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Liberty Society

[1165] Of tale of two courts: common denominator

I am in the opinion that the trend of the strengthening role of religion in Malaysia reaches a new level after the civil court directed a Hindu to seek redress in the sharia court. For the past several months, the civil court has delegated many cases to the sharia court whereas the civil court should have deliberated on it instead. From a layperson’s point of view, this action increasingly widens the scope and the power of the sharia court over all Malaysians. This creates great controversies and indeed, it is another in a series of cases which test the boundary of the civil and sharia law.

This is a very worrying trend. Having the executive branch of the government enforcing religious rule in one thing, having the judiciary trading off civil liberties for religious conservative value is quite another. The judiciary is supposed to be the bulwark against the religious conservatives. When the bulwark starts to fail, the perfect analogy would be when the dykes of the Netherlands start to leak. The consequence of the leak needs no explanation.

In Malaysia right now, more than ever, we need a little boy to plug his little finger into a tiny hole, stopping the leak. This is because we as Malaysians have achieved so much since we last formed a federation in 1963. If the dyke fails, we have too much to lose.

As a libertarian, the legitimacy of the sharia court is only possible through the consent of individuals being judged by such court. I for instance only accept any sharia court ruling on me if I assent to be judged by the court — indeed by the sharia law — in the first place.

For certain reasons in this country, Muslims have two courts in this country; those courts are civil and sharia. While I have issues of being judged in the sharia court, the bigger issue is when there is an overlap between civil and sharia laws. In particular, this occurs when Muslims and non-Muslims’ interests collide.

When such event happens, in order to resolve the dispute as civil as possible, all sides will have to agree upon on whom should be the arbitrator. When there are more than one kind of courts and each side preferring one court or the other with such preference never coincides, there must be a common denominator that everybody could or must fall back to settle the original dispute. In the case of two courts, the common denominator is the civil court.

Why the civil court is the common denominator?

I like think the reason is the obvious. While the sharia law in Malaysia in theory governs certain aspects over Muslims (regardless of what I think), the civil law governs all. It is through this reasoning why the civil court is the common denominator. Again as a libertarian, this common denominator argument is valid to all, regardless of religious belief.

If we refuse to have a common denominator, to accept the civil law as the common denominator, perhaps it is better for us to quit trying to embrace each other, to live and let live, to live separately, peacefully.