Infernal Ramblings
A Malaysian Perspective on Politics, Society and Economics

Jurisdiction Cop-out by Syariah Jurists

Written by johnleemk on 10:24:57 am Mar 23, 2007.

Today, the Sun quoted a couple of muftis and a syariah lawyer as saying that non-Muslims should not fear appearing in the syariah courts. According to them, the courts will be fair and just in dealing with non-Muslims — and this is just one of their many facetious and ludicrous claims.

This first claim is obviously illogical. It would take a great deal of self-restraint and discipline to rule in a fair manner on a matter of religious law involving one member of a religion applying that law, and a member of a totally different religion.

Why is this? Simple human nature. The civil courts can be expected to rule fairly because they are disinterested parties — they are not there to uphold one religion or its laws. The purpose of the syariah courts, on the other hand, is exactly the opposite: to uphold Islam and its laws.

Suggesting that the syariah courts will be able to fairly adjudicate a matter between Muslim and non-Muslim parties without any inherent bias in favour of the Muslim party is akin to suggesting that I will be able to fairly adjudicate a matter between my brother and a total stranger. It's complete bull.

The case that's stirring up all this controversy should not be unfamiliar to those who have been following recent events in Malaysian law. Basically, a Hindu woman whose husband converted to Islam is seeking to dissolve their marriage in a syariah court and then convert their children to Islam, although theirs was a civil marriage.

One mufti states that:

The syariah court will decide in the best interest of the children, based on their welfare. If the non-Muslim mother is more fit to take care of them, the court will give her the custody.

This is true in theory, but I really find it difficult to believe that a court meant to uphold the Islamic religion would decide that it would be in "the best interest" of children to be brought up by an infidel. I really find it difficult to believe that they would view a non-believer as "more fit to take care of them".

Meanwhile, a syariah lawyer asserted that non-Muslims "have to learn to accept" that they now can be hauled in front of a syariah judge as a party to a case. Again, what utter nonsense — the only reason we are having this argument in the first place is that some draftsman screwed up the 1988 amendments to the Constitution, and the unforeseen result was a lack of clarity about the position of the civil courts vis-a-vis the syariah courts.

And this was about as close as any of these syariah jurists got to discussing the simple problem of jurisdiction and forum-shopping. One mufti went as far as to assert that for him, "the syariah law was the supreme law as it was based on the Quran".

Personally, you should be free to submit yourself to whatever law you like. That is a fundamental tenet of just about any legal system. People should be free to submit themselves to the laws of any jurisdiction they desire, where more than one route is open to them to pursue a legal matter.

But when there is a conflict of laws, and when the parties cannot agree on where the matter should be heard, the case cannot remain in limbo. That is legally impossible. It has to be decided by one court or another.

The Hague Convention on the Civil Aspects of International Child Abduction, for example, seeks to prevent forum-shopping — the act of allowing one party to choose the jurisdiction most favourable to them for the case to be heard in — by ordering the return of abducted children to their country of habitual residence (barring certain exceptions, of course, since the law is rarely truly rigid).

In theory, our Constitution would resolve the issue of forum-shopping by placing one court system over another — where the parties cannot agree on where the case ought to be heard, the case will be heard in this superior legal system.

Thanks to the ill-thought-out amendments of 1988, of course, we are now faced with two parallel legal systems that are equal in authority and power. The result is obvious: uncontrolled forum-shopping. Already, the Muslims are free to forum-shop in that they can choose to pursue a case involving only other Muslims either in the syariah courts or in the civil courts.

Now, they are also free to forum-shop in cases involving non-Muslim parties, and it's quite obvious that instances where the syariah courts can truly be unbiased and impartial in such matters will be few and far between. This is a rather blatant travesty of justice.

Although I believe the judges who held that the syariah courts can indeed hear cases involving both Muslim and non-Muslim parties were within their rights to do so — the Constitution does not explicitly specify which court system is to prevail, after all — I think the spirit and nature of the Constitution very clearly imply that the civil courts are to prevail.

After all, Malaysia is not a theocracy. The supreme law of the land is not syariah law — it is the federal Constitution, a secular document. This in itself indicates that the secular law is superior to syariah law, and therefore in any case where there is dispute as to where the matter should be heard, the civil courts should prevail.

The muftis and syariah lawyers who claim that syariah courts can fairly and justly adjudicate matters between Muslim and non-Muslim parties, and that non-Muslims should just suck it up and submit themselves to the laws of a religion that is not their's are not just being disingenuous. They are being intellectually dishonest.

The onus is not on non-Muslims to prove why our case should be heard by the civil courts. The onus is on Muslims to prove why a case involving non-Muslim parties should be heard by the syariah courts. Why should non-Muslims submit themselves to the jurisdiction of courts established to uphold the law of a religion that is not their's, when this is a secular state, not a theocracy?

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