Whither Jurisdictional Conflict
Dr. Wan Azhar bin Wan Ahmad
Fellow Kanan
15/05/2007 | The Star
Last Tuesday (08.05.07), I attended a roundtable discussion regarding the ongoing jurisdictional conflict between the Malaysian civil and Syariah courts at the International Islamic University Malaysia (IIUM). Many issues and concerns were raised, and suggestions to address the situation were made accordingly. Some recommendations seemed plausible but when it came to practical amicable resolutions, none were clear or certain. Many factors must be considered as these factors are interrelated and are not without certain implications.
The saga seems to continue, as can be discerned from a series of unfolding events, resulting in a ‘tug of war' between the two applied Malaysian legal systems. It has created unwarranted tension, suspicion and dissatisfaction among the multi-racial population of our country.
This ugly face of confrontation culminated in a string of cases which have affected the nation. These cases include Shamala, Lina Joy, Nyonya Tahir, M. Moorthy, Rayappan Anthony, Subashini, and perhaps the latest, P. Marimuthu. It appears that certain quarters are manipulating these cases in hopes of portraying Islamic law and its entire system as cruel, unreasonable, out-of-date and on a collision course with civil laws and/or the doctrine of human rights.
Despite the ‘sensitivity' involved in all these cases, we still need to tackle the various related issues raised with great wisdom. Discussion of this sort requires a high degree of open mindedness between all affected parties. Concerns of numerous parties in cases of this nature are real, and NOBODY should underestimate its social, economic, political and religious consequences.
None, particularly the authorities, should be dismissive, simply sweeping things under the rug pretending as if a conflict and its ensuing repercussions do not exist or that nothing is wrong with our legal system. We do not want this whole issue to develop into a kind of ticking time bomb armed to blow apart our national solidarity so carefully nurtured by our forefathers and tirelessly emulated by the Government for decades.
People normally think and behave within the framework of certain legal precedents, be they divine or mundane. In the Malaysian context, this attitude has been shaped primarily by our Federal Constitution, the supreme law of the land. With regard to the problematic relationship between Syariah vis-à-vis civil laws, one may argue that perhaps the root cause is attributable to our esteemed Constitution.
The Ninth Schedule of the Constitution prescribes the legislative division of the federal and state governments. While the Federal List (List I) enumerates areas that come under the legislative powers of the Central Government, the State List (List II) put Malay customs, Islamic law and its administration under the responsibility of the State assemblies. It clearly states that the State legislatures are to preserve Islamic law as well as the constitution, organization and procedure of the Syariah courts which, in both situations, shall have jurisdiction only over persons professing the religion of Islam.
The State legislatures have accordingly consolidated these provisions in the various State Enactments/Acts. For example, section 46(2)(b) of the Administration of Islamic Law (Federal Territories) Act 1993, states that "A Syariah High court shall in its civil jurisdiction, hear and determine all actions and proceedings in which all the parties are Muslims...".
The same constitutional restrictive spirit is embedded in certain other civil statutory laws, such as in the Law Reform (Marriage and Divorce) Act, 1976. Section 3 clearly mentions that the Act shall not apply to a Muslim while section 51(1) states that if one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce. Meaning, the converting party is not given any opportunity to apply for dissolution of marriage under civil law.
Why all these limitations? It is these limitations that have partially-if not significantly-contributed to the worsening jurisdictional conflict and has triggered misunderstanding and friction in the pluralistic Malaysian society.
I believe that the learned framers of the Constitution, as well as the draftsmen at both national and state levels, were mistaken in putting such a limitation. It is unfortunate if the inclusion sprung out from their limited knowledge of Islam, thinking that Islamic courts are exclusively for Muslims. One may submit that these framers and draftsmen were unwitting factors responsible for opening ‘Pandora's box' which has subsequently created the confusion blanketing the nation today!
This fact is possibly what many are not aware of. From the early days of Islam, history shows that non-Muslims sought remedies to settle their disputes with Muslims in Islamic courts. One striking classic example is the dispute between the fourth rightly guided Caliph, Ali, then the head executive of the Islamic state, and a Jew. Both went to the court over ownership of a saddle. Based on the evidence presented before the court, the judgment meted out by the presiding Muslim judge was in favour of the Jew. One may conclude that even though the case involved the sovereign and a layman, both from two different religious backgrounds, there was no element of bias or suppression of justice.
Looking at another constitutional provision, Article 121(1A) somehow reinforces the State List in the Ninth Schedule. It further strengthens the position of the Syariah courts in stating that the civil courts shall have no jurisdiction on matters that fall under the jurisdiction of the former.
In determining this constitutional jurisdiction, the civil courts take two different approaches: ‘express jurisdiction' and ‘implied jurisdiction'. The first suggests that in order for the Syariah court to have jurisdiction, State assemblies need to expressly confer such jurisdiction by officially having legal provisions in appropriate enactments. This, for example, can be seen in the decided cases of Ng Wan Chan and Lim Chan Seng.
On the contrary, the second approach suggests that the Syariah courts may have jurisdiction directly but this is implied from the State List without any express conferment from the State legislatures. The absence of explicit jurisdiction is not to hinder the Syariah courts from assuming jurisdiction on matters listed in the State List though the relevant specific provisions are yet to be enacted. This has been decided in cases like Md Hakim Lee, Tan Sung Mooi and Soon Singh in particular.
The above two approaches basically points to the discernment of judges in interpreting legal provisions. It requires tremendous wisdom and well considered judicious opinion from all courts judges. With regard to the syarie judges, it is here that the element of dynamic ijtihad is applicable. The lack of this quality is perhaps another factor that may be associated with the jurisdictional conflict between the two judicial systems. This reiterates the call by some parties for our judges to be more courageous in their judgments, without fear or favour, even if they need to depart from the established norms.
Many would share my belief that in meting out judgments, apart from all those available legal provisions, we need to use logic and rational thinking to decide disputes. Often times, justice is realized not by looking into the words and letters of the law, but rather by looking into the spirit, purpose or objective of the law itself. Among the keywords requiring invocation at all the times here is ‘in the interest of justice'.
The general masses must not be spared from taking some responsibilities. I have reason to believe that the current jurisdictional conflict, reflecting prejudices about the Islamic judicial system, are caused primarily by misrepresentations. More tend to hold that indeed Islam is the most misunderstood world religion. A lot of misrepresentations are spreading through various channels and forms, deceiving many to believe that Islam is synonymous with terrorism, barbarism, injustice, etc-you name it-generating ‘Islamophia' and fears of the unknown.
As educated citizens, Muslims and non-Muslims must not be easily influenced by ‘stories' put forth to them without questioning the source. We must do a reasonable amount of research to examine whether or not things are being explained correctly. Do not make premature judgments. Do not become opportunists in the sense that if something is beneficial for you, you keep your mouth shut. But when something seems to impinge on your interest, and that without proper information on your part, you run out of saliva expressing your unhappiness all over the world.
Apparently, to put an end to the jurisdictional conflict and to bring about meaningful peace and harmony, we are in dire need of a strong political will and support from the government. Efforts by academicians, government agencies or NGOs are going nowhere without the sincere commitment from the Executors and Legislators, the law makers. A number of observations have been made by various concerned parties with regard to the Federal Constitution, Acts passed by Parliament and other States enactments. Our Parliament, as well as State legislatures, with the assistance of the Attorney-General's Chambers, are urged to pay heed and take action to bring about necessary changes not only to maintain unity and stability in this country, but to advance it to new heights.
Sounds like double standards.
