Monday, August 27, 2007

Syariah Law Should Not Replace Common Law

The Centre for Public Policy Studies views with deep concern the recent proposal by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim to use Syariah law to replace English common law in court proceedings. He also believes that Sections 3 and 5 of the Civil Law Act 1956 should be amended as they permit English common law, equity and statutes to be imported into Malaysian law. Ministers in the Prime Minister's Department, Datuk Dr Abdullah Zin, and Dato' Seri Nazri Aziz have also supported this statement.

Prime Minister Dato' Seri Abdullah Ahmad Badawi has stated that this proposal must be scrutinised carefully and thoroughly examined. Likewise, Penang Chief Minister Tan Sri Dr Koh Tsu Koon has called on the government not to make drastic decisions to do away with the English common law, stressing the supremacy of the Federal Constitution and the rule of law.

The CPPS strongly advocates that the English Common Law sufficiently provides for a fair system of justice accorded to all Malaysians. Whilst acknowledging that Syariah law gives importance to justice, applying this very law to those who do not necessarily subscribe or adhere to its system, rules and principles is in itself unjust. Up to 40% of Malaysians belong to this latter category. While non-Muslims may voluntarily utilise the very worthy services of the Syariah court, it should not be legally imposed on them as this contradicts the social contract and spirit of understanding and tolerance that has brought Malaysia the peace and harmony it enjoys today.

The Civil Courts of Malaysia have served the country well in the past, giving rise to economic growth and political stability, healthy indicators of a progressive nation. Replacing them with Syariah law will cause unnecessary reaction amongst international communities, no less from business, financial and trading partners.

The Judiciary is to preserve, protect and defend the Constitution, and the rights of all Malaysians. It must commit fully to this responsibility and not be swayed by personal belief, religious or otherwise, away from its fundamental role in representing Malaysians of all ethnic groups and religions.

In the lead-up to our National Day Celebrations, many national leaders have stressed the importance of obtaining consensus and co-operation amongst all groups to achieve national unity. There is great wisdom in this message. The legal system is not excluded from the need for collective agreement. Replacing the Common Law with Syariah Law contravenes the spirit of consensus that has weaved our history together.

The CPPS understands justice to mean protection of all alike. The current legal system satisfies this condition. Forcibly imposing a set of principles not agreed upon by all Malaysians directly contradicts the very nature and universal principles of Islam Hadhari.

We call upon the Government to focus on improving the current Common Law based on the Federal Constitution, not replacing it with Syariah Law. Such adverse policy statements from higher authority are highly sensitive and should not be discussed publicly until they are fully debated amongst all Government leaders. Without doing so, they instead cast dark clouds upon what should be a celebrated occasion especially as we draw near towards our 50th Year Independence Celebration.

Tan Sri Dato' (Dr.) Ramon V. Navaratnam

Chairman, Centre for Public Policy Studies

27th August 2007, Kuala Lumpur

Related reading: Mansuh Common Law -- Ketua Hakim Negara mahu perundangan lapuk Inggeris diganti

Tags: Centre for Public Policy Studies, CPPS, Syariah Law, English Common Law, Malaysia, Civil Law Act 1956, Federal Constitution, Civil Courts of Malaysia, Islam Hadhari, Judiciary, Common Law, Ketua Hakim Negara

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