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?
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.
– 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.
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.
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
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.