More than a year ago I had developed an anti-thesis to another made by a scholar who had argued that most Malays in Malaysia were Muslims first and Malays second. I had argued that the opposite was the case.

To me, the particular scholar’s conclusions, although maybe theoretically valid and based on her sampling method, were premised on wrong theoretical assumptions and possible postulates; and therefore to me, they were premised on poor theory-building.

I am not seeking to continue that older debate but rather to revisit the same thread of dialogue in the light of an even more interesting thesis made by the current chief judge of Malaysia, when he sat in the federal court and gave a judgment on the Latifah versus Rosmawati/Roslinawati case in the Malaysian federal court appeal on 25th July 2007.

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The then Federal Judge Abdul Hamid Mohamad sat with two other federal court judges on a unanimous judgment. In the particular case the judges rejected the appeal on the grounds of a Muslim lady that it was well within the jurisdiction of the Syariah Courts to make a final decision on the case because of explicit expressed authority given to the particular case and instance which was decided. The appeal was filed by Malik Imtiaz Sarwar et al.

If all of the unruly hooligans who protested the Bar Council Forum take time to read and appreciate the learned Judges views; the country might have become more civilized and even more rational for such a discourse. Allow me therefore to quote extensively from that judgment to make my argument here. Judge Hamid Mohamad first argued the following on page 8 of the judgment:

\”Once again the issue of conflict of jurisdiction of the civil and Syariah courts has come to the forefront. This problem has arisen and has become more serious over the last two decades. Courts, the civil courts as well as Syariah courts, had to grapple with this problem. While a judgment settles the case before the court, it creates other problems in subsequent cases.

Being one of the judges who had to grapple with this problem since my high court days and with the benefit of the many seminars and conferences that I have participated, I think I am now in a position to taken a fresh look at the problem in a broader perspective than the specific issue arising in the instant appeal. Incidentally, it coincides with 50th year of independence and the federal constitution.\”

The judgment went on to list, in chronological order, 46 specific cases where such an issue of the conflict of jurisdiction of authority was involved in the past, with the most recent being the Lina Joy case. Then, on Page 13-14, Judge Hamid makes the following preamble comments about the nature of the civil and Syariah courts which is also worthy of review:

Jurisdiction over Muslims only

\”Let me begin from the beginning. By the time Malaya, then, obtained her independence in 1957, the ‘civil court’ (as the term has become to be commonly used now) has established itself as ‘the court’ in the country. Hence the federal constitution, in the chapter on the judiciary talks about the ‘civil courts.’

However, the constitution recognized the necessity of Syariah courts as state courts with jurisdiction over Muslims only in, substantially, personal law matters.

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Thus in the Ninth Schedule, List II (State List), a provision is made, inter alia, for the establishment of Syariah courts. It must be emphasized that the Ninth Schedule is a schedule to the constitution.\”

The judge quotes the actual wordings from the First and Second Lists of the Ninth Schedule and then concludes his interpretation of the federal constitution about these lists:

\”The Ninth Schedule as it says is a ‘Legislative List.’ The words ‘Legislative Lists’ are clear enough. They mean what they say: that matters contained in the lists are matters on which the parliament and the legislature of a state can make law with respect thereto, respectively.\”

He then lists the actual Lists from the constitution and defines the limits of both the parliament and the state legislatures on what they can and cannot do.

Now, why would I go to such an extent to make this point about the jurisdiction over matters which fall in the cracks of the jurisdiction of the two courts? My point is simply that the issues are very real and therefore it is incumbent on the Bar Council and related bodies involved in the justice system in this country to debate, discourse and resolve the many matters related to both justice and injustice carried out in the more than 46 cases that the learned Judge has already documented for all of us.

My argument is, based on the preamble and logic presented by the learned judge, the fundamental law of the country is and will always be civil law; unless the constitution is amended with a two-third majority and the Conference of Rulers agree. Muslim law is clearly provided for in the federal constitution and the state legislature vide the state lists but is also limited by the same list.

Muslims first, Malays second

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It clearly states what can be

legislated and what cannot be. What the \”learned and legally educated fraternity in the nation must look into are at these lacuna areas under the law and ensure what the government of the day needs to do about it.\” The Good Judge has said that this is a problem that the Legislators must solve. I am not sure that this is a matter only for those who feel that they are for Muslim-Malays or Muslim first and Malays second.

Neither is it for anyone else to argue this case in an emotionally charged environment. Nor is it only for those of us who feel that we are Malaysians first or even Malays first and Muslim second or Christian second or Hindu second to argue the case in a civilized atmosphere yet closed format.

The victims of such jurisdictional lacuna in the law must be able to seek to resolve their cases and carry on with their ordinary lives; whether they be Hindus, Christians or Muslims; but that they are all equally protected by the federal and civil constitution as the supreme law of this nation, and which is for all citizens of this nation.

Allow me finally now to also quote the conclusion of Justice Hamid Mohamad in page 51 of the unanimous decision:

\”The Constitution was made 50 years ago at the time when the Muslims in the then Malaya were mostly Malays living in rural areas working mainly, as farmers, rubber tappers and fishermen. Marriages were usually within the village or the district. Inter-marriages were rare. Conversions to Islam were equally rare.

Indeed, at that time anyone who converted to Islam ‘became a Malay’ (‘masuk Melayu’). ‘Harta sepencarian’ was confined to small plots of rice land or rubber small-holdings in the same district or state. The constitution was drafted under those circumstances and it was to cater for such conditions that the Syariah court (e.g. as a result of it being a state court) and the jurisdictional issues involving the Syariah and the civil court and non-Muslims involved in a matter falling within the jurisdiction of the Syariah court.

Malay-Muslim society transformed

Now 50 years after independence during which period Malaya had become Malaysia. The country that was an agricultural country has been transformed into an industrial country. With better education and economic development, the Malay-Muslim society itself has transformed.

Inter-state population movement is common. Inter-state marriages and inter-marriages are a common occurrence. Conversion to Islam and re-conversion happen more frequently. ‘Harta sepencerian’ now includes shares and bank accounts. In other words, the conditions have drastically changed.

As a result, jurisdictional problems that had not been envisaged have arisen. Some require double proceedings, one in the civil court and another in the civil court before a final decision can be made. This causes delays and incurs unnecessary expenses.

Others are outside the jurisdiction of both courts. These are not matters that the courts can solve as the courts owe their jurisdiction to the statutes. It is for the legislature to step in, to decide as a matter of policy what should be the solution and legislate accordingly.\” (emphasis added)

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Therefore, is it unreasonable for the Bar Council to dialogue and discourse these issues; which the chief judge of today has already highlighted? Why then the hooliganism over such discussion and dialogue which has been acknowledged by even the Federal Court of the nation. If not discussed by the judicially aware community, who else should dialogue such issues, as raised by the Chief Justice Hamid Mohamad?

Malay first or Malaysian first

To me, it is the sheer incompetence and impotence of the federal executive branch of government that such issues have been sidelined and ignored when Malaysia sought accelerated industrial development over the last 30 years. The 46 cases which the judge highlighted range from 1970 to 2007; a period of 37 years, i.e. of more than one case a year. Unfortunately these matters remain \”between jurisdictions\” and in the mean time the rights and privileges of ordinary citizenship are being denied to some in Malaysia.\”

To me, Malays need to frankly decide whether they are Malay first or Malaysian first.

Peninsular Malaya is only one-third of Malaysia; as much as we do not like to hear it said in this way. We carry Malaysian passports; and, it is therefore time for all Malaysians, of East and West to begin to think and act Malaysian in all our thoughts and actions. Only then can a Malaysian nationality emerge; and only then can we begin to shine in the world of serious competition; much like at the Olympics, when Chong Wei was fighting for his gold. Did his faith really matter? May God help Malaysia to think Malaysian?