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Reflecting On The Law

Published: Thursday February 19, 2015 MYT 12:00:00 AM
Updated: Thursday February 19, 2015 MYT 6:50:11 AM

On moderation and grasping jihad

There has been good news at home, with enlightened new rules planned in Negri Sembilan and an excellent sermon on jihad.

NOT a day passes without Islam and Muslims being pilloried in the global media. Lately, the atrocities committed by mercenaries of the Islamic State (IS) in Syria and Iraq are bringing infamy to the religion.

Part of the problem is unfair attribution: abominations by Muslims are immediately pinned on the lapel of Islam. But when Americans, Europeans and Israelis test their weapons of mass destruction on Muslims in Afghanistan, Iraq, Palestine, Syria, Lebanon, Tunisia and Somalia, the inhumanities are not attributed to the religion of the perpetrators.

In the midst of continuous bad publicity, it is heartening to note some good things happening on the religious front at home. One is the news that the Negri Sembilan government is preparing new rules to tackle the abuse by some non-Muslims of converting to Islam to evade their marital obligations under civil law.

The other is the beautiful and learned sermon (khutba) prepared by the Department of Islamic Development Malaysia (Jakim) for last Friday’s prayers.

Negri Sembilan: The “divorce first then convert” proposal by Mentri Besar Datuk Seri Mohamad Hasan is motivated by a sense of justice and compassion. The law on conversion to Islam and ancillary matters is rather one-sided and lends a bad name to Islamic justice.

The non-converting spouse has to wait three months before she can apply for dissolution of marriage. The converted Muslim spouse, on the other hand, is allowed to go to the syariah court immediately to seek the dissolution of his civil marriage.

This is a clear violation of our Constitution’s equality clause in Article 8, and is also in defiance of an excellent Federal Court decision that a civil marriage is not dissolved automatically by conversion and the matter is for the civil court’s jurisdiction.

Children of the marriage can be converted to Islam without the knowledge and consent of the non-converting spouse based on Article 12(4) that the religion of a person under 18 shall be decided by his parent or guardian.

Regrettably, in several cases the civil courts have held that use of the singular in Article 12(4) implies that the will of one parent is sufficient. With all due respect, this is wrong.

Section 2(95) of Schedule 11 lays down that “words in the singular include the plural”. Reading Article 12(4) along with Article 8, both parents must have a say in the matter.

Custody and guardianship of the children is more often than not awarded to the converting spouse. And all this happens ex parte (after hearing one side only) because the syariah court has no jurisdiction over non-Muslims.

If the non-Muslim spouse complains to a civil court, generally the court declines jurisdiction because of Article 121(1A). In the rare event that a civil court asserts itself and gives custody to the non-converting spouse, there are problems of enforcement.

The entire law on this point is ripe for review. There are no simple solutions and good intentions alone will not be enough. For example, an intending convert may claim that his freedom of religion under Article 11(1) cannot be delayed till divorce is obtained.

Perhaps the answer should be that freedom of religion in Article 11(1) is subject to the limitation of morality in Article 11(5). It is a matter of good morality that if one’s exercise of freedom devastates the life of another, then some limitations in the interest of morality can be imposed.

Jakim: At last Friday’s prayers, Jakim invoked the magnanimous spirit of Islam and counselled peace, harmony and moderation. It condemned the atrocities committed by IS in the captured regions of Syria and Iraq. It articulated a learned conception of “jihad”.

It correctly pointed out that “peace is a very important aspect of the life of mankind...Islam abhors all extremist movements which use force, murderous acts and warfare to disturb the peace and tranquillity of a nation”.

Jihad is not confined to the battlefield. It has three dimensions. The first is a fight against one’s own evil desires. Secondly, jihad is a peaceful endeavour to establish a Muslim society and enforce the commands of Allah. This includes pursuing knowledge, strengthening the economy, eradicating poverty and affirming the unity of the Muslim community.

The third is to fight the seen enemy (Surah al-Hajj:78), but the only war allowed is a defensive war. “Fight in the cause of Allah those who fight you but do not transgress limits; for Allah loves not transgressors (Al-Baqarah:190).”

Jakim reminded the faithful that the struggle of IS to establish the Islamic state through the use of force and terror is against the true teachings of Islam and our nation’s Constitution.

In a passage that will resonate well with all who value interracial and interreligious harmony, Jakim said: “As Muslims who love peace and … moderateness, it is our responsibility to reject such movements. We must continue to strengthen the camaraderie among us and remember that the … prosperity of our nation has been built on the peace and tolerance between us”.

This monster called IS, like the Taliban and al-Qaeda before it, is a Western invention and a Western proxy to achieve geopolitical goals. Malaysians must not fall into its murderous trap. The prominent goals of US foreign policy are reflected in “Project for a New American Century” and “Clean Break”:

- Keep the Mideast in turmoil by using proxies to manufacture civil wars (as in Iraq, Libya, Yemen, Syria and Afghanistan). In Syria, the devastation is sponsored by the United States, European Union and their Gulf allies (Saudi Arabia, Jordon, Turkey, Qatar), and executed by CIA-trained rebel forces.

- Annihilate Syrian infrastructure, including oil and gas facilities, on the pretext of bombing IS targets.

- Exploit the historical schisms between the Sunnis (Saudi Arabia, Turkey, Jordan, Qatar, Kuwait and Egypt) and Shias (Iran, Syria and Iraq).

- Bring regime change in Iran and Syria by hiring mercenaries, supplying them with money and sophisticated weapons to foment a crisis that justifies “humanitarian intervention” as in Libya.

- Fracture Iraq into three warring regions controlled by Shias, Sunnis and Kurds.

- Ensure high-grade oil supplies from the Gulf.

- Prevent Shia-controlled Iraq, Iran and Syria from building oil pipelines to each other’s countries.

- Sell arms to all warring parties and foment continuous battles to keep the Western military-industrial complex humming.

- Distract the world from US-EU complicity in genocide in Palestine, especially Gaza.

Muslims worldwide who are mesmerised by the clarion call to establish an “Islamic state” in Syria-Iraq must be told that they are in fact being drawn into a clever conspiracy to enslave, exploit and re-colonise the Mideast.

Shad Saleem Faruqi is Emeritus Professor of Law at UiTM. He wishes all Chinese readers a blessed new year with health and wealth. The views expressed here are entirely his own.

Tags / Keywords: ModerateMY, Shad Faruqi, columnist, moderation, jihad

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