Reader’s opinion: chez1978 – Legislating Islam
Brand New Malaysian | 20th January 2006
Reader’s opinion: chez1978
The latest action of the 10 non-Muslim cabinet ministers has further stoked the debate on Article 121 (1A) among the general public although there is little information on the memorandum submitted to the Prime Minister.
It is important that Malaysians learn that there is a fine line between being informed and imagining themselves of being informed when it comes to current affairs affecting the state. I am most pleased with the timely press release by the Malaysian Bar Council that calls for caution when it comes to constitutional amendments. The Bar Council’s position on Article 121 (1A) is in line with past interpretations of the Constitution – the High Courts have and had overuled decisions of the Syariah Courts after Article 121 (1A) was introduced.
The fact remains that civil courts are courts of general jurisdiction and exception are only made by specific legislation. In his book (Chapter 3: Constitutional References to Islam), Mohamad Hashim 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 ” (p. 56).
Contrary to all the rights of muslim Malaysians pandered by Pakdi (Penjelasan Artikel 121 (1A), Malaysiakini, Letters), the writer should have understood that “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 ” (p. 52). “Up till 1948, the Court of Qadis and Assistant Qadis in the Malay states were part of the structure of the civil courts” (p. 26) and was only dropped with the introduction of the Courts Ordinance. The role of the Syariah Court was reestablished in Article 121 in the Constitution, and not 1988 after the insertion of Article 121 (1A) as claimed by Pakdi. The writer is clearly misleading readers when he cited Ramah v. Laton (1927) as evidence for Muslim law as the law of the land. In MALAYSIA, as Supreme Court Judge Harun Hashim has noted, ” What Article 121 (1A) has done is to grant exclusive jurisdiction to the Syariah Courts in the administration of Islamic law (p.46).
Any student of the law must be able to make a distinction between civil courts and syariah courts, and recognize the fact that the latter derives its existence from the Constitution and is limited to what is noted in the State List. The Islamic laws applies to persons professing to the 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. It was Justice Raus Sharif’s opinion that the civil court has no jurisdiction regarding matters over which the Syariah Court has been vested jurisdiction, thus declining to hear Kaliammal’s griviences. The case is now righfully under appeal, and we must wait and see if Mohamad Hashim Kamali (2000) is right, to quote:
It (Article 121 (1A)) does not, however, overule the general jurisdiction of the High Courts to overule decisions of the Syariah Courts for it merely says that civil courts cannot exercise the syariah court’s jurisdiction (p. 46 – 47).
We must be able to understand the issue and tread it carefully. The call for amending the Constitution and to be rid of Article 121 (1A) is not necessary if we bear in mind its original limitations. Article 121 (1A) does not remove the ability of a High Court to hear a case of a party in dispute with decisions of the Syariah Courts. It is the abortion of justice in both Shamala and Kaliammal’s cases that has led to the recent uproar where non-muslims felt that they have no legal recourse to their griviences. Certainly, legislations in Islamic law that creates unequal treatment of the sexes and between muslims and non-muslims in areas such as custodianship and religious conversion of a minor has not helped much.
With no apologies to some muslims in the country, Malaysia is not an Islamic State where the Quran and Hadith reigns supreme. In this country, at this point in time, the supremacy of the Constitution is still intact. 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 Courts is not merely an “unequal part of a dichotomy” as Mohamad Hashim Kamali (2000) has claimed, it is not even part of a dichotomy as it is limited to certain areas only as expressly permitted by legislation.
To both muslims and non-muslims who actually agree that converts to Islam will have to publicly declare their conversion by enforcing penalties on those who failed to do so, please allow me to point out that it is a form of active discrimination by targeting muslim converts. While some might argue that it is necessary to clear up possible legal entanglements that might arise, we must remember that our Constitution provides for some basic freedom, and freedom of religion is one of them. Why should muslim converts alone make their conversions public? Why can’t similar laws be made to regulate the fluidity of movement in the faith and beliefs of the individuals for Buddhists, Bahais, Hindus or Christians? If converting in and out of a religion is fine for one that has no legal implications to matters of personal law, then why is there a law that forbids the one-sided conversion of minors, regardless of their belief system?
Clearly, the masses are easily persuaded or outraged by symbolic changes. Personally, I do not think it is necessary to lend support to amending the Constitution as far as Article 121 (1A) is concerned. 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 of 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 (1997) has 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” p. 279. It was meant to point out to the fact that a convert to Islam cannot initiate divorce proceedings under a civil marriage, making a change of religion a matimonial offence which amounts to a reason for divorce. Of course, 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 would be important to note what Ahmad Ibrahim (1997) has 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 (p. 283).
Malaysians must realize that they have fundamental rights that cannot be taken away with any amount of law passed by the Parliament. As a society, we are protected by the Constitution and all courts and laws operate under its purview. Nothing is above the Constitution, in ideal. However, the Constitution is only ink written on a piece of paper if it is not embraced. Past 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 in results in further confusion. Seperti tikus membaiki labu katakan.
As it is, give the Syariah Court and Islamic laws a chance to mature and sort out its weaknesses. On that point, I concur with Pakdi wholeheartedly. Like the Tun said in the Foreword, “Allah s.w.t. through Muhammad, His Prophet, gave to mankind only one religion of Islam, how is it that there are so many different laws in different Muslim countries? Indeed, even in one country there are different views, sometimes very radically different views on Islamic law “. Perhaps it will do us all a lot of good to remember that Islamic jurisprudence, like common law, is also an evolving entity not wholly free from human interpretation guided by the Quran and Hadith. That itself is tied to the various interpretations of Islamic law on different offences, including apostacy. At the end of the day, the evolution of Islamic laws will also serve to open the door of ijtihad, inviting debate and participation on what makes Islamic justice a more attractive alternative. It is the universality of the principles in justice at trial here, not my rights stepping on yours, or vice versa.
It would be a serious opportunity lost if the recent Islamic Family Law is seen as merely a disagreement between muslim men and muslim women. It would be more accurate to view it as a struggle between conservative versus open interpretations of the Quran, where Islam has treated both sexes as equals. It is disastrous to automatically favour fathers in the custody of children, especially when it is the husband who has proven to be an unreliable and irresponsible individual. Legislating Islam is a human affair, and muslims must partake in it like how other Malaysians should with the passing of any laws in the Parliament because we do not live in separate worlds where the 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.)