The harmonisation of civil and shariah law: yes, no, ongoing?

From Hamid Sultan Abu Backer

What is the definition of Islamic Law? A former Chief Justice of Malaysia eloquently replied: “Any law which is not un-Islamic”.

A good example is the Malaysian Arbitration Act 2005 which originates from the New York Convention 1958 as well UNCITRAL Model Law 1985. It is also consistent with major religious principles that advocate for disputes to be mediated or arbitrated.

The harmonisation of civil and syariah law in our dual legal system essentially means bringing in good principles of law or procedures of one system to another system in a way which is not objectionable to any Malaysian, and applying it in commercial practice or by legislation, procedure or practice directions in courts.

The object is for the systems to complement and not to compete with one another.

Judges in Commonwealth countries harmonise the processes of law and procedure quite regularly by importing judicial decisions of another country and thereafter declaring it as law of the country, bypassing legislation process.

In my view most of the civil and criminal laws in Malaysia as well as other Commonwealth countries are largely not un-Islamic.

Even during the British colonisation period there was no radical interference in the personal and customary law of the inhabitants of the states, be it Muslim or non-Muslim.

In addition, British commercial laws, such as the law of tort, trust etc having its roots in the Roman Empire had similarities to Syariah law of business transactions and were captured in Medjelle (the Civil Code of the Ottoman Caliphate), which was also used in Malay States in particular Johor.

Quranic laws mostly relate to the personal laws of a Muslim, and the Malay Rulers are entrusted under the Federal Constitution to ensure appropriate legislation as well as enforcement under the federal as well as state laws as per the rule of law.

Be it federal or syariah law, judicial and constitutional powers are given to the civil courts to ensure that the federal and state legislatures do not breach their oath of office to preserve, protect and defend the constitution as well as social justice obligations, in breach of the constitutional framework of the country which may include international conventions Malaysia has entered into, such as the human rights convention.

In fact, the Malay Rulers have been magnanimous to allow the adjectival law of civil and criminal procedure of the civil courts to be imported into shariah courts, so as to be harmonious with civil procedural laws as far as practicable. To my knowledge this process started with the guidance of the jurisprudential giant of civil and syariah law, the late Ahmad Ibrahim then the dean of International Islamic University. His efforts are reflected in syariah, civil, criminal procedure, and the Evidence Act, among others.

This exercise was the import of British adjectival law to the syariah jurisdiction. In the ongoing harmonisation process, Islamic principles were exported to civil commercial banking, bonds, insurance etc. All Malaysians are beneficiaries of these transactions labelled as Islamic banking, sukuk bonds’ takaful, etc. In fact, many of the corporate companies including those trading in the stock market will be familiar with these principles and practice.

The export of Islamic principles has been done in a harmonious manner to benefit all Malaysians inclusive of the global banking industry and is an ongoing process to claim a supreme sovereign status in contrast to commercial trading principles during the British period.

It is now a global fact that Malaysia, by exporting Islamic commercial principles to the civil banking system, has now become the world’s leader in Islamic banking and other Islamic products like the sukuk bond.

Islamic affairs minister Na’im Mokhtar was one of the earliest supporters of my concept, the university cum court annexed arbitration and had given it an excellent review when he was serving the syariah judiciary.

While serving as chief judge of shariah court he had also invited me and my team to train about 150 syariah judges and officers to understand the Malaysian Arbitration Act 2005, and to write awards with a view to importing the methodology wholly or partly into the shariah courts with appropriate consultation with shariah stakeholders of justice as part of harmonisation of civil and syariah law of arbitration.

It was a one-day intensive programme where I also invited about 10 professionals consisting of Muslims and non-Muslims to evaluate the training programme. Two of them were ex-presidents of the Malaysian Bar who reported in the media the success of the programme.

In my view the British litigation system for dispute resolution for civil and commercial matters is a failure and will never be able to clear case backlogs in a civilised manner.

Harmonising the civil and syariah concepts of arbitration and the procedure for court matters and introducing it in the respective court systems with the empowerment of university cum court annexed arbitration to clear case backlogs at affordable costs will be a prudent step for the government as well as stakeholders of justice.

The success of its implementation will stand as a global solution to clear case backlogs and Malaysia, like its Islamic banking achievement, will be recognised for its contribution.

If the Prime Minister responds to my team’s letter sent to him about 7 months ago and agrees to empower the university cum court annexed arbitration as a model to clear case backlogs, my team and I with the support of MAHSA University, the shariah judiciary and the Islamic affairs department will be able to train, a tsunami of Muslim and non-Muslim lawyers, academia and others to clear case backlogs to reflect harmonisation of procedural law of arbitration and its benefits for the public and also for the global stakeholders of justice to recognise.

Will the Madani policymakers facilitate it? - FMT

Hamid Sultan Abu Backer is a retired Judge of the Court of Appeal, and professor of arbitration and dispute resolution at MAHSA University and an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.