On 6 November 2008, the former Malaysian Chief Justice, Tun Abdul Hamid Mohamad, gave a talk titled ‘Harmonization of Common Law and Shari’ah in Malaysia: A Practical Approach’ at Harvard University in honour of Abd Al-Razzaq Al-Sanhuri, a highly respected Egyptian scholar and jurist. These were some of my notes and thoughts upon reading the speech. All Quranic translation are taken from the translation rendered Abdullah Yusuf Ali with his commentary; published by Amana Corporation. Finally, though I make general references to Muslims and non-Muslims, I appreciate the hybrid nature of one’s personality and affiliations as posited by Edward Said, and my doing so is merely to facilitate directness of expression where thoughts of the interaction between the two social constructs are concerned. A copy of his speech can be obtained here.

1. The opening to his speech was, with due respect, a little overcooked. The greatest gift of his retirement is to accept an invitation to deliver a lecture by someone whom he has never met in honour of someone he never heard of? Of course it is.

2. Though some may laud Tun Hamid’s unflinching honesty about his ignorance of Abd al-Razzq al-Sanhuri as refreshing. But a declaration of ignorance is akin to declaring one doesn’t wear underpants – it is an act of honesty but completely unnecessary, irrelevant and rather embarassing. Thanks, but no thanks.

3. I thought Tun Hamid’s thoughts on the subject matter to be too simple to titter if not fall entirely into the realm of the simplistic. His methodology is taking ‘the existing laws that were currently in use in the common law courts as the basis to work on, remove or substitute the objectionable parts, add whatever needed to be added, make them Shari’ah-compliance and have them enacted as laws.’

What he’s saying, to be metaphorical with local panache, is you can make nasi briyani out of nasi lemak provided you work on, remove or substitute or add whatever needed to be added and then voila you have uh… nasi briyani. It’ll look like it alright but it’ll taste awful, like those soy substitutes. So you have the form but not the substance.

When he mentioned this methodology, it brought to mind some of John Dewey’s remarks in his excellent meditation titled ‘Experience & Education’ when he contemplates the development and interaction between the Traditional and Progressive camps in the field of education (If you want a primer on how to think about education, I cannot recommend it enough – less than 100 pages!). I reproduce below the relevant portions to the criticism at hand:

The rise of what is called the new education and progressive schools is of itself a product of discontent with traditional education. In effect it is a criticism of the latter. …

… The general philosophy of the new education may be sound, and yet the difference in abstract principles will not decide the way in which the moral and intellectual preference involved shall be worked out in practice. There is always the danger in a new movement that in rejecting the aims and methods of that which it would supplant, it may develop its principles negatively rather than positively and constructively. Then it takes its clew in practice from that which is rejected instead of from the constructive development of its own philosophy.

To me the methodology Tun Hamid suggests or practices has resulted a negative development in the way in which the civil courts approach or think about Shari’ah related matters. Instead of trying to deal with the issue, they approach the issue of religion from the perspective of form instead of substance. The civil courts now jettison people like Subashini and Lina Joy out of their jurisdiction simply because they are Muslims and leave them with no remedy because of the Muslim judges preoccupation with form over substance.

I think the same for most of those so called Islamic financial products. Stuff like takaful, Islamic banking and finance, etc. have all been developed so much that I doubt a highly learned legal scholar from the Golden Age of Islam can understand or even accept all these ‘financial products’. They didn’t exist for like a few hundred years and suddenly we have all these ‘Islamic’ products. Are they really? They look like conventional products with Islamic dressing and bluster.

And do Muslims really need such a construct? To me these Islamic products were developed to mimic if not replace the conventional model. They just use a supposed different path but at the end of the day it’s all about the bottom line. The God of the Bottom Line is Money, not Allah. And how Islamic are all these products when they make fantastic ‘Islamic profits’ when they go to expensive cars, houses, mistresses instead of towards – helping orphans, widows, the poor, etc? If your means are Islamic but the ends are not, is it still Islamic?

After all even Tun Hamid himself says: ‘So, now we can now have savings account, current account, credit cards, takaful, sukuk and others, something unimaginable fifty years ago.’

4. Having thought about this issue (the schism between the Shari’ah and civil courts) from a moral as opposed to legal standpoint, I still cannot agree with the positions taken by the Majority in the Civil Courts or those ‘Defend Islam’ sort of Muslims.

My unlearned thinking runs from this example: A and B are non-Muslim. B becomes Muslim, which means A stands divorced by Shari’ah. A now wants to divorce B. The civil courts say that A should go to Shari’ah because it has no jurisdiction over Islamic related matters. A has no locus standi in the Shari’ah courts but B does. So B can go back to the civil courts if he really wants to.

The predominant current thinking from Defenders of Islam camp on this issue is flawed and needlessly misguided when we think in terms of the ‘Islamic’. That this or that has to be Islamic. Just because something has an Islamic label doesn’t mean it is. Just because somebody says it is Shari’ah compliant doesn’t mean it is. I’ve heard enough about Shari’ah judicial officers behaving corruptly (asking for sexual favours or to sleep with them for no other reason than that), negligently or just plain irresponsibly.

Muslims are not a different species of homo sapiens as much as some in Malaysia would like to think so. They are as human which means they are prone to weakness, corruption as much as anybody else. The judges especially those Muslims ones should instead ask themselves what it means to be Islamic, not whether it is Islamic. And what does it mean to be Islamic? The following verses to me states what it means to be Islamic in the context of the law and dealings with each other:

Surah Al A’raf (Surah 7:29) provides:

Say: “My Lord hath commanded justice; and that ye set your whole selves (to Him) at every time and place of prayer, and call upon Him, making your devotion sincere as in His sight: such as He created you in the beginning, so shall ye return.”

Surah Al Nahl (Surah 16:90) provides:

Allah commands justice, the doing of good, and liberality to kith and kin, and He forbids all shameful deeds, and injustice and rebellion: He instructs you, that ye may receive admonition.

Surah Al Nisa (Surah 4:58) provides:

Allah doth command you to render back your trusts to those to whom they are due; And when ye judge between man and man, that ye judge with justice: verily how excellent is the teaching which He giveth you! For Allah is He Who heareth and seeth all things.

Surah Al Nisa to me says it all:

And when ye judge between man and man, that ye judge with justice:

The verse doesn’t say between Muslim and non-Muslim or believer and non-believer. Allah demands that when a Muslim judges we judge as between man and man. And that we judge both with justice. That means to be Islamic means to be just as between people irrespective of one’s faith. To be just only to be Muslims at the expense of a non-Muslim is not justice – it is injustice. It is against Allah’s command. Something is Islamic if the process and end result are justice between man and man. it is not Islamic because it has fulfilled ‘certain conditions’ because those conditions can result in injustice. That is why I am not at all impressed by those Muslim judges who told the non-Muslims to go to the Shari’ah courts when they know full well they had no remedy there. Their hands were not tied, they just sat on them if not pretended they didn’t have them altogether.

And in our current context, where is justice likelier to be obtained? It is not the Shari’ah courts because there is no equal legal standing between a Muslim and a non-Muslim there. Justice can exist in the presence of fairness and equality. How can one have justice when at the outset one has legal standing and the other doesn’t? It is in the civil courts where both have equal standing and equal rights before an impartial independent tribunal.

And let’s take the argument using that example just now a bit further. How is it that B will not receive justice if he yields to the civil courts in divorcing his wife properly? He has no choice in yielding to the civil courts for all other matters – debts, bankruptcy, etc. Why does B insist on going to the Shari’ah when he will still receive a fair hearing in the civil courts – the majority of them are Muslim to boot?! Even if a non-Muslim hears the case, I verily doubt they will be unjust in deciding the case simply because of one’s religion.

And to think that is to show great disrespect to our non-Muslim brothers and sisters. Just because one is of a different religion necessarily means he will be unfair to those of other religions. How sad that those amongst us think so lowly of our non-Muslim friends and relatives abilities! All religions preach fairness, respect and honour. If you can get ‘justice’ for all other matters, why not a family matter? Justice can be dispensed by all if they wanted to – even aetheists.

That is why when he says towards the end in relation to Islamic Law: ‘We should focus more on substance and the ‘maqasif’ rather than the form. We should look to the sources for the principles but the detail should be determined by the surrounding circumstances. A law need not be medieval or Arabic to be Islamic,’ I don’t know whether to laugh or cry, especially after he regales the audience with an extract of his speech from Sulaiman bin Takrib. So much for substance over form. He is still stuck on forms.

And that’s why I think he gets it wrong when he says ‘The test should be whether it contravenes any Shariah principle or not.’ The test is does this act or rule or application of principle result in justice. He is naive to think a simple application of a principle will result in a just and therefore ‘Islamic’ result. Principles exist in vacuums and come into conflict with others in the realm of application. And a mindless application of a principle without care may cause an injustice. The test, Tun Hamid, is justice and justice for all.

5. I am now considering his ‘slavery’ example where he proclaims proudly:

Yet Islamic law did not outlaw slavery. That is understandable considering the circumstances then. Now slavery is outlawed. Would anyone say that outlawing slavery is unIslamic? Would anyone say that a modern Islamic state must reintroduce slavery to be Islamic? I have posed these questions in Malaysia. No one had, so far, answered “Yes”.

How clever. My silly short reply to that is ‘No, but if an Islamic state allowed slavery it would not be unIslamic to keep the practise.’ Now what?

6. Finally, I disagree that there should be any union between the Shari’ah and common law.

I agree with Azmi Sharom’s short take on this:

I have argued elsewhere that the emotive nature of any theologically based law and the exclusivity of such systems are not appropriate for a fundamentally democratic society.

I also disagree that common law will not absorb the principles of Shari’ah because of prejudice and ignorance. The fallacy is in thinking that the principles of Shari’ah are like those of the common law – easily ascertainable. Tun Hamid glosses over the multitude of interpretations that beset ‘Shari’ah principles’. I borrow a passage from chapter 2 of Edward Said’s excellent ‘Representations of the Intellectual’ where he writes:

It is very much the case today that in dealing with the Islamic world – all one billion people in it, with dozens of different socities, half a dozen major languages including Arabic, Turkish, Iranian, all of them spread out over about a third of the globe – American or British academic intellectuals speak reductively and, in my view, irresponsibly of something called “Islam”. By using this single word they seem to regard Islam as a simple object about which grand generalizations spanning a millennium and a half of Muslim history can be made, and about which judgments concerning the compatability between Islam and democracy, Islam and human rights, Islam and progress and quite unabashedly advanced.

It does not escape me that the irony in Malaysia is that it is the Muslims themselves that speak reductively of Islam. Tun Hamid betrays his lack of appreciation of the multitude of differences in Muslim practices, opinions and traditions flourishing in Afghanistan, England, America and Egypt. Those who have been to Mecca know this when they see how other Muslims carry out their prayers and rituals. For example, here I was taught that we can only make 3 minor movements during prayer if not it is batal. But when they get to Mecca, they see fellow Muslims, answering mobile phones, disciplining their children whilst they are doing their prayer. But to them it is still valid, but to the usual Malaysian Muslim they will say that is not, as if whatever not done the Malaysian Islamic way is not proper or halal.

Sometimes I am tempted to think that the Defender of Islam Malaysian Muslim and their sympathizers have built another gate of ijtihad only so they can slam it shut again, only this time against all that is beautiful, sacred and honourable about Islam.

Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it...