Malaysia's Civil Law 90% Syariah Compliant, Tun Hamid

 From UKM News Portal

Malaysia’s Civil Laws Are Already 90% Syariah Compliant, Former Chief Justice Tun Abdul Hamid Mohamed Says

By Saiful Bahri Kamaruddin
Pix Danial Norizzat

BANGI, 31 Jan 2013 – Malaysian Civil Laws are already 90% Syariah compliant and have been proven suitable for all.

Former Chief Justice of Malaysia and Adjunct Professor Tun Abdul Hamid Mohamad said this proves that Syariah law is compatible with a modern pluralistic society despite the fact that few people are even aware of it.

Compliance of the civil laws with the Syariah include regulations for commercial financial institutions, Tun Abdul Hamid said in his public lecture on ‘Harmonising Laws In the Islamic Finance Banking System’ at The National University of Malaysia (UKM) campus here today. The lecture was organised by the Institute of Islam Hadhari (HADARI) of UKM.

Tun Hamid said while there were many similarities between the two systems, the streamlining of Civil Law or "common law" with Syariah Law in other aspects was by design and not mere coincidence.

He said financial institutions such as commercial banks do use Syariah law which is considered moderate and fair when compared with Western-style regulations.

In fact non-Muslims find that laws regulating the financial sector based on Islamic laws are easy to follow and to comply with, he said.

From the experience the lessons learnt are:

1. Any law that does not conflict with Islam can be considered as Islamic law.

2. The so-called secular laws cannot completely be segregated from Syariah Law.

3. Rhetorics and polemics about Syariah law do not bring any benefit.

4.Civil Law and Syariah law practitioners should work together for the drafting of laws.

Tun Hamid said that no one can be considered to have absolute knowledge in any field, such as Law.

Civil law should be enacted by lawmakers and drafted by civil law practitioners together with Syariah lawyers.

Similarly, Islamic law should also be scrutinised by academics, elected representatives and Syariah lawyers and not just limited to the National Fatwa Council.

He said Islamic banking, Islamic finance and Takaful insurance were established in the 1980s in compliance with both the Civil Law and the Syariah. Compliance with Syariah law is not a problem because the issue is the same as conventional banking.

Therefore, from the creation of the product to documentation and right through to the settling of disputes, the services can be handled by the "Common Law" lawyers and civil court judges.

For instance, laws that apply to conventional banking and Islamic banking are similar for mortgages and proclamation of sale.

However the problem is the Syariah issue. It arises when certain products raise potential conflicts with the Syariah. His opinion is that potential issues under Islamic banking should be resolved by a panel of experts in all the related disciplines.

He mentioned that Malaysia’s way to address the contradictions was the best way. “Not only do we require all financial institutions to have their own Syariah committee, we have also established the Syariah Advisory Board (MPS) as the authority to approve new products”, he said

As a member of Bank Negara’s MPS, Tun Hamid said within three decades Malaysia saw the increase and expansion of Islamic banking products that outperformed others. Following these successes, he called on experts of Syariah law to explore new products to be marketted.

Prof Tun Abdul Hamid read law at the University of Singapore. He served the Judicial and Legal Service for twenty one years as Magistrate, President of Sessions Court, Assistant Director of the Legal Aid Bureau, Deputy Registrar of the High Court, State Legal Advisor, Senior Federal Counsel of the Inland Revenue Department and Head of Prosecution in the Attorney General’s Chambers.

On 1 May 1990, he was appointed as Judicial Commissioner and later as High Court Judge, Court of Appeal Judge, Federal Court Judge and President of the Court of Appeal. On 1 November 2007 he was appointed as the Chief Justice of Malaysia. He retired on 18 October 2008.

In the course of his carrier he had also served as Judge of the Special Court and Judge of the Syariah Court of Appeal for the State of Penang. He had thus served as Judge in all the courts in the country, Civil as well as Syariah.