An Open Letter To Muslim Judges In The Common Law Courts


The shariah and its components like hudud differ from place to place, from state to state (in Malaysia), from country to country, and from time to time. Most certainly all these differences cannot be divine.

OutSyed the Box

This is a short letter. It is just advise and perhaps an appeal. This is not an accusation of any sort.

By Common Law Courts I mean the Civil Court courts that we have in this country which follow the modern, scientific (eg they accept forensic evidence) and civilised legal system aka the Malaysian Legal System. I do not wish to say anything about the civility or the lack thereof of any other systems.

We are seeing an increasing number of cases involving Islamic religious issues which are being heard in the Civil Courts, especially in front of judges who are Muslim.

Some recent examples would be that child custody case where a decision was made, one by the Civil Court and another by the religious court.

There is also that LGBT case where there is a defendant who is asking for a review of the charges against him (in the religious court) using Constitutional arguments.

There is also the case of Kassim Ahmad who is arguing his case (in the Civil Court) that his arrest by the religious authorities infringes Constitutional provisions and his rights.

There have been other cases before involving conversion of religion issues, body snatching issues by the State authorities (ie where the religion of the dead body became contentious) and such. There are many such cases.

In the common law system, cases like these can have outcomes that could be totally different from say a religious court. The issue of cross dressing involving LGBTs for example may not see the light of day in a Civil Court. Yet it can become a criminal offense under a religious court.

The issue relating to Muslim judges is what if someone(say a Muslim) makes a representation to a Civil Court over an issue that becomes a criminal matter ONLY in a religious court and nowhere else.

Going by the civil laws there may not even be a case.

But going by the religion (repeat “religion”, not religious court) it becomes a sin and a punishable crime. Which ultimately leads to the same treatment in the religious court.

The question is (and I ask this from the public interest point of view) what is the guarantee that Muslim judges sitting over such cases in the Civil Courts will not be swayed by their personal religious beliefs when passing their judgements?

Other than a Muslim individual’s personal religious beliefs, in Malaysia the Islamic religion is NOT a personal matter.

For example :

1. If you denounce Islam, you can be sentenced to death by the religious courts (yes folks, I found out that this is the provision under the religious courts in Malaysia as well, just that this punishment has not been carried out in our country. That Ayah Pin woman was sent to jail).

2. Then under the Federal Constitution a Malay has to be a Muslim.

(No one has tested this Constitutional provision further ie if a Malay has to be a Muslim, then how does this apply to NON MALAY MUSLIMS eg Chinese, Tamils, Gujeratis, Filipinos, Pakistanis etc who may be Muslim and wish to opt out of Islam? For example those Tamil girls (two different cases) who were locked up because the religious authorities insisted they were Muslim but they were insisting otherwise. The Federal Constitution only says thata Malay has to be a Muslim. It does not say that Punjabi, Rohingya, Pakistani Muslims also have to remain Muslims.)

Anyway taking 1. and 2. above Islam is NOT a personal matter anymore in Malaysia. This applies especially to all Malays. Malays have no choice in the matter.

What more (or less) then with Muslim Malays who are judges in the Civil Courts who may have to make decisions over cases where isuues relating to Islam are involved.

Justice requires that they must ignore their personal religious beliefs and stick closely to the law of the land.
Can they ignore their personal religious beliefs?

Will they have to perform balancing acts?
Can they perform balancing acts?

As an example only, a Muslim judge in a civil court cannot make a statement like this :

“If I make a mistake in my Court, my mistake can be corrected by a higher court but if I make a mistake according to my religion I will be held accountable by god”.

I think they cannot make such statements.

There are a few reasons that I can think of. First of all the public has a certain faith and understanding of the common law courts. The public expects a certain level of fairness and justice from the common law courts. Religion does not have a role to play in any of this.

Imagine Christian judges being influenced by the Bible, Hindu judges influenced by hinduism etc.

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