The Malaysian Constitution guarantees religious freedom, but how much freedom especially for the Muslim individual? Meanwhile the clashes between Syariah law and civil law grow despite clear constitutional boundaries, requiring urgent resolution lest the nation slip into a downward spiral.
A prevalent debate over the past few years had been the position of Islam vis-a-vis the Constitution and how that should shape the governance of the nation. In particular, increasing conflicts emerge between proponents of a more Islamic approach to things and those who stand by the constitutional perspective. KINIBIZ asks Mohd Sheriff Mohd Kassim for his view on the matter.
What’s your position with respect to the Constitution? Does the Constitution guarantee freedom of religion to everyone including Muslims?
Does that mean they can leave the religion according to the Constitution? Zaid Ibrahim (former de facto law minister) said as it were, the Constitution said that as well.
My understanding is that although the Constitution may mean that, I think in Islam leaving or renouncing the religion is a big sin. In that respect I would say the religious authorities have a right to impose penalties. Not, of course, to the extent of giving out punishment like what they do in certain countries where it is a severe offence – in fact by strict Islamic law apostasy is punishable by death.
But at the same time I feel that a Muslim has a right to decide whether he wants to be Sunni, Hanafi or Syiah. That I think is what it means by allowing freedom of religion in Islam.
So the Muslim individual should be allowed to interpret the Quran for himself?
This is a big debate in Malaysia now. The Islamic authorities are saying that you should look at both the Quran and the interpretation of Quran in the Hadith. They follow a certain line of thought in Hadith and they want that to be the official way in which Islam is practiced in the country.
But others say that this may not necessarily be the only way.
You are saying Islamic law should be implemented according to the tenets of the Constitution?
No. See, religion is religion. You can’t dispute religious texts, you can’t amend it, you can’t change it. You have to take it as it is because it is something that was handed down to us.
But how you administer in everyday life… There is a body of thought among Islamic scholars that you have to take into account the prevailing circumstances in the country.
For example, being a multiracial country, you cannot have a law like the hudud for which the majority of the population may find it not suitable, not only for society but for the economy. If it creates doubts about Malaysia’s commitment to a system of law and order, which is embedded in the Constitution, then that will have repercussions – for example whether one day the country will change the Constitution to make religion the supreme law of the country.
There was a child custody case in recent years where the civil and Syariah courts each issued the police conflicting orders, and the police on its own decided to take the “middle path” as in they do not execute either order. It raises questions on the conflict between the two systems and whether the police, as an instrument of law, can make that sort of call.
I think the public has expressed its views very clearly on that. The police should not take the law into its own hands. If the court decided that the police should take action, the police should just follow the law.
If I remember correctly, the judge was telling the police to find the child and return the child to the mother. Yet the police was giving all kinds of reasons why they don’t want to do it. It looked as if the police was going against the judgment of the court.
In that context, there was a proposal last year to set up a parallel Syariah Federal Court with the same stature of the civil Federal Court.
That would be the wrong move. You cannot have a parallel system of justice. Then which one takes precedence over what?
There is already conflict in that regard as we have seen through the child custody battle and other cases. How do we begin to address that conflict between Syariah and civil?
I think if we follow the Constitution, we should leave things as it is now. The lawyers are very clear about this.
As it is now, the Federal Court has authority over the Syariah court. If the Syariah court makes any decision which contravenes the basic principles in the Constitution, the Federal Court has the authority to strike off the judgment.
And I think this is mentioned in one of the (controversial) court cases where the judge specifically said the Federal Court has a duty to uphold the Constitution; where there are laws and regulations made by the lower courts – Syariah is considered as a lower court – the Federal Court can overrule.
This is what many Islamic activists are not happy about. They say that it’s an insult to Islam and therefore to prevent such insults from happening again we should amend the Constitution.
But when you amend the Constitution it immediately raises the question of where we are heading. When there are doubts about Malaysia’s future direction, it will definitely affect business sentiment and foreign investor confidence in the economy.
You must always bear in mind that although Malaysia is an attractive place for foreign investment, there are countries around this region which are reforming themselves and making themselves more attractive to investors. And if you’re not careful, you may lose out in the competition for investment.
Worse still, if funds invested in the country leave, you’ll see the ringgit depressed, inflation going up, cost of doing business rising – Malaysia loses its competitiveness and quickly the process of growth and development will be adversely affected. Because you know changes happen very fast in this respect and once sentiment turns it’s very difficult to reverse.
Apparently for Muslims in this country, if you have a child out of wedlock, the natural father of the child is not recognised as the father under the law.
I think when the couple marries, then the child can be recognised as his.
And if the child is born, say, within six months of the marriage, it will be assumed there is an adulterous relationship and you can be charged under Syariah law.
I don’t know if that is uniform throughout the country or only done in certain states, but I can believe it if it happens.
So you’re saying we should move towards a system that is more just and merciful rather than focusing on punishment?
I think religious authorities must accept the fact that with development we have modernisation, urbanisation, young people come to the cities and sometimes they get involved in premarital sex. And if the girl gets pregnant, it is an unfortunate thing to happen but it is not fair to treat her as a criminal.
Every effort should be made of course to help the girl if she needs help but also to ensure the boy who is responsible to take responsibility for what he has done. That is essentially not the government’s function but it is where civil society and NGOs can play a role.
And I also believe that the government can also help by channelling more funds to these NGOs so that they can deal with these social problems more effectively.
I think studies have found that NGOs are more efficient in dealing with social problems. Even in the US I’ve read statements that it’s better to leave these kinds of problems to voluntary organisations.
In fact studies have shown that when it comes to social work, what is done through private funds is much greater than what is done through official funds. And it is more effective, it reaches out to a broader cross-section of society. So that is why you find that in America, in Britain, they encourage their NGOs to go to Africa to deal with how, for example, villages can prevent malaria. This is how organisations can help improve things on the basic needs of people.
Link to original article in Kinibiz
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