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14 TELLING IT AS IT IS theSun | MONDAY NOVEMBER 24 2008

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WHEN a little bird whispered ramp which cost a few million, he

For whom the bells toll


about the declassification of toll would definitely been deemed to
concession agreements which have breached the contract. Then
made the front page of this what happens?
newspaper last Monday, it was In the meantime, can we
never imagined that it would lead assume that the long lines and
to the opening of floodgates of the congestion along tolled
many juicy details of the antics of highways can be interpreted
some concessionaires. There have indicate and implicate crumbs being thrown situation. If the concessionaire that the concessionaires are
been numerous bits and pieces of certain players, have at people who have had agreed to build a clover leaf operating at their peak? Why not?
information forthcoming, but they already appeared in been starving for ages. junction in the original plan and If the highway had been built for
have to be verified. Therefore, cyberspace. The fact Such a discount is subsequently replaced that with a traffic flow of say, 100,000 a day,
it would be only fair to declare that the former works not going to cause a cross-junction with traffic lights, if traffic is at a crawl, could it be
that we are not taking such minister wanted some dent in the company’s would it not amount to a breach interpreted that there are 120,000
information as the Gospel truth of those who made coffers and neither of contract? Would it not mean cars, and hence the crawl? Many
but merely exploring some issues them public prosecuted will it justify the huge that the concessionaire had cut would say these are reasonable
hypothetically, in the hope that should be considered profits the company corners and perhaps saved a interpretations of Joe Public but
the people will be able to make seriously, because in has been making. fortune? But it does not end there. then again, those with inside
valid and educated judgments essence, possessing any Well, according to the What about the custodians of knowledge and experts would be
should the battery of critics – for or parts of any of the CitizenNades terms of the agreement, public money, the Public Works able to advise us better. These are
and against the declassification concession agreements which the previous Department and the Malaysian mere hypothetical situations and I
– come out with their armoury of will be deemed an by R. Nadeswaran minister has often used, Highway Authority who were am not at all implying that anyone
spin doctors and consultants, paid offence and the penalty PLUS is entitled to a tasked with ensuring that the took short-cuts to make a quick
by taxpayers’ monies. is a mandatory jail sentence. review of toll rates, failing which highways were built according to buck or two. That’s why we the
For the time being, the words On Tuesday, the current works the government will have to pay specifications in the agreement? taxpayers have to wait patiently
“alleged”, “hypothetically” and minister made the supposed compensation. Again, hypothetically, did officials for Jan 1.
“supposed” will be used inter- magic announcement together So, when the agreements are of these two government agencies
changeably, pending the “official” with the concessionaire of the made public and it is discovered tutup satu mata or were they
declassification on New Year’s North-South Highway, PLUS that if some companies had not instructed to close both eyes? R. Nadeswaran uses tolled
Day, which means that for the Expressways Berhad. The kept their end of the bargain or The examples could be too highways extensively and that’s
next 38 days or so, the concession so-called “discount to ease the had amended the original plans many. What if and an “IF” with why he too is waiting with bated
agreements remain under the burden on the people” is nothing which formed part of the contract, capitals, the agreement deemed breath to examine the concession
purview of the Official Secrets but a feeble attempt to insult the would the government seek to that ramps should be built? If agreements. He is editor (special
Act (OSA). Notwithstanding intelligence of the public. A 10% repudiate the contract or seek the concessionaire had merely reports and investigations) at
this arrangement, parts of some discount for travel at unearthly other forms of remedies? plonked traffic lights, which cost a theSun and can be reached at
agreements, which clearly hours can be described as only Let’s take a hypothetical few thousand ringgit, instead of a citizen-nades@thesundaily.com.

Common Law and Syariah: Wine and sparkling grape juice?


by Ziad Haider Controversy has arisen when it was unclear if a of harmonisation and the nature of Syariah in sanctioned the procedure as Islamic. Summing
Syariah or common law court has jurisdiction over Malaysia. up what he deemed his practical approach to
THE issue of harmonising Syariah and com- a case or when they seemingly have concurrent He proposed two ways to harmonise the dispensing justice, he said “if you remove alcohol
mon law is a puzzle Malaysian jurists have long jurisdiction. Early this month, in a lecture spon- courts. First, combine the courts with either a from wine it becomes sparkling grape juice”.
grappled with – one that has real consequences sored by Harvard Law School, former Chief Justice Syariah or common law judge or a panel bench But as Abdul Hamid unwittingly admitted later,
for Malaysians living in a pluralistic society. Tun Abdul Hamid Mohamad spoke on these issues hearing the case as need be. Second, leave the sometimes the distilling process does not always
courts as is but have two judges, one from each result in a sound product. As the “only non-Sya-
court, hear issues of concurrent jurisdiction. riah member of the Syariah Advisory Council
Executing either option, in his view, however, to Bank Negara Malaysia”, he described how
is fraught with difficulty with political parties he found the process of taking a conventional
dissenting or deeming the matter too sensitive. product, finding a Syariah issue, and examining
Of particular interest were his remarks the core principles, largely effective; however, “at
on Syariah’s meaning and mutability. As he times I find the methodology artificial”.
recounted, when addressing a group of ulama I asked one audience member what he
from across the Muslim world, he had elicited thought of the lecture. His response was that
dismissive laughter when he stated that the notwithstanding the remarks on harmonisation,
definition of Islamic law was any law that is not he was “a common law guy”. A telling response
unIslamic. The focus in his view must not be form I thought. People like the graduate student who
but substance. You do not need to be English to had asked about Islamic legal innovation did not
know common law; you need not speak Arabic want sparkling grape juice to merely be non-
to grasp Syariah . alcoholic wine; they wanted it to be sparkling
“We can have better Islamic laws than the grape juice in itself – a substance with its own
time of the Prophet,” he said. Using the example integrity and vitality.
of slavery, he argued how in Islam’s early years, For many Muslims today, the quest for formu-
the Prophet Muhammad (peace be upon him), lating and implementing Islamic law is the quest
considerably curbed the practice for identity – part colonial “hangover,”
but it was never outlawed. Now that part spiritual sojourn. Abdul Hamid’s
the times have changed and slavery argument that common law is not
has been banned, would anyone call necessarily unIslamic is both discon-
for introducing a law that permits certing and empowering. It is discon-
it? Outlawing slavery is thus more certing because it requires taking a
Islamic than the law of that time. “To hard look at Islamic law, as it has been
determine whether a law is Islamic traditionally understood by scholars,
don’t look back 1,500 years. Look at and recognising two things: at best
its principles.” it does not have all the answers and
On the future of Syariah in Ma- at worst it is out of sync with the
laysia, he highlighted three themes. times and perhaps regressively so,
First, common law and Syariah courts for example, on women’s rights. Yet,
would continue existing in tandem. it is also empowering because it
Second, the divisions between the emphasises the common values and
various Sunni legal traditions would strands that bind all societies.
decrease due to shrinking geographical distances No doubt, it would ease the minds of many
and greater information sharing, resulting in a Muslims to know that the street is not one way.
globalised outlook in Islamic law. That Islamic law has not intellectually stagnated
Third, and perhaps most importantly, Syariah but is also shaping common law. After all, at its
will continue to absorb those elements of com- “conception”, Islamic law was far more progres-
mon law that are not contradictory; however, the sive in the rights it accorded women than many
reverse is unlikely to occur due to “ignorance and of its contemporary legal traditions. But Abdul
prejudice”. Yet, when pressed on what elements Hamid was disappointingly silent on this point.
of Syariah he would like to see common law His focus, as perhaps a judge’s appropriately
embrace, he was unable to provide an answer. ought to be, was not on Islamic justice or com-
One Muslim graduate student asked why the mon law justice but practical justice.
Islamic legal tradition could not innovate itself. Nonetheless, not everyone thinks of Islamic
The response was unduly vague: a vacuum law from the perspective of the gavel. As the
existed in the tradition for historical reasons. debate on harmonisation continues, Muslims
Describing one way how this vacuum could will have to ask themselves what Islamic law
be filled, Abdul Hamid recalled how during his means to them instead of ceding the debate to
tenure as state legal adviser in Kelantan, he had the religious right – whether salvation can indeed
asked the mufti to formulate a Syariah-compliant lie between blurry legal lines.
criminal law procedure. When he was unable to
do so, Abdul Hamid drew on related common law
provisions, such as the need for a charge to be The writer is a Master in Public Policy candidate
sufficiently particularised; explained the meaning at the Harvard Kennedy School and a former
of the provisions to the mufti; and asked him to Fulbright Scholar in Malaysia. Comment: letters@
make a determination. The mufti subsequently thesundaily.com.