Interplay between Shariah and Civil Laws

1. The roundtable discussion was attended by about 25 participants of different background – lawyers, law professors, academics, social activists and asatizah. The discussion touched on complex and intriguing issues pertaining to Islamic Jurisprudence, modern understanding of law, politics and ethics.

2. Prof Shad started by acknowledging that Islam is the official religion of Malaysia by virtue of the Constitution Article 3(1). This however does not necessarily mean that it is an Islamic state if understood as a state that fully implements Islamic law. The Federal law reigns supreme in most of legal matters and on constitutional matters. State assemblies are limited by the Federal and State Constitutions. Only some Muslim family laws (22 items) are implemented, and respective states hold the jurisdiction over these laws. However, this is not without its problems, challenges, complexities and conflicts - between human rights and constitutional rights and the specific Islamic law.

3. A case in point is the proposal to implement Hudud Laws – what would be its position vis-à-vis the Federal Constitution. Prof Shad discussed some of these hurdles, such as the Federal-State division of power; criminal laws and procedures are vested in the Federal laws, not state; matters pertaining to police, prison, places of detentions and the likes are Federal jurisdiction; Shari’ah law holds no jurisdiction over the non-Muslims (discriminatory against both Muslims and non-Muslims); equality before the law, and the matter of freedom of religion.

4. In face of these tensions and conflicts, Prof Shad wasn’t suggesting that these Islamic laws are repealed. However, some creative ways are needed to resolvesome of these conflicts. This, he argued, has been done in the matter of finance & banking.

5. However, Prof Shad acknowledged that this will not be an easy endeavour. Local, national and international politics are significantly shaping the legal discourse and the making of the laws. Many of these issues, hudud included, are highly politicized. Prof Shad shared several examples of these issues that are primarily politics: contestation of political interests and power more than anything else.

6. Prof Shad also acknowledged that the rise of religious extremism contributes to the problem, and that there is a dire need for Islamic leadership and Islamic scholarly leadership.

7. What are some of the alternative approaches could be considered? Firstly, he suggested, the philosophy of the 1957 Merdeka Constitution be retained; one that promotes a mixed, hybrid and plural set-up ideological purity be avoided, pragmatism should prevail. Secondly, Islamization but not Islamic State – a one country with two legal systems approach is extremely complex and a full-fledge “Islamic State” is a difficult option.

8. Equally interesting are the views by participants. This includes, among others, the need for a nuanced Islamic discourse, that matters are not necessarily legal but rather political, the need to appreciate diversity even in the Islamic law. Here, Prof Shad remarked that generally the quality of the present Shariah lawyers and judges has improved, and that these lawyers and judges do consider the different madhhabs. Ethical considerations were also raised.

Executive Summary Prof Shad [PDF, 237 KB]