June 9, 2013
A Pluralistic Legal System: the Malaysian Experience
by Zaid Ibrahim (05-17-2013)
As a former colony, Malaysia was at the time of its independence in 1957 the beneficiary of Westminster-style parliamentary democracy. Predicated on a written document, the Federal Constitution, which declared itself the supreme law of the land, the arrangement accommodated the establishment of Islamic, or Shariah, courts and the native courts.
The concept of law, as it was to be understood moving forward, was reflected in the definition of “law” under the constitution: “law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.
I would like to think that this all embracing definition of law was intended by the founders of the constitution to serve the “needs of all “and yet the many communities comprising Malaysia were to be bound by laws and values “common” to them.
This arrangement also serves as a means by which society would operate a system of “checks and balances” as it resolved its disputes or shaped its entitlements or obligations by reference to the normative standards of the sub-communities within the nation. The Federal Constitution cemented these sub-communities together in a way that would over time lead to the creation of a unique Malaysian common law system.
Laws are useful instruments in bringing about societal change. Newly developed countries feel compelled to introduce new laws to replace those left behind by the colonial masters. These newly independent states do not always produce good laws but even when they are ineffective, they are harmless if left to the devices of lawyers, judges and competent legislators. The problem starts when over-zealous or self-serving politicians join the fray and try using laws to effect social change by force.
The compulsion imposed by these legislators often gives rise to conflicts and distorts the balance and harmony between the different communities. In Pakistan, for example, such harmony had existed between civil and Islamic laws for many years until President Zia-ul-Haq upset the balance in 1976 by pushing for an Islamisation programme. Sudan’s break-up can be attributed partly to the attempt by its leaders to impose religious laws on non-Muslims in that country.
Still, it would be unfair to Muslims if they are denied the right to live their lives in accordance with Islamic laws and values where they desire to do so. Their community identifies itself by certain practices which flow from such laws and values. Their value systems have to be accommodated at least in areas where those value systems would not infringe on the public sphere or affect the rights of others. That is why in Malaysia personal laws for Muslims have been accorded a special place in the country’s legal system.
Things have, however, changed. Due to the harnessing of Islam for political purposes and an undue and dangerous emphasis of race and religion in politics that began in the late 1980s and gained traction in the 1990s, the role of Islam in Malaysian society has become more pronounced and so increasingly contentious as to threaten to undermine this multicultural and multi religious nation. To a large extent this has been made possible by a collapse of the Rule of Law which is the result of a style of government that was contemptuous of the essential checks and balances of democracy.
In the two plus decades since Dr Mahathir precipitated a constitutional crisis that resulted in, amongst other things, the sacking of the then Chief Justice and the creation of a subservient Judiciary, we have gone from being one of the more promising young democracies of the post-War era to a nation deeply undermined by corruption and the retrograde politics that perpetuates it.
In the process, a personal law system (the Shariah) that was aimed at allowing Muslims to regulate such personal matters as marriage, divorce, custody of children and inheritance has now threatened to become the general law of the land. Islamists no longer feel satisfied that there are laws already in existence which can enrich their spiritual experience; they now want Islamic laws to reshape the way of life of all Malaysians; and to regulate the way in which things are done in Malaysia. As a result, the guarantees of fundamental liberties, equality and the equal protection of the law promised under the Constitution are threatened in very fundamental ways.
In the early years, this carefully-crafted system that had been put in place by the founding fathers served us well. The Islamic legal system, was limited in its scope purely to matters of personal law, matters that primarily pertained to the personal faith of the Muslim majority population. The law in the public sphere was for all purposes and intents secular, or religiously-neutral, law. A decision of the apex court in 1988 made this clear, explaining its decision by reference to the constitution being the supreme law.
This dual system of Islamic and civil laws worked well in Malaysia because the civil courts and the secular Constitution were respected and they held sway in cases of conflicts. This was because the High Courts always had the power to review the decisions of the inferior courts, including the religious (Shariah) courts. Under the then Constitution the High Courts had broad judicial powers vested in them and such powers enabled them to resolve conflicts emanating from the religious courts. But in 2002, the then Prime Minister unilaterally and controversially declared Malaysia to be an Islamic state .
In 1988 he had amended the Constitution to remove any possibility of judicial review by the civil courts of any decision of the Shariah courts . This was done by removing any judicial power bestowed by the Constitution on the High court. When Dr Mahathir made this declaration that Malaysia was an Islamic state he did so knowing that there was a clear ruling by the nation’s highest court that Malaysia was a secular state, and that the Constitution reigned supreme. The Constitutional amendment giving equal status to the Shariah Court and the civil court, and enjoining that the the High Courts are precluded from reviewing any cases or matter that fall within the jurisdiction of the Shariah court completed the dismantling of the checks and balance we had since independence.
This so called ‘clear separation’ has resulted in severe injustice and hardship to many people. There have been many cases where a husband who is estranged from his wife has converted to Islam simply so that he can get custody of his children because, by doing so, he can ensure that the civil courts are unable to touch him. As a Muslim he is entitled to come to the Shariah court for his entitlements, but his non-Muslim wife (or ex-wife) has no such recourse. She has to go to the civil court. In cases of this nature one of the parties will be left without remedy, especially given that the judges in the civil courts will be reluctant to interfere contradict or intervene with the decision of the Shariah court. They would not want to be accused of not being sympathetic to the official religion. They will use the lack of jurisdiction as their excuse for not interfering.
In my book Ampun Tuanku I have tried to explain these cases in greater detail. In any case, it is not possible to regulate human affairs in tight compartments as mandated by the Malaysian legal system. It can only result in injustices and conflicts.
The extent to which religion has been used perversely by over-zealous politicians can be seen from an attempt made sometime back to prevent non-Muslims from using the word ‘Allah’. In a challenge mounted against that attempt, the High Court, in a judgment delivered three years ago, decided that Christians can indeed use the word Allah in their bibles and their prayers. This, said the court, is part of the freedom to practise their faith as guaranteed by the Constitution. The government refused to accept this decision as they felt they would lose the Muslim votes in the ensuing general election. What did they do? They got the Christians who filed the suit to agree to a stay of that the decision for 30 days and stopped the appellate proceedings that would have followed the decision. The 30 days have become three years and there is no appeal in sight.
Muslims in Malaysia believe that the word Allah belongs to them. So no one else can use it regardless of the fact that the word was used by pre-Islamic Arabs even before Prophet Muhammad. The Coptic Christians and the Sikh religion have the word Allah appearing in their holy books. The subject is undoubtedly sensitive and certainly not a matter that can be taken lightly by any quarters. However in a modern democracy; there are enough laws that cater for all situations and circumstances. Any responsible government should be confident of allowing the court to decide contentious and delicate issues based on the laws; and to trust the court to do justice by balancing the rights of the community.
Unfortunately in Malaysia we are still in that stage in our development where the Muslim public are still unsure if man made laws are adequate to cater for their needs. This is what happens when the laws and the courts are, in effect, rendered irrelevant by politicians and religious extremists in determining disputes and conflicts.
Malaysia is a federation of states. The Constitution is clear about the division of powers between the federal government and the states. The federal government has authority over commercial, criminal and constitutional laws, and only Parliament can legislate on these matters. The States, on the other hand, have authority over the personal laws of Muslims, and have limited power to create offences against the precepts of Islam and the Shariah Courts.
When, however, Islamisation became a battle cry, the proponents of Islamic laws were not interested in the so-called separation between civil and religious laws. They wanted the all-consuming Islamic laws to be the main body of laws for the country. Islam, after all, is all about a way of life, so in their minds only Islamic laws and the Shariah must prevail. As a result, the balance that existed in Malaysia since our independence in 1957 can no longer be found.
Allow me to illustrate the conflicts and injustices caused by this imposition by citing a few examples. The Constitution explicitly provides for freedom of religion, but if you are a Muslim, you do not have that right. Apostasy is not a crime under federal law yet a crime punishable by death in Islam, so no Malaysian judge (the majority of whom are Muslims) will make a ruling to defend this fundamental right to religious belief. Those who are interested in seeing how such cases play out in Malaysian courts can read the case of Lina Joy.
The Constitution explicitly provides that criminal laws are within the exclusive purview of the federal Parliament and yet the state governments in Malaysia continue to defy this arrangement by passing criminal laws of their own – criminal laws and punishment in accordance with Islamic law. A multitude of criminal offences have been created by the state legislators based on Islamic law in defiance of federal legislation dealing with the same matter. Not only are the punishments different, the evidential rules required to prove these cases are also not the same. For example adultery is not a criminal offence under federal law but is an offence for Muslims under state law.
Homosexuality is still a crime punishable by imprisonment for up to twenty years under federal law but the same offence also exists under state law, except that state law requires four witnesses for the prosecution to succeed (this is not so under federal law). Theft is an offence under federal law: the punishment varies from fines to imprisonment yet under one state law Islamic principles are applied for the same offence and the punishment would involve amputation of limbs.
In Malaysia, freedom of expression is guaranteed under the federal constitution but some state laws provide otherwise For example , Islam can only be taught or propagated by those who have the written permission of the religious authorities. The highest court has ruled that the sanctity of the religion requires such stringent control. So Muslims have been imprisoned or fined for expressing their views on their own religion, when those views were contrary to the views and the understanding of the religious authorities. This ruling from the highest Court came in the face of a clear provision , in the Constitution which provides for freedom of speech and expression for all citizens, including Muslims.
Under the Penal Code (which is a federal law), you can be charged for having sex with a girl below the age of 16. Under another federal law, the age of majority is stipulated as 18 years. But these laws mean nothing to the Shariah Courts. They have given permission to girls as young as 12 and 14 years old to be married, because Islam permits such marriages. They do not, in my view, have the powers to sanction “child marriages”, but who will stop them?
In Malaysia, the pluralist legal system is breaking down. Unless the Federal Court reversed the trend; and it is only a matter of time before the Shariah laws and Shariah courts will reign supreme. For a long time, criminal laws were accepted to be within the purview of the civil (read: secular) courts, but now the Shariah courts are widening their powers.
My son is a book publisher who translated into Malay and published the book Allah, Liberty and Love by the Canadian writer Irshad Manji. Until 2003, the authority to ban books and to limit freedom of expression could only be exercised on the grounds of violation of public order or morality. This power was in the hands of the federal government. Now, state laws have been enacted to prosecute those publishing and disseminating materials which are deemed to be prejudicial to, or against, religious laws (as defined by the authorities). These state laws are clearly unconstitutional as they violate the freedom of speech and expression under the Constitution. My son, against whom a prosecution has been brought, is not being charged for offences against public order or morality, as he should be if at all. Instead, the Shariah courts have now devised their own laws, regardless of what the Constitution provides.
Human rights have taken a back seat in the face of relentless religious onslaughts. Many Malaysian school boys who have exhibited effeminate traits and tendencies are taken to what is known as a ‘gay camp’ to change their personality. These camps seek to make the boys more “masculine” and to remind them of the evils that befall those who are gays or lesbians. Effeminate personalities are considered a curse: people need to be reoriented and changed. Our national theatre is now currently showing a musical which depicts gays and lesbians as people who are forever engaging in sex and drugs and who ultimately get punished when lightning strikes them down.
I am aware that in this day and age, there is a growing demand for pluralist legal systems as societies are no longer as homogenous as they were, say, 100 years ago. Those calling for change say that truth and fundamental rights have to be redefined. In Britain today, Islamic arbitration courts are accepted as part of the legal system, although I understand that these are enforceable only if they are not inconsistent with the provisions of the Arbitration Act. Similarly, Jews in Britain have their own rabbinical courts whose settlements have gained recognition. Allowing for religious and customary laws to exist within the larger unitary legal system may not be problematic if that larger unitary system holds sway in cases of conflict.
The fundamental legal principles and rights that affect people in the most basic way must remain inviolable; otherwise, societies will break down. No cohesive community can exist if ethnic groups are allowed to preserve unchanged all the elements of their religious beliefs. Religious beliefs and laws by their nature do not permit discussion and compromise. In such a situation, how do we inculcate and nurture shared values for the wider society?
I am all in favour of being progressive and allowing for respect for the laws and traditions of all communities. In other words a limited form of pluralist legal systems is acceptable. This however must not be at the expense of stability and social cohesion . Human rights are important and sacrosanct, but only when they serve the common good of the community, not otherwise.
A former Chief Justice of Australia, Sir Francis Gerard Brennan, suggested that there is no room in Australia for Shariah law to operate in parallel with the existing legal system. He said: A parallel system would undermine the cohesiveness of Australia’s multicultural society. No court could apply and no government could administer two parallel systems of law; especially if they reflect, as they would inevitably reflect, different fundamental standards and values”. Sir Gerard said that in a democracy, the majority determined a country’s legal structure. Minority practices that offended the fundamental moral standards of the majority had to be abandoned.
I agree completely with his observations, except for the part about the majority’s right to determine the legal structure. It is not about doing what is required by the majority – it is about having a legal system that will do justice to mankind as a whole. If the majority advocates the rights of child marriages then we as lawyers must oppose this, for it is cruel and unacceptable by the moral standards of most people.
Practices and beliefs based on a particular community, no matter how large, which offend the fundamental moral norms, have to be rejected. Where there are insurmountable differences in moral standards, we will not have a peaceful community. We will always be in conflict. If we value freedom and liberty, then laws must allow for society to operate consistently with those values.
Malaysia’s rich heritage as a tolerant, multicultural society is now under severe threat because some politicians want to create an Islamic state, one that has its own legal system that is at odds with the essential values of tolerance, freedom and mutual accommodation. Muslims already have sufficient laws and a court system that caters to their personal needs and beliefs. Yet this is not enough for some. The plural system we have now is being undermined, and that is why those who advocate an acceptance of a parallel legal system must think again and re-examine their position. It is time such people looked at Malaysia more closely.
Of course, customary and traditional rights have their place in our system and they should be protected and enforced, but only as long as such rights do not violate the moral values common to the people in that country ; and at the same time do not violate rights of other citizens. Laws and precepts that offend common morality have no place in any legal system.
 The country was then merely the Federation of Malaya, but it became the Federation of Malaysia in 1965 with the accession of the former colonies of Sabah and Sarawak.
 Che Omar bin Che Soh v. Public Prosecutor  2 MLJ 55.
 Lina Joy v Majlis Agama Islam Wilayah Persekutuan & 2 Ors  4 CLJ 666.
 See, ‘Brennan dismisses idea of plural legal system’, Lawyers’ Weekly, 24 Aug 2012, accessible here.
Zaid Ibrahim’s latest book,Far & Sure; For Golf and Country, is a recommended read. It is about golf and more.
For Golf and Country is a view of our nation from the green, the quiet considerations of a man with Malaysia forever on his mind, irrespective of where he chooses to lay his clubs.
Jumping back and forth through his retirement, Zaid Ibrahim traverses the globe one golf course at a time, from Bukit Besi to Black Mountain, from Saujana to St. Andrews, in this collection of essays that are one part reflection, one part confession, and one part meditation.These 67 short vignettes make for quite the magnificent mishmash.
Whether he is contemplating the spiritual underpinnings of the sport or the complex relationship between mosque and state, Zaid Ibrahim brings his unique blend of irreverence, wit, and perceptive analysis to bear on the marvellous mania that is both golf and Malaysia.
Datuk Zaid Ibrahim’s New Book
[ Programme Segment: Bookmark ] This week’s Bookmark sees Umapagan Ampikaipakan explore ‘Far & Sure: For Golf and Country Guests’ with Datuk Zaid Ibrahim’s on the latter’s new book. Copy & paste code to embed…