Note: Joint statement by Datuk Zainul Rijal Abu Bakar, president, Persatuan Peguam Muslim Malaysia; Tuan Musa Awang, president, Persatuan Peguam Syarie Malaysia; and Azril Mohd Amin, chief executive, Centre For Human Rights Research & Advocacy. Published in the New Straits Times, and reported in BERNAMA.
HAVING read the letter written by the 25 eminent people entitled “Need for Consultative Process” in an English newspaper dated Dec 8, we, a group comprising concerned bodies and on behalf of our members, felt compelled to respond to the disturbing statements raised in the said letter.
Foremost, it is observed that the writers of the said letter have taken the stance that the continuing application of Islamic laws in relation to the position of Islam under the Constitution in this country is against the ideas of moderation that the government has adopted.
Effectively, the point that the writers are advocating is that upholding Islam’s position under the Constitution is equivalent to acts of extremism and fundamentalism.
Ironically, they did not explain the concept of moderation adopted by the government and in what manner the constitutional position and application of Islamic laws conflict with concept of moderation. It is thus incumbent upon us to elaborate on its meaning within that context and to elucidate the pertinent differences between moderation and extremism. The concept of moderation adopted by the government is based on the Quranic embodiments of justice and equity, moderation in all aspects of life and aversion towards excessiveness or extremism. These principles of moderation are inscribed in the Islamic Development Department’s official publication last year during the Maulidur Rasul celebrations.
It is indeed difficult to define “extremism” as it depends largely from which perspective one derives its meaning; whether from a purely secular view, liberal view or religious views. Each view would bring forth very different outcomes. A more congenial way would be to define extremism as concepts that are opposed to moderation. The Quranic principles of moderation place justice and equity as the main qualities. Therefore, any concept, philosophy, idea or act that is against justice and equality is extremism. The line that divides moderation and extremism is, thus, justice and equity.
The writers suggest that the application of Islamic law through issuance of fatwas violate the Constitution and is against moderation. It is based on a misconception that Islamic law is incapable of dispensing justice and equity; the embodiments of moderation. More importantly, it reveals the writers’ view similar to secular views of placing individual rights uppermost over rights and interests of the community. The writers believe fatwas should be subjected to the process of open consultation, where everyone is at liberty to debate Islamic law, irrespective of whether the person has little or no knowledge of Islamic law.
The writers cite the decision of the Syariah court on the transgender issue as extremist and, therefore, against the principles of moderation. In actual fact, Muslim juristic views abound on the recognition of transgender rights under Syariah. What is noted is that the Syariah court did not specify the guidelines or the process flow pertaining to evidential rules required to support a claim that the transgender person has valid justifications based on medical reports. What originates from administrative and human failure in application of Syariah principles have been portrayed by the writers as the failure of Islam as a belief to recognise these rights.
The attack by the writers against Datuk Seri Jamil Khir Baharom, the minister in charge of Islamic affairs, on the transgender issue is perplexing. Whether one agrees or disagrees with his stand is a totally separate issue. It behoves him, in his capacity as the minister in charge of Islamic affairs, to come forth with a strong stand on such issues.
The writers suggest that in the application of Islamic law on matters affecting Muslims, there is constant conflict with the Constitution. There are sufficient case laws to disprove this point. Islamic law is not in conflict with the Constitution as both share the same objectives; to dispense justice and equity. In a titular case, the court explained: “…Article 3 of the Federal Constitution that states Islam is the religion of the Federation means that (there is an)… obligation on the Federation to protect, defend, promote Islam and to give effect… to the injunction of Islam… (and) encourage people to hold their life according to the Islamic injunction spiritual and daily life.”
The basic premise is to educate individuals that Muslims are all part of a larger community where we put the interests and well-being of the community before our personal interests. This is the very essence of moderation; ensuring justice and equity is applied for communal well-being based on Syariah principles within the framework of the Constitution.
The writers assert that the existence of Islamic law within the framework of the Constitution is a plurality of laws and considered negative. The writers thus imply that there can only be one law within the Constitution and Islamic law should not be a part of it.
The reality is that the Constitution is plural in nature from the very first day it was drafted. Its origin is from canon law, meaning laws derived from ecclesiastical jurisprudence composed of Christian Roman law. Over time, it has evolved to incorporate Islamic law principles vide court decisions since Islamic law principles are part of culture and way of life for Muslims in this country. It is a natural progression towards the development of our own Malaysian common law. A law common to us all as it recognises the way of life, cultural practices and religious beliefs of different communities.
As for the writers’ call for a dialogue pertaining to the application of Islamic law: we would like to state that we are not opposed to such measures, however, it shall have to be within the common understanding and respect towards the position of Islam under the Constitution.
On a last note, we write this response as it is consistent with fitrah (human nature) that whenever our religion, Islam, is being spoken in a derogatory manner, it is a question of moral dignity for Muslims to make a firm stand. For a community that cannot defend its own beliefs and how it is to be practised within its own community is a community that has no honour nor pride in its own identity.