Malaysia Islamic Arbitration

June 27, 2022 Off By Jim Boyd

IMAGINE this situation. Lawyers named Ali, Ah Chong and Muthu argued before judges Ahmad, Ah Seng and Samy. All these legal practitioners examine the facts of the case and refer to all legal sources such as the National Constitution and the Penal Code. Visit Islamic Arbitration .

Islamic Arbitration

Other common laws (inherited from the British colonialists) were also reviewed and debated. However, regardless of the conclusions reached, all of them agreed to ensure that the arguments presented and heard are always in line with the principles of the Qur’an and Hadith.

Is the above scenario likely to happen? Can the Malaysian legal system inherited from the British be changed? Do we want to see this country have its own free, independent and sovereign legal system? Can civil courts and syariah courts merge?

The answer is clear in front of my eyes. It was wisely expressed by none other than, by the former Chief Justice, Tun Abdul Hamid Mohamad. While presenting his lecture at Harvard University recently, he mentioned that common law and sharia law can be harmonized through the merging of both civil and sharia courts.

But he was quick to give conditions. He said, it will be achieved provided it is practiced in countries where the majority of the people are Muslims (Malaysia exceeds this condition) and eliminates prejudice among legal practitioners.

The Justice (Bitter Truth)

The fact is, our country’s judicial system has long been plagued with various dilemmas and conflicts. Conflicts of opinion and differences of opinion among academics, legal practitioners and judges are inevitable because of our chaotic legal system as a result of the British colonial legacy.

Among the acts based on English law are the Contracts Act 1950, the Penal Code and the Criminal Procedure Code. These acts are the result of the codification of the principles of English Common Law, that is, all cases decided by English courts will be brought into the national legal system. The situation further strengthened the status of English law compared to local law.

What complicates the situation is when a conflict arises to determine which court will hear a case when the issues being argued fall under the jurisdiction of both civil and syariah courts.

Disputes also often occur when a case involves the jurisdiction of a syariah court but one of the parties who brought the case to court is not a Muslim. Since the Syariah Court does not have jurisdiction to hear cases involving non -Muslims, the problem arises – which court will hear the case?

Islamic Arbitration

This situation has happened and will continue to happen in cases involving irresponsible husbands. There are husbands who declare themselves out of Islam (apostate) because they know the method to avoid being subject to sharia law.

Thus, the husband will argue that the syariah court is not qualified to order him to pay alimony edah of the wife he divorced. Thus, he was relieved of all obligations towards his ex -wife and payment of alimony towards the children. This is because the syariah court no longer has the jurisdiction to try it which is now out of Islam.

Is this the form of justice we want to defend? Is it after this country has been independent for decades, we can only hug our bodies and let all these conflicts continue without end? Are the people free to mock the law due to the loopholes of our legal system?

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