CONVERT'S WIFE LOSES APPEAL IN 2-1 JUDGMENT

The Star Online > Courts
Wednesday March 14, 2007

PUTRAJAYA: A woman, who is trying to prevent her Muslim-convert husband from dissolving their marriage in the Syariah Court and converting their second son, will have to state her case there, the Court of Appeal ruled.

In a 2-1 majority decision, Court of Appeal judges Justices Suriyadi Halim Omar and Hasan Lah dismissed R. Subashini's appeal against the High Court’s decision to set aside the injunction granted her last year to enable her to temporarily stop T. Saravanan from commencing with the proceedings in the Syariah Court regarding their marriage and conversion of their children.

Court of Appeal presiding judge Justice Gopal Sri Ram dissented.

Justice Hasan, in his written judgment, said Subashini should seek relief in the Syariah Court, to make a ruling on the legality of her husband's application and the injunction obtained by him.

She could do so on the grounds that the Syariah Court has no jurisdiction over the matter as she was not a person professing Islam, he said.

“The wife should have done that rather than ask the Civil Courts to review the Syariah Court's decision,” he said.

Justice Hasan added that the civil court had to accept that the husband's conversion was on May 18 last year.

“It is not for the civil court to question this,” he said.

Justice Suriyadi, in his judgment, said he could not allow Subashini's injunction application as she had failed to fulfil the requirement of establishing a serious question to be made out.

“The fact that the substratum of her case had been whittled away either by factor of time, or by her own act of abandonment of certain issue, did not help either,” he said.

Justice Suriyadi said it was clear that Subashini would face an uphill battle in her bid to stop the respondent from exercising his constitutional rights of choosing the Syariah Court over the civil court pertaining to matters connected to his marriage with her.

“By so wanting the civil court to deal with her problems, the appellant had attempted to convince us that a civil court has the jurisdiction and knowledge to deal with her matter, even though imbued and intertwined with thick strands of Islamic elements.

“In short, the appellant wanted the civil court to arrogate the function and duties of the Syariah Court regardless of the litigant's (Saravanan) right of choice, let alone that he had already made his decision,” he said.

However, Justice Suriyadi admitted Subashini's motives were not frivolous and said her dissatisfaction on the matter would not go away.

“Parliament has to cap any obvious lacuna promptly and as equitably as possible to harmonise the two systems. Justice is never irreconcilable.

“The universal concept of justice and equity, and Islamic Law, is not dissimilar as the al-Quran in surah An-Nisa had revealed that justice is for mankind,” he said.

Justice Sri Ram, in his dissenting judgment said the Syariah Court's jurisdiction was restricted to only what state or Federal law had conferred upon it.

“Any other interpretation would, in my respectful view, produce a manifest absurdity and visit an injustice upon non-Muslim spouses,” he said.

On Sept 25, last year, Judicial Commissioner Aziah Ali set aside the injunction granted to 28-year-old Subashini a month earlier, which had enabled her to temporarily restrain Saravanan, 31, from commencing with the proceedings in the Syariah Court.

The couple, who has yet to finalise their divorce, have two children – Dharvin Joshua, three, and one-year-old Sharvin.

Saravanan, whose Muslim name is Muhammad Shafi Abdullah, had claimed that the elder child had converted to Islam with him in May.

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1995-2005 Star Publications (Malaysia) Bhd (Co No 10894-D)

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.