A chaos in legal system
Issue on Islamic law in Malaysia emerges again. Article 121(1A) of Federal constitution is urged to be amended. This very article of our constitution puts a veil between the civil court and Syariah court, in cases where a matter fall under the jurisdiction of Syariah court, the civil court namely the High Court shall not interfere.
The case of Moorthy has created commotion between devotees of religions. The vital part of the case is when the wife was claimed to have no remedy in law, which means she can’t seek justice in either of our court, namely the Syariah court and civil court. This is a big loop hole in our legal system. Lacunae (or loop holes) in law can be filled in by referring to the common law as stood in England up to the specified dated as provided by section 3 of Civil Law Act 1956, but loop holes in legal system needs the attention of the MPs of our Parliament, by way of amending or enacting law, to set right the matter, OR maybe our judges can be more creative in interpreting the legislation itself, by finding way to do justice by manipulating the word of the law. After all, that’s what the lawyers and judges do. The language rule of interpretation shall play its role, as had been practiced by Lord Denning, where he introduce a very rule of interpretation which was famously known as Purposive approach, where a judge shall look behind the rigidity and literal meaning of the provision of law to infer the intention of the legislature.
But still, this power to interprete the constitution and law is vested to the civil superior courts, namely the High Court, Court of Appeal and Federal court. When a matter comes before the Syariah court, the similar power was not given to the superiors of Syariah Court and they by hook or by crook have to go by the literal wording of the law. This is another loop hole which needs attention of the legislature, i.e. the Parliament.
Thus, I humbly believe that all of these issues can only be set right by the executive and legislature, (or their other name- the cabinet and the parliament). Why cabinet? A law is passed by the parliament after a bill is introduce either by government or private member of parliament, and in the history of Parliament of Malaysia, non of private bill (issued by other than government) has been successfully passed. In other word, the reality is that only the cabinet has such power to enact law. Play your role, MPs, as you live on our vote.
