Champion Open Debate and Discourse on Islamic law
7 December 2014
We, a group of concerned citizens of Malaysia, would like to express how disturbed and deeply dismayed we are over the continuing unresolved disputes on the position and application of Islamic laws in this country. The on-going debate over these matters display a lack of clarity and understanding on the place of Islam within our constitutional democracy. Moreover, they reflect a serious breakdown of federal-state division of powers, both in the areas of civil and criminal jurisdictions.
We refer specifically to the current situation where religious bodies seem to be asserting authority beyond their jurisdiction; where issuance of various fatwa violate the Federal Constitution and breach the democratic and consultative process of shura; where the rise of supremacist NGOs accusing dissenting voices of being anti-Islam, anti-monarchy and anti-Malay has made attempts at rational discussion and conflict resolution difficult; and most importantly, where the use of the Sedition Act hangs as a constant threat to silence anyone with a contrary opinion.
These developments undermine Malaysia’s commitment to democratic principles and rule of law, breed intolerance and bigotry, and have heightened anxieties over national peace and stability.
As moderate Muslims, we are particularly concerned with the statement issued by Minister Datuk Seri Jamil Khir Baharom, in response to the recent Court of Appeal judgement on the right of transgendered women to dress according to their identity. He viewed the right of the transgender community and Sisters in Islam (SIS) to seek legal redress as a “new wave of assault on Islam” and as an attempt to lead Muslims astray from their faith, and put religious institutions on trial in a secular court.
Such an inflammatory statement from a Federal Minister (and not for the first time) sends a public message that the Prime Minister’s commitment to the path of moderation need not be taken seriously when a Cabinet minister can persistently undermine it.
These issues of concern we raise are of course difficult matters to address given the extreme politicisation of race and religion in this country. But we believe there is a real need for a consultative process that will bring together experts in various fields, including Islamic and Constitutional laws, and those affected by the application of Islamic laws in adverse ways.
We also believe the Prime Minister is best placed with the resources and authority to lead this consultative process. It is urgent that all Malaysians are invested in finding solutions to these long-standing areas of conflict that have led to the deterioration of race relations, eroded citizens’ sense of safety and protection under the rule of law, and undermined stability.
There are many pressing issues affecting all of us that need the urgent leadership and vision of the Prime Minister, the support of his Cabinet and all moderate Malaysians. They include:
i) A plural legal system that has led to many areas of conflict and overlap between civil and syariah laws. In particular there is an urgent need to review the Syariah Criminal Offences (SCO) laws of Malaysia. These laws which turn all manner of “sins” into crimes against the state have led to confusion and dispute in both substance and implementation. They are in conflict with Islamic legal principles and constitute a violation of fundamental liberties and state intrusion into the private lives of citizens. In 1999, the Cabinet directed the Attorney-General’s Chambers to review the SCO laws. But to this day, they continue to be enforced with more injustices perpetrated. The public outrage, debates over issues of jurisdiction, judicial challenge, accusations of abuses committed, gender discrimination, and deaths and injuries caused in moral policing raids have eroded the credibility of the SCO laws, the law-making process, and public confidence that Islamic law could indeed bring about justice.
ii) The lack of public awareness, even among top political leaders, on the legal jurisdiction and substantive limits of the powers of the religious authorities and administration of Islamic laws in Malaysia. The Federal Constitution is the supreme law of the land and any law enacted, including Islamic laws, cannot violate the Constitution, in particular the provisions on fundamental liberties, federal-state division of powers and legislative procedures. All Acts, Enactments and subsidiary legislations, including fatwa, are bound by constitutional limits and are open to judicial review.
iii) The need to ensure the right of citizens to debate the ways Islam is used as a source of public law and policy in this country. The Islamic laws of Malaysia are drafted by the Executive arm of government and enacted in the Legislative bodies by human beings. Their source may be divine, but the enacted laws are not divine. They are human made and therefore fallible, open to debate and challenge to ensure that justice is upheld.
iv) The need to promote awareness of the rich diversity of interpretive texts and juristic opinions in the Islamic tradition. This includes conceptual legal tools that exist in the tradition that enable reform to take place and the principles of equality and justice to be upheld, in particular in response to the changing demands, role and status of women in the family and community.
v) The need for the Prime Minister to assert his personal leadership as well as appoint key leaders who will, in all fairness, champion open and coherent debate and discourse on the administration of Islamic laws in this country to ensure that justice is done. We especially urge that the leadership sends a clear signal that rational and informed debate on Islamic laws in Malaysia and how they are codified and implemented are not regarded as an insult to Islam or to the religious authorities.
These issues may seem complex to many, but at the end of the day, it really boils down to this: as Muslims, we want Islamic law, even more than civil law, to meet the highest standards of justice precisely because it claims to reflect divine justice. Therefore, those who act in the name of Islam through the administration of Islamic law must bear the responsibility of demonstrating that justice is done, and is seen to be done.
When Islam was revealed to our Prophet saw in 7th century Arabia, it was astoundingly revolutionary and progressive. Over the centuries, the religion has guided believers through harsh and challenging times. It is our fervent belief that for Islam to continue to be relevant and universal in our times, the understanding, codification and implementation of the teachings of our faith must continue to evolve. Only with this, can justice, as enjoined by Allah swt, prevail.
Tan Sri Datuk Abdul Rahim Bin Haji Din
Former Secretary General, Ministry of Home Affairs
Tan Sri Ahmad Kamil Jaafar
Former Secretary General, Ministry of Foreign Affairs
Tan Sri Dr Aris Othman
Former Secretary General, Ministry of Finance
Tan Sri Dr Ismail Merican
Former Director General, Ministry of Health
Tan Sri Dato’ Mohd Sheriff bin Mohd Kassim
Former Secretary General, Ministry of Finance
Tan Sri Dato’ Dr Mustaffa Babjee
Former Director General, Veterinary Services
Tan Sri Nuraizah Abdul Hamid
Former Secretary General, Ministry of Energy, Communications and Multimedia
Tan Sri Dr Yahya Awang
Cardiothoracic Surgeon and Core Founder, National Heart Institute
Dato’ Seri Shaik Daud Md Ismail
Former Court of Appeal Judge
Dato’ Abdul Kadir bin Mohd Deen
Datuk Anwar Fazal
Former Senior Regional Advisor, United Nations Development Programme
Dato’ Dali Mahmud Hashim
Dato’ Emam Mohd Haniff Mohd Hussein
Dato’ Faridah Khalid
Women’s Rights Leader
Dato’ Latifah Merican Cheong
Former Assistant Governor, Bank Negara
Lt Gen (Rtd) Dato’ Maulob Maamin
Lieutenant General (Rtd)
Dato’ Noor Farida Ariffin
Dato’ Ranita Hussein
Former SUHAKAM Commissioner
Dato’ Redzuan Kushairi
Dato’ Dr Sharom Ahmat
Former Deputy Vice-Chancellor, Universiti Sains Malaysia
Dato’ Syed Arif Fadhillah
Dato’ Zainal Abidin Ahmad
Former Director General, Malaysian Timber Industry Board
Dato’ Zainuddin Bahari
Former Deputy Secretary General, Ministry of Domestic Trade, Co-operatives and Consumerism
Datin Halimah Mohd Said
Former Lecturer, Universiti Malaya and President, Association of Voices of Peace, Conscience and Reason (PCORE)
Puan Hendon Mohamad
Past President Malaysian Bar