Syariah: ‘The law of the land’

Clive Kessler
The Malaysian Insider
Sept 21, 2010

These days it’s not easy for a person of good sense to avoid being accused of sedition.

Especially if you have a basic grasp of modern political history and the nation’s constitutional foundations.

Voicing well-known facts and trite legal principles can get you into real trouble.

You question Ketuanan Malayu, for example, and you are told by those of a “Perkasa-ish” inclination, or lectured by Dr. Ridhuan Tee Abdullah in Utusan, that Malay political dominance is an agreed and foundational national principle. That it is inscribed in the Constitution.

What is in the Constitution? Here the champions of Ketuanan Melayu invoke Article 153.

That is the peg on which they hang the claim that enduring Malay ascendancy, even absolute political domination, is constitutionally enshrined. That it is an integral part of the “social contract” that made the nation and its Constitution possible.

But Article 153 is a small and dubious peg for such a big, even extravagant, claim. It merely provides for, or allows the government in its good judgement to institute, certain defined kinds of preferential treatment for Malays in certain identified and circumscribed areas.

It does not provide for, enshrine or constitutionally entrench Malay ethnic supremacy, enduring political domination.

But if you say this, you are likely to be challenged, and hit with a volley of police reports accusing you of sedition.

Of a triple sedition: against legitimate Malay political entitlement, as enshrined in Article 153; against the rulers who are the constitutionally-designated protectors of the Malay stake in the country; and hence also against the Constitution itself and the nation whose sovereignty it embodies.

Islam and the Constitution

The same rhetorical “fudge”, and similar vigilante recourse to zealous retribution, also apply in the case of claims that Islamic law, syariah law, is “the law of the land”.
Here again we now hear routinely, from Dr. Ridhuan and from those who write IKIM columns in The Star, that Islam is constitutionally the law of the land.

On what grounds?

First, they cite article 3 of the Constitution that proclaims Islam as the religion of the state.

Article 3 does not hold or in any way provide that Islamic law is the law of the land. In fact, the Constitution proclaims itself, in Article 4, as the sole and supreme law and basis of national sovereignty.

Moreover, any review of the debates on this subject that were part of the “Merdeka process and agreements” (the negotiations that some now retrospectively designate as “the social contract”) will reveal that, through Article 3, Islam was simply to be the emblematic “official” religion of the state as a sovereign international political entity, not the mandatory national religion or form of law.

Any such notion was resisted at the time, not only by most non-Malay and also Malay political leaders but also, crucially, by the Malay rulers themselves.
They resisted any assumption of religious powers under the Constitution by the new national government. They understandably wanted to protect their own traditional rights over, and their powers exercised through, Islam in their own states.

The Constitution could only be adopted, and national independence on its foundation proclaimed, on the basis of the consent of the Malay rulers. Their consent was granted on this specific assurance, that their Islamic religious standing would not be diminished.

Accordingly, the religious nature of the new state was, at their royal insistence, to be affirmed by only minimal measures, such as the formal reciting of a do’a at the opening of every session of the new national Parliament, nothing more.

So the notion that the Constitution, through Article 3, provides that Islam is to be, in any far-reaching and pervasive social and political way, the religion of the state’s citizenry, rather than the emblematic official religion of state ceremony and symbolism, is mistaken.

As for the claim that, under Article 3, Islamic law is to be entrenched and recognized and to be rightfully promoted as the national legal system or its unchallengeable foundation, that notion is even one step further from any accurate and faithful interpretation of the meaning of the Constitution and of the intentions of those whose agreement made its adoption and promulgation possible.

It is as much an inflation, or a fanciful embellishment, of the meaning of Article 3 as is the patently extravagant claim that Article 153 enshrines Ketuanan Melayu within the Constitution and as the foundation of national political life.

A precendental legal foundation?

Those who now, with retrospective revisionist objectives, seek to argue that syariah law — the legal system of Islam and its principles — is rightfully the supreme law of the land, or its authoritatively and incontrovertibly established foundation, have a second string to their bow.

They point to the judgment, long before the adoption in 1957 of the Merdeka Constitution, in the case of Ramah v. Laton in 1927.

The case involved the claim of a second wife, under syariah law, to a share in the estate of her deceased husband.

In arguing her case, lawyers for the second wife, whose claims were not at first recognized under the British common law system of the Malay states, sought to present the expert testimony of an expert in Islamic inheritance law.

The court, through its presiding judge Wilson, refused permission for such an expert presentation to be offered.

It cited clear grounds.

Had the case been one requiring the expert testimony of say, an expert in fingerprinting (or now, in our time, DNA sequencing), the court would have allowed such expertise to be placed before it.

Why? Because the court itself had no expertise of its own in the matter. This would have been specialized, arcane science.
But in the case of Islamic law, the court had held, the matter was different. Not that the court was itself expert in Islamic law, as knowledgeable as a master exponent of the technicalities of fara’id (Islamic inheritance law).

But, it held, Islamic law was a part of the common legal tradition of the country. As part of local “legal culture and tradition”, it was not unknown, nor were its principles foreign, to the common law courts. Though not expert in syariah legal technicalities, the court was entitled and empowered to pursue its own consideration of the principles involved.

It was competent and expert in the law of the land. So, it held, far from foreign and exotic or unrecognizable to the court, Islamic legal principles and processes were, for at least some part of the population, part of the legal culture with which the court worked, part of “the law of the land”.

The court did not need to avail itself of outside expertise. What Ramah sought and the grounds of her doing so were all part — a part though hardly the whole — of the common legal tradition and culture of the land and its people; a legal system that the common law courts were instituted to uphold, and in whose matters those courts were not simply competent and expert but the rightful ultimate authority.

The common law tradition operates by the crystallization of enduring and established custom as firm social conventions and their subsequent absorption and eventual recognition as legal principle, within and by the legal system itself.

The misappropriation of Ramah v. Laton

When Wilson J., in rejecting the presentation of outside expert testimony concerning fara’id and affirming the court’s own competence to consider the principles involved, declared that syariah law was, or was to be considered as part of, “the law of the land” he meant something specific in that context, as every competent lawyer will understand.

He was affirming the court’s own independent ability, unaided, to deal with whatever was part of the local common law tradition.

He was not affirming that the syariah law, and certainly not the syariah law as understood and upheld by its technical experts (such as the man whose testimony Wilson declined to hear, or in our day the champions of syariah law implementation and supremacy), was any foundational part of the national legal system — and certainly not that it was the overriding law of the land, to whose claims and requirements all other legal concerns must be subservient, and to which all other legal traditions must acknowledge subordination.

Yet that — the dubious notion of an established “syariah pre-eminence” — is precisely the construction that the champions of syariah supremacy now make of Wilson’s judgment in Ramah v. Laton and the use to which, either uncomprehendingly or with knowing tactical purpose, they put it.

They deploy this misconceived or disingenuous interpretation of Ramah v. Laton as a way of getting around the problems that, when rightly and plainly understood, Article 3 of the Constitution clearly provides to the promotion of their cause.

Properly understood, Article 3 presents a huge obstacle to their cause. But the strategic misappropriation of the much earlier case from 1927 enables them to assert that matters were already decided, in a precedental legal decision, long before the Merdeka Constitution was promulgated.

That Constitution, for some, lacks legitimacy since it was, as they see it, “foisted” upon them by foreigners; but, provided it is construed as they wish it to be, the judgment of another outsider, Wilson J., may be used to trump constitutional principles. His words that Islamic law “is the law of the land” are now sedulously deployed to obviate any resistance that the Constitution and its clear-minded defenders might offer to the promotion of claims of Islamist legal supremacy.

Such views have been put by IKIM columnists in The Star, by newspaper columnists and polemicists, and even in law textbooks written by lecturers at the International Islamic University and used in that institution’s Law Faculty courses. (It is noteworthy here that the national committee, operating from the Attorney-General’s Chambers, on the Harmonization of Civil Laws and Syariah has, by formal decision, resolved to make the Law Faculty of the International Islamic University, where this questionable form of legal reasoning prevails and is developed, the sole source of competent specialist legal expertise and advice in its work.)

How did this strange appropriation and misdirection of Ramah v. Laton occur?

When the late Professor Ahmad Ibrahim published his monumental study of Islamic Law in Malaya (1965) he made no reference to Ramah v. Laton. But by the time he began teaching at Universiti Malaya he had discovered it and explored its uses. Students from the early 1970s remember him dwelling on this case in his introductory lectures.

By the mid-1980s Ramah v. Laton had become a “stock in trade” of the group of young “syariah-minded” academic lawyers whom Professor Ahmad Ibrahim, now at the International Islamic University, had gathered around him and who were “making the running” in promoting the implementation of Islamic law.

By the time of the 1988 amendment to Article 121 (1A), these experts had persuaded the government — contrary to the clear meaning of the decision in Ramah v. Laton, but in its name and on its authority — that the civil courts could not hear any case involving syariah law principles; that cases that implicated such principles had to be heard by a separate and autonomous syariah court system of equal standing to the civil; and that the syariah courts and not the civil courts must be the ultimate and unchallengeable arbiter whether, in any instance, syariah principles were involved (and the case accordingly one for disposition at the sole discretion of the syariah courts).

By 2008, in the wake of the so-called Lina Joy case, the leading judges of the land were invoking Ramah v. Laton to justify the development of a new, syariah-based system of Malaysian common law. The common law evolves, true. This was Wilson J.’s point and underlying justification. But to see Wilson’s words in Ramah v. Laton used, over twenty years and more, to justify the supremacy of certain notions of syariah law, held by some very single-minded parties and partisans, within the local common law and over the Malaysian legal system as a whole is something that must surely have worried lawyers of good sense and conscience. It would, they must have known, have greatly displeased Wilson.

An odd exception

Much of the revisionist reinterpretation, or misinterpretation, of Ramah v. Laton has been the work of academic or scholastic lawyers, legal idealists and ideologues rather than “hands-on” daily practitioners of the law. Wilson’s oft-quoted words have beguiled the polemicists and provided them with a powerful instrument, a bludgeon against all doubters and opponents.

Yet there is one area where Islamic law in Malaysia has, in the real world, developed greatly and become of ever increasing practical significance. This is the area of Islamic finance.

In this area, specialist practitioners, eager that Malaysia might become an international pioneer and pace-maker in institutional innovation, have for some time argued, in effect, for the recourse that Wilson J. rejected in Ramah v. Laton. They have argued that in complex commercial cases involving Islamic finance and Islamic commercial law, courts should be set up that combine the standard common law procedures with conjoint legal and judicial expertise in Islamic commercial law. (Apparently some courts with this character are already operating, initially on a trial basis, in Shah Alam.)

But how might such tribunals — where judges in the civil law tradition would be assisted by, take advice from, sit jointly with, or even operate within specific legal parameters set by syariah-law experts —be constituted, given the words and real implications of Wilson’s judgment in Ramah v. Laton?

These worldly and purposeful practitioners working in the area of Islamic finance and business law understood the situation clearly. They knew what needed to be done if such “mixed” courts and tribunals were to be established. “It is time,” they declared in their professional legal bulletins (as an Internet search will show), “for the ghost of Ramah v. Laton to be laid”.

Nothing less than the exorcism of an unwelcome and troublesome legal ghost was required. But they, at least, unlike the doctrinaire syariah expansionists of the International Islamic University, clearly understood what Ramah v. Laton had been about and what the judgment in that case really meant. No sentiment here, no ideology, just a practical purpose and determination.

Yet it is strange that, at the same time though in different areas, Ramah v. Laton can both be invoked by some yet its setting aside be urged by others in the name, and for the common purpose, of syariah law institutionalization and implementation.

Sedition?

This is a straight-forward argument, one that should prove unexceptionable to informed scholars, observers and students of these matters.

But in these times these are not easy things to say.

For those who have formed excessive, even quite distorted, revisionist views of the meaning of Articles 3 and 153 of the Constitution and of the meaning of the judgment in Ramah v. Laton, the argument offered above will be unwelcome.

It will be rejected because those who hold the positions that are criticized confuse what is congenial to them —what they want, and wish to be the case —with what in fact is the case, what the Constitution and that legal decision really mean and imply. Where these meanings and implications displease them, they substitute, perhaps unwittingly but in some cases with canny purposefulness, their own, and then persuade themselves that their convenient fictions are the historic truth.

To make this argument exposes the author to charges of sedition: of questioning the standing of Islamic law under the Constitution (as some mistakenly see it); of impugning by implication the position of the Malay Rulers as the constitutionally appointed guarantors of the position of Islamic law (including, the “syariah supremacists” hold, their own inflated notions of its position); and hence of seditiously putting in question the supremacy of the Constitution itself.

Faced with such accusations, one can do nothing but to say, and go on saying, that those of that other opinion are simply wrong, mistaken —and generally, so far as the lawyers and legal scholars among them are concerned, that they should know better.

* Clive S. Kessler is Emeritus Professor of Sociology & Anthropology at The University of New South Wales, Sydney.