Damian S. L. Yeo & L. C. Goh (DSLY)
No. 2007, Lorong Sidang Omar, off Jalan Penghulu Abbas, Bukit Baru, Hang Tuah Jaya, 75100 Melaka

Tel : 06-2347011
& 06-2347012
Fax: 06-2347022


Wednesday, August 29, 2007

Syariah -vs- British Common Law

Our legal system follows very much that of the English Legal as we were part of the Commonwealth as were formerly a British Colony since the 18th century. Just to digress a little as the United Kingdom do not have a written constitution, a lot of reliance on Acts of Parliament and Judge make law which also calls judicial precedent whereby the lower courts are bound to follow the decision of the higher courts (this principle is known as stare decisis in Latin). This body of precedent is called what we understand as the “Common Law” and if this law is declared in the House of Lords for example, the lower courts below it must follow that declared law which we call it the ratio of the case.

Having said that, it means “Common Laws” are laws judicially made to fill in the gaps and actually life to the relevant Act of Parliament so as to give life to the interpretation and application of the laws so as to give intention to what Parliament intended. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases or that the particularity of facts are not usual, the courts will try to give meaning to what is Just, Fair and Equitable. This is so because some areas of life may not be covered by any Act of Parliament a good example would be area on copyleft such as open source or open office which does not have any cover in the area of copyright laws as such an adoption of it through the relevant case laws in other jurisdiction would be excellent to fill in that gap.

If situation such as this arise, the Courts as the bulwark of Civil Liberties and Justice would have to give meaning to what is Just, Fair and Equitable in which the Courts will resolve the matter itself, with reference to general legal guidelines such as reading of the Hansard (Parliamentary report), Legal Text book writer, customs, conventions, or adopting other precedents in different jurisdiction (meaning other country). Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.

Malaysia as we all know adopted the English Common Law as a foundation of our laws as we are a very young country. So logically, our laws are shaped according to well established environment, principle and understanding of the complex areas of laws which sometimes our judges may not be able to understand the difficult technicalities of the various area of the law. So to make things simpler, our Malaysia Parliament, enacted the Civil Law Act 1956 particularly section 3 and 5 which permits judges with wide discretion to import English common law, equity and statutes into our legal system to fill gaps in Malaysian laws should there exist difficulty in the interpretation and the application of the various laws in our country.

As we are comfortable with the interpretation of British Common Law as part of our laws due to its adoption of fairness, just and equitable principles is seen to be a better source of law as compared to the Syariah laws which arises a number of uncertainties between itself due to different interpretation. So, to do away with establish principles of application and interpretation to that of Syariah may cause confusion as to its application. Syariah laws are a matter of ONLY private matters for example, marriage, inheritance, and apostasy. AND applies only to Muslim.

So what are Syariah Laws (Islamic law) then. Theoretically in my understanding, there are two areas of Syariah.

(i) Islamic law. Meaning the “the way” which of course a system of devising laws, based on the Qur'an, ijma (consensus of the Ummah), qiyas (Islamic jurisprudence) and the centuries of debate, interpretation and Arabic precedent.

(ii) Fiqh is Islamic jurisprudence that expand Syariah complemented by Arabic rulings such as the Malaysia Fatwa Council which consists of Islamic Jurist to direct the lives of Muslim such as what is required (wajib), forbidden (haram), recommended (mandūb), disapproved (makruh) or merely permitted (mubah)".

In short Syariah deals with many aspects of day-to-day life, including economics, banking and loan, business law, contract law, family, sexuality, hygiene, and social issues.

So the question all of us intend to understand is IF Syariah is to take precedence against Common Law, would there be fairness and justice IF issues of non Muslim are involved. Secondly should we, the non Musims subject ourselves to Islamic principles stated in the Syariah laws?

No comments: