Last Sunday, I mentioned to a friend that I'd rather step back and see how civil society forces negotiate the ground in the so- called controversy surrounding the Islamic Family Law amendments for the federal territories. "Are you not part of civil society?" she queried.

When I became qualified to practice law in Singapore, I had on numerous occasions come across complaints on the Singapore Syariah Court from civil trained lawyers. While the Syariah court judge (one judge to serve the Muslim population) is Syariah trained abroad, lawyers appearing before him are civil-law trained. Civil trained lawyers in Singapore are not trained in Islamic jurisprudence nor trained in Islamic family law for the simple reason that the island republic's single law school does not accommodate such a course.

The matter is perhaps rendered unimportant, after all the minority Muslim population has not protested. But we might note that protest is never kosher to the party in power since merger to Malaysia (thereby independence from the British) and separation from Malaysia.

Syariah-trained lawyers in Malaysia and civil trained lawyers with a long practice in the Malaysian Syariah Courts might understand the nature of the problems that arise in practice. To put it simply, Singapore civil trained lawyers apply the provisions in the Muslim law legislation through the prism of civil law principles. This was a concern of scholars and policy makers, one of whom was the late Professor Emeritus Ahmad bin Mohamed Ibrahim. He, however, managed to develop processes to bridge that gap in Malaysia.

If Singapore succeeded in having the Administration of Muslim Law Act (AMLA), it was only through the diligence of Ahmad Ibrahim while he was in Singapore. As a young lawyer, I heard from seniors like Namazie Sr, a lawyer senior to Ahmad and Lee Kuan Yew that Ahmad did much better in law school than Lee; that Ahmad had an exemplary legal mind. This suggests, they point out to me, that there is a man much smarter to Lee on the island and that somehow riled Lee. You might as I did, cry in disbelief. Is that it?

We do not know the real reasons as to why Ahmad felt compelled that he may better serve the cause of Muslims, Islam and law by working and living in Malaysia after the island became a republic upon separation from Malaysia. That information died with him.

Controversy over IFL

Lee's contemporary, 77-year-old ex-ISA detainee, Said Zahari is, however, alive and well. It has been advertised on Jan 7 in Singapore's Straits Times that Pak Said will speak in Singapore's Fringe Festival after the Chinese New Year on Feb 27. Speaking in Malaysia, Pak Said, however, said that he has not received an invitation in writing from the organisers.

Singapore friends tell me over the Eid break that Mentor Minister Lee (Lee Kuan Yew's official designation upon the rise of his son, Lee Hsien Loong as Singapore's prime minister), is highly sensitive of anything critical of him even if it is true or constitutes fair comment. Pak Said who has been writing on his 17-year detention in Singapore, would know more. But I digress.

I think the matter surrounding the amendments to the IFL would not have developed into a controversy if the group, Sisters in Islam had been more diligent in its campaign from the outset. This includes having formal consultations with practicing Syariah lawyers in the federal territory, Muslim groups and the Muslim public. The latter two should after all be the group's main stakeholders and beneficiaries.

I believe that this was not done. The group lobbied the woman minister Shahrizat Jalil, the prime minister, Abdullah Ahmad Badawi and Jakim some years ago when the proposed amendments became known to them. It sat and waited until the amendments it sought to challenge became law.

I am not sure if the Joint Action Group (JAG) had specific consultations with Sisters on their proposals or if JAG members had independently consulted Syariah trained professionals on the Sisters' proposals before this. Whatever it is, when the bill became law, Sisters had a press conference under JAG's name to rehash their concerns on the IFL. Sisters then had quick public briefings of their proposals to a largely uninformed public.

No expertise, party whip

I thought one important outcome of the controversy was Shahrizat's confession of lack of expertise on Islamic law. Bernama reported that her office 'tidak mempunyai kepakaran'. I hope women's groups and human rights organisations make a mental note of that and ensure that some changes are made as a result of that revelation.

Her office is after all responsible for women's concerns nationally and for monitoring and implementing state obligations to the 1975 Convention on the Elimination of All Forms of Discrimination Against Women which Malaysia ratified in 1995. It surprised me that nothing has been done since 1995 to the ministry's and the minister's lack of expertise on Islamic law.

It was also revealed to us that senators are subject to the party whip. Nazri Aziz claims that he is an official whip and he apparently exercised that over the Upper House. I am surprised at the absence of demur. Our senators may be appointed by the party in power and perhaps are beholden on that count, but I do not recall the theory that the Westminster type of government allows a party whip in the Upper House.

The other thing is, if the senators are so unhappy at being whipped, so to speak, they could have resigned. But happily, after voting for the Bill "against their conscience", they remained in the Upper House. Perhaps the leader of the opposition, Saudara Lim Kit Siang would enlighten us on the curious matter of the upper house whip in due course.

I was persuaded to attend the Sisters' Sunday briefing at the Help Institute in Kuala Lumpur after receiving unsolicited information via emails, sms-es and calls after the Eid break. Apparently, some Muslim organisations had boycotted the Sunday briefing on the IFL the venue of which was at a private foundation in Jalan Nusa, Kuala Lumpur. I was given to understand that some groups had requested to share the platform as co-panelists. This did not happen. The 'majlis peneranga'n organised by Sisters was moved to Help.

Later I read that other Muslim groups had separate briefings on the IFL on Sunday. I read one report of a separate briefing which quoted the views of Syariah trained lawyer, Naim Mokhtar. He shared the views of Ikim's Dr Zainal Azam. The latter wrote an opinion published on Jan 11 in The Star on the 'harta sepencarian' proposals to the IFL.

Disputes

I had the opportunity of making a quick response to the IFL at a public forum organised by the University of Malaya's law faculty on Monday. The event had four speakers, including Dr Zainal Azam of Ikim, two family law teachers from the law faculty and a representative from Sisters in Islam. It was chaired by a faculty member.

This event had a wider representation of legal academics, civil and syariah practitioners. I thought it is a more pertinent venue to dispute matters of Islamic legal principles, procedural law and evidence.

I loathe to write my comments on the Sisters' proposals in a column lest it burgeon into a 42- page commentary. It is always easier for me to break into legalese. I am happy that groups and individuals are expressing their constructive concerns on the IFL. It suffices to say here I inter alia support Dr Zainal Azam's concerns.

I remember a conversation with Ahmad Ibrahim about the codification of Islamic family law principles as necessarily inadequate for lawyers unless they have a grounding in Islamic jurisprudence. As if we do not know how extra complicated these things can be in Muslim majority Malaysia.

Codification is a reform inspired by civil law. Codification of Islamic law, unlike civil law legislation, is 'problematic' in that the general fiqh principles which are not legislated may continue to inform the selected legislation.

There is a grey area as to when specific legislation ousts general principles or unselected varying opinions and when these fiqh views are incorporated through the process of interpretation. This is my short brief on the premises of the legal exchange on Monday.

To the uninformed, the exact provisions may appear discriminatory to women. Indeed, this is the dilemma of freezing 14th century fiqh which may have a gendered impact in practice if lawyers in the Syariah Court are not vigilant enough in crafting pleadings and providing evidence to prove unfounded allegations and discrimination in family law disputes.

In a campaign on Islamic family law reform, the reasoned decisions of the Syariah Court judge requires investigation where procedural law and proof of matters may shed more light than a reading of legislated fiqh. Access to these decisions is made possible with reports of Syariah Court cases in 'Jurnal Hukum'. Unlike civil law, procedural law in Islamic jurisprudence may in some instances weigh the same as substantive law.

Saving the day

Assuming that all interested parties with varying expertise have been involved at the outset this may have assisted in eradicating misunderstandings - professional or otherwise - on the import of the campaign.

At the moment there is insufficient clarity to some provisions as being discriminatory, which other interested parties and Syariah practitioners in the course of the week had either tried to seek formal engagement or offered opinions on. 'Shura' or consultation is after all a recommended principle in negotiating differences.

This is, of course, not to say that there are concerns in the Sisters' proposals which are unfounded. But opposition would be minimised if the campaign is better planned. Unfortunately, what has been portrayed in the media at home and abroad may have aggravated dissent at home.

Perhaps it may be useful for Sisters to scrutinise its own media campaign which may have contributed to the controversy.

For whatever reason, Sisters have now left its proposals with a JAG partner outside the Klang valley to consult with Syariah legal practitioners after the Monday meeting with the Attorney- General (AG). I believe informal consultations with lawyers with expertise in the Syariah were made over the past few days. There is another meeting of interested parties with the AG this Saturday

I sincerely hope that Sisters might remember to record the contributions of its partners in JAG as the reworking of the campaign is now a group effort to save the day. The campaign is no longer in its name unless it insists on its original proposals in which case I think it would be prudent for JAG to convene and decide on a fresh course of action.