Move to blend shariah, common law a political ploy, says lawyer

Moderator Datuk Noor Faridah Ariffin (second left) seen with panellists Nizam Bashir (left), Aston Paiva (second right) and Lim Heng Seng (right) during the forum “Maqasid Syariah in a Constitutional Democracy” in Bayan Baru,Penang, today. – The Malaysian Insider pic by Hasnoor Hussain,October 31, 2015..

The move to harmonise shariah and common laws in the country is just a ploy to dupe the people into believing that those with no religious credentials represent Islam, a constitutional and human rights lawyer said.

Harmonising the two sets of laws would involve amending the constitution, said Aston Paiva.

“Brandishing it as if you represent Islam is going to dupe people into thinking that you have some credentials when you have none.

“When you have a failing government accused of corruption, the only thing you can do is to seem holier than thou,” he said at the forum, “Maqasid Shariah in a Constitutional Democracy”,in Penang organised by G25 and think tank Penang Institute today .

Another lawyer, Lim Heng Seng, said the real test in harmonising the two sets of legislation would be to harmonise family law.

“That would be the real test,” he said, referring to custody problems faced by interfaith families.

The speakers, who were panellists in a session on shariah law and the federal constitution, also spoke on the overlapping of Islamic and secular in Malaysia.

For years there was faithful compliance with the law, but the Islamic state idea and sentiments made people think they must do something for Islam, which had affected the system, said Lim.

He cited how Inspector-General of Police Tan Sri Khalid Abu Bakar earlier this year refused to obey the Ipoh High Court’s order to recover children caught in an interfaith custody battle because there was conflicting judgment from an Islamic court.

Nizam Bashir, a lawyer who practises both shariah and civil law, said the problem was because of a desire to legislate faith, which might not be the way to encourage spiritual observance of Islamic tenets.

Instead, it would encourage false ideas of faith to some extent, he said.

Paiva disagreed, saying that in matters where Islamic laws applied, such as family and marriage laws, the jurisdictions were clearly demarcated.

“We just need an independent judiciary so we can move on. We already have Islamic laws in each state and they cannot be used on non-Muslims,” he said.

Former Umno deputy minister Datuk Saifuddin Abdullah, who was among the audience, said there might had been too much focus on terminologies.

He said there was a time when religious law was not called shariah law, but Islamic administrative law.

“Somewhere along the line somebody wanted to be holier than thou,” he said.

The former Global Movement of Moderates chief added that it would be wrong to see common law as un-Islamic, because laws have a history of borrowing from each other.

G25 leader Datuk Noor Farida Ariffin, who moderated the session, said there were misconceptions among Muslims who think shariah laws were divine even though in reality, they were made by lawmakers.

She said Muslims needed to be informed about shariah and its jurisdictions.

“There is even ignorance among lawmakers that shariah law has limitations,” she said.

Former Treasury secretary-general Tan Sri Mohd Sheriff Mohd Kassim, who delivered the introductory remarks, said the federal constitution was the supreme law of the nation while any Islamic law has authority limited only to Muslims and matters about the religion.

He said the concern now was that religious authorities have gone beyond their power to issue fatwas and legislation, as well as local councils that took upon themselves to police the morals of Muslims by raiding restaurants and musical events.

Islam would end up with a bad name if it was governed with extremism, corruption and mismanagement, he said.

- TMI