KUALA LUMPUR, June 18 — If anyone were to ask Dr Na’im Mokhtar, he would state in no uncertain terms that he has absolute faith in Islamic law to deliver justice.
And one would expect no less in the conviction of a man who just took over as Selangor’s Chief Judge of the Shariah courts last November.
A fellow of the Harvard Law School, Na’im insists that Shariah — or the principles of justice laid out in the Quran and the sunnah — are immutable.
“Judging with justice is Shariah,” he said in a recent interview with Malay Mail Online.
But for someone trained as both a civil and Shariah lawyer, Na’im admits that getting everyone to agree with his position, and that of other practitioners of Islamic jurisprudence, is easier said than done.
Na’im lamented that many who are in a position to explain the merits of Shariah and how it would benefit society as a whole, and not just Muslims, choose to lock themselves away in their ivory towers, content in their own belief that they are right.
“I look for more engagement with non-Muslims.
“Shariah law and the courts have been misunderstood, but this (engagement) cannot be done unless the judges and (Shariah court) officers engage the non-Muslims on the functions of the Shariah courts and how it would better suit justice for Muslims and non-Muslims alike,” he said.
Using divorce proceedings as an example, Na’im stressed that Shariah court judges are not limited to only one Fiqh or school of thought to come to a decision, despite Malaysia’s brand of Islam largely adopting the Shafie interpretation of the faith.
He noted that practically every piece of Shariah legislation in the country stipulates that judges can look to any of the four schools of Islamic jurisprudence — Shafie, Hanafi, Hambali or Maliki — for guidance.
“It’s good, in that I can choose the best opinion… if I am confronted by a certain issue, if I can find a ruling in Hanafi that suits justice, then I have that option.
“Under the Shafie school, a marriage ends by pronouncement of talak (a form of divorce under Islamic law), regardless of whether the wife was beaten up or not provided financial support.
“But to the Maliki and Hanafi (schools), if a wife is beaten up or her property had been misappropriated, those are valid grounds for the wife to seek divorce,” he said.
Na’im, who speaks with quiet confidence and a steady gaze, stressed that the lack of engagement is, however, not limited to non-Muslims.
He said it is an issue even among Muslims as to how they should conduct themselves — especially among those living on the fringes of society — a situation that is not helped by the lack of effort by officials to reach out and help the faithful understand their responsibilities.
This was the reason behind Na’im’s mobile court, to bring their services straight to the Muslim Orang Asli communities of Selangor and help validate their marriages which were otherwise solemnised by native customs.
He pointed out that the situation is complicated because marriage through local customs in the said communities — who in these cases are Muslim and have been for generations — is not recognised by the Shariah courts.
And because the marriage is not valid in the eyes of the Shariah courts, their children are deemed illegitimate and a daughter of such a union is required to seek “permission” from the courts to get married as her parents are not considered legal guardians.
“I don’t know the reason, but they (Orang Asli) just don’t want to leave their villages and go to the religious departments to solemnise their marriages. And if we were to insist that they come, they will not come.
“But do they mind marrying without following Islamic requirements No, because they follow their own customs even though they call themselves Muslims.
“The objective of this whole exercise is to preserve the sanctity of nikah(pronouncement of marriage),” Na’im said.
For all his good intentions, Na’im stressed that there is little he can do alone without institutional support towards convincing the Malaysian public that Shariah law is the best choice for all.
Though he declined to weigh in on the ongoing hudud debate, he said what is more important is for everyone in the institution of the Shariah courts to reach out to their critics and skeptics alike and disprove the notion that Shariah is regressive.
“Once that is done or the negative perception is removed, then we can begin to build trust from there.
“If we don’t engage (the public), (the perception) will remain negative forever and any effort to upgrade the status of the Shariah court will be futile,” Na’im said.
Source: www.themalaymailonline.com
