Common Law and Syariah: Wine and sparkling grape juice?
THE issue of harmonising Syariah and common law is a puzzle Malaysian jurists have long grappled with – one that has real consequences for Malaysians living in a pluralistic society. Controversy has arisen when it was unclear if a Syariah or common law court has jurisdiction over a case or when they seemingly have concurrent jurisdiction. Early this month, in a lecture sponsored by Harvard Law School, former Chief Justice Tun Abdul Hamid Mohamad spoke on these issues of harmonisation and the nature of Syariah in Malaysia.
He proposed two ways to harmonise the courts. First, combine the courts with either a Syariah or common law judge or a panel bench hearing the case as need be. Second, leave the courts as is but have two judges, one from each court, hear issues of concurrent jurisdiction. Executing either option, in his view, however, is fraught with difficulty with political parties dissenting or deeming the matter too sensitive.
Of particular interest were his remarks on Syariah’s meaning and mutability. As he recounted, when addressing a group of ulama from across the Muslim world, he had elicited dismissive laughter when he stated that the definition of Islamic law was any law that is not unIslamic. The focus in his view must not be form but substance. You do not need to be English to know common law; you need not speak Arabic to grasp Syariah .
"We can have better Islamic laws than the time of the Prophet," he said. Using the example of slavery, he argued how in Islam’s early years, the Prophet Muhammad (peace be upon him), considerably curbed the practice but it was never outlawed. Now that the times have changed and slavery has been banned, would anyone call for introducing a law that permits it? Outlawing slavery is thus more Islamic than the law of that time. "To determine whether a law is Islamic don’t look back 1,500 years. Look at its principles."
On the future of Syariah in Malaysia, he highlighted three themes. First, common law and Syariah courts would continue existing in tandem. Second, the divisions between the various Sunni legal traditions would decrease due to shrinking geographical distances and greater information sharing, resulting in a globalised outlook in Islamic law.
Third, and perhaps most importantly, Syariah will continue to absorb those elements of common law that are not contradictory; however, the reverse is unlikely to occur due to "ignorance and prejudice". Yet, when pressed on what elements of Syariah he would like to see common law embrace, he was unable to provide an answer. One Muslim graduate student asked why the
Islamic legal tradition could not innovate itself. The response was unduly vague: a vacuum existed in the tradition for historical reasons.
Describing one way how this vacuum could be filled, Abdul Hamid recalled how during his tenure as state legal adviser in Kelantan, he had asked the mufti to formulate a Syariah-compliant criminal law procedure. When he was unable to do so, Abdul Hamid drew on related common law provisions, such as the need for a charge to be sufficiently particularised; explained the meaning of the provisions to the mufti; and asked him to make a determination. The mufti subsequently sanctioned the procedure as Islamic. Summing up what he deemed his practical approach to dispensing justice, he said "if you remove alcohol from wine it becomes sparkling grape juice".
But as Abdul Hamid unwittingly admitted later, sometimes the distilling process does not always result in a sound product. As the "only non-Syariah member of the Syariah Advisory Council to Bank Negara Malaysia", he described how he found the process of taking a conventional product, finding a Syariah issue, and examining the core principles, largely effective; however, "at times I find the methodology artificial".
I asked one audience member what he thought of the lecture. His response was that notwithstanding the remarks on harmonisation, he was "a common law guy". A telling response I thought. People like the graduate student who had asked about Islamic legal innovation did not want sparkling grape juice to merely be non-alcoholic wine; they wanted it to be sparkling grape juice in itself – a substance with its own integrity and vitality.
For many Muslims today, the quest for formulating and implementing Islamic law is the quest for identity – part colonial "hangover," part spiritual sojourn. Abdul Hamid’s argument that common law is not necessarily unIslamic is both disconcerting and empowering. It is disconcerting because it requires taking a hard look at Islamic law, as it has been traditionally understood by scholars, and recognising two things: at best it does not have all the answers and at worst it is out of sync with the times and perhaps regressively so, for example, on women’s rights. Yet, it is also empowering because it emphasises the common values and strands that bind all societies.
No doubt, it would ease the minds of many Muslims to know that the street is not one way. That Islamic law has not intellectually stagnated but is also shaping common law. After all, at its "conception", Islamic law was far more progressive in the rights it accorded women than many of its contemporary legal traditions. But Abdul Hamid was disappointingly silent on this point. His focus, as perhaps a judge’s appropriately ought to be, was not on Islamic justice or common law justice but practical justice.
Nonetheless, not everyone thinks of Islamic law from the perspective of the gavel. As the debate on harmonisation continues, Muslims will have to ask themselves what Islamic law means to them instead of ceding the debate to the religious right – whether salvation can indeed lie between blurry legal lines.