Ever since the Prime Minister launched the Government Transformation Programme (GTP), the term “transformation” has gained popularity to become almost a sacred word, or a concept, that has been associated with all aspects of human life: social, legal, economy and politics.
Comprising primarily of the National Key Result Areas (NKRAs) with its six pillars, the Key Performance Indicators (KPIs) of ministers and ministries and the Economic Transformation Programme (ETP), the GTP is designed to bring all Malaysians into a new high and improved public life in those aforementioned sectors, regardless of race, religion or region.
How about the transformation in the legal and judicial system of the country? Though the first two pillars of the NKRAs notably relate to legal matters (reducing crimes and fighting corruption), I believe both do not actually represent or lead to a comprehensive transformation of the system itself.
What we mean by “transformation” here refers to a radical change in the form or outward appearance of something, or a substantial change in the composition or structure of something. “To transform” therefore is to make a thorough or dramatic change in the manners prescribed.
Now, many still dispute whether the legal dualism-syariah and civil-practiced in Malaysia is a boon or bane for the nation. The recent chain of events nevertheless shows that it is more on the negative, at times putting the stability of the country at stake as it involves Muslims and non-Muslims parties.
To arrest the situation, it’s imperative, among others things, that we look back into our past. Historical facts categorically prove that the syariah legal system preceded the civil one at least by 600 years. The former has been applied as early as in the 1300s, long before the introduction of the English legal system into the land-more aggressively-in the 1900s. However, over the years, it is the latter that is dominating the former till today.
While Malaysian Muslims are subject to both streams of the legal systems, their fellow non-Muslims fall within the purview of the civil legal system only.
Despite encouraging improvement after independence, it is well known especially among the legal fraternity, that Islamic law still and only plays a peripheral and marginal role.
Realizing this, IKIM has taken the initiative to conduct a research project aspiring towards spearheading a transformation of the Islamic legal and judicial system currently enforced in this country. One of the important components of this project was a convention on the theme mentioned.
Gathering all religious institutions and organizations having to do with Islamic law at both the federal and state levels, the Convention was held at IKIM on April 5 and 6. Officiated by the Royal Highness Sultan of Selangor, ten papers were deliberated by senior policy makers of participating institutions, including government agencies, professional bodies and NGOs.
After two days of serious deliberations by the learned presenters and educated audience, the Convention largely endorsed that the dual legal systems should remain operational side by side as they are, at least for now.
The Convention also produced a number of resolutions to be refined by the organizer and later to be put forth to the authorities and relevant agencies for attention and actions wherever appropriate.
Some of these resolutions are worth sharing here. The Convention acknowledged that generally there are a lot of parallelism between the syariah and civil legal provisions.
Since the latter is more systematically codified and many principles or provisions are not contrary to the letter and spirit of the Syariah, they may be adopted and harmonized into the various statutes embodying Islamic law.
To accelerate the adoption and harmonization process, a technical committee with the principal objective of harmonizing the syariah and civil laws was established.
As one of its most important resolutions, the Convention strongly suggests that this committee should be upgraded into a royal commission and be made answerable directly to the Council of Rulers. This will enable all necessary works towards synchronizing and uplifting Islamic law can be more effectively planned and carried out.
Another resolution goes that in order to give more credibility and reputation to the Syariah court, the emoluments for its learned judges must be raised to be on par with their counterparts in the civil system. Currently the salary disparity between the two groups of judges is too big. The increase in terms of monthly salary and other perks will provide the path to later increase the jurisdiction of the syariah court.
Apart from the above, a resolution to strongly support a motion by the Department of Islamic Judiciary to introduce another tier of the syariah court has also been accepted.
It is generally felt that the right time has come to establish the Special Syariah Appeal Court to provide another platform to further adjudicate hearing from aggrieved parties of decisions meted out by the Syariah High Courts. This will further strengthen the noble principle of justice as the core trait of Islam.
It is hoped that the set of resolutions transpired in the Convention will serve as a catalyst to rapidly transform the Islamic legal system of the country in particular, and in the process, improve the entire legal system in general. It is to be noted as well that the Convention did not rule out the possibility of having just one unified legal system for the whole nation.