a lawyer by training, and was a Fellow at Emory. Indian-born Shad Faruqi, a law professor at Universiti Technlogy MARA, was educated both in America and Pakistan, and a student of Ahmad Ibrahim.]

The Judicial Conundrum of Shari’a and Secular Courts
M. Bakri Musa

Recent highly-publicized decisions by the secular and Syariah courts exposed the stark “judicial conundrum” resulting from their overlapping jurisdictions. This is not a legal problem; its solution lies beyond changing the judicial system or tinkering with the constitution. Rather, it is a political problem; it must therefore be solved in the political arena.

It involves defining the very nature of our nation; more practically, addressing the meaning and implications of such phrases as, “Malaysia is an Islamic state,” and “Islam is the official religion.”

Malaysians are familiar with the civil, criminal and other courts of the secular justice system, based essentially on the English common law. The furor over the Shari’a system is that since the constitutional amendment of 1988, its status is elevated so that it is now separate and equal with the secular system.

To Muslims, the Shari’a is supreme; therein lies the problem. The Federal Court cannot claim to be the highest court in the land if it cannot hear cases from the Shari’a.

Overlapping and Conflicting Jurisdictions

Matters of Islam fall under state purview; federal jurisdiction applies only to the four states without sultans, and the two federal territories. Shari’a applies only to Muslims, but they are also subject to the secular justice system. Muslims are thus potentially subjected to two conflicting or at least competing legal jurisdictions.

The other conundrum lies when one party to a dispute is a Muslim and thus answerable to the Shari’a, and the other non-Muslim and beyond the reach of the Shari’a. Which court has jurisdiction, and which court will decide when there is dispute between the Shari’a and secular system?

In the past, Shari’a covered essentially family law, dealing with such mundane matters as divorces and inheritances. Besides, the estates of most Muslims then were not large or complicated. Even with that, disputes occurred, but they could be appealed to the usual secular appellate process. That avenue is now apparently closed.

Today the Shari’a has been vastly expanded; its jurisdiction now includes areas once under the purview of traditional criminal courts.

Consider this: A man beats his wife. If he is a non-Muslim; he could be charged in criminal court for assault and battery. At the same time his wife could sue him for torts (bodily damage and emotional distress) in civil court. If he is a Muslim, he falls under the Shari’a family dispute. Same action, but very different legal treatment based purely on the faith of the alleged perpetrator. That is not justice. It is an affront to the universal norms of equality before the law.
Muslims might gloat that this would induce non-Muslims to embrace the faith. The flip side is that many Muslim women, especially recent converts, would want to renounce their faith.

Consider another more dramatic example. A man is caught in “close proximity” with a woman other than his wife. If both were Muslims, this is khalwat, adultery under Shari’a and potentially punishable by stoning to death. Fortunately Malaysia does not (as yet) have that barbaric provision, but not for lack of trying on the part of the Islamists. If both parties were non-Muslims, there is no crime or civil liability as it was a consensual act. This differential treatment based solely on the faith of the participants is again not justice. The dilemma would be compounded vastly if only one party were a Muslim.

Malaysia has had nearly two hundred years experience with its current secular system. The elevation of the Shari’a is recent. The late Ahmad Ibrahim was the intellectual and legal giant instrumental in giving credence to the politicians’ elevating the Shari’a. Since then, the system has been bereft of talent in the ranks of both its practitioners as well as theoreticians.

Shari’a Not Divine

To Muslims, Shari’a is the “Whole duty of mankind;” it is divine law. To ascribe any inadequacies or shortcomings would be tantamount to attributing less than perfection to Allah – a blasphemy. However, as noted by Abdullah An-Naim in his book, Toward An Islamic Reformation, Shari’a is not divine in the manner of being revealed like the Quran. Rather, it was crafted by early Muslim jurists based on the Quran and the hadith. Shari’a remains the work of men, and thus suffers from all the imperfections inherent in such endeavors.

At its inception, the Shari’a represented a quantum leap in intellectual, legal and social achievement. Its treatment of women in particular was light years ahead of the times.

Shari’a has been in existence for over a thousand years; it was the operative system during the era of the great Muslim civilization as well as during the Ottoman Empire. Today only such countries as Iran, Pakistan, and Saudi Arabia are using it. These are not exactly examples that Malaysia would want to pattern itself after. It would be easier to sell the Shari’a if these countries were models of peace, social justice, and economic development.

Those countries are also overwhelmingly Muslim, making Shari’a more readily acceptable. Muslims proudly point to the first Muslim community in Madina set up by Prophet Muhammad s.a.w. to prove that the Shari’a is applicable to plural societies. We need a reality check on this point to disabuse ourselves of this delusion.
While Shari’a has remained unchanged for centuries, it is still far different in form, spirit and execution from the original Medina Charter. Second, and far more significant, that first Muslim community was led by no less than the Prophet s.a.w himself. To say that today’s Muslim leaders are a far shadow of the noble Prophet would be a severe understatement.

There has been little improvement or intellectual exertion by Muslim scholars and jurists to make the Shari’a relevant to and consonant with modern universally accepted notions of justice. In particular, as pointed out by An-Naim, the Shari’a’s position on gender equity, public law, and human rights – in particular the freedom of conscience – is problematic. Aspects of Shari’a’s hudud (criminal) provisions seem particularly barbaric and inhumane.

Malaysia’s judicial conundrum is not unique. Canada too has a bijural legal system, with most of the country under the English common law and Quebec under the French civil law based on the Napoleonic code. Unlike Malaysia however, its Supreme Court is national; as the highest court of the land it hears cases from all the other courts. Canada too had difficulties; it was not until the 1970s that it began making a concerted effort at integrating the two systems.

Reconciling the Shari’a with the secular system would require the best minds – legal, Islamic, political and others – as well as the widest input from citizens. In crafting the nation’s first constitution, we tapped the best legal talent in the Commonwealth. Today we would need another mini Reid commission composed of citizens to resolve this pressing issue.

It is not just non-Muslims who are uneasy over the expansion of the Shari’a; this sentiment is also shared by many Muslims.

The two leaders most instrumental in elevating the role of Islam in government and Shari’a specifically are Tun Mahathir and Anwar Ibrahim. It is revealing that Anwar in suing Mahathir for libel has chosen the civil rather the Shari’a court. That speaks volumes of their (and the public) confidence in the Shari’a.

January 20, 2006
Reader’s opinion: Legislating Islam
Chez 1978

[Edited for brevity]

The latest action by the ten non-Muslim cabinet ministers further stoked the public debate on Article 121 (1A). Little is known of the actual content of the memorandum they submitted to the Prime Minister.

There is a difference between being informed and imagining ourselves to be so. I am pleased that the Bar Council has called for caution about further amending the constitution on this issue. The Council’s position on Article 121 (1A) is in line with past court decisions, that is, the High Courts can and have overruled the Syariah courts.

Civil courts are courts of general jurisdiction, and exceptions are made only by specific legislation. Kamali (2000) pointed out that “the basic intention of the amendment to Article 121 of the Constitution was to address problems arising out of conflicting jurisdiction and not so much as to create any new jurisdiction or introduce any basic changes to the status of the civil courts as courts of general jurisdiction in the country.”

Further, “a Syariah Court is not a court of inherent jurisdiction. It is created by the power in Item 1 and it relies of Federal laws for its jurisdiction over offences.” Further, “Up till 1948, the Court of Qadis and Assistant Qadis in the Malay states were part of the structure of the civil courts,” and was dropped only with the introduction of the Courts Ordinance. The Syariah Court was reestablished in Article 121 of the Constitution, not after 1988 amendment. Supreme Court Judge Harun Hashim noted, “What Article 121 (1A) has done is TO GRANT EXCLUSIVE JURISDICTION to the Syariah Courts in the administration of Islamic law.”

Any law student can make the distinction between civil and syariah courts, and recognize that the latter derives its existence from the Constitution and thus its jurisdiction is limited to what is noted in the State List. Islamic laws apply to those professing that religion so far as it is defined by specific legislation, except in matters included in the Federal List. Taking a page from Sukma Darmawa v. Ketua Pengarah Penjara Malaysia’s case in 1998, we must remember that like the Prosecutor back then, Kaliammal could not present her case to the Syariah Court as she is a non-Muslim. The judge opined that the civil court has no jurisdiction regarding matters over which the Syariah Court has been vested jurisdiction, thus declining to hear Kaliammal’s grievances. That case is now under appeal, and with it Judge Kamali’s precedent (2000): “It [Article 121 (1A)] does not, however, overrule the general jurisdiction of the High Courts to overrule decisions of the Syariah Courts for it merely says that civil courts cannot exercise the Syariah court’s jurisdiction.”

It is not necessary to amend the Constitution to rid of Article 121 (1A) if we bear in mind its original limitations. Article 121 (1A) does not remove the ability of a High Court to hear from the Syariah courts. It is the abortion of justice in both Shamala and Kaliammal cases that led to the recent uproar where non-Muslims felt that they have no legal recourse to their grievances. Certainly, legislations in Islamic law that creates unequal treatment of the sexes and between Muslims and non-Muslims in such areas as custodianship and religious conversion of a minor complicate the matter.

Malaysia is not an Islamic State where the Quran and Hadith reign supreme; the Constitution is still supreme. Laws are not created to grant every supposed “rights” one claims to have, or should have. Article 121 (1A) states that the civil courts do not have jurisdiction in what the Syariah courts enjoy, not that they are equal systems. Syariah court is not merely an “unequal part of a dichotomy,” it is not even part of a dichotomy as it is limited to certain areas only as expressly permitted by legislation.

To force those converts to Islam to publicly declare their conversion with penalties for those who failed to do so, as has been suggested, is to discriminate against Muslim converts. Our Constitution provides some basic freedom, and freedom of religion is one. Why should Muslim converts alone make their conversions public?

Clearly, the masses are easily persuaded or outraged by symbolic changes. I do not think it necessary to amend Article 121 (1A). The issue has always been how the civil courts failed to provide a venue for remedy to hear Kaliammal’s case. Why is there so much fear by the High Court that JAWI could not present evidence needed to convince Kaliammal and the judge, or the resentment of the Syariah court towards the civil system where it itself sprang from?

Ahmad Ibrahim noted that “in Malaysia, a person who has embraced Islam is still bound according to the civil law by his or her former personal law.” It was meant to point out that a convert to Islam cannot initiate divorce proceedings under a civil marriage, in effect making a change of religion a matrimonial offence and a reason for divorce. To the Syariah court, the civil marriage automatically is null and void, but can we write off blood relations as easily when it comes to their children? Here, it is important to note what Ahmad Ibrahim (1997) said: “It would result in grave injustice to non-Muslim spouses and children whose only remedy would be in civil courts if the High Court no longer has jurisdiction, since the Shariah courts do not have jurisdiction over non-Muslims.”

We have fundamental rights that cannot be taken away with any law passed by Parliament. The Constitution protects us, and all courts and laws operate under its purview. Nothing is above the Constitution. However, the Constitution is only ink written on a piece of paper if it is not embraced. Previous amendments to the Constitution might have changed the original spirit of the document or weakened its intended meaning, but we must be careful in making further quick changes lest it results in further confusion. Seperti tikus membaiki labu (Mice fixing the pumpkins).

I agree that the Syariah Court and Islamic laws must be given a chance to mature and sort out the weaknesses. Islamic jurisprudence, like common law, is an evolving entity, not wholly free from human interpretations though guided by the Quran and Hadith; thus the various interpretations. In the end, the evolution of Islamic laws will also serve to open the door of ijtihad, inviting open debate. This would only make Islamic justice a more attractive alternative.

It is the universality of the principles in justice that are at trial here, not my rights stepping on yours, or vice versa. It would be a serious misinterpretation to view the recent controversy over the Islamic Family Law amendments as merely a disagreement between Muslim men and women. It is more accurately a struggle between conservative (literal) versus progressive and open interpretations of the Quran. The latter interpretation affirms gender equity. It would be disastrous to automatically favor fathers in the custody battles, especially where the husband has been proven to be unreliable and irresponsible. Legislating Islam is a human affair, and Muslims must partake in much the same way that other Malaysians partake in the passing of laws in Parliament. We do not live in separate worlds where Muslims and non-Muslims do not come in contact.

Mohamad Hashim Kamali (2000). Islamic Law in Malaysia: Issues and Developments. Ilmiah Publications: Kuala Lumpur
Tun Mohamed Suffian Hashim (1976). An Introduction to the Constitution of Malaysia (2nd ed.). Government Printer: Kuala Lumpur.
Mimi Kamariah Majid (1992). Undang-undang Keluarga di Malaysia. Butterworths Asia: Kuala Lumpur.
Ahmad Ibrahim (1997). Family Law in Malaysia (3rd ed.)http://www.malaysianbar.org.my/content/view/2232/2/


Blogger neal said...

I have searched the internet and have found it difficult to find an answer for my question. So I am hoping that you might be able to help.

I am trying to find out what the penalty is for a non Muslim who punches another person who is Muslim, particularly under sharia law. If you could possibly answer this question it would mean a lot to me.


7:24 AM  

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