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

Common Law and Syariah: Wine and sparkling grape juice?

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