Wednesday, March 3, 2010

On A Scale Of Justice (Or The Matter of I21(1A)

The writing below was to have been Marina's column in The Star. It was spiked because the paper had gotten into some trouble over a writing on Islam. Marina wrote in her blog to express concern, saying it is the Printing Presses and Publications Act (1984) that's the threat. In the column she had referred to the 1988 Amendment we know as 121(1A) which resulted in the country having two sets of laws and two judiciaries.

There are other laws, federal and state, that matter as well, even contempt of the mufti's orders and of Islam for options of the violence. Marina must have also known the Muslim authorities have discovered fire, long after Prometheus of course, but they still keep at burning books and newspapers. It's a tradition started sometime when Baghdad was the heart of the Muslim Empire before Hulagu's takeover in 1258 AD. Time hardly moved since, other than by stretching.

So here is Marina's spiked column - from

When we want to compete with anyone in any field, we seek those who are better than us. And we keep going until finally we are recognised as the best. For example, a tennis player starts at the unranked bottom and tries to play and win against better players until, finally, there is nobody to beat.

We do not, however, insist that everybody comes down to our level or to play badly in order for us to win. This is what puzzles me about the Shariah courts in our country.

In 1988, a clause was inserted into our Constitution that has been interpreted as having erected a “Berlin Wall” between the Shariah and the civil courts. Basically, Article 121(1A) said “the courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts.” This has caused untold problems because real life sometimes dictates that some issues cross over both jurisdictions. But leave that aside for a moment.

Although the new clause did not say it, there are some people who are of the view that the Shariah court is superior to the civil courts simply because Shariah law is deemed of a higher order than civil laws.

This is because apparently God made Shariah laws while mere human beings made the civil laws. Never mind the fact that human beings have been changing Shariah laws over the years, for instance, by loosening laws that protected women from losing all their property to their divorced husbands.

Shariah Laws

Like other laws in this country, Shariah laws have to be drafted, tabled and passed through our various lawmaking bodies, whether at the State or Federal levels. This process leaves a lot of human fingerprints all over them.

Civil laws are drafted, tabled and passed through Parliament. The difference is that at the tabling stage, they have to be debated before they are passed. The quality of the debate may be sometimes wanting but debated they are. This process provides some sort of ‘quality control’ over the laws so that they are hopefully current, reflect realities and are just.

The same does not hold true of Shariah laws. When they get tabled at State Excos, non-Muslims do not participate because there is the notion that they cannot partake in any such debate.

That leaves only the Muslim Excos, few of whom are women. This means that if a bill affects women, the opinions of the female minority in the Exco can be ignored.

Furthermore, most people are ignorant about their religion and tend to leave these matters to those they believe know best. Thus if the State Mufti or religious adviser says it’s a good law, they are unlikely to challenge him. Thus are religious laws passed without due scrutiny until something happens, such as when someone gets convicted of a Shariah crime and punishment is meted out.

Who knew that people could be caned for drinking, or for having a baby out of wedlock until the recent cases of Kartika who drank some beer and the three women who gave birth out of wedlock?

Not only were these laws not debated when they were being made, unlike civil laws they can’t be debated afterwards either. According to some, to do so is akin to arguing with God. (There are, however, some who think that God welcomes such arguments just so that He can prove He is right).

Superior Laws

If one believes that Shariah laws are superior to civil laws, should they not be held to higher standards? Should they not be subjected to more rigorous debate than civil laws out of fear that they may be unjust?

If Shariah courts are deemed superior to civil courts, should not their processes be more transparent and efficient? How is it that there are innumerable women having to suffer because Shariah court orders to their former husbands to pay child maintenance cannot be enforced?

How is it also that we suddenly hear about women being caned without any information about the processes they went through? Did they have the benefit of legal representation and heard in an open court? If they did, who were their lawyers and what defence did they mount? On whose behalf was justice served?

I have no problems with Shariah laws if their foundation is justice, equality and non-discrimination for all, even non-Muslims. But when their intent, processes and enforcement are unfair, they only give the impression that Islam is unjust and discriminatory. Surely to give such an image of Islam is a sin. –--
3 March 2010

* Marina Mahathir is a columnist with The Star.

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