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Ex-CJ forsees common law-syariah court merger

PUTRAJAYA, 12 Nov 2008: Retired Chief Justice Tun Abdul Hamid Mohamad forsees the possibility of a merger of common law and syariah courts in Muslim-majority countries.

He said this would harmonise common and syariah law principles to deal with the issues of conflicting laws and jurisdictions arising from inter-faith cases.

“The same judges may be hearing the two types of cases. Non-Muslim lawyers will be arguing Islamic law issues, just like non-Muslim experts in Islamic Banking and Islamic Finance are already doing now,” he said at a 6 Nov Harvard Law School lecture in the US.

Abdul Hamid was one of the four people invited to present at the Abd Al-Razzaq Al-Shanhuri Lecture by the university’s Islamic Legal Studies Programme.

The text of his lecture, titled Harmonisation of Syariah and Common Law in Malaysia: A Practical Approach, was released here today.

Abdul Hamid said in Malaysia, the syariah courts had absorbed common law principles which were not contradictory to its principles.

He said the same development would happen in other countries.

However, Abdul Hamid doubted that common law would absorb syariah-based principles because of prejudice and ignorance.

Abdul Hamid said in order to determine whether the law in Malaysia was Islamic or syariah-compliant, people should not be looking 1,500 years back to compare whether our present law was the same as the law then.

“Our present law can be different, better and at the same time more Islamic than the law at the time of the Prophet. The test should be whether it contravenes any syariah principle or not.

“Rightly or wrongly, putting ‘ibadah’ (religious deeds) aside, I have come to believe what Islamic law should be. We should focus more on substance and the ‘maqasid’ (objective/purpose) rather than the form.

“We should look to the sources for the principles but the details should be determined by the surrounding circumstances.

“A law need not be medieval or Arabic to be Islamic. In fact, we can have even better and, I would say, ‘more Islamic’ laws compared to the laws at the time of Prophet Muhammad,” Abdul Hamid said.

Abdul Hamid said in the court case of Latifah binti Mat Zin, where the distribution of a deceased person’s estate was being disputed, he made a ruling in which the syariah court would determine the Islamic law issue and the common law court would decide on the distribution according to the syariah court order. — Bernama


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