Syariah may be fair to all but merger not possible

The idea to bring civil and Syariah law together has been met with mixed but predictable responses from political and legal bodies.

The idea to merge the two courts was mooted in a speech by the recently retired Chief Justice of Malaysia Tun Abdul Hamid Mohamed early this month and was echoed with a milder stance by his successor, Tan Sri Zaki Azmi, who is looking for a "midway point."

Legal experts are saying that such a merger is impossible as the two systems have irreconcilable conflicts but certain Islamic groups believe that Syariah law will not be discriminatory.

Bar council vice president K Ragunath said a merger could not happen as the two codes would clash in many areas such as gambling and consumption of alcohol.

"But there can be a harmonising in terms of values. In meting out judgments, judges can take into consideration local and Islamic norms, culture and religion," he said.

Professor Dr. Abdul Aziz Bari, a constitutional law expert from the International Islamic University, believes it is not possible, given the "constitutional constraints which put the Syariah courts under the states."

"Combining would necessarily involve the surrender of control from the rulers (states) to the federal government. Do remember that when it comes to Islam the rulers are allowed by the constitution to act on their own, independent of the government's advice, he noted."

MCA's legal bureau has chastised the idea completely, stating that it will take away the religious freedom of non-Muslims.

"The Federal Constitution is still the supreme law of the country and the suggestion to merge the courts would undermine that position of the civil courts as the administration will inevitably use Syariah principles to interpret civil laws," its chairman Datuk Leong Tang Chong said.

He added that there was no need to merge the two courts to resolve conflicts over jurisdiction of both courts as "the problem arises because civil court judges are currently abdicating their powers and refusing to rule accordingly."

But Syariah Court Judge and Syariah Judicial Department director-general Datuk Ibrahim Lembut said such fears among non-Muslims were unwarranted.

"Islam will defend everybody. The impression that merging the two court systems will override the rights of the non-Muslims is wrong," he said.

Ragunath however, said that the point is simply that Syariah cannot and should not apply to non-Muslims: "It is not a matter of whether Syariah can be fair or unfair but when any party is non-Muslim, the person must be tried in the civil court."

Pas secretary-general Datuk Kamaruddin Jaafar took a more macro view in welcoming the proposals.

He said that the idea needed proper discussions to find a working solution as there have been much controversy in the past over the jurisdictional lines between the two courts.

He added that while he was not an expert on the technical aspects of the law, but felt the proposal would be positive if it liberalised the Syariah courts instead of shackling the civil judiciary.

"Think of it as an opening up of Syariah, not a gobbling up of the Civil court."

-TMI