Syariah in Malaysia: Experts weigh in


THE G25 group of eminent Malays has reiterated it would spearhead a plan to set up a council to examine Syariah laws that have breached the provisions of the Federal Constitution.   

The focus of the council, as stated by G25 spokesman Noor Farida Ariffin, will be on laws that intrude into the private lives of Malaysians.   

“Malaysia is the only country with khalwat laws. We are saying that this is against Islam. You cannot knock on someone’s door at 3am and go into their bedroom and arrest them,” said Noor Farida.  

Speaking after the Islam in a Constitutional Democracy forum organised by G25 over the last weekend, Noor Farida said the consultative committee would examine Syariah laws, and to recommend repeal or amendment where there had been trespasses of the Constitution.  

“It will look at the laws that intrude into people’s private spheres. You cannot intrude into a person’s private sphere,” said Noor Farida.  

And she is not alone in her views on the manner in which Syariah law, especially Syariah criminal law is enforced in Malaysia, as one of the forum’s speakers - Sisters in Islam executive director Ratna Osman - said Islam had been “hijacked” by conservatives and fundamentalists.

Ratna criticised khalwat raids by state Islamic authorities, noting: “Can religion be used to justify raids to uphold morality and decency of people? We have researched the Syariah criminal laws and we say Malaysians cannot be punished under two criminal laws. This is double jeopardy.”  

Ratna also used the 1997 case of three women who were arrested, charged and punished within a two-week period for participating in the Miss Malaysia Petite pageant, to highlight selective prosecution.   

“Only women have been charged for indecent dressing. Women have been charged for taking part in beauty pageants while men are not penalised for taking part in bodybuilding competitions,” said Ratna.  

She pointed out that such prosecution was in breach of Article 8 of the Federal Constitution which prohibits discriminatory prosecutions, adding that these acts gave the wrong impression of Islam.  

“We should not fear because Islam is so beautiful,” said Ratna.  

A similar point on Islam was raised by another presenter in the forum, International Movement for a Just World (JUST) president Dr Chandra Muzaffar.  

He said freedom under Islam was more holistic than those promoted by modern Western democracies.  

“Unlike post-Enlightenment European democratic thought, Islam is more than freedom to express oneself. Here Islam runs parallel to Greek thought. For Islam it is not just freedom to, but freedom from. You must be free from greed and hatred to express oneself in the public or private sphere, free from bondage from within,” he said.

Dr Chandra added that while restraint was seen as an encumbrance in the modern Western concept of freedom, this was not so with Islam as restraint and responsibilities were seen to be a part of freedom.   

“Rights are important in Islam, but so are responsibilities. In Islam, the poor have an automatic right to the wealth of society. And how is that expressed? The zakat. Fresh water and clean air have been articulated as rights. But to get the rights, you would have to protect the air and water,” said Dr Chandra.  

Dr Chandra, who delivered the first keynote speech at the forum, called for people to focus on the forces trying to undermine Islam and constitutional democracy.  

“At this time in our beloved nation we are confronted by numerous challenges, and these challenges revolve around the power elite and the masses. When you have an elite that sees itself as so privileged that it places itself above the people, it destroys society,” said Dr Chandra.  

He went on to criticise the newly-passed National Security Council Bill as an example of such a challenge.  

His views were echoed by Universiti Malaya law professor Azmi Sharom.  

“This is a phenomenon that has taken years to come to this state. This happened when our leaders say anything for popular votes. Legally speaking what is happening now is unconstitutional. Our Constitution is supreme and is a secular law. Freedom of religion is guaranteed under Article 11 and it is for everyone,” said Azmi.   

Azmi pointed out that state legislation existed which prohibited the criticism of fatwas

“What makes them so unique that we cannot criticise fatwas? What makes them different from the Contracts Act or the National Security Council Bill?” said Azmi.   

Another speaker, UITM Emeritus Professor of Law Datuk Dr Shad Saleem Faruqi also spoke of how the Constitutional rights of Malaysians have been interfered with and how it affects both Muslim and non-Muslim Malaysians.   

“There has been interference to the right to property. There has been interference to the right to religion in apostasy cases, seizure of Bibles and the Allah dispute as well as the raids on churches and Hindu temples. 

"Recently, I was told that it is sinful for me to give charity directly to a needy person. I cannot do so, I have to go through the religious authorities. Moral policing is on the increase, in Negri Sembilan enforcers have entered houses to check for men dressed as women,”said Dr Shad.  

He added that there has been a victimisation of Muslims with differing views.   

“Some Muslim lawyers have been refused renewal of their certificates because some of the cases they took up are not so right according to the authorities,” said Dr Shad.  

He went on to say that there has been a “silent rewriting” of the Federal Constitution.   

“Article 4(1) says that the Federal Constitution is the supreme law of the Federation and any law passed after Merdeka that is inconsistent shall be void.

"This law itself has become void. The reality is that the Syariah authorities are basically above the Constitution and are not only applying their power to Muslims, they are also applying their power to non-Muslims,” said Dr Shad.  

He pointed out that the Federal Constitution includes and guarantees many fundamental rights for all persons, Muslim and non-Muslim.  

“Islam is the religion of the Federation, but all other religions may be practised in peace and harmony under Article 3. However, Article 3(4) states that nothing in Article 3 derogates from any other provision of this Constitution. 

"The meaning of Article 3(4) is clear. It means that although Islam is the religion of the Federation, Article 3(1) does not override any other Constitutional right, privilege, prerogative or power that is given to anyone,” said Dr Shad.    

He said that Syariah courts have no jurisdiction whatsoever over non-Muslims, adding that the Syariah courts were limited under law to a maximum sentence of six strokes of the cane, a RM5,000 fine or three years’ jail.   

“In comparative terms, the powers of the Syariah courts are lesser than the powers of the magistrates courts,” said Dr Shad.  

He gave his opinion of Islamic law in Malaysia.   

“Islam is a mansion with many rooms, there are many views and many visions. I don’t think it is right to say that there is one vision of Islam or one Islamic law. 

"Of course it is divine, but what the divine law states is a matter of interpretation. In Malaysia there is a lack of uniform Syariah law. All the 13 states have their own Syariah laws and all of them are divine despite the fact they all conflict with each other,” said Dr Shad.  

Another academic, National University of Singapore associate professor of sociology Syed Farid Alatas used a recent statement by the Chief Executive Officer of the Global Movement of Moderates, former PAS deputy president Nasharudin Mat Isa as an example when weighing in on the form of Islam being practised in Malaysia.   

“It is not in line with the Sunni school. Throughout history, the Sunni school has adopted a very inclusive approach towards other sects of Islam and we have coexisted with the Syiah for centuries,” said Syed Farid.   

It was reported that Nasharudin had said that non-mainstream Islamic teachings such as Syiah Islam need to be “controlled” to help Malaysia develop Islam to its current dominant position.