Recent highly-publicized decisions by the secular and syariah courts exposed the stark "judicial conundrum" resulting from their overlapping jurisdictions. This is not a legal problem; its solution lies beyond changing the judicial system or tinkering with the constitution. Rather, it is a political problem; it must therefore be solved in the political arena.

It involves defining the very nature of our nation; more practically, addressing the meaning and implications of such phrases as, "Malaysia is an Islamic state," and "Islam is the official religion."

Malaysians are familiar with the civil, criminal and other courts of the secular justice system, based essentially on the English common law. The furor over the Shari'a system is that since the constitutional amendment of 1988, its status is elevated so that it is now separate and equal with the secular system.

To Muslims, the Shari'a is supreme; therein lies the problem. The Federal Court cannot claim to be the highest court in the land if it cannot hear cases from the Shari'a.

Conflicting jurisdictions

Matters of Islam fall under state purview; federal jurisdiction applies only to the four states without sultans, and the two federal territories. Shari'a applies only to Muslims, but they are also subjected to the secular justice system. Muslims are thus potentially subjected to two conflicting or at least competing legal jurisdictions.

The other conundrum lies when one party to a dispute is a Muslim and thus answerable to the Shari'a, and the other is non-Muslim and thus beyond the reach of the Shari'a. Which court has jurisdiction, and which court will decide when there is dispute between the Shari'a and secular system?

In the past, Shari'a covers essentially family law, dealing with such mundane matters as divorces and inheritances. Besides, the estates of most Muslims then were not large or complicated. Even with that disputes occurred, but they could be appealed to the usual secular appellate process. That avenue is now closed with the 1988 amendments.

Today the Shari'a has been vastly expanded; its jurisdiction now includes areas once under the purview of traditional criminal courts.

Consider this: A man beats his wife. If he is a non-Muslim; he could be charged in criminal court for assault and battery. At the same time his wife could sue him for torts (bodily damage and emotional distress) in civil court. If he is a Muslim, he falls under the Shari'a family dispute. Same action, but very different legal treatment based purely on the faith of the alleged perpetrator. That is not justice. It is an affront to the universal norms of equality before the law.

Muslims might gloat that this would induce non-Muslims to embrace the faith! The flip side is that many Muslim women, especially recent converts, would want to renounce their faith.

Consider another more dramatic example. A man is caught in "close proximity" with a woman other than his wife. If both were Muslims, this is khalwat, adultery under Shari'a and potentially punishable by stoning to death. Fortunately Malaysia does not (as yet) have that barbaric provision, but not for lack of trying on the part of the Islamists. If both parties were non-Muslims, there is no crime or civil liability as it was a consensual act. This differential treatment based solely on the faith of the participants is again not justice. The dilemma would be compounded vastly if one party were a Muslim.

Malaysia has had nearly two hundred years experience with its current secular system. The elevation of the Shari'a is recent. The late Ahmad Ibrahim was the intellectual and legal giant instrumental in giving credence to the politicians' elevating of the Shari'a. Since then, the system has been bereft of talent in the ranks of both its practitioners as well as theoreticians.

Shari'a not divine

To Muslims, Shari'a is the "Whole duty of mankind;" it is divine law. To ascribe any inadequacies or shortcomings would be tantamount to attributing less than perfection to Allah a blasphemy. However, as noted by Abdullah An-Naim in his book, Toward An Islamic Reformation, Shari'a is not divine in the manner of being revealed like the Quran. Rather, it was crafted by early Muslim jurists based on the Quran and the hadith. Shari'a remains the work of men, and thus suffers from all the imperfections inherent in such endeavors.

At its inception, the Shari'a represented a quantum leap in intellectual, legal and social achievement. Its treatment of women in particular was light years ahead of the times.

Shari'a has been in existence for over a thousand years; it was the operative system during the era of the great Muslim civilization as well as during the Ottoman Empire. Today only such countries as Iran, Pakistan, and Saudi Arabia are using it. These are not exactly examples that Malaysia would want to pattern itself after. It would be easier to sell the Shari'a if these countries were models of peace, social justice, and economic development.

Those countries are also overwhelmingly Muslims, making Shari'a more readily acceptable. Muslims proudly point to the first Muslim community in Madina set up by Prophet Muhammad s.a.w. to prove that the Shari'a is applicable to plural societies. We need a reality check on this point to disabuse ourselves of this delusion.

While Shari'a has remained unchanged for centuries, it is still far different in form, spirit and execution from the original Medina Charter. Second, and far more significant, that first Muslim community was led by no less than the Prophet s.a.w himself. To say that today's Muslim leaders are a far shadow of the noble Prophet would be a severe understatement.

There has been little improvement or intellectual exertion by Muslim scholars and jurists to make the Shari'a relevant to and consonant with modern universally accepted notions of justice. In particular, as pointed out by An-Naim, Shari'a positions on gender equity, public law, and human rights in particular the freedom of conscience are problematic. Aspects of Shari'a's hudud (criminal) provisions seem particularly barbaric and inhumane.

Muslims share sentiments

Malaysia's judicial conundrum is not unique. Canada too has a bijural legal system, with most of the country under the English common law and Quebec under the French civil law based on the Napoleonic code.

Unlike Malaysia however, its Supreme Court is national; as the highest court of the land it hears cases from all the other courts. Canada too had difficulties; it was not until the 1970s that it began making a concerted effort at integrating the two systems.

Reconciling the Shari'a with the secular system would require the best minds legal, Islamic, political and others as well as the widest input from citizens. In crafting the nation's first constitution, we tapped the best legal talent in the Commonwealth. Today we would need another mini Reid commission composed of citizens to resolve this pressing issue.

It is not just non-Muslims who are uneasy over the expansion of the Shari'a; this sentiment is also shared by many Muslims.

It is instructive that the two leaders most instrumental in elevating the role of Islam in government and Shari'a specifically, Tun Mahathir and Anwar Ibrahim, are choosing the civil court to adjudicate their upcoming libel suits. That speaks volumes of their (and the public) confidence in the Shari'a.