Ex-CJ foresees merger of common and syariah courts

Comment:“Civil courts will be absorbed into syariah courts” should be the more accurate title. There can only be one kind of ‘merger’ if  the government policy says that “no new law that contradicts syariah should be passed.”

This is the problem: For some reasons, enough Malaysian Muslim judges seem to find difficulties setting aside their personal/religious interests so that they may give a fair judgment based on an objective interpretation civil laws when they preside over the civil courts. Why they did not ask to be reclused from such cases if they could not overcome their personal/religious interests remains a mystery to me. Indeed, it seems to be the case that their judgments become more biased and skewed towards Islamic interests as they grow older. Perhaps this is due to an increasing awareness of their mortality and the need therefore to chalk up more merits (pahala) before they see Allah. It’s just too bad non-Muslims suffer injustice in the process.

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Ex-CJ foresees merger of common and syariah courts Link
STAR Thursday Nov 13 2008
PUTRAJAYA: Retired Chief Justice Tun Abdul Hamid Mohamad foresees the possibility of a merging of the common law courts and syariah courts in a Muslim-majority country.

He said the combination of the two courts would harmonise common law and syariah law principles in dealing with issues of conflicting laws and jurisdiction of both courts, escalating from inter-faith cases.

“The same judges may be hearing the two types of cases. Non-Muslim lawyers will be arguing Islamic law issues, just like non-Muslim experts in Islamic Banking and Islamic Finance are already doing now,” he added.

He said this in his lecture at the Abd AlRazzaq AlShanhuri Lecture, Islamic Legal Studies Programme at the Harvard Law School in the United States on Nov 6.
Tun Abdul Hamid Mohamad

The text of his lecture was released here yesterday.

In his lecture titled, Harmonisation of Syariah and Common Law in Malaysia: A Practical Approach, he said syariah courts in Malaysia had absorbed the principles of common law which were not contradictory to its principles.

He said the same would happen in other countries.

However, Abdul Hamid doubted that common law would absorb the principles of syariah as a result of prejudice and ignorance.

In order to determine whether the laws in Malaysia were Islamic or syariah compliant, the people should not be looking backward 1,500 years, said Abdul Hamid, who retired on Oct 17.

In the case of Latifah Mat Zin, a dispute involving the distribution of the estate of a deceased person, Abdul Hamid said he had made a ruling harmonising both systems where the syariah court would determine the Islamic law issue and the common law court would decide on the distribution according to the syariah court order.

“Our present law can be different, better and at the same time more Islamic than the law at the time of the Prophet. The test should be whether it contravenes any syariah principle or not.

“We should focus more on substance and the ‘maqasid’ (objective/purpose) rather than the form. We should look to the sources for the principles but the details should be determined by the surrounding circumstances.

“A law need not be medieval or Arabic to be Islamic. In fact, we can have even better and, I would say, ‘more Islamic’ laws compared to the laws at the time of Prophet Muhammad,” said Abdul Hamid. — Bernama

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Here is a response from a Chinese politician:

STAR Friday November 14, 2008
Court merger would subject non-Muslims to syariah laws, says MCA Link

KUALA LUMPUR: Merging common law and syariah courts would call for non-Muslims to be subject to syariah laws.

MCA legal bureau chairman Datuk Leong Tang Chong said such a merger would subject non-Muslims to syariah jurisdiction on all legal matters, including interfaith cases related to marriage and divorce.

“To compel a non-Muslim to syariah jurisdiction is a violation of the Federal Constitution as Article 11 assures and guarantees all persons complete freedom of religion,” he said, adding that the MCA strongly objected to the proposal.

He also said the independence of civil court judges should remain within the powers of the civil courts and not be subjected to the interpretation of syariah law.

On Nov 6, retired Chief Justice Tun Abdul Hamid Mohamad said that he foresaw the combination of the two courts would harmonise common law and syariah law principles in dealing with issues of conflicting laws and jurisdiction during his lecture at the Harvard Law School in the United States.


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