If a pink elephant were to be together in our room, could we pretend it did not exist or could we be oblivious to it? Such is the analogy of the challenges before us in relation to the Islamic legal system. Experience has taught us that three kinds of people exist in this world. The first are those who would not do anything. The second are those who only criticise often. While the last are those who seek solutions.
Of the three, the third group is what I am more interested in discussing as their approach gives more benefits from all angles to the Islamic legal system. Apart from the mental exercise that it offers, the issue at stake is quite challenging which involves creative and innovative thinking activities in order to find a strategic solution. Such a healthy exercise actually helps to improve the current situation.
A thinking activity that involves transformation on resolving ways through the various process of innovation (tajdid), reform (islah) revival (ihya’) change (taghyir), and migrate (hijrah) are not often practised by many. However, banding together like-minded individuals greatly helps in this direction. All these approaches are recommended by Islam through the concept of mushawwarah (consensus) and research-driven strategies.
In the context of transforming the Islamic legal system, one of the main issues identified are the challenges of public perception. In the pink elephant analogy, changing negative perceptions of agencies under the Islamic legal system, especially the Shariah Court, requires consistent and concerted effort because it is likened to the elephant – big and strong. Even though many changes have been carried out, especially after the 1980’s, public criticisms still abound. Whether those in society who had thrown criticisms had done so because others, including those who seemed to be in authority, had made similar criticisms, or they themselves had faced real problems with the institution. Efforts have been made by certain quarters which had deliberately distorted facts so that the Shariah Court, which is an Islamic symbol, is disputed. Indeed, this has rather become mysterious. Taking cue from this, IKIM, together with all agencies related to Islamic legal system, has led a research to ensure that the entire system can be perceived with fairness. The research on public perception on services by agencies related to the Islamic legal system is the first of such steps taken before any action towards transformation can take off.
Among the important factors that cry for attention are those who are in the Islamic legal system. In particular, such individuals are made up of officials and staff of relevant agencies under the system who are to carry out their duties in upholding justice efficiently and responsibly. Like the elephant analogy, the officials and agency personnel constitute the feet which enable the elephant’s body to move. Should one of the feet get diseased, the elephant would walk with a cripple. Thus, the strong feet are the Shariah officers comprising of court and administrative officials. These include the learned judges, prosecutors, and Shariah lawyers -be they private or among the public officers from the Legal Aid Department. Those who are working in the front line and behind the scenes have to pull up their own socks because society needs them to uphold justice.
The Department of Shariah Judiciary Malaysia (JKSM) ensures the administration of justice but it is only confined to their own officers. Among the issues often raised by JKSM is that the learned judges of the Shariah Court have to hone their expertise from time to time. The lack of a specific institution to cater for the continuous training of those judges is considered a loss. For, indeed, this is the pulse of justice.
The next question arises is who take charge of the Shariah lawyers? As the Malay-Muslim society is becoming more litigious these days, they can afford to engage the services of Shariah lawyers to defend their cases in court. Again with the elephant above, who should tend to its foot if it gets hurt or fractured? Can the State Islamic Council, through the Shariah Lawyers Committee, be regarded as doctors just because they have the power to give credentials (tauliah) to those who wish to practice in a particular state?
The power of this committee includes giving recommendations to the State Islamic Council the qualifications and relevant experiences prior to being admitted to practice in a particular state. Apparently, this committee also has received complaints from the public on services rendered by lawyers that breach ethics. Now, this begs the question – are the controls enough? Thus far, neither specified nor standardized statute at the state level have been drafted to monitor the ethics of Shariah lawyers as that of civil lawyers.
Other challenges include many potential Shariah lawyers have become disgruntled as they have been forced to attend a series of interviews in the states they wished to practice. Definitely, the Association of Shariah Lawyers is not a doctor who can cure the fracture for it is not allowed to prescribe any form of medicine, but only enough to administer the cast to the fractured leg.
For those who cannot afford the means, services from the Legal Aid Department which are becoming empowered at present can be obtained. It is said that 80 per cent of cases from the department is brought to the Shariah Court. However, much of their effort is not known as they are not placed under the purview of the Minister for Islamic affairs. Due to jurisdiction matters, positive initiatives have neither been known nor shared with agencies that manage Islamic law. Cooperation has become rather difficult due to a lack of a common reference point.
The heart of justice is the law. In this context, the Islamic Development Department of Malaysia (JAKIM) has been given the responsibility to standardize Islamic law throughout Malaysia. Unfortunately, a burden as heavy as this is not without restraints. Since the establishment of the Technical Committee on Shariah and Civil Laws, concerted efforts to standardize laws through the preparation of models to be applied at state level have encountered many difficulties. The situation is likened to making elephants fly.
All the matters raised above are not to be merely thought out but implemented. Among the relatively successful achievements are the preparations of human capital for the Islamic judiciary system. Local universities with their own syllabi also have to adhere to a stringent process by the Malaysian Qualifications Agency apart from regulations by the universities themselves to improve quality. Appointments of external evaluators from law agencies in the form of visiting scholars strengthen their syllabi so as to be compatible with market needs.
Still, more improvements need to be made in forging smart partnerships among academic members with law agencies so that universities are not regarded as mere ivory towers which are only adept in theories. Most importantly, universities must be able to produce excellent and quality graduates to contribute their knowledge and expertise wherever they serve, “Just like a good seed, sown on land it will be a hill, sown in the sea it will be an island.”
Even though universities encounter their own challenges, positive efforts will continue to be implemented under the framework of the Ministry of Higher Education so that educational quality will always be enhanced.
On this basis, there is an ardent need to transform the current Islamic legal system. Integrated effort to streamline strategies made by the relevant Islamic law agencies are discussed at length at the Convention on Transformation of the Malaysian Islamic Legal System organized by the Institute of Islamic Understanding and the Selangor Religious Council from 5-6 April 2011. At the end of the two-day convention, it is expected that this fruit of united labor will give birth to a blue print on transformation of the Islamic legal system in Malaysia.
