Instead of name-calling, some ground rules about respectful engagement must be observed.
EARLY this month Religious Affairs Minister Datuk Seri Jamil Khir Baharom used rather intemperate language about “a new wave of assault on Islam” and accused those who go to civil courts to enforce their constitutional rights against syariah authorities as persons who are colluding with enemies of Islam.
He also issued a not so veiled threat that “the public will resort to vigilantism if there are constant judicial reviews and challenges between civil and syariah courts”.
In contrast with the minister’s angry statements, two groups of distinguished Muslims (nicknamed Group of 25 and Group of 33), who are on opposite sides of the fence on many issues, have commenced a civilised and urbane public discussion on the role of Islam in our legal system.
The G-25 group wishes to confine syariah authorities to the limits permitted by the supreme Constitution.
In contrast, the G-33 group, while acknowledging the limited jurisdiction of the syariah courts and accepting the need to resolve some painful jurisdictional conflicts between syariah and civil tribunals, is proposing amendments to the Constitution to expand the ambit of the syariah in line with the Muslim weltanschauung or world view.
It is most heartening that both groups are recognising the need for wide consultation and debate within the context of our constitutional and political system. G-33 is acknowledging that the change it is proposing must be within a democratic constitutional framework and without impinging on the rights of the minorities.
But in a controversial part of its learned statement, G-33 chides G-25 for not providing “any evidence to support their bare allegation” of injustices, weaknesses, conflict with Islamic legal principles and violation of fundamental rights.
One would have thought that if there is an elephant in the sitting room, every one would have noticed!
If it would help the discussion, here are some examples of exuberance by state syariah authorities that have caused immense pain and have violated the constitutional scheme of things.
Executive exuberance: The Constitution did not envisage that ecclesiastical authorities of one religion will enforce their fiat on followers of another religion. Increasingly this is taking place.
> Instead of letting the police enforce state laws that forbid non-Muslims from preaching their religion to Muslims, (which laws are allowed by Article 11(4) of the Federal Constitution), some syariah authorities are taking it upon themselves to violate the sanctity of Christian places of worship. They enter churches and seize Bibles containing the word Allah. In Selangor, 321 seized Bibles were retained for about one year despite an instruction from the then MB to return the Bibles and a decision by the Attorney-General under Article 145(3) that no offence was committed. Only with the intervention of the Sultan was this issue partly resolved.
> Some time ago there was a raid on a church to arrest Muslims suspected of being proselytised.
> A Hindu wedding was disrupted to arrest the bride suspected of being a Muslim.
> Funerals have been disrupted by forcing wailing, non-Muslim relatives to surrender the bodies of their loved ones because of suspicion that the deceased was a Muslim before death.
> There is some overzealousness in converting minors in orphanages to Islam.
> Recently there was a raid on the Borders bookstore to unlawfully seize a book that was not banned and to question the shop’s Muslim and non-Muslim workers.
> Fatwas have been issued against “liberalism” and “religious pluralism” without defining these terms precisely. It should be noted that the word “liberal” is employed approvingly even in our Rukun Negara.
> Some time ago a fatwa was issued against the practice of yoga.
> In Negri Sembilan the MB recently warned religious enforcers not to go overboard by entering homes to detain a man who is dressed like a woman.
Trespass on federal list: In the matter of Islam, state legislatures have power over 25 personal law matters plus a very limited power to create and punish “offences against the precepts of Islam” provided that the crimes are not in the Federal List or covered by federal law.
In reality, state assemblies are passing laws as if the entire field of Islam is within their jurisdiction. Many state legislatures are ignoring the federal-state division of powers in the Constitution. State legislatures are passing hudud laws, legislating against homosexuality, betting, lotteries and HIV testing even though these are all within federal jurisdiction.
Some state authorities are operating rehabilitation centres and reformatories for Muslims who have deviated from the right path. Under the Constitution all prisons, rehab centres and reformatories are in federal hands.
Violation of fundamental rights: All citizens are entitled to freedom of speech and expression except on grounds of public order, national security, incitement to an offence, defamation, morality, etc. But a Negri Sembilan state law confers absolute power on a Ta’uliah committee to forbid a Muslim without a Ta’uliah from conducting a religious talk. In Fathul Bari Mat Jahya (2012) this law was challenged but was upheld by the court. Any Muslim discourse without a Ta’uliah can be prosecuted! Dr Mohd Asri Zainul Abidin, the former Mufti of Perlis, found that out to his detriment.
In many states, any challenge to a fatwa is a crime, no matter how respectfully the questioning may take place, no matter how learned the challenge may be. Freedom of speech in the Constitution is disregarded.
Wakafs created by Muslims may be compulsorily taken over by syariah authorities in some states, the right to property in Article 13 notwithstanding.
Many Arabic and Malay words are forbidden to non-Muslims even if there is no connection with any attempt to convert.
The irony is that the word Allah occurs in some state national anthems. The words Allah and Muhammad are part of police badges. Are we then going to hold that any non-Muslim who sings the state anthem or dons a police uniform is attempting to proselytise a Muslim and therefore violating the state law and committing a crime?
Jurisdiction of syariah courts: Under the Constitution’s Schedule 9, List II, Para 1, syariah courts have no jurisdiction over non-Muslims. But there are innumerable cases in which syariah courts give orders dissolving non-Muslim marriages registered under civil law when only one spouse has converted to Islam. This is in manifest disregard of several superior court decisions that a marriage contracted under civil law can only be dissolved under civil law by the civil courts.
Many syariah courts separate pining non-Muslim mothers from their infant children by granting custody to the father who has converted to Islam. Most of the time such custody orders are issued ex parte, (after hearing one side only) and behind the back of the grieving mother.
It is difficult to reconcile such judicial practices with the command of Allah in the Holy Quran (5:8) to be just and fair: “O Ye who believe! Stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong or depart from justice. Be just: that is next to piety …”.
Some syariah courts and authorities convert infant children to Islam without the knowledge of the non-Muslim parent.
In one instance a syariah court ordered the exhumation of a corpse in a Hindu burial ground – something only a magistrate is empowered to do under the provisions of the Local Government Act.
In sum there is considerable disquiet that in the name of religion, some ecclesiastical officials and institutions are being overzealous. For the sake of national harmony and also to preserve the good name of Islam, we need to discuss these issues rationally, peacefully and moderately.
Some ground rules of engagement must be observed and the temptation resisted to label people with derogatory stereotypes. The G-25 and G-33 groups have indeed set a good example.
Prof Shad Faruqi is Emeritus Pro-fessor of Law at UiTM. The views expressed here are entirely the writer’s own.
This article was originally posted on The Star on 25 December 2014.