CONSTITUTIONAL PERSPECTIVES ON FREEDOM OF RELIGION

INTRODUCTION

Malaysia has a record of racial, cultural and religious tolerance that should be the envy of all plural societies. There is much inter-religious friendship and tolerance. Cultural and religious pluralism are not only tolerated; they are celebrated

Legislation provides for Muslim and non-Muslim religious institutions.

Financial allocations, gifts of land and tax exemptions are granted to all religions.

Cultural and religious tolerance extends to the use of minority languages in trade and commerce, and the establishment of private schools using Chinese and Tamil.

The Malaysian approach is that the state should not be indifferent to or hostile towards religions. It must promote tolerance. Tolerance comes not from the absence of faith but from its living presence.

Constitutional Protection of Freedom of Religion: Article 11

Islam is the religion of the federation. But all other religions may be practiced in peace and harmony: Article 3(1)

In respect of religion, every person has the right to three things:

• to profess
• to practice
• and, subject to Article 11(4), to propagate his religion: Article 11(1)

The right to religion is available not only to individuals but also to groups and associations: Article 11(3) and 12(2). Every religious group has the right to:

• Manage its own affairs
• Establish and maintain institutions for religious purposes.
• Acquire and own property and administer it: Article 11(3)
• Establish and maintain institutions for religious education: Article 12(2).

The right is available to citizens as well as to non-citizens: Article 11(1)

There is no compulsion on anyone to support a religion other than his own.

No person shall be compelled to pay any tax the proceeds of which are specially allocated to a religion other than his own: Article 11(2).

There is to be no discrimination on the ground of religion in relation to the rights of students to education or in public support for educational institutions: Article 12(1) and 8(2).

No person shall be required to receive instructions in or to take part in any ceremony or act of worship of a religion other than his/her own: Article 12(3)

There can be no discrimination on the ground of religion against employees in the public sector; in the acquisition, holding or disposition of property; and in any trade, business or profession: Article 8(2)

A preventive detention order cannot be issued on the ground that a convert out of Islam is involved in a programme for propagation of Christianity amongst Malays: Minister v Jamaluddin bin Othman [1989]

Article 150 (6A) provides that freedom of religion cannot be restricted even in times of emergency by an emergency law under Article 150.

AREAS OF CONCERN

1. Non-Mandatory Practices

Does freedom of religion extend only to those practices and rituals that are essential and mandatory or does it also cover practices that are non-essential and optional?

· Halimatussaadiah v PSC [1992]

· Meor Atiqulrahman Ishak v Fatimah bte Sihi [2000]

2. Planning Permissions

Local authorities often drag their feet in granting planning permissions for religious establishments. Such abuse of power is contradictory to the constitutional right.

It is also contrary to the letter and spirit of Islam. In the Holy Qur’an there is explicit mention of religious and cultural pluralism and freedom of conscience.

3. Inter-Religious Marriages

As Muslims are not allowed to marry under the civil law of marriages, non-Muslims seeking to marry Muslims have to convert to Islam. This has caused pain to the parents of many converts.

Likewise it has led to several difficult cases of apostasy by Muslims who, for reasons of the heart, wish to marry their non-Muslim counterparts.

4. Atheism

Does the right to religious belief include the right to disbelief and to adopt atheism, agnosticism, rationalism etc.?

In most democratic countries, the right to disbelief is constitutionally protected.

But in light of the Rukun Negara (“Kepercayaan kepada Tuhan”); the language of Article 11(2) - no tax to support a religion other than one’s own; Article 12(3) - no instruction in a religion other than one’s own; and the mandatory application of syariah laws to Muslims, it is possible to argue that atheism is not protected by Article 11 – at least not for Muslims.

5. Propagation of Religion to Muslims

Under Article 11(4) of the Federal Constitution, any preaching of religious doctrine to Muslims (whether by non-Muslims or unauthorised Muslims) can be regulated by state law.

Many non-Muslims complain that this amounts to unequal treatment under the law. Indeed it does. But it is one of the pre-Merdeka compromises between the Malays and the non-Malays in order to insulate Malays against internationally funded and powerful proselytising forces that had become entrenched in the country because of official support from the colonial government

There is the additional fat that proselytising activities like seeking death-bed conversions, generous grant of funds to potential converts and indirect and subtle proselytizing activities amongst minors have distinct implications for social harmony.

Prof. Harding in his book Law, Government and the Constitution of Malaysia, 1996, p. 201 is of the view that Article 11(4) was inserted because of public order considerations.

To this may be added a unique ethnic and political factor in Malaysia. Renunciation of Islam would automatically mean abandoning the Malay community because Islam is one of the defining features of a “Malay” in Article 160(2).

6. Restraints on Freedom of Religion

The right to religious belief is, of course, not absolute. All religious conduct is subject to the power of Parliament to regulate it on the grounds of public order, public health and morality: Article 11(5).

In the case of Muslims additional restraints are possible due to the power of the States to punish Muslims for “offences against the precepts of Islam”: Schedule 9, List II, Item 1: Kamariah bte Ali lwn Kerajaan Kelantan [2002].

7. Conversions and Apostasy

The right to convert out of one’s faith is not mentioned explicitly in the Malaysian Constitution though it is alluded to in Article 18 of the International Covenant on Civil and Political Rights 1966 and Article 18 of the Universal Declaration of Human Rights.

For a non-Muslim the right to opt out of one’s faith and choose another has been regarded as an implicit part of religious liberty guaranteed by the Constitution

But because of its implications for child-parent relationships, the court in the case of Teoh Eng Huat [1990] held that a child below 18 must conform to the wishes of his/her parents.

In relation to Muslims the issue of conversion or apostasy raises significant religious and political considerations.

The traditional Muslim view is that as Islam is the religion of the federation and Malays are, by constitutional definition, required to be of the Muslim faith, all Muslims are liable to prosecution for apostasy or deviationism. The notion that freedom to believe includes the freedom not to believe is rejected in relation to Muslims.

But liberal Muslim scholars argue that Islam is a religion of persuasion, not force. The proposal to detain apostates runs counter to the spirit of Islam which is one of tolerance for the disbeliever.It is noteworthy that the Holy Qur’an nowhere prescribes a worldly punishment for apostates. The difficulty is that there is a known Hadith ordering that apostates should be advised, imprisoned, and if they still persist, then beheaded.

This Hadith must be read in the context in which it was made – in times of war, emergency and grave threat to the Islamic community. It must also be noted that Prophet Muhammad (s.a.w.) never ordered the execution of an apostate.

Since the 90s the conservative view has prevailed in Malaysia. A number of states have enacted rehabilitation laws that permit detention and re-education of converts out of Islam.

Apostasy laws raise difficult constitutional issues under Articles 11(1), 5(1), 10(1)(c) and 12(3). They are triggering a massive constitutional debate that pits religion against the Constitution and disturbs the delicate social fabric that has held all Malaysian together for 48 years. At the moment the following judicial attitudes and conflicts have emerged.

According to the High Court the act of exiting form a religion is not part of freedom of religion – at least not in the case of Muslims: Daud Mamat v Majlis Agama [2002] 2 MLJ 390.A contrary view was expressed by the Court of Appeal in Kamariah bte Ali lwn Kerajaan Negeri Kelantan [2002]. Muslims too have a right to renounce. But this renunciation cannot be done unilaterally. A Muslim who wishes to declare apostasy must first get the syariah court to confirm that he/she has left the religion. A statutory declaration of apostasy is not enough.

The problem is that the applications of most apostates to the syariah courts are left unattended.

In same cases criminal action for insulting Islam is taken.

CONCLUSION

A. The right to propagate

The right to propagate one’s faith has traditionally been regarded as an integral part of religious freedom. Unfortunately in a multi-religious society, the ideological fervour of religious zealots can have serious implications for social stability. For this reason some internal as well as external restraints must be built around all proselytising activities.

An Inter-Faith Commission must be set up which can assist to draw up some ground rules. Religious preachers need to be told that no religion has a monopoly to the Truth; that there are many ways of finding salvation.

There is a need to avoid words and acts that are patronizing, self-righteous and insulting.

It is insulting and narrow-minded to tell the believer of another faith that his God is not the true God and that he needs to “see the light”.

“Ambulance-chasing” by some proselytisers who roam hospital corridors to try to secure conversion of the dying, the critically injured or their vulnerable relatives is despicable

Hospital staff who alert evangelical groups about who to target must be warned not to subordinate official duties to personal convictions. Attempted conversions of minors through direct or indirect “social activities” must be strictly controlled.

“Cheque-book” conversions by resorting to financial benefit for the proselytiser as well as the proselytised must be condemned. In exposing the overzealousness of some proselytisers, double standards should not be applied. We must not single out some religions and ignore malpractices in other religious establishments.

B. The right to convert

Just as with the right to propagate, the right to convert is part of the constitutional and international right to freedom of religion.

However, though conversion is an intensely personal decision, its exercise must be regulated by the law if the conversion adversely affects the rights of others. The recent case of Sgt. Moorthy highlighted the pain and anguish a conversion can cause to the non-converting spouse.

In the Moorthy case the legal system was seriously scandalised. It was totally unjust and unnecessary for the syariah authorities to commence the action ex parte in the syariah court. Moothy’s wife and other relatives should have been heard. The issue whether Moorthy had, subsequent to his conversion to Islam, become a murtad and reverted to Hinduism should have been investigated.

Subsequently, the High Court judge who tried the case and the officers of the AG’s Chambers who supported the argument that Moorthy’s wife had no recourse to any court, did much damage to our system of justice. Islam was defamed.

As to the ruling that a Muslim has no unilateral right to apostate and must seek a court ruling, it can be observed in support that status is generally other-determined, not self-determined. In the context of Malaysia it is reasonable to argue that as an act of apostasy has serious legal, political and economic implications, it should be adjudicated upon by the courts.

An act of apostasy by a Muslim would cause a divorce between the apostate and his/her Muslim spouse. Issues of custody and guardianship of children will arise. The apostate will lose his/her status as a Malay. He/she may end up losing many privileges like Malay reserve land. A court declaration is, therefore, appropriate. But time limits must be imposed on the syariah courts for determination of the applications of murtads. Justice must not be allowed to be defeated through delays.

Procedural hurdles in the way of apostasy are justified. But criminalisation of apostasy is not. In matters of religion there should be no compulsion. Criminal penalties against murtads run contrary to international law, contrary to constitutional guarantees and in violation of the spirit of Islam which is one of tolerance for the disbeliever.

Also, like the procedural hurdles that exist for those intending to leave Islam, there must likewise exist some procedural requirements when someone wishes to embrace Islam and the conversion would adversely affect the rights of his/her spouse and children. Specifically the family must be informed and must be heard. No conversion certificate should be issued till the issues of divorce, distribution of property, guardianship and custody of children have been resolved in accordance with the law under which the marriage took place.

The writer Professor Dr. Shad Saleem Faruqi was Legal Adviser to Universiti Teknologi Mara, Shah Alam for many years. He is a faculty member and has acted as consultant in promulagation and amendment exercises for the Malaysian Government and other governments.

ACEH'S SHARIA BYLAWS 'HURTING THE NEEDY AND PROTECTING THE WICKED'

THIS IS A REPORT FROM THE JAKARTA POST OF 22 DECEMBER 2006 REPRODUCED FOR THE READER'S CONVENIENCE.

Sharia-style local government bylaws in Nanggroe Aceh Darussalam are bringing unnecessary hardship to the Acehnese and discriminating against women, people from the province say.

Yuswardi, a private company employee, criticized the rigid, "formalistic" implementation of sharia law in the province, which he said did nothing to help create a harmonious religious community in Aceh. "Four qanun (bylaws) have been produced that put harsh sanctions on minor crimes committed by needy and vulnerable groups, while many kinds of major crimes committed by 'the haves' and public officials have been ignored by the sharia affairs office," Yuswardi told The Jakarta Post. "Discriminatory bylaws are those on maisir (gambling), khalwat (adultery), khamar (the consumption of alcoholic beverages) and on personal dress, he said.

During the past five years, a total of 72 crimes have been prosecuted under the bylaws. People have been tried for 47 cases of gambling, 20 cases of adultery and five cases of drinking, with those found guilty often caned in public. The provincial administration has also set up a special religious police force to enforce the bylaws and bring perpetrators to trial at the new sharia courts.

Yuswardi also questioned a new draft qanun, which if enforced would see thieves have their hands surgically amputated. He called on the administration to create an antigraft qanun where public officials found guilty of corruption would also have their hands cut off.

"Corruption is far worse than common theft and graft is rampant among public officials -- they should be given the harshest punishments because they have stolen money belonging to the people," he said.

Artist Azahari, 25, said the bylaws were symbolic and did little to encourage moral behavior. Other examples of this "surface" public piety were Arabic writings put up in Muslim shops and the enforced closure of commercial premises during Friday prayers, he said.

"Islamic sharia should focus on Islamic education and spiritual training for Muslims -- to change their thinking and behavior and improve their spirituality," he said.

Women's activist Khairani Arifin criticized the bylaws' simplistic implementation, which she said had worsened the lot of women in the province. "Sharia implementation has focused on and discriminated against women, who are supposed to be agents of satanic deeds," she said. The bylaws are being enforced by people who are unqualified to pass judgment on others, she said. Neither were they properly discussed with the people they were going to affect.

Chief spokesman for the provincial administration, Hamid Zain, said the government's recent evaluation of the bylaws, which was published over the weekend, found they had lowered the crime rate. "The sharia bylaws have gone down well and have been implemented in all 21 (of Aceh's) regencies and municipalities. The last (law passed) was in Jantho," he said.

Hamid said the draft qanun on amputations for thieves would be discussed in public meetings before it was submitted to the provincial council for deliberation.

Meanwhile, the likely next governor of the province, Irwandi Yusuf, said his government would reevaluate the bylaws' implementation. "I personally disagree with the four qanun because they do nothing to improve peoples' religious lives. "All the bylaws will be evaluated and their implementation will be postponed if the people do not want them," he said.

By Nani Afrida & Ridwan Max Sijabat, The Jakarta Post, Banda Aceh

SMS DIVORCE: HARAM BUT EXCUSABLE

PROBABLY THE ONLY CERTAINTY in the high profile Syariah Court judgment against Senator Datuk Kamaruddin Ambok is that an SMS divorce is very affordable. Which in turn means that his ex-wife’s hurt and sense of utter betrayal is not worth for much.

Is this very surprising? Not if one is familiar with the workings of the Islamic legal system in Malaysia. In fact, a judgment even mildly more equitable would be a cause celebre as it would surely signal the dawn of some kind of enlightenment amongst the kadhis, the syariah court judges. Say for instance, the Senator had been jailed for a week – no need for the maximum 6 months – for utter disregard of the law and a woman’s sensibilities, especially one who has shared his marital bed, can you imagine the huge sigh of relief that would break out spontaneously from every Muslim woman upon reading the report. So tangible would be the relief one can surely almost touch it. “Justice at last!” would be a common refrain.

But instead, the utter drudgery, misery and humiliation for women living under Islamic Family law here in this country is legendary. This incident merely reinforces the belief. Few women who have had to go through the slumberous and seemingly lackadaisical cogs of the system have praise for it. Women seeking enforcement of maintenance judgment passed by the very same courts are more often than not frustrated. It is said, too, that women wanting divorce from errant husbands are often told to go home and be patient and wait for him to recover his senses. Meanwhile, do go on loving the man, please. Is this cynical or what!

And so, when the good Senator got away with a fine of RM550.00 because it is a first offence – the operative phrase here is “first offence” – there is cause for concern. Furthermore, the urgings of the prosecuting officer for a harsh penalty to signal the Court’s displeasure had obviously fallen on deaf ears.

One wonders, firstly, were there many husbands rude, callous and irresponsible enough to commit the same infringement? After all, this contemptible act occurred some five years ago. Secondly, are the courts prepared to go on tolerating this kind of brutish behaviour by Muslim men? To all intents and purposes the divorce is, by implication at least, deemed to have been validated notwithstanding that it was the wife, and not him, who pursued the matter in court.

Yes, there was much verbal censure from the sitting kadhi for which we women are grateful because the system forces us Muslim women to be thankful for every morsel of mercy that comes our way. Kindness from the male dominated syariah courts is not something the fairer sex is prone to take for granted. If and when such a miracle does occur what woman is not acutely aware of Divine intervention! Good luck maybe, but it does not take a genius to know that any particular episode where the milk of human kindness flows in a syariah court is indeed God’s will. For, even when the judge adjudicates in constant wisdom he does so knowingly as the exception and NOT the rule.

One wonders, too, if this good judge would be as benign towards a less mighty person. Could it be that if he is not a senator but a mere clerk, say, Datuk Kamaruddin may have been treated less leniently? It is not uncommon for judges, or for that matter anyone in a position of power, to take a paternalistic approach to lesser mortals whom they feel ought to be taught a lesson.

History appears to indicate otherwise, more so in matters affecting the family. In the syariah court system the huge divide is not about economic means. (One’s socio-economic class and standing is a given predetermined by the Almighty and a good Muslim surrenders to his or her fate with recourse only to individual effort.) In this public domain of private affairs there is a gender dichotomy built upon the assumption of men’s superiority over women as guardians of wives, sisters and children.

Now, naturally one does not take to task the “guardians” of society, does one, if it can be helped. That this is so is borne out by the fact that it is difficult to imagine a situation, in practice, where a Muslim man automatically loses his position as guardian. The long and the short of it is that for as long as a man is alive and in good health his guardianship over his female charges (and boys of minority age) remains good. Does imprisonment dispossess him of this right? This I am not sure, but I sure hope so because if it does not then the cynicism of the Syariah Courts system is beyond help, redemption and hope.

This article was first published by Malaysia's Sunday Mail in early 2006.

CONSTITUTIONAL PERSPECTIVES ON FREEDOM OF RELIGION

INTRODUCTION

Malaysia has a record of racial, cultural and religious tolerance that should be the envy of all plural societies. There is much inter-religious friendship and tolerance. Cultural and religious pluralism are not only tolerated; they are celebrated

Legislation provides for Muslim and non-Muslim religious institutions.

Financial allocations, gifts of land and tax exemptions are granted to all religions.

Cultural and religious tolerance extends to the use of minority languages in trade and commerce, and the establishment of private schools using Chinese and Tamil.

The Malaysian approach is that the state should not be indifferent to or hostile towards religions. It must promote tolerance. Tolerance comes not from the absence of faith but from its living presence.

Constitutional Protection of Freedom of Religion: Article 11

Islam is the religion of the federation. But all other religions may be practiced in peace and harmony: Article 3(1)

In respect of religion, every person has the right to three things:

• to profess
• to practice
• and, subject to Article 11(4), to propagate his religion: Article 11(1)

The right to religion is available not only to individuals but also to groups and associations: Article 11(3) and 12(2). Every religious group has the right to:

• Manage its own affairs
• Establish and maintain institutions for religious purposes.
• Acquire and own property and administer it: Article 11(3)
• Establish and maintain institutions for religious education: Article 12(2).

The right is available to citizens as well as to non-citizens: Article 11(1)

There is no compulsion on anyone to support a religion other than his own.

No person shall be compelled to pay any tax the proceeds of which are specially allocated to a religion other than his own: Article 11(2).

There is to be no discrimination on the ground of religion in relation to the rights of students to education or in public support for educational institutions: Article 12(1) and 8(2).

No person shall be required to receive instructions in or to take part in any ceremony or act of worship of a religion other than his/her own: Article 12(3)

There can be no discrimination on the ground of religion against employees in the public sector; in the acquisition, holding or disposition of property; and in any trade, business or profession: Article 8(2)

A preventive detention order cannot be issued on the ground that a convert out of Islam is involved in a programme for propagation of Christianity amongst Malays: Minister v Jamaluddin bin Othman [1989]

Article 150 (6A) provides that freedom of religion cannot be restricted even in times of emergency by an emergency law under Article 150.

AREAS OF CONCERN

1. Non-Mandatory Practices

Does freedom of religion extend only to those practices and rituals that are essential and mandatory or does it also cover practices that are non-essential and optional?

· Halimatussaadiah v PSC [1992]

· Meor Atiqulrahman Ishak v Fatimah bte Sihi [2000]

2. Planning Permissions

Local authorities often drag their feet in granting planning permissions for religious establishments. Such abuse of power is contradictory to the constitutional right.

It is also contrary to the letter and spirit of Islam. In the Holy Qur’an there is explicit mention of religious and cultural pluralism and freedom of conscience.

3. Inter-Religious Marriages

As Muslims are not allowed to marry under the civil law of marriages, non-Muslims seeking to marry Muslims have to convert to Islam. This has caused pain to the parents of many converts.

Likewise it has led to several difficult cases of apostasy by Muslims who, for reasons of the heart, wish to marry their non-Muslim counterparts.

4. Atheism

Does the right to religious belief include the right to disbelief and to adopt atheism, agnosticism, rationalism etc.?

In most democratic countries, the right to disbelief is constitutionally protected.

But in light of the Rukun Negara (“Kepercayaan kepada Tuhan”); the language of Article 11(2) - no tax to support a religion other than one’s own; Article 12(3) - no instruction in a religion other than one’s own; and the mandatory application of syariah laws to Muslims, it is possible to argue that atheism is not protected by Article 11 – at least not for Muslims.

5. Propagation of Religion to Muslims

Under Article 11(4) of the Federal Constitution, any preaching of religious doctrine to Muslims (whether by non-Muslims or unauthorised Muslims) can be regulated by state law.

Many non-Muslims complain that this amounts to unequal treatment under the law. Indeed it does. But it is one of the pre-Merdeka compromises between the Malays and the non-Malays in order to insulate Malays against internationally funded and powerful proselytising forces that had become entrenched in the country because of official support from the colonial government

There is the additional fat that proselytising activities like seeking death-bed conversions, generous grant of funds to potential converts and indirect and subtle proselytizing activities amongst minors have distinct implications for social harmony.

Prof. Harding in his book Law, Government and the Constitution of Malaysia, 1996, p. 201 is of the view that Article 11(4) was inserted because of public order considerations.

To this may be added a unique ethnic and political factor in Malaysia. Renunciation of Islam would automatically mean abandoning the Malay community because Islam is one of the defining features of a “Malay” in Article 160(2).

6. Restraints on Freedom of Religion

The right to religious belief is, of course, not absolute. All religious conduct is subject to the power of Parliament to regulate it on the grounds of public order, public health and morality: Article 11(5).

In the case of Muslims additional restraints are possible due to the power of the States to punish Muslims for “offences against the precepts of Islam”: Schedule 9, List II, Item 1: Kamariah bte Ali lwn Kerajaan Kelantan [2002].

7. Conversions and Apostasy

The right to convert out of one’s faith is not mentioned explicitly in the Malaysian Constitution though it is alluded to in Article 18 of the International Covenant on Civil and Political Rights 1966 and Article 18 of the Universal Declaration of Human Rights.

For a non-Muslim the right to opt out of one’s faith and choose another has been regarded as an implicit part of religious liberty guaranteed by the Constitution

But because of its implications for child-parent relationships, the court in the case of Teoh Eng Huat [1990] held that a child below 18 must conform to the wishes of his/her parents.

In relation to Muslims the issue of conversion or apostasy raises significant religious and political considerations.

The traditional Muslim view is that as Islam is the religion of the federation and Malays are, by constitutional definition, required to be of the Muslim faith, all Muslims are liable to prosecution for apostasy or deviationism. The notion that freedom to believe includes the freedom not to believe is rejected in relation to Muslims.

But liberal Muslim scholars argue that Islam is a religion of persuasion, not force. The proposal to detain apostates runs counter to the spirit of Islam which is one of tolerance for the disbeliever.It is noteworthy that the Holy Qur’an nowhere prescribes a worldly punishment for apostates. The difficulty is that there is a known Hadith ordering that apostates should be advised, imprisoned, and if they still persist, then beheaded.

This Hadith must be read in the context in which it was made – in times of war, emergency and grave threat to the Islamic community. It must also be noted that Prophet Muhammad (s.a.w.) never ordered the execution of an apostate.

Since the 90s the conservative view has prevailed in Malaysia. A number of states have enacted rehabilitation laws that permit detention and re-education of converts out of Islam.

Apostasy laws raise difficult constitutional issues under Articles 11(1), 5(1), 10(1)(c) and 12(3). They are triggering a massive constitutional debate that pits religion against the Constitution and disturbs the delicate social fabric that has held all Malaysian together for 48 years. At the moment the following judicial attitudes and conflicts have emerged.

According to the High Court the act of exiting form a religion is not part of freedom of religion – at least not in the case of Muslims: Daud Mamat v Majlis Agama [2002] 2 MLJ 390.A contrary view was expressed by the Court of Appeal in Kamariah bte Ali lwn Kerajaan Negeri Kelantan [2002]. Muslims too have a right to renounce. But this renunciation cannot be done unilaterally. A Muslim who wishes to declare apostasy must first get the syariah court to confirm that he/she has left the religion. A statutory declaration of apostasy is not enough.

The problem is that the applications of most apostates to the syariah courts are left unattended.

In same cases criminal action for insulting Islam is taken.

CONCLUSION

A. The right to propagate

The right to propagate one’s faith has traditionally been regarded as an integral part of religious freedom. Unfortunately in a multi-religious society, the ideological fervour of religious zealots can have serious implications for social stability. For this reason some internal as well as external restraints must be built around all proselytising activities.

An Inter-Faith Commission must be set up which can assist to draw up some ground rules. Religious preachers need to be told that no religion has a monopoly to the Truth; that there are many ways of finding salvation.

There is a need to avoid words and acts that are patronizing, self-righteous and insulting.

It is insulting and narrow-minded to tell the believer of another faith that his God is not the true God and that he needs to “see the light”.

“Ambulance-chasing” by some proselytisers who roam hospital corridors to try to secure conversion of the dying, the critically injured or their vulnerable relatives is despicable

Hospital staff who alert evangelical groups about who to target must be warned not to subordinate official duties to personal convictions. Attempted conversions of minors through direct or indirect “social activities” must be strictly controlled.

“Cheque-book” conversions by resorting to financial benefit for the proselytiser as well as the proselytised must be condemned. In exposing the overzealousness of some proselytisers, double standards should not be applied. We must not single out some religions and ignore malpractices in other religious establishments.

B. The right to convert

Just as with the right to propagate, the right to convert is part of the constitutional and international right to freedom of religion.

However, though conversion is an intensely personal decision, its exercise must be regulated by the law if the conversion adversely affects the rights of others. The recent case of Sgt. Moorthy highlighted the pain and anguish a conversion can cause to the non-converting spouse.

In the Moorthy case the legal system was seriously scandalised. It was totally unjust and unnecessary for the syariah authorities to commence the action ex parte in the syariah court. Moothy’s wife and other relatives should have been heard. The issue whether Moorthy had, subsequent to his conversion to Islam, become a murtad and reverted to Hinduism should have been investigated.

Subsequently, the High Court judge who tried the case and the officers of the AG’s Chambers who supported the argument that Moorthy’s wife had no recourse to any court, did much damage to our system of justice. Islam was defamed.

As to the ruling that a Muslim has no unilateral right to apostate and must seek a court ruling, it can be observed in support that status is generally other-determined, not self-determined. In the context of Malaysia it is reasonable to argue that as an act of apostasy has serious legal, political and economic implications, it should be adjudicated upon by the courts.

An act of apostasy by a Muslim would cause a divorce between the apostate and his/her Muslim spouse. Issues of custody and guardianship of children will arise. The apostate will lose his/her status as a Malay. He/she may end up losing many privileges like Malay reserve land. A court declaration is, therefore, appropriate. But time limits must be imposed on the syariah courts for determination of the applications of murtads. Justice must not be allowed to be defeated through delays.

Procedural hurdles in the way of apostasy are justified. But criminalisation of apostasy is not. In matters of religion there should be no compulsion. Criminal penalties against murtads run contrary to international law, contrary to constitutional guarantees and in violation of the spirit of Islam which is one of tolerance for the disbeliever.

Also, like the procedural hurdles that exist for those intending to leave Islam, there must likewise exist some procedural requirements when someone wishes to embrace Islam and the conversion would adversely affect the rights of his/her spouse and children. Specifically the family must be informed and must be heard. No conversion certificate should be issued till the issues of divorce, distribution of property, guardianship and custody of children have been resolved in accordance with the law under which the marriage took place.

The writer, Professor Shad Saleem Faruqi is the Legal Adviser to the Universiti Teknologi Mara. He is also a faculty member and is always in constant demand as a conference panelist. He has been consultant to the Malaysian and other governments in the region in areas of the law including promulgation and amendments.

As always comments are encouraged to enable lively debates.

INDONESIA WANTS TO BAN POLYGAMY

Below is a report from The Jakarta Post of December 8, 2006, reproduced for the reader's convenience.

December o8, 2006
SBY defends plan on polygamy, calls for sensible debate
The Jakarta Post, Jakarta
The government's plan to extend the ban on polygamy is being blown out of proportion by those who oppose it, President Susilo Bambang Yudhoyono says.
Yudhoyono said the public debate that has raged since the government floated the idea last week had been derailed by critics using religious arguments.
He maintained the original purpose of revising the law was to protect women.
"Let us think clearly. We shouldn't exert too much energy on this issue because there are many other problems that have to be addressed. I don't want this issue to develop into an unhealthy public discourse," he said when addressing a Civil Servants Wives Association gathering.
The controversy was sparked Tuesday when the State Minister for Women's Empowerment Meutia Farida Hatta Swasono announced the government was considering extending ban on polygamy for civil servants to cover all officials working for the state, including legislators and soldiers.
The plan has received strong backing from progressive Muslims and many women but has met strong opposition from religious conservatives, especially men, who argue that polygamy is allowed in Islam and should not be banned by secular laws.
The polygamy issue resurfaced last week when television cleric Abdullah "A'a Gym" Gymnastiar, who was popular with women and promoted harmonious family values, announced he had taken a younger second wife.
Under the 1974 Marriage Law, men are only legally allowed to take a second wife if their first wives are invalids, terminally ill or infertile. The law, however, is rarely enforced and polygamy is becoming more common among Muslims.
President Susilo said people should not use religion to justify polygamy, as Islam required men to meet many strict conditions before they could take more than one wife.
"If people want to refer to religion (to justify polygamy), please understand the religion properly," Yudhoyono said.
Marriage laws were made by taking religious values into consideration, he said.
The President said he was also concerned that women here were often victims of domestic violence and street crime, he said.
There was an urgent need to protect women from violence, crime, poverty and other forms of misery, he said. The next step would be to empower women by fulfilling their basic right to enjoy adequate public services like health and education.
Minister Meutia said Thursday the revision of the law would depend on an analysis done by women's organizations, human rights groups and universities, which support a revision to the law.
"It is wrong to assume that polygamy would minimize cases of adultery and prostitution," she told The Jakarta Post.
Earlier this week, some legislators argued banning polygamy would only encourage more men to visit prostitutes.
"What we believe is that polygamy can lead to injustice and the psychological abuse of women," Meutia said.

In an earlier post this site carried a report regarding polygamy in the Malaysian state Terengganu: "polygamy award". Here are two contrasting tales for us to ponder. Neither is fiction, yet the different official standpoints is obvious. Again I am soliciting comments.

ISLAM IN MALAYSIA: POLYGAMY AWARD

The following is a report from Malaysia's daily THE STAR pasted for the reader's convenience.


Nation Saturday December 9, 2006
Polygamy awards ‘invite trouble’
KUALA LUMPUR: A woman minister is against a proposal to reward married men for taking single mothers as additional wives.
Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil said the move would “invite trouble” even though the intention might be good and noble.

Shahrizat: ‘The menteri besar promised to get more details on the matter’“I was shocked to read in the newspapers that the Terengganu government intends to give awards to such men. I immediately called Mentri Besar Datuk Seri Idris Jusoh for an explanation,” she told reporters after presenting the Nur Foundation’s “Open Minds” scholarships worth RM250,000 to 50 special children.
“The menteri besar promised to get more details on the matter for me,” she said.
Yesterday, a state executive councillor reportedly told the Terengganu legislative assembly that the state government would be giving special awards to married man who were willing to take single mothers as their second or third wives to ease their financial burden.
Community Development and Women’s Affairs Committee chairman Wan Mohamed Wan Hassan had said the special award was a token of appreciation for these men.
Shahrizat however felt such an award would encourage polygamy in Terengganu.
“I acknowledge that the intention is good. But, the worrying thing is that it can be misinterpreted,” she said, adding that it could be abused by some irresponsible men.
Meanwhile, in Kuala Terengganu, Idris Jusoh denied that the state government was planning to give out such awards.
“The state government has never decided to give awards to men who marry four wives,” he said via SMS to reporters yesterday.
The SMS claimed that newspaper reports on the matter were inaccurate. – BERNAMA

Post your comments here. I don't mean to offend, but if we want to make the world a better place make your presence felt with a comment, no matter how brief. Malaysians especially must stand up and be counted. Whether the statement was made in jest is not the point, the point is "men of note" feel able to offend with impunity. Stop this today.

CONCEPT OF JUSTICE IN ISLAMIC LAW

1. Introduction

It is argued that Islamic extremism/fundamentalism has economic causes. Of greatest concern, however, is that a triumphant extremism/fundamentalism has, without fail, seen justice to be synonymous with oppressive practices.

In Malaysia, for example, when the Islamic party PAS regained power in its stronghold north-eastern peninsular state of Kelantan, it attempted to enact the hudud. Only the Federal Constitution spared the people of Kelantan the horrors of severe punishments claimed to be divine in origin and, therefore, immutable. In a situation where the legal infrastructure is nominal the shariah courts were ill-equipped to bear the enormous burdens of a harsh system that involves such sentences as amputation of limbs and stoning to death.

Muslims everywhere cast their everyday lives around the simple faith of a merciful and beneficent God: “In the name of Allah, the Beneficent, the Merciful”. How is it possible then that Islam as practiced for well over a millennium, has been unable to allow love, mercy and kindness to surface?

2. Sources of Islamic Law

Is the law in Islam “divinely revealed or socially grounded? Positive or supernatural? Immutable or adaptive?” The answer to this question is fundamental towards an understanding of what divides the Muslim world today.

There are four sources of law in Islam: the Qur’an which is the Holy Book of revelations; the sunna or the exemplary actions of the Prophet Mohammad as embodied in the hadith; ijma’ (the consensus of the umma as represented by the scholars); and, qiyas (conclusions by analogy). For purposes of analysis, it is convenient to categorise these sources into: the basic sources (namely, the former, i.e., Qur’an and the sunna) and the rational sources embodying both the latter.

Ijma’ is arrived at through the practice of ijtihad, the method by which jurists recognize and make known the legal meaning of a Qur’anic rule or a sunna. Ijtihad gives rise to theories that are either accepted or rejected by ijma’.

These then formed what is commonly referred to as usul al fiqh, the sources of Islamic law. Note that here fiqh is used to mean law. It is not uncommon, however, for the body of Islamic law to be referred to as shariah and often these two terms are used uncritically as interchangeable.

The shariah is one comprehensive system of law that is divine in origin, religious in essence and moral in scope. Although it does not exclude fiqh it is, in fact, not identical with it. Fiqh is the science of the shariah and unlike it is a human product arrived at through ‘systematic’ intellectual endeavour in an effort to interpret and apply the shariah accurately. It is also socially grounded.

The confusion arises when there is uncritical usage of the term shariah to designate not only that portion of the law which is divinely revealed but also the human subsidiary sciences. As a consequence of such interchangeability in popular usage those who subscribe to the notion of divine origin and hence unchangeable nature of the essence of Islamic law view the whole legal system as being identical with the shariah in the pure sense. This renders the whole corpus, which evolved over some two hundred years, immutable.

As Hammudah ‘Abd al ‘Ati suggests:

“…much of this confusion can probably be avoided if the analytical distinction between the shari’ah (sic) and fiqh is borne in mind and if it is realized that Islamic law is held… to encompass two basic elements: the divine which is unequivocally commanded… is designated a shari’a in the strict sense of the word; and the human, which is based upon and aimed at interpretation and/or application of shari’a and is designated as fiqh or applied shari’a.”[i]

3. Justice According to the Qur’an and Sunna

A Muslim may offend in two ways. Firstly, an offence directly against God for one may not claim rights against God. One has only duties towards Him. For instance, one cannot question God’s existence or, as Islam is a monotheistic faith, believe in other than the one God [Qur’an: 73;9]. One may also offend against God by not performing the ritual duties enjoined – praying and fasting.

Secondly, one offends God by offending one’s fellow human. It is here that we confront the notion of ethical and social justice in Islam – our mutual rights and obligations in society; justice amongst and between persons.

“Thus it would appear there is a sense in which man as such has no rights within a theocentric perspective where God, the only reality, is in the centre: he has only duties to his Maker. But these duties in their turn gives rise to all the rights, human rights in the modern sense included.”[ii]

However, the secular concept of justice itself is an area of much contention. There is no one received definition for rendering unto everyone his or her due. D.D. Raphael in his book, “Moral Philosophy,” writes:

“Left-wingers give priority to ‘social justice’ with an intention to reform society in the direction of greater equality and the removal of poverty. A right-winger’s concept of justice (he is unlikely to use the phrase ‘social justice’) sets more store by the virtue of law and order, of stability, of reward for enterprise and merit.”[iii]

These are the two polarities of rational justice. The left-wing ideal is based on equality of well-being, where equality is synonymous with perfect justice, where discrimination towards any particular individual or group is permissible only so that they might attain ‘greater equality’ or achieve a higher level of well-being that is already the privilege of the better off. The right-wing meanwhile, gives priority to merit the concomitant of which is free competition. In the final analysis, therefore, justice must of necessity reflect the dominant ideology of the particular society.

The 19th century English philosopher, John Stuart Mill, sees the origins of legal justice in terms of man’s desire to wreak vengeance. But this in itself has no moral value because the law, for it be acceptable, must reflect the common good of society.

“what is moral is, the exclusive subordination of it to the social sympathies… when moralised by the social feeling, it only acts in directions comfortable to the general good: just persons resenting a hurt to society, though not otherwise a hurt to themselves, and not resenting a hurt to themselves, however painful, unless it be the kind that society has a common interest with in the repression of.”[iv]

Views of what constitutes fairness often vary between different societies. The Qur’an, hence Muslim societies, endorses the concept of ‘blood money’ as recompense for a human life taken should the bereaved family wish it. In other societies, however, in the not too distant past, a thief could easily hang. In short, depending on where one commits a crime, a murderer may get away with his life but not a thief. Hence, Aristotle’s observation that justice is relative to the constitutionally established principle of distribution of the particular polity.

In its form, then, there is a sense in which justice, be it legal, social or economic, is neither unchanging nor immutable in endeavouring to fulfill a function (its utility) in society. And, in essence, justice with its always ethical heart is a moral imperative. Possibly, in a completely harmonious society, egalitarian[v] maybe, justice can become uncontentious.

In Islam, under conditions of freedom (not enslaved), everyone is equal before God. Before God a free man and a free woman is indistinguishable, one from the other, in their virtues and vices [Qur’an: 57;18, 33;35, 16;96]. Spiritually then, there is no mistaking that all free persons are equal. The Qur’an does, however, acknowledge the existence of social inequalities: one’s neighbour’s bounties shall not be coveted; the poor and the destitute must be fed and be given alms [Qur’an: 107;1-8, 9;60]. Now, how is this possible?

Voltaire wrote: “all men would necessarily be equal if they were without needs. The poverty characteristic of our species subordinates one man to another. It is not inequality that is the real evil, but dependence.”[vi]

The key word here is ‘dependence’. As there can be no such thing as spiritual dependence, before God then, as per our duties towards Him, everyone who is a free agent is equally liable. Unfortunately, society’s less than egalitarian constructs do not lend themselves easily to equality. For example, much is said about us all being equal before the law, but in exercising our rights some are more equal then others because having money buys some better access to legal justice than others.

This is why in the Qur’an, the social milieu gives emphasis to the bonds between members of the umma and their relationship of interdependence built upon the principles of brotherhood that transcends physical boundaries.

“Men, We have created you from a male and a female and divided you into nations and tribes that you might get to know one another. The noblest of you in Allah’s sight is he who fears Him most.”
[Qur’an: 49;13]

For its part, the sunna is explicit. The Prophet Mohammad was once asked, “When will justice be realized on earth?” He was reported as having replied, “Not until he who sees injustice being done to another suffers from the sight of the injustice being perpetrated as much as its victims.”[vii] This, therefore, is what justice must be in Islam.

Islamic justice can then be best understood in today’s perceptions, dominated as it is by western philosophical concepts, as imaginative sympathy. As a result, social relations within the umma must be premised upon one among equals where everyone is viewed as an end-in-him/herself.

Once this underlying principle of justice is understood the means to its application is obvious. In Surah Al-Balad (chapter 90) the right path is defined as: “the freeing of a bondsman; the feeding, in the day of famine, of an orphaned relation or a needy man in distress; to have faith and to enjoin fortitude and mercy.” And no choice is left to the believer: “Those that do this shall stand on the right hand; but those that deny Our revelations shall stand on the left, with Hell-fire close above them”. Accordingly, charity in Islam loses its voluntary nature and becomes for the recipient a legal right. That is how significant alms are in Islam, a condition made even more manifest in the Qur’anic prescriptions for their use.

“Those that give their wealth for the cause of Allah and do not follow their almsgiving with taunts and insults shall be rewarded by their Lord…
A kind word with forgiveness is better than giving charity followed by insult.”
[Qur’an: 2;262-263]

Indeed, it is possible from verse 9;60 to deduce that the Qur’an expects alms to be a sizeable enough source of public income.

“Alms shall be used only for the advancement of Allah’s cause, for the ransom of captives and debtors, and for distribution among the poor, the destitute, the wayfarers, those that are employed in collecting alms, and those that are converted to the faith.”
[Qur’an: 9;60]

Thus, it is clear that alms in Islam are more akin to modern day taxation with its expenditure aimed at securing social welfare and defending social integrity. These are the moral imperatives that then “is the function of law to enforce”, matters that have “a direct bearing on the regulation of life of man in relation to his fellowmen” and that the “fundamental rule of law is liberty.”

In the Qur’an “God has set a bound to human activity in order to make legitimate liberty possible to all; without the ‘bounds of God’ liberty would degenerate into license, destroying the perpetrator himself along with the social fabric. This ‘bound’ is precisely what is called law which restrains human action within certain limits, forbidding some acts and enjoining others, and thus restraining the primitive liberty of man, so as to make it as beneficial as possible either to the individual or to society. Whatever their form, these rules tend to the same end and have the same purpose, that is the public weal (maslahah). Accordingly, law [in Islam] is divine in origin, human in its subject-matter, has no other end but the welfare of man…”[viii]

But is the welfare of man served by harsh punishments of amputation of limbs? Is it served when women are regarded as “prisoners with you (men) having no control of their persons”?

4. The Secular Western Equivalent

According to Janet Radcliffe Richards, justice falls into two categories. Firstly, ‘substantial justice’, the principles of which determine “who should have what; how things should be shared out”.[ix] In relation to the law this means that the law of the land would reflect the justice or otherwise expressed by this body of principles. Secondly, ‘formal justice’, which consists of the consistent and impartial application of the laws or actions within society that are deemed just. Or, outside the realm of law, formal justice is expressed in the rules and conventions of society. And, Radcliffe Richards argues that the one can indeed differ from the other.

And, because substantial justice is the core principles determining acts of justice, as in the constitutions of nations, it can never be right to suffer a substantial injustice. Substantial injustice can, however, occur when the principles that make up substantial justice have been overtaken by time. Take the obvious example from the West’s not too distant past, of women’s exclusion from ownership. If justice demands that in essence all adults are equal, why then were women excluded from ownership? Therefore, to correct this very basic wrong an action not in conformity with the current body of laws has to be taken. In short a formal injustice (i.e. the passing of a law that contradicts the relevant principle of the extant substantial justice) is needed to correct this substantial injustice.

In Islam the Qur’an is the source book of law and hence that of substantial justice. It is Divine in origin and so infallible and eternal. It cannot be the cause for any injustice. Yet, it is the Qur’an that prescribes both gender equality and inequality; kindness and apparent cruelty. Why is this?

Even a cursory reading of the Qur’an leaves one with a sense that there are two elements of justice here: one dealing in broad principles and mainly to do with the notion of justice before God, implying compliance of conventions and rules and of moral decisions. Here gender equality and kindness is emphatic, with rewards and retribution being solely dependent on observance of duty. These are the Qur’anic principles that are equivalent to Radcliffe Richards’ substantial justice.

And the other is written laws that leave little room for maneuver in the way of interpretation. Verse 4;34 appears to be a very good example: “Men have authority over women because Allah has made the one superior to the other, and because they spend of their wealth to maintain them.”[x] As a group these laws can be equated with Radcliffe Richards’ formal justice. These would include the laws on inheritance, adultery, marriage, child custody and the punishment for theft, to name but a few. For the most part the punishments are harsh and where it treats of women these laws, taken on their own, are seemingly discriminatory.

The problem then for contemporary Islam is the existence of these inconsistencies in the Qur’an itself, between substantial justice (the tenor of the whole Text as represented by the relationship of humans to the Maker) and formal injustice (the laws). The egalitarian arrangement of humanity before God is not reflected in the social prescriptions of the relationships between human beings. The Qur’anic social organization appears to prefer men over women.[xi] There is then, a shift in perception from an egalitarian, equal before God perspective, to an unequal amongst humans social position.

[It is worth bearing in mind here that some fourteen hundred years ago the Qur’anic laws affecting women’s social position were very enlightened. Fourteen hundred years ago most societies were patriarchal and women were mere chattels. To give women the right to inherit then was revolutionary; to consider women as witnesses, albeit worth only half the testimony of men, was outrageous for its time.]

5. Confronting the Muslim’s Quandry

To go on; as practiced, in areas of the law where the Qur’an is not explicit, human ingenuity may take into account the needs of the prevailing circumstances. But in areas where it is explicit and at odds with modern day living only reasonable modifications can be made, reasonable in that it does not veer away from the letter of the pertinent parts of the Text. Legal science in Islam, under these circumstances, cannot take into account the spirit of the Qur’an if it means altering the letter of the law. For example, to change the inheritance law to reflect gender equality is not something Muslim jurists have attempted to do as this would alter the letter of the Qur’anic law.

The problem here is twofold: the problem of coinage, i.e., the language of communication between the Divine Author and the fallible reader, which is paramount; and, man’s inability to transcend time and space thus limiting the comprehension of Divine expression. Man is limited to and by his historical context.

“…’The mind of the Divine Author’ and the mind of the fallible readers are meeting, by the very hypothesis of revelation, in the same verbal territory. The one is necessarily using the categories of speech and literal symbol which are the realm of the fallibilities, and of all the right apprehensions, of the other.”[xii]

In relation to this difficulty, the Qur’an is itself culpable:

“It is He who revealed to you the Koran (sic). Some of its verses are precise in meaning [muhkamat] – they are the foundation of the Book – and others ambiguous [mutashabihat]. Those whose hearts are infected with disbelief follow the ambiguous part, so as to create dissension by seeking to explain it. But no one knows its meanings except Allah…”
[Qur’an: 3;7]

But in verse 39;23 the Qur’an says: “Allah has now revealed the best of scriptures, a book uniform in style….” Which makes for Cragg’s argument that “explicit”, i.e., precise in meaning, and “implicit” or ambiguous should be taken to mean “literal” and “literary” respectively.

“For these are the associations of the roots from which they derive, and of the form of derivative. The muhkam (singular masculine) is that which is decreed or determined from authority, whether of rule or of wisdom. It denotes the legal and the authoritarian, the ‘thus-it-is’ quality of a sovereign will or of a competent tribunal. Mutshabih, however, has artistry and allusion in its nature. It relies on an image or of a figure from one realm for the illumination and expression of another.”[xiii]

6. Conclusion

This view, when acceptable, is permitting of a reading of the Qur’an as the complete and consistent whole that it is. To restrict oneself to only the obvious and then to discover apparent contradictions is to suggest that the Divine Author is in some way limited. As such, it is a Muslim’s obligatory duty to limit the damage imposed by a fallibility we share with the ancestral language and appreciate the true majesty of the Message, for the fault can only lie with us and never Him. This is the essence of our faith in God. Any less would make it meaningless.

To resist this possibility is to establish the arrogance that is man. For, is not contempt that allows us to blame God for what is cruel and conceit to applaud man for all that is good? This cannot be the basis of true faith.


[i] Hammudah ‘Abd al ‘Ati, “The Family Structure in Islam,” pp 14-15
[ii] Ibid. p51.
[iii] DD Raphael, “Moral Philosophy”, p 67.
[iv] John Stuart Mill, “Utilitarianism”, from “Utilitarianism, On Liberty and Considerations on Representative Government”, edited by H.B. Acton, p 54.
[v] However, Oscar Wilde, in his book “The Soul of Man Under Socialism”, cautions against equating egalitarianism with justice: “Socialism, or Communism, or whatever one chooses to call it, by converting private property into public wealth, and substituting cooperation for competition, will restore society to its proper condition of a thoroughly healthy organism, and insure the material well-being of each member of the community… [but] if the socialism is Authoritarian… then the last state of man will be worse than the first.”
[vi] Voltaire, quoted from “Philosophical Dictionary,” p 182.
[vii] Quoted from A.K. Brohi, “The Nature of Islamic Law and the Concepts of Human Rights” in ‘Human Rights in Islam”, published by the International Commission of Jurists.
[viii] Professor D.De Santillana, taken from A.K. Brohi, op cit., p 56.
[ix] Janet Radcliffe Richards, “The Sceptical Feminist: A Philosophical Enquiry”, p 119.
[x] See Voltaire above. The consequence of independence and inter-dependence, therefore, is to free women from gender inequality.
[xi] It must be noted that the inequality here is very much on the basis of strong against weak and the Qur’an gives protection to all who are weak: women, the poor, the destitute, the orphans, the children and slaves.
[xii] Kenneth Cragg, “The Mind of the Qur’an”, p 39.
[xiii] Ibid., p 40.

This paper is a summary of one presented in Jakarta in 1997 at a conference organised by the Friedrich Naumann Stiftung.

TOWARDS DESECULARIZATION: A NOTABLE MILESTONE ALONG THE WAY

There are milestones along the road, but we do not always heed them adequately in the course of our journey. We are speeding along, to where we don’t at time much care, so long as we are, or seem to be, making “good progress” ...

1.

I have written elsewhere(*) about Malaysia’s “long march to desecularization”, about the half-century-long struggle, ever since merdeka in 1957, to negate the expectations and reverse the achievement of those who designed the so-called Merdeka Constitution of 1957. That constitution rested upon the assumption that the country was launched on an evolutionary trajectory towards becoming a largely secular, modern and democratic society, since this was the destination to which those engaging with modernity (and what other basis for national politics might there possibly be?) were headed. The conviction informing the political negotiations and constitution-making that were the basis for the country’s independence was that its interests, and those of its culturally diverse and religiously pluralistic people, would be best served——and indeed might only be safeguarded——by such a course of national evolution.

This was the underlying basis of the not unreasonable hopes then held that the new nation would make “good progress” and thereby make good the promise of “progress” itself. Yet things were not to prove so simple. The undoing of those “progressivist” assumptions and, more deeply, of popular confidence in their apparent obviousness, “naturalness” and seeming inevitability, has been the work of several political generations: those of the 1957-1969 “liberal era”, especially the leaders of PAS with their then “trinitarian” emphasis on the safeguarding of “religion, people and homeland” and, with them, the distinctive identity and political future of the nation’s core Malay people; of the early NEP champions of the 1970s who sought to undercut and coopt PAS support by adopting the presuppositions of PAS’s critique of the pre-1970s UMNO as the basis for a new UMNO and national politics; of the new, often decidedly “shari’a-minded” Islamists emerging from ABIM in the 1970s and asserting themselves within and through PAS from the 1980s; of those involved, on both sides of the barricades, of Tun Dr. Mahathir’s ambitious but in many ways ungrounded modernist or anticlericalist “counter-Islamization” of the 1990s(+); and of the new generation Malay Islamists, essentially children of the NEP, many of whom came to political maturity in the context of the post-1997 Reformasi upheavals and who have since become the pioneers of a “new generation” of distinctively middle-class and professional Islamic activists.

This shift, not simply of political direction but in the basic underlying assumptions about national politics and its possibilities, has been the outcome of what has been a central, perhaps even dominant, dynamic of post-independence politics: the fifty-year “Islamization policy auction”, in which PAS always, and with great tactical acuity, sought to target UMNO ambivalences and weaknesses in its policy towards Islam and so to portray, even highlight, them as evidence of UMNO “insincerity” and “hypocrisy” in matters Islamic; wherein, in response, the UMNO always scrambled to cover up and catch up, to ensure that it was not “left behind” floundering in PAS’s wake, so that it might appear not less but only differently committed to a politics (what it held was, unlike PAS’s, a feasible politics) of Malaysian Islamization; and whereby, whenever the UMNO seemed to have closed the gap, and often as the electoral cycle was about to enter a new round or was ready to move to new ground, PAS would simply “raise the stakes”, so to speak, by suddenly (and usually quite decisively) making explicit what, to that stage, had been only a tacit component or implicit basis of its Islamist political agenda.

With that, the UMNO would again be left grasping politically at thin air as Islamic parity with PAS again escaped its hands. It would find itself holding to, trusting in, and committed to “marketing” a “religious product” that was not only less substantial than PAS’s but also less compelling, since its appeared to have been fashioned out of cornered expediency and desperate opportunism rather than genuine conviction.

The UMNO always claimed——as it sought to minimize the political and ideological gap, to neutralize its religious disadvantage——that it wanted basically the same things that PAS was seeking and, to great and enthusiastic popular acclaim, trumpeting, but that it believed in proceeding, and believed it more effective to proceed, gradually and by indirect measures rather than openly, explicitly, and by the most direct route and confronting means. Its stance often resembled that of St. Augustine who, as he began to reconsider his ways, famously pleaded for chastity “but not quite yet”——gradualist, patiently incremental, and often given to reluctance and foot-dragging.

It was a politics in which the UMNO could never catch up, because even when it matched the measures PAS had been urging, it could never promote them, and therefore itself on that basis, with the same conviction, plausibility and apparent Islamic authenticity. Not merely a reluctant and unenthusiastic Islamizer, it was left looking hypocritical and, much worse, seemingly lacking in any understanding of the difference between commitment and hypocrisy——a major, even disabling, disadvantage within an Islamic framework of moral and political discourse that so prizes sincerity and roundly deplores expedient “lip-service” lacking in support from heart and hands. He who is suspected, and widely regarded as guilty, of hypocrisy can never successfully plead his own sincerity.

This has been the fate, in all its various successive incarnations, of the UMNO’s Islamic politics. It is the problem that the UMNO, with a conspicuous lack of success, has been wrestling with as long as anyone can remember; I can recall discussing these issues long ago in these very terms with a now long-forgotten Malay political “personality”. So far as PAS and the UMNO’s Islamic politics are concerned, a wonder-worker and “fixer” of whom much was at the time hoped was one Ustadz Wan Kadir Ismail, who had wrested a federal seat in north Terengganu from PAS in the mid-1960s and who was thereafter promoted as the UMNO’s “secret weapon” against PAS in Kelantan in the years leading up to the 1969 elections. On the UMNO’s strategy for containing and contesting the PAS challenge, or at least its form and embodiment at that moment, history has long ago delivered its verdict.

2.

Along the long journey towards the desecularization, or undoing and reversing the assumption of the seeming “naturalness” of the secularization, of Malaysian society there were, I imagine, quite a number of significant milestones. One of them occurred in late 1985 when the noted Malay writer, controversialist and critic Kassim Ahmad, at the time when he was to be awarded an honorary doctorate by UKM (Universiti Kebangsaan Malaysia), proposed to offer a seminar or series of lectures on the question of “Revaluing the Hadith”.

I arrived as an academic visitor at UKM a little later and heard much at the time about what had happened. Kassim proposed to look historically at the hadith (sayings attributed to the Prophet Muhammad, as part of the sunnah or record of his sayings and doings that can be employed as sources for interpreting, clarifying or elaborating Islamic law), at the wider hadith literature, and at their status as a source of law——and in that way to encourage a historically informed critical understanding of the nature and growth of Islamic law, culture and society.

His plan, as it was explained to me, had been not only to look at the hadith themselves as products of time and circumstance; after all, the traditional hadith scholarship which he intended to review and contest did just that. This was the method and methodology of hadith studies in Islamic historical jurisprudence as practised by Muslim scholars, the ulama. Kassim intended further to consider, in a modern historically and sociologically informed way that went beyond and even challenged the approach of the ulama to these questions, how the hadith became a source of law, a basis of shari’a and fiqh; and, beyond that, to examine how a form of legal reasoning, scholarship and culture had emerged from the study of hadith and their evaluation as the exclusive expertise——one might even say as an intellectual monopoly——of in effect a clerical “class” or specialized “estate” in Islamic society and civilization, the ulama, with their own special concerns, approach and interests (interests based within, but which might routinely differ from, those of the umma as a whole).

There is, of course, nothing terribly radical per se in any such “historicizing” intention or project; it is the approach of modern historical scholarship itself including research into Islamic civilization by noted Muslim and non-Muslim scholars alike. But there was a concern, even fear, among some at UKM and beyond of Kassim’s individual nature and reputation as a “fiery radical”; more, there was a concern among those who consider themselves the modern-day successors and inheritors of the classical ulama (and, ultimately, of the Prophet Muhammad himself, since they asserted that the ulama are the pewaris Nabi) that others outside their circles——people lacking their own special and custom-hallowed expertise, and also invoking new kinds of expert knowledge of possibly dubious standing and appropriateness——might intrude into this field. They feared, it seems, being personally exposed and challenged; they feared, no less genuinely, that new forms of scholarship of dubious propriety might be deployed to impugn and undermine their own standing and thereby that of traditional Islamic scholarship itself; and, as always happens when the ulama and their clericalist allies are challenged, they feared, both self-interestedly and on grounds of protecting the “general good” as they understand it, the “confusion” that might be created among the believing multitudes if their own authority were to be questioned.

The consequence that they sincerely fear, from such questioning and from any opening the debate to new participants commanding new forms of knowledge, is that orthodox and conventional religious scholarship——which has hitherto been able to set its own terms for all the debates and controversies in which its exponents agree to engage——will be contextualized, even “relativized” and marginalized, should its custodians, the ulama, choose or consent to become involved in these new kinds of disputation; and that, in their eyes at least, the status of Islam itself will consequently be endangered. (While, in modern economic theory, the idea of the “invisible hand” enables people to argue that they can serve, and may best and indeed can only serve, others by serving their own self-interest, the ulama work by a different or opposite logic: one that impels them to want to defend Islam with unimpeachable sincerity but which, while they are doing so, enables them, with that same compelling sincerity and the authority that it bestows, to protect, as part of that general and overwhelmingly desirable objective, their own special position within Islam and their privileges of religious status, including the rights of authoritative intellectual monopoly grounded in it.)

So, to make a long story short, members of the Faculty of Islamic Studies at UKM, with some powerful outside backing, protested against the holding of Kassim Ahmad’s seminar and lectures and demanded their cancellation. The ensuing dispute rose up through and from the university to the Ministry and ultimately to Cabinet, where the then Minister for Education defended, and persuaded the government to uphold, the right of the university and its Faculty of Arts and Social Sciences to hold such scholarly discussions, seminars and lectures, even if the subject or the occurrence was distasteful to the leadership of the Faculty of Islamic Studies.

But victory was not so easily assured. Those who wished to block the event had a final card to play. For peculiar, even idiosyncratic, reasons, the mosque at UKM, its management committee and its surrounding parish do not fall within the normal “grid” of local religious administration under the UMNO-led state government but under the personal authority, as royal head of the Islamic religion in his state, of the Sultan of Selangor. An appeal was made to the palace bureaucracy of the Sultan who upheld the complaints of those opposed to Kassim Ahmad, his seminar and lectures and his wider intellectual agenda. The event was cancelled, the seminar and lectures were never held.

The upshot was that Kassim Ahmad then wrote a book on the revaluation of the hadith, quite a well-written, serious and plausible effort in many ways: a book of some novelty and with a hint of “scandal” in the Malaysian context, and certainly a more impressive scholarly exercise that much of what is published by the majority of Malaysian academics in the various fields of “humane studies” and by the nation’s most prominent religious scholars, but hardly of any great originality or unorthodoxy in the wider world of Islamic legal scholarship or the modern historical study of Islamic civilization.

At that point the debate fell silent for a while. Kassim was awarded his honorary doctorate anyway and he went on to publish his book, his first book as things turned out, on the hadith issue. Always one to take a strong position, especially when under attack, he then made what proved a damaging move. In his eagerness to assert that the Qur’an makes sense by itself, and can do so to everyday believers so long as they use their reason and good sense (and so, by implication, don’t need the added resource of the hadith as a guide or basis for interpretation, or the intermediary assistance and authority of the ulama to “know and show” how to use the hadith to make sense of the divine message of the Qur’an), he became an enthusiastic follower of one Rashad Khalifa: an Egyptian computer engineer who had taken up residence in Tucson, Arizona in the USA where he also served as imam in a local mosque.

Rashad Khalifa claimed to have used computers to show that the Qur’an is constructed around an invariable but hitherto unrecognized structure based on the number 19. If this were so it was a discovery with amazing implications.

It would have shown that “the miracle of the Qur’an” [mu’jizat al-Qur’an] was an even greater miracle than anybody had previously suspected or ever been able to imagine. It would have provided proof of an unprecedented and perhaps irrefutable kind of the foundational Muslim claim that the Qur’an as it had come down to today’s believers and now exists is not only perfect in its origins but also perfect, perfectly uncorrupted and preserved, in its human transmission over the centuries since Allah launched it, via the Archangel Gabriel and through the Prophet Muhammad, into human history. And it would have shown that, with foresight of truly staggering implications, Allah had placed or encoded in the Qur’an itself a hidden, embedded, arcane key that could only be detected, after they had in due course been humanly discovered and invented, by modern computers; and which, yet further, by becoming detectable in this way, was now accessible to all Muslims of good conscience and reason and modern intellect but which was not accessible to the ulama, locked away as they long were and still are in their traditional world of classical Quranic and hadith scholarship and its familiar techniques and narrow intellectual horizons. So much for the ulama, then. Rashad Khalifa’s work showed, or so its devotees such as Kassim Ahmad maintained, that the ulama had not only been “overtaken by history” and modern scholarship but were now——and had been demonstrably made by Rashad Khalifa’s work——“objectively irrelevant”. Who needed them any more? They had no legitimate role, and if they ever had then certainly no longer; the claims on which such a role were conventionally based had been exploded ...

The problems that soon followed were twofold. First, some telling criticisms of Rashad Khalifa’s work, approach and conclusions were made by computer-literate scholars who wanted to uphold more orthodox opinion and those whose position within the umma of the Muslim faithful that opinion sustained and upheld. Second, awestruck by the far-reaching implications of his own ideas and apparent discoveries, Rashad Khalifa began to believe some things about himself and his role and status in Islamic history that verged upon, even succumbed to, the heretical. Angered by these implications, a devout Muslim of orthodox commitments and loyalty approached Rashad Khalifa in his mosque and stabbed him. With his death his astounding ideas lost not only their great proponent and publicist but also much of their remaining credibility. With that the debate in Malaysia too fell silent, for a while.

3.

But it was not quite the end of the matter. Several years later, some time in the late 1980s or early 1990s, Kassim Ahmad received some high-level encouragement to open up once more the debate about hadith and, by implication, the role, including the special position and claims to special authority, of the ulama as a group or “clerical estate” in Islam generally and specifically in modernizing Muslim societies such as Malaysia. The congruence or “fit” between these ideas, if they were sustainable, and those of Prime Minister Dr. Mahathir are obvious. His core initiative was to emphasize Islam, modernization, and, as part of the same overall cultural complex or “package”, modern understandings of Islam. If the resistance to him and his, and the UMNO’s, religious “project” came from the religious traditionalists and their allies, deeply entrenched not only within PAS but also the UMNO itself, then an argument that might decisively defeat and delegitimize that clericalist opposition was, it seems, worth considering. Anything that would put his traditionalist and traditionalizing Islamist adversaries on the defensive, and possibly seize the political initiative from them, was worth a try. So the hadith controversy had, was allowed, a brief second life.

At a political moment when these issues were very much in the air, and prominent in the minds of some leading Malaysians, it was decided that the hadith question with its related, and to some very troubling, implications about “the special position of the ulama in Islam” might have a another hearing: not the trench and guerrilla warfare of the original UKM confrontation but something more dignified and also controlled——from above, rather than by unruly dissenting academics.

Accordingly it was arranged that a public forum would be held under impeccable auspices, and that it would be taped for later broadcasting, in edited form, via national television on RTM-1’s long-running and very popular Thursday evening religious programme Forum Perdana Hal Ehwal Islam. The event itself was staged in the elegant public auditorium of the then quite newly established and salubriously housed government entity IKIM: Institut Kefahaman Islam or Institute of Islamic Understanding (a so-called “think-tank”, yet another of those handsomely funded institutions that Prime Minister Dr. Mahathir created to develop an alternative Islamic agenda and project a rival Islamic worldview to those of PAS and the clericalist traditionalists——but which in the end, because they were placed under the leadership of people who simply did not understand with sufficient cultural and historical depth what the task and challenge facing them were, never had any possibility of addressing them successfully; they never knew and understood what they had to know and understand if they were to accomplish, or even plausibly begin, the historic task that was expected of them; so that, in the end, these institutions, including the Islamic University [UIA/IIU] and others too, fell by default into other hands, and so ended up being “gifted” by Dr. Mahathir’s government as resources to the very forces that their creation had been intended to oppose and contest).

Yet these were early days for IKIM and for Dr. Mahathir’s hopes of it. The forum was organized. Kassim Ahmad had the chance to state his case, as did two notable and knowledgeable opponents. After their presentations and some direct exchanges, amounting to a tough and quite hostile cross-examination of Kassim Ahmad by his critics, the forum was opened up, in accordance with the Forum Perdana Islam format, to questions and comments from the floor.

Eventually I took the opportunity to make a point. I decided to refer to and then quote some lines from the work of the great Pakistani/Canadian Islamic scholar, the late Professor Fazlur Rahman who, perhaps more than any other individual in the twentieth century, had sought, with some considerable success, to bridge, as a pious Muslim, the worlds of classical Islamic scholarship and the modern academic study of the Islamic tradition.

By doing so I sought, after the torrid cross-examination of Kassim Ahmad, to restate the same position in different words, now with the backing, prestige and authority, grounded within the Islamic tradition, of a truly great scholar and moral leader.

I referred to Prof. Fazlur Rahman’s Islamic Methodology in History (1965) and then to his Islam and Modernity: Transformation of an Intellectual Tradition (1982). These are two landmark studies——milestones, one might even say, or perhaps better, benchmarks——of Islamic modernism and modernist Islam at their highest point. In the latter work, Fazlur Rahman remarks that the

“proliferation of hadiths resulted in the cessation of an orderly growth in legal thought in particular and in religious thought in general” [26]; as a result, “it came to pass that a vibrant and revolutionary religious document like the Qur’an was buried under the debris of grammar and rhetoric. Ironically, the Qur’an was never taught by itself, most probably through the fear that a meaningful study of the Qur’an by itself might upset the status quo, not only educational and theological, but social as well” [36].

To help, or rather begin, addressing the problems created by this proliferation of often dubious hadith and the effect that a long traditions of sophistic hadith scholarship had had for the study of the Qur’an itself, Prof. Fazlur averred that

“the first essential step ... is for the Muslim to distinguish clearly between normative Islam and historical Islam [141]. To do so, “we must make a thorough study, a historically systematic study, of the development of Islamic disciplines. This has to be primarily a critical study that will show us ... the career of Islam at the hands of Muslims ... the need for a critical study of our intellectual Islamic past is ever more urgent because, owing to a peculiar psychological complex we have developed vis-à-vis the West, we have come to defend that past as though it were our God. Our sensitivities to the various parts or aspects of this past, of course, differ, although almost all of it has become generally sacred to us. The greatest sensitivity surrounds the Hadith, although it is generally accepted that, except the Qur’an, all else is liable to the corrupting hand of history. Indeed, a critique of Hadith should not only remove a big mental block but should promote fresh thinking about Islam” [147].

“A historical critique of theological developments in Islam,” Prof. Fazlur added, “is the first step towards a reconstruction of Islamic theology [151]. This critique ... should reveal the extent of the dislocation between the world view of the Qur’an and various schools of theological speculation in Islam and point the way to a new theology” [151-152].


Having alluded generally to Prof. Fazlur Rahman’s career and ideas, I cited explicitly his words that “the greatest sensitivity surrounds the Hadith, although it is generally accepted that, except the Qur’an, all else is liable to the corrupting hand of history. Indeed, a critique of Hadith should not only remove a big mental block but should promote fresh thinking about Islam.” I then posed the question to the more outspoken of Kassim Ahmad’s two critical interlocutors on the Forum Perdana panel how he responded, in this present context, to Prof. Fazlur’s principled and informed position.

When challenged to address himself to these words from Fazlur Rahman (which in essence, if far more diplomatically, stated a position similar to that of Kassim Ahmad), Dr. Othman al-Muhammady responded very precisely that, in his view, “Fazlur Rahman had been a great man in the history of Islam, but his aqidah [the integrity of his faith] was questionable and his influence had been damaging and remained dangerous”.

4.

It remains only to note three things. First, that Dr. Othman al-Muhammady was one of the featured speakers, perhaps the central speaker, at the Muslim Professional Forum’s symposium in September 2005 that targeted “Liberal Islam: A Clear and Present Danger”. Second, that, with the legally resonant words in that subtitle, the symposium was branding modernist Muslims and the proponents of Islamic modernism as promoters of sedition and treason. And third, that this same Dr. Othman al-Muhammady now serves as a Commissioner of Suhakam, the official and statutory Malaysian Human Rights Commission.

What are people, including those of the Fazlur Rahman “lineage” and tradition in Islam, to make of this? Who knows? Many may simply remark, in a formula of conventional piety, “WaAllahu’alam ...”, that only God truly knows, knows the truth. The Truth is ever with Allah.

Meanwhile, for those of that modernist tradition, mere humans may and should endeavour——since it is a truly wondrous and wonderful part of their fitrah or divinely created human ontology——to use in good faith their human power of reason, always, of course, in well-guided ways.

What does well-guided mean? The question is whether people may, in good faith and reason, seek out and seek to combine wisdom from a variety of sources. Or whether, when matters are contested——which is when they truly matter——there is one sole and unique source of guidance to which believers must turn and whose admonitions, almost always of a restrictive nature and intention, all must accept as authoritative: the guidance ever so insistently proffered by the exclusivist and exclusionary clericalist monopoly.

Which choice people should make is not for me to say; I simply note that the choice is theirs and that it is there. Of those who would deny that fact one may simply, and legitimately, ask that they clarify their motives and intended agenda.


(*) See “The Long March towards Desecularization”, “Asian Analysis”/Aseanfocus.com; see also my earlier comment on “Islam, the State and Freedom of Religion in Malaysia” that appeared in Aliran magazine, vol. 25, no. 9 in 2005, and subsequently on its website, together with the ensuing exchange between representatives of the Muslim Professional Forum and myself in Aliran magazine, vol. 25, no. 10; see also my earlier “Asian Analysis”/aseanfocus.com commentary of March 2002 entitled “Don’t Mention the Law!”. Far more substantial than my own scattered remarks, the magnum opus on the subject is Farish Noor’s two-volume history of PAS and the PAS challenge entitled Islam Embedded (MSRI, Kuala Lumpur, 2004).

(+) Dr. Mahathir was never able to project himself as a successful spokesman for the kind of “modernist Islam” and “Islamic modernity” that he sought to promote: because he was always a selective, not a thoroughgoing or consistent, modernist (his Vision 2020 embraced technological and economic modernization but was decidedly ambivalent and unenthusiastic about, even unsympathetic towards, some of the key sociocultural dimensions of modernity such as human rights, individual freedom, and “lifestyle” pluralism), while he never had the religious standing or credentials to make him a convincing proponent of the kind modern, essentially democratically anticlericalist, Islam that he sought to encourage. As an aspiring Islamic modernist, an advocate of a modern Islamic religious culture and of a wholehearted embrace of modernity by Muslims on Islamic terms, he was flying on two weak wings; he had strength and sinew on neither side, not that of Islam nor that of modern culture. In the end his “counter-Islamization” intended to contest the traditionalist-clericalist agenda proved counterproductive.

About the writer: Clive S. Kessler is Emeritus Professor at the University of New South Wales, Sydney, Australia.