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.
