Kartika WHEN the Kuantan Syariah High Court sentenced Kartika Sari Dewi Shukarno to six lashes of the cane and a fine of RM5,000 for drinking alcohol, some Malaysians were shocked. But many others were not, simply because Malaysians know that there is a separate law for Muslims in Malaysia — syariah law.
The syariah legal system is murky territory for most Malaysians. Anyone who questions or disagrees with the law is likely to be censured, not just by the state, but also by certain pressure groups.
But just what kinds of Islamic laws exist in Malaysia right now? Do they conflict with the Federal Constitution or human rights? Or do they conflict with Islam as interpreted by other Islamic authorities?
Most importantly, can they be challenged if anyone disagrees with them?
Existing laws
To some, the solution is simple: respect the Federal Constitution‘s provisions for Islamic legislation.
Malaysian Syariah Lawyers Association president Mohd Isa Abd Ralip tells The Nut Graph in a phone interview: “Everyone must understand Article 3 of the constitution, which says Islam is the religion of the federation; Article 121(1A), which separates civil and syariah jurisdictions; and List II of the Ninth Schedule, which empowers states to enact Islamic legislation.”
He says this will remove misconceptions about syariah law. He stresses that certain laws must be amended so that they are parallel with Article 3.
But before that, it is important to be aware of the different kinds of syariah legislation that exist in Malaysia. With reference to federal laws, these are:
The Islamic Family Law (Federal Territories) Act 1984, which covers marriage, divorce, maintenance, guardianship, and other matters connected with family life.
(Pic by nksz / sxc.hu) The Syariah Criminal Offences (Federal Territories) Act 1997, which covers syariah criminal offences, such as drinking alcohol or preaching without a permit.
The Administration of Islamic Law (Federal Territories) Act 1993, which covers the enforcement and administration of Islamic law, the constitution and organisation of syariah courts, and so on.
The Syariah Court Civil Procedure (Federal Territories) Act 1998, which relates to civil procedures for syariah courts.
The Syariah Criminal Procedure (Federal Territories) Act 1997, which relates to syariah criminal procedures for syariah courts.
The Syariah Court Evidence (Federal Territories) Act 1997, which defines the law of evidence for syariah courts.
The Syariah Courts (Criminal Jurisdiction) Act 1965, which defines the courts’ jurisdiction in dealing with offences under Islamic law.
The Joint Service (Islamic Affairs Officers) Act 1997, which provides for the establishment of a service for Islamic Affairs officers.
On the surface, it appears that syariah laws in Malaysia are constitutional and comprehensive. Yet, syariah laws as formulated and applied in Malaysia have been criticised, including by Islamic scholars.
Hashim Kamali Un-Islamic syariah laws?
Islamic scholar Prof Mohammad Hashim Kamali has criticised the Syariah Criminal Offences Act, saying that it is not for the state to legislate punishments for personal sins such as drinking alcohol or the non-performance of Friday prayers by men.
Isa says Kamali’s view is based on western values. “Islamic law is not like western law, where they separate morality from the law. For example, khalwat (close proximity between unmarried men and women) in Islam is a moral issue, but it must also be legislated against,” he says.
Syariah lawyer Saadiah Din disagrees. “It’s not a question of what is western or not. Kamali does not rely on so-called western sources to justify his opinions, especially those where he says it is not right for the state to conduct moral policing,” she tells The Nut Graph in a phone interview.
Saadiah agrees that Islam provides for a comprehensive way of life for its followers. But she says the question is whether the state should legislate on certain aspects of life.
“The Quran is not the Penal Code,” she says, adding that there are situations when authorities of the day need to make decisions, such as whether hudud is implementable or not.
She also notes that if a specific law is applied only selectively, then it should not be applied at all. “For example, if a few individuals are caught in Kuantan for drinking alcohol but not anywhere else in Malaysia, then that is selective prosecution,” she explains.
Mohd Asri Saadiah says that selective prosecution can happen in other ways, too. “For example, when the Selangor Islamic Affairs Department arrested former Perlis Mufti Dr Mohd Asri Zainul Abidin for preaching without a permit, they applied a law that was too general. It violated the Federal Constitution’s guarantee of freedom of expression,” she says, adding there should be a proviso to the law that upholds the right to freedom of expression.
“Even the Prophet Muhammad welcomed dissenting views during his time, so I would argue that it not only unconstitutional but also un-Islamic to restrict freedom of expression,” she adds.
Saadiah argues that even in classical Islamic laws that censure individuals for immoral conduct, there are safeguards to ensure that the individual’s dignity and rights are not violated.
“If the laws are used selectively and to humiliate certain individuals, that will cast Islam in a bad light. In classical Islamic jurisprudence, this is also a ground for not legislating on personal morality,” she says.
Thus, Saadiah says it is permissible and even healthy for certain Islamic laws to be challenged if they cause problems or injustice.
Freedom of religion
Bon Edmund Bon, chairperson of the Bar Council’s constitutional law committee, agrees. “From a human rights perspective, if the majority of citizens believe that they need faith-based legislation, then such legislation is fine because this upholds their freedom of religion,” he tells The Nut Graph in a telephone interview.
“However, such religious legislation must still not contravene basic standards of human rights, and if it exists via a parallel legal system, then it must not violate the constitution,” he says.
“Citizens should be able to challenge such religious laws if they are deemed to be problematic or unjust,” he continues. According to Bon, it is unacceptable to say a particular law cannot be challenged in court because it is “God’s law”. After all, such laws are interpreted and implemented by human beings.
So the vast array of Islamic laws already existing in Malaysia can either be a great thing or a terrible thing, depending on who is asked to comment. The point, though, is that these laws have and will continue to affect the public.
Thus, the public has a right to respond, whether for or against these laws. But it is imperative that such public debate be guided by facts, not emotions, and by analysis, not propaganda. Only then will Malaysians be able to navigate through the array of syariah laws to arrive at justice and equality, which are, in fact, the basis of Islam. 
The Nut Graph needs your support
Kamal says
If the Malaysian syariah court contradicts some basic legal philosophy in Islamic law, can we call it syariah or Islamic law?
Dr Syed Alwi Ahmad says
Perhaps the Muslim world must have a re-interpretation or reform – of the syariah. The world of today is very different from the world of the 10th century Middle East. The syariah is predicated upon the social structures prevalent in the 10th century Middle East. Is it appropriate to apply it to 21st century Malaysia – without suitable adjustments? Is organised religion an absolute truth or is relativism relevant in religious thought? Had you been born into a Buddhist family – what are the chances that you would be Muslim or Christian today? I think the time has come for the Muslim world to re-interpret its syariah.
Regards
Dr Syed Alwi Ahmad
Kate Green, Zombie Shooter says
Very useful article.
Kate Green, Zombie Shooter says
Also, would love it if anyone commented on the Manohara case and the recent verdict by the Syariah courts hearing her case.
Reza says
The issue of Islamic fundamentalism, which includes the radical misinterpretation of Islamic laws, will not go away until:
1) the federal and state governments decide to exert greater control over the religious authorities, who seem to be operating virtually independently , as though they are a higher power than the constitution,
2) the state Sultans, who are the head of Islam in their respective states, play a more active role in forming religious policy and restraining overzealous religious officers and ulamas from overstepping their boundaries, instead of being just mere figureheads,
3) there is a complete revamp of religious governance in this country, including re-educating religious authorities to be more moderate and tolerant,
4) open discussions on Islamic issues are encouraged and facilitated to give all Muslims in the country a say in religious matters.
I’m sure we have all heard of many incidents over the years. One example that comes to mind is the removal of a Hindu altar from an Indian restaurant in Bangsar a few years back by Jawi. Reason given by Jawi was because it might make the Muslim patrons in the restaurant “uncomfortable”. This was clearly a violation of their jurisdictional authority as it did not involve Muslims. If a Muslim feels uncomfortable then he could go to another restaurant. Nobody is forcing him to eat at the Indian restaurant. But was Jawi censured for this by the political masters? No.
More recently, Dr Asri’s arrest for preaching without a permit, which was clearly a case of selective prosecution, was publicly condemned by many politicians from both the ruling coalition and opposition, but, again, nothing was done by those in power.
Same goes with the recent spate of conversion issues involving non-Muslims that are being reported with alarming frequency. As usual, the powers that be may condemn and promises may be made but they are not lifting a finger.
It seems to me that our political masters will try to intervene in almost anything, except when it comes to religious matters, for which they are more than willing to surrender COMPLETE control over to the religious authorities. I understand that politicians are reluctant to involve themselves with religious issues for fear of being seen by religious Malay [Malaysians] as being un-Islamic. But their lack of firm involvement has emboldened the religious authorities to be overly flexible with their mandate, which has landed all of us in this messy affair.
I also say that they should revamp the religious departments, much like what they plan to do with BTN. Clearer operational guidelines and jurisdictional boundaries have to be established, as well as re-educating religious officers to change their narrow way of thinking.
As I mentioned earlier, the state rulers should also take charge of the religious affairs of their respective states. They have the advantage of not being elected rulers, and thus do not have to pussy foot around sensitive issues like the politicians. The sultans could also spearhead efforts to re-educate the people in their states to be more moderate and tolerant and encourage open dialogue on religious matters.
A main reason for the rise in Islamic fundamentalism in the country is because most Muslims are afraid to question the judgements and interpretations of the religious authorities. For years, those who have criticised the views of ulamas have been promptly condemned and, over time, Muslims in the country have been conditioned into accepting whatever the authorities decide, blindly following the ulamas without stopping to think for themselves if what they say makes any sense. This has to change. The rakyat should be allowed to openly discuss fatwas based on their own common sense and logic, regardless of whether they are qualified Islamic scholars or not. Ulamas who declare fatwas should be required to justify the reasons for their fatwas in reports, which should include detailed studies to confirm the validity of the underlying assumptions that led to the creation of these fatwas. These reports should then be made public so Muslims can make up their own minds if the fatwas are indeed sound and be allowed to discuss them freely in an open forum without fear of persecution, condemnation or censure. Because, it is painfully clear after the proclamation of such ridiculous fatwas as the banning of tomboys and yoga, that our ulamas do not possess sufficient intellectual competence to be the sole authority on Islam in the country.