Syariah and Civil Courts Made Equal
There is considerable dispute at the moment over whether Malaysian Syariah and civil courts are equal in power. In the past, most recently concerning the Lina Joy case, I have argued that the practical effect of the 1988 constitutional amendments was to give these courts coequal jurisdictions and establish parallel legal systems which never meet.
This point of view has come under attack, mainly because the constitutional amendments never explicitly granted the Syariah courts equal status to the civil courts.
I only wish this were true. One can argue that the intention of the amendments never was to create such a situation, but without substantial evidence for this, it's not an easy case to make. Moreover, a sensible reading of the Constitution makes the quandary we are in very clear.
The Constitution states that the civil courts do not have jurisdiction over anything which the Syariah courts have jurisdiction over. The Constitution places no bounds on the jurisdiction of the Syariah and civil courts.
In other words, both legal systems have a limitless turf divided between the two of them. How do we carve this turf up?
All the Constitution tells us is that this turf is divided in two. It gives us no indication as to how large which tract of jurisdiction is.
Prior to the amendments, the Syariah courts were clearly inferior to the civil courts. One can argue that this remains the case, since the amendments never explicitly touched on this.
But this de jure stuff is utterly meaningless, considering the practical effect of the amendments. By de facto, we now have two parallel legal systems in Malaysia, with no boundaries and no dividing lines to limit their jurisdiction.
If we want justice in cases such as that of Lina Joy's, there are three routes. One, favoured by those who think that the coequality of the Syariah and civil legal systems is an illusion, is to get judges to rule in favour of expanding the civil courts' jurisdiction and reducing the Syariah courts'.
However, this is not practical because this relies on people, not institutions. These decisions can easily be overturned, considering how ambiguously the Constitution deals with this issue.
A second and moderate route would be to amend the Constitution to explicitly limit the jurisdiction of one or both court systems. (I would obviously favour limiting the jurisdiction of the Syariah courts, especially since only the civil courts can be qualified to rule on matters of constitutional law and thus making it logical to avoid limiting their power, or at least making them subsidiary to the Syariah courts.)
A third route, which is my personal favourite but may be impracticable, is to end this problem with parallel legal systems altogether by making the superior status of the civil courts unassailable and amending the Constitution to give them jurisdiction over things which may fall under the purview of the religious courts.
It is difficult to argue for giving the Syariah courts a superior or coequal status to the civil courts. In Malaysia, the supreme law of the land is not the Quran or Hadith but the Federal Constitution. It only makes sense that the supreme interpreters of the law of the land be the civil courts, not the religious ones.