The Marina Mahathir's article which The Star refused to publish because of
govt KDN's threat to withdraw licence.
Marina Mahathir wrote an exceptional article for her regular column in
the Star but alas, the newspaper refused to publish it.
Fortunately for us, here is the article....
When we want to compete with anyone in any field we seek those who are better than us. And we keep going until finally we are recognized as the best. For example, a tennis player starts at the unranked bottom and tries to play and win against better players until finally there is nobody to beat.
We do not however insist that everybody comes down to our level or to play badly in order for us to win.
This is what puzzles me about the syariah courts in our country. In 1988 a clause was inserted into our Constitution that has been interpreted as having erected a Berlin Wall between the syariah and the civil courts. Basically Article 121(1A) said “the courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts." This has caused untold problems because real life sometimes dictates that some issues cross over both jurisdictions. But leave that aside for a moment.
Although the new clause did not say that the two separate courts were equal to one another, there are some people who are of the view that the syariah court is superior to the civil courts simply because syariah law is deemed of a higher order than civil laws. This is because apparently God made syariah laws while mere human beings made the civil laws. Never mind the fact that human beings have been changing syariah laws over the years, for instance, by loosening laws that protected women from losing all their property to their divorced husbands. Like other laws in this country, syariah laws have to be drafted, tabled and passed through our various lawmaking bodies whether at the State or Federal levels. This process leaves a lot of human fingerprints all over them.
Civil laws are drafted, tabled and passed through Parliament. The difference is that at the tabling stage , they have to be debated before they are passed. The quality of the debate may be sometimes wanting but debated they are. This process provides some sort of ‘quality control’ over the laws so that they are hopefully current, reflect realities and are just.
The same does not hold true of syariah laws. When they get tabled at State Excos, non-Muslims do not participate because there is the notion that they cannot partake in any such debate. That leaves only the Muslim Excos, few of whom are women. This means that if a bill affects women, the opinions of the female minority in the Exco can be ignored. Furthermore, most people are ignorant about their religion and tend to leave these matters to those they believe know best. Thus if the State Mufti or religious adviser says it’s a good law, they are unlikely to challenge him. Thus are religious laws passed unscrutinised.
Until, that is, something happens such as when someone gets convicted of a syariah crime and punishment is meted out. Who knew until recently that people could get caned for drinking, or for having a baby out of wedlock until the recent cases of Kartika and the three women?
Not only are these laws not debated when they are being made but they can’t be debated afterwards either, unlike civil laws. To do so, according to some people, is akin to arguing with God it seems. (There are however some who think that God welcomes such arguments just so that He can prove He is right).
If one believes that syariah laws are superior to civil laws, should they not be held to higher standards? Should they not be subjected to more rigorous debate than civil laws out of fear that they may be unjust? If syariah courts are deemed superior to civil courts, should not their processes be more transparent and efficient? How is it that there are innumerable women having to undergo tremendous suffering because syariah court orders to their divorced husbands to pay child maintenance cannot be enforced?
How is it also that we suddenly hear about women being caned without any information about the processes they went through? Did they have the benefit of legal representation and heard in an open court? If they did, who were their lawyers and what defense did they mount?
Surely the best court of law is one that strives for justice, which shows it is fair to all parties. In this case, on whose behalf was justice served?
I have no problems with syariah laws if their foundation is justice, equality and non-discrimination for all, even non-Muslims. But when their intent, processes and enforcement are unfair, they only give the impression that Islam is unjust and discriminatory. Surely to give such an image of Islam is a sin.