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©The Sun (Used by permission)
by Chan Kheng Hoe

THE former chief justice had recently proposed that the civil and syariah systems of legal justice in this country be amalgamated. He specifically proposed that Muslim and non-Muslim judges can both determine cases argued by Muslim and non-Muslim lawyers alike, both in accordance with the common law and syariah principles. This has met with protests by the MCA which considers the proposal to be unacceptable. I think otherwise. (Please click here to read Tun Abdul Hamid's speech)

The proposal is timely and sensible in view of the make-up of Malaysian society today. We are a society that is being torn apart. On the one hand, a major segment of our society wants to be more Islamic. On the other hand, a vocal minority is concerned about its standing.

The MCA contends that to amalgamate the civil and syariah systems would erode the rights of non-Muslims guaranteed under Article 11 of the Federal Constitution. The MCA further contends that such an amalgamated system would lead to non-Muslims being subject to syariah law.

The argument clouds the real issue. A person does not go to court because he/she is desirous to submit to the common law system. Nobody wakes up one day and says, let me go to court today because I just feel an affinity with common law.

On the contrary, parties go to court primarily to seek justice. In a criminal law system, the state administers justice by punishing wrongdoers. In civil cases, parties who feel wronged seek redress from the court. In other words, the court functions both as an organ of state to govern society and its norms, and as a dispute resolution forum.

As such, the court should not be judged on the basis whether it applies common law or syariah principles. Instead, the court should be judged on the basis whether it manages to fulfil its primary function. Has the court been effective as an organ of state to govern societal norms? And has the court been effective as a dispute resolution forum?

If the dual system as practised today is intended to create clearly demarcated lines (as the MCA implies), it has clearly fallen short. Jurisdictional lines get blurred in the thick of legal action. Muslim judges find themselves in a dilemma being asked to rule against syariah law, and their own conscience, in the civil courts. Emotions are raised and justice gets lost in the process.

With all parties appearing before one single court, which can decide taking into account legal principles held dear by each party (even when they are in conflict), the court would be in a better position to sift through the applicable principles, and deliver the one product expected of the courts – justice. As the system now stands, there are occasions when the court is not delivering justice, but merely decisions.

Kheng Hoe wishes the former chief justice a happy retirement.

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