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The Malaysian legal system is a unique blend of different legal traditions. This is a result of historical and socio-cultural developments. We have inherited both the common law, which regulates most of our day-to-day affairs; and Syariah law, which regulates specific areas of the affairs of Muslims in Malaysia.
The Syariah Judiciary undoubtedly plays an important role in the administration of justice for Muslims. This is also evidenced by the increasing number of cases registered at the Syariah Courts. Some older statistics1 provided by Jabatan Kehakiman Syariah Malaysia (Department of Syariah Judiciary Malaysia) on the number of registered non-criminal Syariah cases (referred to as “mal” cases in Syariah law terminology) show an upward trend between 2013 and 2017 — a total of 87,804 cases were registered in 2013, which increased to 105,372 cases registered in 2017.
Due to the increasing workload that the Syariah Judiciary has to undertake, it is vital for this institution to perform its functions as required by law, free from any external influence. In this aspect, there lies an imbalance between the features of the Malaysian Civil Judiciary and the Syariah Judiciary. While the Civil Judiciary has progressed and made a number of important reforms contributing towards greater judicial independence, the Syariah Judiciary has yet to undergo such reforms.
That said, there have been some recent developments which indicate that the Syariah Judiciary is going in the right direction. One such development is a proposal made by the Minister in the Prime Minister’s Department (Religious Affairs), Dato’ Dr Mohd Na’im Mokhtar, concerning the establishment of a Syariah Judicial Appointments Commission.2 The establishment of such a commission would go a long way towards promoting the independence of the Syariah Judiciary, and would set out a clear, transparent, and accountable manner of appointing Syariah Judges.
While the establishment of a Syariah Judicial Appointments Commission represents an important step, more could be done to ensure the independence of the Syariah Judiciary. The following are features that could be implemented within the Syariah Judiciary:
- Separation of powers: The Syariah Court must be seen as distinct from other branches of Government, particularly the Executive and Legislative branches. With this clear separation, Syariah Court Judges will be seen to be independent of political pressures or Executive influence;
- Security of tenure: Syariah Court Judges should have security of tenure, meaning they cannot be easily removed from their positions without proper cause and due process. This prevents unjust dismissals or transfers motivated by dissatisfaction with a Judge’s rulings;
- Financial independence: The Syariah Judiciary should have sufficient financial resources to operate independently. This includes adequate salaries for its Judges, thereby acting as a deterrent against corruption, which would otherwise compromise judicial impartiality. In this regard, a recent announcement by Prime Minister Dato’ Seri Anwar Ibrahim on the introduction of a Syariah Judges’ Remuneration Act,3 is very timely; and
- Protection from external pressure: Syariah Court Judges must be protected from external pressures, whether from political leaders, religious authorities, or social influences, to ensure that their decisions are based solely on the law.
With these key reforms in place, we expect to see a revitalisation of the Syariah legal system, which would lead to an improved justice system for Muslims in Malaysia, and elevate Malaysia in the area of administration of Syariah law.
The integrity and independence of both the Civil and Syariah Courts are fundamental to maintaining public confidence in the justice system. Therefore, the Malaysian Bar calls for continuous efforts to strengthen these institutions through meaningful reforms, particularly within the Syariah Judiciary, as reforms to this institution have been few and far between.
In this regard, the Malaysian Bar reaffirms its commitment to upholding the rule of law and the principles of justice within the Malaysian legal system. As we move forward, the Malaysian Bar calls upon all concerned parties within both sides of the Civil and Syariah law divide to work together to preserve the delicate balance between both systems of law, safeguarding the rights and freedoms of all Malaysians, within the framework of our legal system.
Mohamad Ezri b Abdul Wahab
President
Malaysian Bar
26 August 2024
1 “Pendaftaran Kes MAL - Mahkamah Syariah Tahun 2013-2017” (click on “Muat Turun” to view the data), data.gov.my website.
2 “PM’s Dept to propose a syariah judicial appointments commission, says Mohd Na’im”, The Star, 15 July 2024.
3 “Govt wants to ensure Syariah and civil court judges salaries balanced”, New Straits Times, 15 July 2024.