His Highness should be wary of the Federal Shariah Court
They might gain some benefit from “going with the flow” but it won’t last. When the country is in crisis, it is the future generations who will pay for the mistakes and greed of the present policy-makers
Zaid Ibrahim
After all that we’ve borne witness to in the last few years, it seems to me that Malaysia’s chances of becoming a developed nation—not in terms of Gross National Product alone but also as a civilised community—is about as good as its chances of winning the World Cup.
Here “civilised” means a community of sensible people where leaders would have some respect for the people and the law. They would not be able to cheat the rakyat so blatantly because the systems would be fairly transparent. Another sign of a civilised society is a population that would be unwilling to tolerate such abuse and would kick out such leaders. The people would be able to coexist in peace and celebrate their diversity, and any problems or conflicts would be dealt with through peaceful means.
By these definitions, we are not civilised—at all. The Attorney-General of a sensible country would not be the spokesperson for someone who could be reasonably charged for an offence. The AG represents the state, and if he does not think the prosecution can be successful he would explain the nature of the evidence required, and why it was absent in this case. He would not attempt to enter the mind of someone like Ibrahim Ali and or seek to explain the defenses available to him.
In a sensible society where the power to interpret the Constitution is vested with the Civil Court, leaders would not create another layer of the judicial process by creating a Federal Shariah Court just to please their followers. The reason we have a Federal Court is that the laws of all the states in the Federation subscribe to one central principle, i.e. the supremacy of the Constitution. In the context of the shariah, state law must also conform to the Constitution, so only the Federal Court is the proper forum to address any legal issue.
To create a single Federal Shariah Court to interpret Islamic laws may be feasible, but those planning this exercise better warn the Malay Rulers of how this dilutes their powers. At present, if a Malay Ruler errs in the name of Islam, the Federal Court may be very slow to correct the error. They could reason that as the state’s head of Islam, the Malay Ruler is entitled to make that decision without requiring more arguments. However, if the Islamists in Jakim want to set the Shariah Federal Court as the highest determinant of Islamic law, the Rulers will not only disagree, but it will also make Islamic law more vulnerable to a more robust interpretation of the Constitution because the new creature they have created is still an inferior tribunal under the Constitution.
The changes will be cosmetic because under the Federal Constitution, clearly a a shariah court , even if it is called a Federal Shariah Court, is still an inferior tribunal. It’s therefore comical (to say the least ) that we need a Federal Shariah Court that is on par with the Civil Court. It would still be an inferior tribunal even if it were called a super federal court.
The new multimillion ringgit complex will hardly be used , but of course the Bumi contractors and their Chinese subcontractors will be happy.
In a sensible country, the Law Minister and the AG would advise the Prime Minister and the Inspector General of Police over proper courses of action, based on the law. They would not wait until the problems festered or allow troublemakers to create a situation where public order and security are compromised. The Allah issue was and still is one of religious freedom, but now the AG says it’s a national security issue. If you were to give Ibrahim Ali free reign, any issue would become a threat to public order.
