No “clash of civilizations” in Malaysia’s courts

BY CHRIS SZABLA

The architecture of Malaysia’s new Supreme Court includes both Islamic and Western elements. Increasingly, the court’s jurisprudence does as well.

The impending end of the Bush presidency has hardly put an end to debates over the “clash of civilizations” thesis, and in few fields has the perception of a conflict between the West and Islam been perceived as more acute as in law. From England to India, the reconciliation of Islamic norms and customs to secular law has been a major point of contention. Social theorists in Europe warn of the development of “parallel communities”, while more alarmist voices fear that secular legal systems will be subverted by religious ones.

These concerns have prompted a number of scholars to investigate the interaction of Islamic shari’a and secular law systems where they have come into contact. Cindy Skach, who taught at Harvard until moving to Oxford last year, conducted fieldwork in France’s Indian Ocean territories, where she found judges applying both shari’a and EU law in the same courts. On Thursday, Chief Justice Tun Abdul Hamid Mohamed of Malaysia discussed his own methodology for “harmonizing” the two systems. Introduced by Professor Baber Johansen, head of the Islamic Legal Studies Program, Justice Mohamed delivered the Abd Al-Razzaq Al-Sanhuri Lecture on the subject at the Harvard Faculty Club.

The Chief Justice began his discussion by providing some background on the two legal systems’ origins in Malaysia. Since 14th Century traders introduced Islam to the region, Mohamed said, the words “Malay” and “Islam” have been virtually synonymous in the Malay tongue. British colonialism introduced both the common law and religious diversity – the period of British rule coincided with the growth of Malaysia’s Chinese and Indian communities – but the position of Islamic legal thought in Malaysia was never fully displaced.

Although the Malaysian constitution was drafted by common law scholars, Mohamed pointed out, it would not have been broadly accepted without explicitly acknowledging that Islam was an integral part of the Malay identity, and recognizing the faith as the country’s official religion. The British, moreover, were obliged to leave legal disputes involving religion and customs to Malaysia’s nine regional sultans.

This division of labor has persisted to the present day. Matters of religious law were left to Malaysia’s states, headed by their respective sultans. There, they have jurisdiction over Islamic family law claims (non-Islamic family law and criminal law are left to the federal courts).

This system worked well for much of Malaysia’s postcolonial history. In the 1950s, Mohamed noted, the country was mostly rural, intermarriages were rare, and controversies involving marriage or inheritance were generally settled by having the non-Islamic party convert. So rare were instances in which religious and secular law intertwined that, as late as 1988, the Malaysian Supreme Court was able to declare Malaysia a secular state, officially relegating Islam to a “ceremonial” role.

Malaysia’s development and urbanization brought changes to the types of claims that different courts began to hear, however. Mixed marriages became more common, cases frequently implicated multiple jurisdictions, and constitutional issues began to grow more prevalent in the state shari’a courts. Given these developments, Mohamed had made a series of recommendations for the harmonization of the two systems. He advised that each case be heard by judges trained in the relevant law, and that a case involving both shari’a and common law claims be heard by a judge trained in each tradition. But this scheme would have involved amending the constitution, to which state authorities, increasingly composed of more conservative, Islamist elements, would not agree. Rather than a formal scheme, therefore, the Chief Justice placed his hopes in a new generation of scholars who had studied both legal traditions.

In the meantime, the Malaysian Supreme Court has been wrestling with the “harmonization” of the two traditions on a case-by-case basis. Mohamed has ruled, for example, that, in cases in which the application of shari’a and common law would conflict, only one ruling would be valid, but the opposing tradition should at least “validate” the judgment. The court has also established that courts should analyze issues within their zones of competency. Malaysia’s federal courts, Mohamed ruled, should not interpret shari’a law, but, when necessary, analyze the notion of the “precepts of Islam” within a constitutional context. On such questions, he said, the federal courts ought to welcome affidavits from Islamic scholars in order to clarify questions that range outside constitutional doctrine.

Justice Mohamed concluded his discussion by addressing just what he thought “shari’a law” consisted of. Believing that the distinction between Islamic and common laws was exaggerated by “mutual ignorance” of those who practiced in either system exclusively, he explained that, in Malaysia, 80% of the shari’a law dealing with criminal and civil offenses was virtually identical to common law doctrine in those areas. The Chief Justice also called for an expansive reading of shari’a law, claiming that it could include “anything that was not un-Islamic”.

Rejecting an “originalist” reading of Islamic law, he insisted that there could be “even better and more Islamic laws than existed at the time of the Prophet [Mohammed]”. If the Prophet had prescribed traffic laws relevant to the technology of the seventh century, he explained, it would be ridiculous to follow them today.

Similarly, he said that he could find no one to justify shari’a law’s codification of slavery. Given these examples, he claimed, the test for interpreting whether or not a law was Islamic ought to lie not in seeking its original expression, but in evaluating whether it contradicted the religion’s principles. Islamic banking and finance, fields that have exploded in recent years, would not be possible without such reasoning, Justice Mohamed concluded.

The Chief Justice expressed optimism that, although prejudice would prevent the common law from integrating shari’a principles, the number of judges and lawyers in Muslim-majority countries who were adept at blending the two systems would grow. Still, as Malaysia’s state governments grow increasingly Islamist, and as pressure dwindles to maintain the independence of the secular common law, one wonders if the balance will not be as even as it has been under the Chief Justice’s gavel. He announced his retirement from the bench on October 18.

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