Is the state justice system free from intrusions of the executive? Apparently not, if the recent Selangor Mentri Besar Abu Hassan Omar's press conference on June 28 is anything to go by.

The MB announced that the Islamic Religious Affairs Department (Jais) had no power to make the arrests under the state Syariah Criminal Offences Enactment.

Although Jais as the enforcement agency can be said to be part of the state machinery and therefore part of the state executive as opposed to the state syariah court system, the press conference was not prudent. Public confidence was shaken.

Several election years ago, Prime Minister Dr Mahathir Mohamad in addressing the protests of the Chinese non-Muslim community, gave an assurance that the Selangor state law on conversions of minor children to Islam when either one of its parents converted to Islam would not be enforced. The assurance offered some respite but the Selangor state law provision on conversion of minors is still law despite the PM's "decree".

Whichever way one views these executive interventions, the public is impressed with the idea that politicians are making decisions on the law. This time around, the Jais arrests raised pertinent questions of the independence of the state justice system.

Are syariah judges not to be trusted with the job of adjudicating that the executive has to step in to pre-empt the process? Why are these laws passed in the first place? Why not repeal these laws instead of this "executive trespass"? If the syariah courts are not independent, or incapable of meting out just decisions, do Muslims and Malaysians of other faiths caught in the state justice system, have a right of resort at federal level in the civil courts?

As legend would have it, in many of the syariah offence cases, the usually unrepresented accused "caught" in raid exercises pleads guilty to the offence. Syariah prosecutors never get to prove the charges and syariah trial judges hardly need to determine the accused's innocence or guilt.

Syariah laws are state laws passed by the state legislature. Syariah laws for the federal territories are passed by Parliament. Each state thus has its own syariah laws which are enforced within state boundaries.

To maintain some level of uniformity, Pusat Islam, a federal machinery and part of the federal executive, develops model syariah laws which each state legislature is at liberty to adopt in toto or with variations. The Pusat Islam process is not a constitutional requirement, it is an administrative measure.

It was on this basis that the older administration of Islamic law enactments were replaced by Islamic family laws, syariah offences (criminal) laws, evidence, civil and criminal procedure in the late 1970s and early 80s. Doing rehabilitation time (varying from six to 36 months) for apostasy of Muslims, and laws on "tarnishing the religion of Islam" are recent fare in some states.

Most of these state laws were there long before PAS came to the fore as a threat to Umno supremacy with the loss of Kelantan and Terengganu to PAS. Below the rubble of what is currently seen as the out-doing-the-other phenomenon, the laws are actually Umno (Pusat Islam) - PAS neutral as evidenced by PAS support for the Jais arrests.

We must somehow endure the politicisation of our freedoms by our elected representatives. But there is more to it than the factionalism of politicians.

Judicial power of the Federation is vests in the High Courts (Malaya and Borneo). The late Eusoffe Abdoolcader, judge of the then Supreme Court in 1987, had occasion to remark upon the "uncanalised, unconfined and vagrant" power of the attorney general/public prosecutor in transferring cases from the subordinate courts to the High Court. The learned judge held that the AG's power is "both a legislative and executive intromission into the judicial power of the Federation".

Parliament attempted to water down the Abdoolcader decision, by several amendments to the powers of the AG, including a constitutional amendment in 1988 (Act A704) to Article 121(1) of the Federal Constitution. Act A704 removed the vesting of the judicial power in the High Courts and substituted the provision that the civil courts shall have "jurisdiction and powers as may be conferred by" Parliament.

However, the demands of constitutional theory would insist that judicial power remain vested in the superior courts of the land. This judicial power of the Federation is a very special power not accorded to any inferior court, or the labour or industrial courts or the native or penghulu courts. Judicial power of the superior civil courts means that the superior civil courts are vested with inherent powers. This allows superior court judges, among others to check and balance, to strike out laws and executive actions, to decide on the liberties of the citizen vis a vis the government.

The state syariah courts are separately structured from the civil courts. State syariah courts are not "inferior" to the civil courts. The civil courts do not have power to rule upon decisions made in the state courts by virtue of Article 121(1A). In other words, there is no power of appeal from the state courts to the civil courts or the power of revision or review by the civil courts of state syariah court decisions.

"Judicial power" is however not vested in the state syariah courts. The state syariah court cannot strike out the law passed by the state legislature or executive action as impinging on the freedoms of Malaysians. The state syariah court is not the forum to decide on freedom from arbitrary arrests, equality and non-discrimination and freedom of religion or religious expression, matters under Part II of the Federal Constitution. Pleading guilty in the syariah court seems the easiest way out.

There are grey areas. How much of Part II of the Federal Constitution is denied or allowed to the Malaysian Muslim? To what extent can Malaysians and Muslims challenge the Muslim personal law enshrined in the state laws, as unconstitutional? Can we legally challenge the choice of juristic opinion which is enshrined in the state laws? Should faith be private as between the believer and his Maker or be regulated by the state as a matter of law and punishment?

Muslims are subject to the Penal Code as well as the state law on syariah offences. This point alone may warrant civil disobedience. There is a moment in legal history when women of the Hanafi school in South Asia resorted to apostasy in order to be divorced. There are no records if the women were penalised. This act of desperation or civil disobedience brought attention to the rigid views of the Hanafi school on divorces and triggered family law reforms.

To many Malaysians, the state syariah offences are "God's laws". This effectively shuts the door to any inquiry especially when the inquiry may attract the charge of unbelief, of tarnishing the religion of Islam, blasphemy or apostasy. There is however, room in Islamic jurisprudence for the view that juristic opinions are not "God's laws". They are opinions.

The message of the Qur'an speaks of reason. Opening verses call "for those who think and reflect". The provisions in the state laws on Islam are an articulation by lawyers (juristic opinions) of the injunctions in the Qur'an. Furthermore, the syariah offences in our state laws are ta'azir offences. This means that the state is given the discretion to decide on what is or is not punishable. Ta'azir laws are crafted employing various legal methods which in themselves are capable of scrutiny and challenge.