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Monday, January 26, 2015

An Open Letter To Muslim Judges In The Common Law Courts

This is a short letter.  It is just advise and perhaps an appeal. This is not an accusation of any sort.

By Common Law Courts I mean the Civil Court courts that we have in this country which follow the modern, scientific (eg they accept forensic evidence) and civilised legal system aka the Malaysian Legal System. I do not wish to say anything about the civility or the lack thereof of any other systems. 

We are seeing an increasing number of cases  involving Islamic religious issues which are being heard in the Civil Courts, especially in front of judges who are Muslim.

Some recent examples would be that child custody case where a decision was made, one by the Civil Court and another by the religious court.

There is also that LGBT case where there is a defendant who is asking for a review of the charges against him (in the religious court) using Constitutional arguments.

There is also the case of Kassim Ahmad who is arguing his case (in the Civil Court) that his arrest by the religious authorities infringes Constitutional provisions and his rights.

There have been other cases before involving conversion of religion issues, body snatching issues by the State authorities (ie where the religion of the dead body became contentious) and such. There are many such cases.  

In the common law system, cases like these can have outcomes that could be totally different from say a religious court. The issue of cross dressing involving LGBTs for example may not see the light of day in a Civil Court. Yet it can become a criminal offense under a religious court.

The issue relating to Muslim judges is what if someone(say a Muslim) makes a representation to a Civil Court over an issue that becomes a criminal matter ONLY in a religious court  and nowhere else.  

Going by the civil laws  there may not even be a case.

But going by the religion (repeat "religion", not religious court) it becomes a sin and a punishable crime. Which ultimately leads to the same treatment in the religious court.

The question is (and I ask this from the public interest point of view) what is the guarantee that Muslim judges sitting over such cases in the Civil Courts will not be swayed by their personal religious beliefs when passing their judgements?

Other than a Muslim individual's personal religious beliefs, in Malaysia the Islamic religion is NOT a personal matter. 

For example :

1. If you denounce Islam, you can be sentenced to death by the religious courts (yes folks, I found out that this is the provision under the religious courts in Malaysia as well, just that this punishment has not been carried out in our country. That Ayah Pin woman was sent to jail). 

2. Then under the Federal Constitution a Malay has to be a Muslim.   

(No one has tested this Constitutional provision further ie if a Malay has to be a Muslim, then how does this apply to NON MALAY MUSLIMS eg Chinese, Tamils, Gujeratis, Filipinos, Pakistanis etc who may be Muslim and wish to opt out of Islam? For example those Tamil girls (two different cases) who were locked up because the religious authorities insisted they were Muslim but they were insisting otherwise. The Federal Constitution only says that a Malay has to be a Muslim. It does not say that Punjabi, Rohingya, Pakistani Muslims also have to remain Muslims.)

Anyway taking 1. and 2. above Islam is NOT a personal matter anymore in Malaysia. This applies especially to all Malays. Malays have no choice in the matter.

What  more (or less) then with Muslim Malays who are judges in the Civil Courts who may have to make decisions over cases where isuues relating to Islam are involved.

Justice requires that they must ignore their personal religious beliefs and stick closely to the law of the land.
Can they ignore their personal religious beliefs?
Will they have to perform balancing acts? 
Can they perform balancing acts?

As an example only, a Muslim judge in a civil court cannot make a statement like this : 

"If I make a mistake in my Court, my mistake can be corrected by a higher court but if I make a mistake  according to my religion I will be held accountable by god".

I think they cannot make such statements. 

There are a few reasons that I can think of. First of all the public has a certain faith and understanding of the common law courts. The public expects a certain level of fairness and justice from the common law courts.   Religion does not have a role to play in any of this. 

Imagine Christian judges being influenced by the Bible, Hindu judges influenced by hinduism etc.

Hence it is critical that in Court judges must free their thoughts from any of their own, personal religious beliefs (or any other personal religious affiliations) when they hear any cases which do involve contentious religious issues. This is an absolute must. 

The other reason (for Muslim judges) is because there is no such thing as a fully encapsulating system of Islamic laws. 

Even the so called shariah is not divine. The shariah and its components like hudud differ from place to place, from state to state (in Malaysia), from cuntry to country, and from time to time.

Most certainly all these differences cannot be divine. It cannot be from Allah or the Rasul (Messenger).

I was not surprised to learn that Islamic banking in our country is not 100% universally Islamic.  It is Islamic banking according to the Shafiee sect. So it is sectarian Islamic banking.

Hence the High Curt judge Dato Abdul Wahab Patail (the brother of our AG Tan Sri Abdul Ghani Patail) was right over 10 years ago when he made his famous judgement against the Islamic bankers - calling them oppressive.  He did not allow his religion affect his judgement.
 
More recently I was again not surprised that the collection of cash money as payment for zakat is not universally Islamic. It is a sectarian belief of the Hanafi sect. It is not even part of the Shafiee sect which says that zakat must only be paid in kind using food items especially grains (rice, wheat, barley etc).

Therefore when the Minister of Religious Affairs said that Malaysia follows the Shafiee sect he was acknowledging firstly that in Malaysia our Islam is not a universal Islam of the Quran but the sectarian religion of the fiqah or schools of jurisprudence.  I hope Muslim judges will take note of this. The religion that you believe is not the universal Islam of the Quran but rather the sectarian religion of the fiqah schools.

Secondly the Minister was showing the whole world that he did not know what he was talking about. Because the payment of cash for zakat taxes (in Malaysia) is NOT part of the teachings of Shafiee sect.  It is part of the teachings of the Hanafi sect or fiqah.

Finally, in cases involving Islamic "religious" issues, it should not be considered improper for all Muslim judges presiding in Common Law courts to declare their religious affiliation and whether it is going to affect or not affect their judgements . 

To make sure that justice is served, they should recuse themselves from sitting over such cases if they feel that they may not be able to be perfectly fair. 

For your pondering and careful note here is a verse from the Quran :

Surah 5:8  "O ye who believe! stand steadfast to Allah as witnesses with justice; and let not ill-will towards people make you sin by not acting with equity. Act with equity, that is nearer to righteousness, and fear Allah; for Allah is aware of what ye do."

So do not allow any type of ill will, that you may have towards others or others may have towards you, cause you to act unjustly or inequitably. Always act justly and equitably. That will bring you closer to righteousness.

If you think you cannot then you must recuse yourself. 
 
  


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