Our experience in the past 10 years or so has shown that there are many serious issues confronting the Syariah laws as passed in this country. Much of the syariah laws are hand me downs from the colonial era with some amendments here and there. Quite apart from these. You also have for example, the Criminal Procedure Code remodified for the purposes of use in some Syariah Courts and renamed as Syariah Criminal Procedure Code.
There has also been serious problems with the manner in which discretions were used by the respective religious authorities. There are unhealthy perceptions among the Malaysian public that some of these discretions were applied selectively and arbitrarily. Such a perception needs to be addressed as it will impact upon the institution of syariah aws in the country. For example, while the syariah law of the respective state allowed the caning of Kartika for the offence with which she was charged, many were not only surprised but even appeared to question the sentence of caning. This does not augur well for the “syariah system”, for the “image of Islam” and for the Nation as a whole.
I feel that it is beyond time that the Nation embarked on a serious, long term reform of the “syariah system”. Since independence to date, it seems that there has been no effort to form a serious committee to seriously relook at the nature of syariah laws and its implementation in the country.
To this end, I humbly suggest that the Government take steps to form the commission that will be empowered to study and suggest various reforms to the syariah laws. In some cases, it can identify which areas of the laws that requires reform and further study.
Admittedly, this will not be an easy task. This is because, the task will require for the commission members to primarily start from the premise of the accepted sources of Islamic jurisprudence that is:
1) Quran - will not pose much problem
2) Sunnah – may pose some problems
3) Ijmak - will pose great problems
4) Qias – will pose great problems.
The problem with Sunnah/hadith will be the differentiation between what is authentic and what is not. Many Islamic scholars, as Dr Asri himself has pointed out before that many Islamic scholars quite uncaringly or negligently rely on doubtful hadith in thier speeches and writings. For those familiar with Islamic jurisprudence, this is trite. Apart from the basic four above, there are also other ‘accepted sources of Islamic jurisprudence.
In Malaysia, the recognized “understanding of Islam” is sunnah wal jamaah or Sunni. Shia and other “brands of Islam” is illegal. In this Sunni group, there are four main schools of thought namely, Shafie, Maliki, Hanafi and Hambali. Shafie views are given particular predominance in search for legal rulings. However, here also one may encounter problems of diverse juristic exegesis within and among the said schools.
So, as I said, it can be quite a challenge for the commission members to come up with agreed recommendations for reform especially when details are descended into. Nevertheless, the alternative seems to be continued chaos.
I would suggest that the Tajdid commission should comprise scholars from various universities and various disciplines. It will be a mistake to take only the scholars from a particular Middle Eastern University as they will probably prefer the understanding and teachings of their respective professors. Likewise, I will also suggest that the commission members should be made up of scholars and/or intellectual thinkers who have not gone through the formal “Islamic formal education system”. This is important as it will give a fresh dimension to the thinking and discussion that will take place among the commission members.
The inclusion of scholars and/or intellectual thinkers who have not gone through the formal “Islamic formal education system” may assist the commission to look beyond the form and at the substance.
Further, the commission should also include legal experts from the non-syariah system. Again, through the discussion, exchange of views among the commission members, we cannot discount the possibility that one Malaysian Legal System may emerge. Fro example, is the traffic light rules and regulations from the non-syariah system uniIslamic?
And who better than Dr Asri or Dr Maza, as he is popularly called to head the commission?