Infernal Ramblings
A Malaysian Perspective on Politics, Society and Economics

Tackling the Syariah and Civil Jurisdiction Problem

Written by johnleemk on 1:50:33 pm Jul 4, 2007.

As I noted in my discussion of the Lina Joy case, a major problem with the state of Malaysian law at the moment is how the Syariah and civil courts have ambiguous jurisdictions.

My preferred solution is to make the status of the civil courts emphatically superior to that of the religious courts, just as the Constitution, not the Quran, is the supreme law of Malaysia.

However, there are others who have recognised this problem and proposed alternatives as well. I was recently pointed to an interesting article by a scholar from PAS, who noted the problems presented by cases like Joy's, and suggested that we look into alternatives like setting up a constitutional court.

This does not make a considerable amount of sense, if you ask me. Doing this merely allows the Islamists to save face by admitting that religious law is subordinate to civil law without explicitly doing so.

After all, if you are willing to concede that a constitutional court should be able to overrule both the Federal Court (the highest civil court) and the Syariah courts, then you are conceding that in Malaysia, the religious law of the Muslims is subordinate to the Constitution.

In any event, it is quite impossible to have two coequal legal systems. England tried to do this with the systems of common law and equity, but this caused so many problems over several centuries that they ended up merging them. There are just too many problems with conflicting and undefined jurisdictional boundaries.

The only other alternative probably palatable to the Islamists is to elevate the religious courts as superior to the civil courts, in effect making the civil courts only available for recourse in cases where one party is non-Muslim. (Of course, some Islamists go further and insist that non-Muslims should submit to Syariah law.)

This would make Malaysia an Islamic theocracy, but would also mean it is a simply impossible move, politically. (Not to mention that despite all good intentions, a theocracy can't be fair to all.)

You could argue that this does not hurt non-Muslims as long as they are not subject to Muslim law, but the fact is that non-Muslims are funding a legal system they do not believe in — as many a secularist would point out, the present compromise is already a major concession by the non-Muslims in the first place, since non-Muslim taxes keep the Syariah courts running.

For this reason, some secularists would propose disposing of the religious courts altogether and keeping just one legal system. As much as I would like to see that happen, it is just not politically feasible, and as long as we all acknowledge that religious law remains subordinate to the civil constitution, I think the costs of funding the Syariah courts are insignificant compared to the benefits of this compromise.

Whatever option we end up with, the present status quo cannot remain. As long as the religious and civil courts are equal, we cannot have justice.

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