The syariah court's dilemma - Salbiah Ahmad

Max Weber has made popular his descriptions of the Islamic legal system in which he said decisions were arbitrary. According to Weber, only Western society due to its historical evolution has experienced a legal order based on a rational approach to law.

The Weberian perspectives on Islamic history and society, have been said among others to be based on predetermined paradigms and not on serious research.

What is perceived as arbitrary by the untrained mind is really the wealth of diversity of opinions of jurist-law arrived through ijtihad (independent reasoning). These opinions are not jurisprudentially speaking, arbitrary.

It might be more correct to say that some opinions may be less sound or less ‘authoritative’ on account of the methodology used. You may also end up with several sound opinions over a single issue.

The qadi or syariah judge before the advent of modern-day legislation had the thankless task of applying a juristic opinion from among many, to the dispute before him. Inevitably, the judge has to apply his own judgment in choosing an opinion which might best serve justice. He might also discard the established opinions and apply his own ijtihad.

As in any other legal system, judges may exercise a less than informed judgment and settle on bad law, but this cannot be the reason to view the whole system inferior or irrational.

Jurist-ruler, Umar al-Khattab (AD 634-644) has been known to discard established opinions. Some accounts will justify these ijtihadi derivations as premising on sound methodology. Other accounts classify his decisions as aberrations.

Daunting task

Judgeship in a bygone age was a most daunting task even to the most skilled jurist-judge. Jurists were extremely reluctant to override opinions as a mark of respect for the expertise of other jurists. In some accounts, they did not want to fall stooge to despotic regimes as paid employees. The notion of separation of powers has its roots in these ancient experiences.

Some caliphs have been known to detain ‘errant’ jurists without trial, for their refusal to accept judgeship. When the administration of the glorious Muslim empire became decentralised, this enabled independent-minded jurists to escape particular regimes by migrating to another territory, administered by another caliph-governor. The famous jurist, physician and philosopher, Ibn Sina a.k.a Avicenna (AD 980-1037) escaped political intrigues this way.

The syariah judge in the early Ottoman period had to apply executive decrees in addition to the opinions of jurists. This Ottoman experience in due course became the blueprint for the 19th century phenomenon of codification or legislation of the “personal law” of Muslims in many countries.

Malaysia embarked upon a similar legislative programme for the administration of Muslim law in the 1970s and 1980s. It could be said that the state syariah courts were ‘secularised’ with the advent of legislation. The judge’s jurisdiction is narrowed by a mechanism of the nation-state, to legal provisions which the legislature deem to be the law to be applied on an issue.

In Malaysia, the drinking of alcohol is prohibited by state Muslim law. According to news reports in June, two Muslims in Kuantan, Pahang, were sentenced to six strokes of the rotan and fined RM 5,000 each “as a warning to Muslims not to commit the offence”.

All students of Muslim jurisprudence would know the differences of opinion as to the drinking of alcohol and the determination by medieval jurists of the prohibition of drinking wine as a general offence of drinking alcohol.

There are several issues. One is the issue of abrogated and abrogating verses, a methodology which is contested by medieval and contemporary jurists. There are also differing views as to whether the prohibition relates only to the drinking of wine made from grapes or extended to all kinds of wine from hops, dates and so on.

No fixed punishment

The other concern relates to caning or lashes. There is a controversy as to lashes for drinking. Some jurists have approved of lashes as an analogy from the defamation (qadhf) of chaste women; when under the influence of alcohol, one may resort to defaming.

The Prophet himself did not fix a punishment for drinking. On some occasions, he merely reprimanded them. He was also reported to have ordered beating but did not specify the number and the manner.

In the Prophet’s time, there were no specific methods of beating offenders. Some were beaten with clothing, hands, sandals, sticks and palm branches. There is also a report that he ordered beating when an offence was committed for a fourth time.

Then again, the Quran’s preference for repentance has also eluded legislators.

In theory, a syariah court judge, unlike the jurist-at-large, is the arbiter of the facts before him. In this, the jurist-judge plays an important and different role from the jurist.

The jurist does not give information about the occurrence of a legal cause, which activates a legal rule; he gives information only on the status of a legal rule as a legal rule. The judge, on the other hand, has to decide if a set of facts had occurred to invite one of several of opinions as applying to the case.

There is an unexplored terrain (untested) for human rights lawyers in our syariah courts. It might be useful perhaps that counsel raises the disputations as to the offence of drinking alcohol.

The Muslims in question were reported to be drinking stout, not wine made from grapes. There is also the larger concern if caning is indeed appropriate as a warning to other Muslims when there is no evidence led (the facts), for example, if either or both of them had defamed chaste women (read: accused them of illegal sexual intercourse without witnesses to prove their case).

Unfortunately in the majority of criminal cases in the syariah court, the accused is often advised to confess to the charge - that is, to plead guilty. Very few lawyers or none whether trained in Muslim jurisprudence or not, would test the waters.

There is only a provision of appeal from the trial court. The status of the syariah judge in question is akin to that of the magistrate court in civil law. There are no powers of review in the local syariah court system.

Amina Lawal case

This case brought to mind the Amina Lawal case in Nigeria. Amina was charged and convicted in the syariah trial court for the hudud offence of adultery, which carries a death penalty. She had given birth to a child. She was unmarried at that time. She was married before but had been divorced for two years.

Her conviction was overturned on appeal in 2002. She was allowed to retract her confession to the crime as she did not understand the charge against her.

She was also given the benefit of the doubt, as she could have been pregnant from her first marriage. The court accepted arguments of the 'sleeping embryo' where a period of gestation could be up to four years, according to some juristic views.

This gives rise to the probability that the child born, was a child of her last marriage. In some circles in Nigeria, the case was celebrated as a triumph of the syariah.

The outcome of these two cases reflects the contemporary dilemma of the implementation of syariah.

Is it correct for the legislature to restrict the jurisdiction of the syariah court, by limiting juristic views or selecting particular views? Are syariah court judges strictly bound by the four corners of the legislated syariah?

How would the interest of justice be best served? In the interest of justice generally or even justice in Islam so to speak, should not the accused be granted every enabling juristic opinion in her/his defence?

These are some tough policy questions. But we are no longer at the drawing board stage as we have today some 13 states and federal territories with syariah-based criminal laws.