A SOCIETY cannot afford to have an administration of justice that is in disarray. While legal pluralism may be celebrated, the same treatment may not be accorded to decentralised judicial pluralism because of the inherent incapability of administering justice effectively.
This is indeed the case in Malaysia, where a common law tradition and civil justice system seem to be at odds with the strong element of religion in the constitution.
For more than 50 years, the Malaysian legal system has had to deal and grapple with the ongoing and seemingly endless conflict of judicial authority between the civil and syariah courts.
The existence of dual and parallel judicial systems with mutually exclusive jurisdiction in society is not easy for it essentially creates a crisis of authority.
Therefore, there is a need for a minimum commitment to legal centralism by having a streamlined judicial system primarily as a means of securing a functional place for judicial authority that can provide final, timely and comprehensive determination of legal disputes.
This presents a two-fold challenge — ideological and institutional — both of which impede the important work of having a reliable and effective administration of justice.
Ideologically, while there has been a discussion about certain differences in the underlying values and framework of the civil and religious systems of laws, there is nothing inherently problematic from an Islamic point of view in accepting that civil courts are also syariah courts.
Courts are basically created to administer justice and enforce laws. Although there are bound to be substantive differences between certain aspects and elements of Islamic law and civil law, this substantive issue is a matter that is primarily for the legislature to resolve and not the court.
The plausibility of having a streamlined judicial system is jurisprudentially tenable by relying on the legal positivism school of thought. Legal positivists maintain that the validity of law derives from its source.
Therefore, ordinary courts can administer any law passed by the legislative assembly, regardless of its pith and substance, which may be religious in nature. Any disagreement on the scope, propriety and applicability of highly contentious norms that may have strong religious elements has to be sorted out by Parliament.
On this score, Islamic law will be administered and treated equally in comparison to any other branch of law; tort, contract law, criminal law, defamation law, etc.
The equal treatment here refers to the ideal situation where all laws are administered by a single judicial authority within a broad single judicial framework. As such, there will be no issue about court jurisdiction to adjudicate a legal dispute.
Institutionally, the dual and parallel judicial systems are purportedly designed to serve the interests of both Muslims and non-Muslims. It was thought that the arrangement would be capable of safeguarding non-Muslims from being subjected to Islamic laws while at the same time giving space for the Muslim community to practice their personal laws.
The current arrangement practically means there is no single judicial authority that would have jurisdiction over all subjects. It is an intricate challenge to resolve a dispute when there are two bodies claiming authority over the same matter.
The issue of a dual judicial system with parallel jurisdiction is an institutional problem and must be addressed structurally. It is also a constitutional problem that cannot be completely addressed with piecemeal solutions using various canons of construction or technical legal interpretation of constitutional provisions, for this would not solve the core issue of conflicting authority.
Courts are established to adjudicate legal disputes, and this judicial role is a primarily norm-applying function. Therefore, for the sake of finality, consistency and predictability, courts in Malaysia should be streamlined into one system and vested with jurisdiction over all members of society.
This suggestion acknowledges that there can be different kinds and levels of courts as the state deems fit to administer justice.
The syariah principle of particularisation of justice (takhsis al-qada) also permits the setting up of specialised courts. This multiplicity should not in any way be mistakenly understood to imply the existence of multiple judicial authorities, for there is actually only one judicial authority and so is justice, which is essentially monolithic and indivisible.
It does not follow, however, that certain segments of society cannot be exempted from the application of certain specific laws. The inapplicability of Islamic laws to non-Muslims is an accepted syariah position and can still be retained.
Instead of protecting non-Muslims by creating two different courts — civil and syariah — non-Muslims may be statutorily exempted from certain areas of law. This is in line with the doctrine of reasonable classification that permits differentiation based on an intelligible differentia.
For example, an act of Parliament may criminalise adultery and provide a punishment for such an offence that is enforceable among Muslims only. In this way, the clash of judicial authority would not arise because there is only one authority that exists to administer different kinds of laws on the subject.
Ultimately, we have to get out of this binary dichotomy of civil and syariah courts in the cause of a better Malaysia. Maintaining such a dichotomy will not serve any good purpose because a decentralised judicial system is an injustice in itself.
The need to have a streamlined judicial system should be our priority, particularly for those who are serious about uplifting the current status of the syariah courts.
***The writer is a fellow at the International Institute of Advanced Islamic Studies Malaysia. He is completing his PhD at Oxford University