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Memorandum on the Provisions in the Syariah Criminal Offences Act8 August 1997 YAB Datuk Seri Dr Mahathir Mohamad Assalamualaikum wr wb Sisters in Islam welcomes the Government's decision to implement a single Islamic Family Law and YAB's directive to Mentris Besar and state religious authorities to change their focus of action to more critical and substantive issues, instead of the way people dress. In December 1995, Sisters in Islam wrote to YAB expressing our deep concern on the increasingly ultra conservative trend in the development of Islam in the country, in particular with regard to women. We submitted to you several newspaper cuttings and articles which reflected this disturbing trend, including a news item in Utusan Malaysia of 7 September 1995 which reported that the National Fatwa Council had not only declared that the "anti-hadis" followers were murtad, but also those who "...mencerca dan memfitnah para ulama muktabar, ijma ulama, mempertikai dan mencabar kewibawaan pihak berkuasa agama yang berautoriti serta sesiapa juga yang tidak mengikut disiplin ilmu-ilmu Islam." Those who "...menolak ketetapan hukum fiqah Islam mengenai aurat wanita yang bersandarkan nas syarie" will also be declared murtad. (see Appendix 1). We also expressed our concern over amendments to the Islamic Family Law (Federal Territories) which were passed quietly by Parliament in 1994 without any public knowledge. The substantive amendments, many of which were unfavourable to women, once again reflected the increasingly obscurantist view of women and their rights in Islam. Those concerns have been reinforced by recent events which further reflect the increasing rigidity and intolerance of many in religious authority. Following the controversy over the arrest of the three Muslim girls who participated in the Miss Malaysia Petite contest, we have discovered that over the past two years, most states in Malaysia have adopted the Syariah Criminal Offences Act/Enactment, which contains several provisions that have no basis in the textual sources or historical practices of Islam and furthermore, violate fundamental principles of democracy and our fundamental liberties as guaranteed by the Federal Constitution. Section 9 of the Act makes it a criminal offence for any person who "...acts in contempt of religious authority or defies, disobeys or disputes the orders or directions of the Yang dipertuan Agong as Head of the religion of Islam, the Majiis or the Mufti, expressed or given by way of fatwa." It is also a criminal offence for any person to give, propagate or disseminate any opinion concerning Islamic teachings, Islamic Law or any issue, contrary to any fatwa for the time being in force. (Section 12). Section 29 makes it an offence for "any person who, contrary to Islamic Law, acts or behaves in an indecent manner in any public place..." Section 36 (1) of the Administration of Islamic Law (Federal Territories) Act, 1993 grants the Mufti the sole power to amend, modify or revoke a fatwa issued earlier by him or by any previous Mufti. *All statutory provisions, unless otherwise specified, refer to those under the Syariah CriminalOffences (Federal Territories) Act, 1997. Within two weeks of arrest, the three young women were charged, found guilty and fined for indecent dressing under Section 31 (Section 29, FT) of the Selangor Syariah Criminal Enactment - a display of efficiency and alacrity that the syariah system has seldom been known for. The women will be charged this month in the Shah Alam High Court under Section 12c (Section 9, FT) for violating the fatwa forbidding the participation of Muslim women in beauty contests. Since the arrest of the three girls, two other women have been found guilty for violating the fatwa in the Federal Territory. It has also been reported in the press that JAIS has hired 70 contract officers to fully enforce the Selangor Syariah Criminal Enactment. We find these developments not only disturbing, but also dangerous as they violate fundamental principles of democracy. We are also concerned how a Vision 2020 of a united Malaysian nation that is democratic, liberal, tolerant and progressive, can ever be achieved if an important segment of society, the religious establishment, in their words and deeds are fundamentally opposed to that vision and are bent on governing the lives of Muslims in this country in their obscurantist mould. Our concerns centre on the following issues: 1. Fatwas having the automatic force of law First, and foremost, historically in Muslim societies and states, fatwas never had and still do not have the automatic force of law. Fatwas are theological and legal reasonings given by the Mufti to enlighten and educate the public about Islam and to assist them in arranging their affairs in accordance with the syariah. They are regarded as advisory opinion and are not binding and enforceable on the ummah. For centuries fatwas developed in the framework of question-and-answer where the Mufti responded to questions posed by individual questioners. If a person was dissatisfied with the fatwa of one Mufti, he or she was free to consult a different Mufti or 'alim for another opinion. A fatwa is merely a guidance to the ummah for them to voluntarily follow. It is not an order for the Government to enforce by law. No Muslim country has ever given a fatwa the automatic force of law and made it a crime for a citizen to defy, disobey or dispute a fatwa. Such provisions in the Malaysian syariah criminal laws are unprecedented in the history of Islam. It violates a fundamental principle in Islam: that change must occur gradually through education, and not through force and coercion as can happen with the imposition of a fatwa in the manner legislated in Malaysia. In a modern democratic nation state, the Government, if it wishes to enforce the fatwa of a Mufti, would put that fatwa through the legislative process for open debate before it can become law. Second, in making it a crime to question, dispute or give an opinion contrary to any fatwa in force, the legislative bodies have transformed the Mufti and the state religious authorities into infallible beings, in effect, equating their opinion to the word of God. One reason why the doctrine of binding precedent did not evolve in Islam is due to the belief that the opinion of one mujtahid can never be regarded as the final wisdom in understanding the infinite message of the Qur'an. Another 'alim can give an equally valid opinion based on his learned understanding of the text. In the context of law-making in a democracy, these differences of opinion should be debated and the legislative body will then decide which opinion it wants to turn into law. Third, constitutionally, the legislative authority to make laws in Malaysia lies with Parliament at the federal level, and with legislative assemblies at the state level. A fatwa issued by a Mufti should not have the automatic force of law without first being scrutinised by the legislative body. Those not democratically elected, sitting in a closed body, and who do not believe that others have a right to discuss, debate and question matters of religion, cannot be allowed to make law by decree that affect our fundamental liberties. Neither should the Mufti have the sole power to revoke or amend a fatwa as provided for by legislation. This really amounts to rule by decree of a theocratic dictatorship. What is of most concern here is how such provisions in law could have been sanctioned by the state and federal level Syariah Technical Committees, state legal advisors and the Attorney General, the Executive Council and then passed by legislation by our elected representatives without so much as a discussion on the wisdom of casting such an undemocratic scheme into law. Such excessive delegation can be regarded as a violation of constitutional trust by the legislative body which has given a blank check to an administrative arm of government to make law. To remove this threat to parliamentary government, each fatwa issued by the Mufti should be subjected to affirmative resolution by the legislative body before it can come into effect. This is to ensure that the fatwa goes through a democratic process of debate before it becomes law, thus fulfilling the principle of shura in governance in Islam. Such open debate which will be reported in the press will also invite public participation in the making of legislation that affect their fundamental liberties. Fourth, the right to restrict such liberties lies solely with Parliament. Several provisions in the Syariah Criminal Offences laws restrict our right to freedom of speech and expression. Sections 9 and 12 which impose such a blanket ban on freedom of speech is unconstitutional as the provisions make no reference to any of the eight restrictions on which freedom of speech could be curtailed under Article 10(2)(a) of the Federal Constitution. In the cases of Nordin Salleh v Dewan Undangan Negeri Kelantan (1992) and Tun Dato' Haji Mustapha v Legislative Assembly of Sabah (1993), the Supreme Court held that restrictions on the constitutional right to freedom of association can only be imposed by the Federal Parliament and not the legislative assemblies of the states. If the same principles applies to freedom of speech, then Sections 9 and 12 may be unconstitutional on the grounds that the state has legislated to restrict fundamental liberties, matters that are the sole privilege of Parliament. Fifth, the provision to punish indecency under section 29 amounts to an unconstitutional trespass on federal powers. The Federal Constitution's Ninth Schedule, List 11, Item 1 provides that State Assemblies have jurisdiction over the "...creation and punishment of offences by persons professing the religion of Islam ... except in regard to matters included in the Federal list". Section 294A of the Penal Code could conceivably cover the offence of indecency as set out in the Syariah Criminal Offences laws. This overlapping of jurisdictions can lead to instances of double jeopardy, violating legal and constitutional priciples that no person can be punished twice for the same offence. (Article 7(2) of the Federal Constitution). Moreover, while Section 29 of the Syariah Criminal Offences (Federal Territories) Act appears to be gender-neutral in theory, in implementation, it has discriminated against women. In the cases reported so far, only women have been arrested and charged for indecent dressing. While there is a fatwa forbidding Muslim women from taking part in beauty contests, there is none against men participating in body building contests. Neither have the Muslim men who took part in the recent Mr Malaysia contest wearing the briefest of swimming trunks been charged for indecent dressing. This is tantamount to a violation of Article 8 of the Federal Constitution which guarantees that all persons are equal before the law. 2. Freedom of opinion and expression in Islam The Syariah Criminal Offences laws make it an offence for a Muslim to dispute a fatwa or even to give an opinion contrary to any fatwa. This has no basis in Islam. First, a salient principle of government or rule prescribed in the Qur'an is shura which requires the head of state and government leaders to conduct community affairs through consultation with community members. In Sura al-lmran, 3:159, Allah commanded Prophet Muhammad (saw) to consult the ummah in community affairs. This was to a Prophet who was a recipient of divine revelation. The Qur'anic command should be all the more emphatic with regard to the subsequent generation of Muslims who no longer have the Prophet (saw) among them, nor do they have direct access to revelation. In Hadith literature, it has been reported that the Prophet (saw), in the context of both private and public affairs, solicited counsel from the companions and at times gave them preference over his own views. Second, the Qur'an also grants the ummah the freedom to criticise. Disputation or jadal is one of the major themes which occurs on no less than 25 occasions where the Qur'an expresses humanity's inclination, as rational beings, towards argumentation. In Sura Mujadila, 58:1, the verse recognises the right of an individual, a woman in this case, to argue her problem with the Prophet (saw). The whole sura which begins with this passage bears the title Mujadila (disputation). If the ummah has the right to argue with the Prophet, what more our right to argue with a religious authority. Third, a sahih hadith quoted the Prophet (saw) as saying that "differences of opinion in my community are a blessing". It was the Prophet's opinion that only through such differences that one can strive to find the best opinion, the best solution to meet the community's needs. 3. Islam in a Democratic Society First, the ulama and many in authority who hold the mainstream view that the doors of ijtihad are closed, believe that those not traditionally educated in religion do not have the right to talk on or question any matter of religion. Second, very few Muslims have the courage to question, or challenge or even discuss matters of religion, even when they doubt teachings that appear unjust or inappropriate to changing times and circumstances. They have been socialised to accept that those in religious authority know best what is Islamic and what is not, or they feel that they are ignorant about Islam compared to the ulama, and therefore should not proffer any opinion. Third, it is for these reasons, too, that very few of our elected representatives are willing to debate at length any Bill put forward in the name of Islam. Their contraints are compounded by an overriding concern that they might be accused of being against Islam if they so much as question the wisdom of any of the provisions. Fourth, as YAB observed, many UMNO leaders use Is lam to gain political mileage and therefore are unwilling to act in the public interest if their personal ambition and popularity would be affected. Fifth, without going through the democratic process of open debate in the legislative bodies, fatwas and Islamic laws that govern so many aspects of the private and public lives of Muslims are imposed on the ummah without us being aware that changes that fundamentally affect our way of life have been made. This pernicious silence and shroud of secrecy, fear and ignorance that govern matters of religion seem to pervade every locus of authority in the decision- making and law-making processes of our democratic system. Be it the State Executive Council, the office of the state legal advisors, the Attorney-General's chambers, the Syariah Technical Committee, Parliament and the State Legislative Assemblies, at all levels those placed in positions of trust and responsibility have often failed to consult, to question, to open their minds to alternative interpretations and views that are more appropriate to our times and specific circumstances. This has led us to the predicament that we are in now. We have in effect delegated total responsibility in the interpretation and implementation of Islam to a tiny minority whose views and values are often contrary to the vision of Islam held by federal leaders and by the silent majority of Malaysians. We are encouraging the growth of a theocracy and the rule of the minority in matters of Islam. It is the absence of debate in the legislative assemblies on the specific provisions of the Syariah Criminal Offences legislation that has led to the silence in the media on the widespread impact of these laws on our fundamental liberties. Therefore there was no public discussion on the merits of such laws. The public remained ignorant that their lives could be regulated in such a manner until the religious authorities shocked them by enforcing the law. This is not the only occasion when Islamic laws which are detrimental to public interest and against the principles of justice and equality in Islam have been passed in silence by our legislative bodies. In the past several years, several amendments to the Islamic Family Laws which were detrimental to the rights of women were passed with little open discussion. Women found out such an injustice had occurred only when they bore the consequences of these amendments. There is a need for those in religious authority to understand that they operate in a democratic multi-ethnic society where fundamental liberties are protected by the Federal Constitution, where our political leaders have to answer to the electorate and where the citizens are not only increasingly better educated, but also better informed on Islam and its eternal values of justice, equality, freedom and virtue. Such citizens are no longer willing to be cowed into silence in the face of injustice, extremism and overzealousness committed in the name of religion. Fourteen hundred years ago, the ulama might have been the main repository of knowledge in the Muslim world, and therefore it was their duty to impart that knowledge to the rest of society. Today, education is universal. Knowledge is increasingly specialised. Society is complex and ever changing. No one can be an expert on everything. Decision-making on any matter, including matters of religion, can no longer be the sole responsibility of the ulama of our society. In YAB's speech to open the international seminar on the Administration of Islamic Laws at IKIM in July last year, YAB called on the religious authorities entrusted with interpreting Islamic laws not to act alone, but to consult and include experts in other fields in the process. We strongly support this call. The public outcry over the banning of the KRU concert and the arrest of the three young beauty contestants, all justified in the name Islam, have subjected those in religious authority to criticism and ridicule. At the risk of making themselves increasingly irrelevant to the lives of the citizens, especially the younger generation, our ulama have to start rethinking their whole approach to religion. There is also an immediate need for the public, and our wakil rakyat in particular, to be educated to understand the difference between what is revealed and therefore divine and infallible and what is the result of human effort and therefore fallible and changeable. The opinion of the Mufti, or the Fatwa Council or the state religious authorities is merely a human effort in interpreting the limitless message of the Qur'an. It is therefore open to questioning, debate and discussion. 4. Legislating on Dress and Behaviour First, such a law has no basis in Islam. The Qur'anic discussion on dress centres on the principle of modesty, and not on how much material, what style, colour and shape one should have on one's body. The Qur'an indicates that modesty is a self-monitoring act that arises from our own God-consciousness. Others cannot impose that God-consciousness by coercing covering or uncovering. Sura an Nur 24:30-31 calls on both the believing men and women to lower their gaze and guard their modesty. Sura al-A'raf 7:26 states: "O children of Adam, indeed we have bestowed upon you from on high (the knowledge of making) garments to cover your nakedness, and as a thing of beauty; but the garment of taqwa is the best of all." For a fuller report on the Qur'anic discussion on dress and modesty, please refer to the SIS letter to the editor on the subject in Appendix 11. Second, freedom to choose is paramount in human creation and destiny. Sura Baqara 2:256 states, "Let there be no compulsion in religion." In his commentary, Abdullah Yusuf Ali said "religion depends upon faith and will, and these would be meaningless if induced by force." Yielding to coercion with an outward show of acceptance is not faith. As a matter of faith, dress should be left to the inner conviction ('iqnaa) of the believer. However, all too often, those in religious authority are more concerned with compliance than whether the believers are making a decision based on their inner faith in Allah. What results is compliance because of fear of the state and fear of Islam, not because of piety. Third, any law which attempts to regulate a citizen's life to the smallest detail is so wide in its impact that it becomes unenforceable. Such a law could only lead to selective prosecution and victimisation. Article 8 of the Federal Constitution provides that all citizens are equal before the law. Unless those in authority intend to turn this country into a state policed by thousands of guardians of public morality patrolling the streets, then any law that regulates the morality of citizens cannot be enforced fully and equally. This will only open those in religious authority to ridicule and derision as happened over the arrest of the three young women, followed by total inaction over the men who displayed their bare bodies in the Mr Malaysia contest so soon after. Much uncertainty prevails today. Many athletes fear that their sportswear which have been technically designed to promote proficiency in the sport could be deemed unislamic. Will women in swimsuits at the beach and public swimming pools be arrested? Will this dragnet extend to everyone, including members of the royal family? Or will only those who are powerless and marginalised, like factory girls and young women from small towns and villages seeking glamour and money in the big city be arrested? The record so far displays such biases. The JAIS action has also unleashed and legitimised a certain mindset – that individuals in the name of religion have a right to chastise or refuse service to women deemed inappropriately dressed. Young women have complained of harassment by security guards, refusal of service by government servants and public chastisement by male strangers in the streets for the way they dress. Because of their youth and fear of authority figures, these young women submitted in silence to the public humiliation and discrimination, but turned away from the experience, disenchanted and pessimistic about the future of the country. One positive outcome of this recent controversy has been the public outcry, expressed both in the Malay and the English language press. Many Malaysians, young and old, are opposed to the growing intolerance and overzealousness displayed by those in religious authority and in state and local governments who impose their obscurantist values on the rest of society. Should these same people now be given the power to define what is decent and indecent behaviour and dress in Islam? Fourth, if such a law is to be imposed nation-wide, what has been done to prepare the judicial arm of the syariah system to deal with the onslaught of cases? Or will the already slow-moving and understaffed syariah courts put on the back burner more urgent family law cases that they already cannot cope with, to concentrate on punishing citizens for indecent dressing and behaviour? The case of the three contestants displayed how swiftly and efficiently the system could work in enforcing the law and meting out punishment on matters of morality. Recommendations1. Introduce a federal syariah system to implement a single syariah law for the whole country. This is the ideal situation where religion would come under federal jurisdiction and the right to make laws on matters of religion would reside solely in Parliament, and not 13 State Legislative Assemblies. Malaysia is the only country in the Muslim world where each state has independent jurisdiction over religion leading to inconsistencies and contradictions in the provisions of the law, in interpretation and in implementation, state by state. These differences have enabled errant husbands to circumvent the law to their own advantage. This is particularly so in cases of polygamy. Irresponsible men have also been able to evade paying maintenance to their wives and children by moving to another jurisdiction. Because religion is a state matter, an order issued by the Syariah court of one state cannot be enforced in another state. These differences in law and jurisdiction have not served the cause of justice in Islam. The move to a federal syariah system, we understand, will not be an easy task. It will involve an amendment to Schedule 9, List 11, Item 1 of the Federal Constitution which would transfer state jurisdiction over religion to the federal list. It may also require the consent of the Conference of Rulers. However, the Government needs to get the support of only six of the nine Rulers for consent as the Conference takes its decision by a majority of the members voting. Should this fail, the Government may consider the use of Article 66 to amend the Federal Constitution. The adoption of one federal syariah system implementing a single Islamic law must remain a long term goal to be pursued. There must be one standard of Islamic justice for all the Muslim citizens of this country applied through a federal syariah court system, with a final court of appeal whose judgments would apply nationally. 2. The second best option, only as a short-term measure, is to have a uniform Islamic Family Law. This must, however, be accompanied with arrangements for reciprocal enforcement of syariah court judgments among all the states in the Federation. Without this corresponding move to extend enforcement across state boundaries, the injustice that women suffer under the administration of syariah law will not be addressed. We propose that the Federal Government invoke the power conferred upon Parliament under Article 76 (1)(b) of the Constitution which allows for Parliament to make laws with respect to any matter enumerated in the State List..."for the purpose of promoting uniformity of laws of two or more states." Article 76 (1)(b) was invoked in the formulation of the National Land Code, the National Forestry Act and the Local Governments Act. In the same manner, Parliament can pass legislation for a common Islamic law on various matters of religion for the whole Federation. But there are drawbacks to this approach:
One way to deal with the drawbacks is for the Government to advise the Yang dipertuan Agong to use his position as the head of the religion of islam in the Federal Territories of Kuala Lumpur and Labuan and in the states of Malacca, Penang, Sabah and Sarawak (Article 3(3)), and His Majesty's home state of Negeri Sembilan, to influence these five states and the two Federal Territories to adopt the uniform law passed by Parliament. To have seven states/territories enforcing a uniform law will create good precedence and momentum for others to eventually follow. This same procedure can be used to widen further the acceptance of the Joint Service (Islamic Affairs Officers) Act, 1997 which now applies to the Federal Territories of Kuala Lumpur and Labuan, and the states of Malacca, Negeri Sembilan, Penang and Selangor. 3. Introduce a Federal Syariah Court of Appeal which will be served by a panel of circuit judges, who will travel to the states to hear appeal cases and make judgments based on the syariah laws of each state. This will promote some uniformity in judgments, and eventually lead to the emergence of a common Islamic jurisprudence and standard of justice across the Federation. 4. Review the provisions of the Syariah Criminal Offences Law/Enactment, in particular those provisions that deny citizens their fundamental right to freedom of speech and expression, and provisions that overlap federal crimes, such as indecency. We also urge that the interpretations of the Qur'anic verses and the legitimacy and acceptability of the juristic opinions upon which the provisions were based be reviewed. 5. Parliament and each State Legislative Assembly should appoint a scrutiny committee on syariah legislation. Such a committee can appoint outside experts and call on members of the public to testify and comment on the proposed legislation. This will go a long way to help improve the substantive content of the bill and democratise the legislative process through shura. Parliament has formed such a committee in the past to include public participation in the final drafting of the Dangerous Drugs (Special Preventive Measures) Bill 1984, the Law Reform Marriage and Divorces Bill 1976, the Court of Adjudicature Amendment Bill 1968, the Criminal Procedure Code Amendment Bill, 1966 and Minor Offences Amendment Bill 1960. Given the political constraints and limited knowledge among many of our elected representatives on matters of religion, we strongly suggest that such a scrutiny committee be established. 6. Appoint representatives of women's groups in all policy and decision-. making religious institutions, councils and committees, including the Majlis Agama, the Syariah and Civil Laws Technical Committee, and the National Committee on Religious Affairs. For 1400 years as men interpreted the Qur'an for the ummah, the woman's voice, experience and realities had been silent and silenced. The participation of Malaysian women as full and equal partners in the country's socioeconomic development must also include their right to participate fully and equally in matters of religion. 7. Review and reform Islamic Family Laws and practices to ensure justice and protection of women's rights as envisaged in the model statute. The two memoranda submitted by Sisters in Islam, Association of Women Lawyers and NCWO should form a basis of the review and reform. Women's groups must be represented in this process. 8. Promote the interpretation of religious texts and the formal and informal teaching of Islam that reflect the spirit of justice and equality granted to women in the Qur'an, and that also take into consideration the changing role and status of women in the family and the community. These last three recommendations were already submitted to the Government by NCWO following its Post-Beijing National Conference in May 1996. Sisters in Islam supports YAB's call on the religious authorities to focus their future action on more critical and substantive issues such as the problems of incest, rape, domestic violence and drug addiction, instead of the way people dress. If we may add, too, the religious authorities must place as a priority the urgent need to address the numerous complaints women face in getting access to justice when they seek redress in the syariah courts following the breakdown of their marriages. Official statistics show that in cases of incest, rape, domestic violence, drug addiction, and HIV positive patients, Muslim Malay men form a disproportionate majority of perpetrators in all of these ills. This clearly indicates a problem in the attitude of many Malay men towards women and in their ability to exercise discipline and restraint over their base desires and instincts. The fact that religion has been used to justify a man's right to control women, to indulge his lust through polygamy, and to beat his wife reinforce the Malay man's belief that these so-called rights should never be curtailed or questioned. For to do so is to question the word of God. It therefore makes it all the more difficult for Malay women to stop the injustice they suffer at the hands of their male partners and family members, and of many of those in religious authority. The prurient obsession in looking at women as nothing more than sex objects means, for many men, that women need to be hidden and silenced lest they tempt men into evil wrongdoing. But Allah has commanded that men should lower their gaze and guard their modesty. If they are unable to do so, then it is they, not women who should be shrouded and kept behind four walls. Something must be wrong with a society and with the socialisation of men if it is believed that the solution to immorality lies in the control, segregation and confining of women. An approach that is prepared to punish and deprive one half of the population (women) for the wrong that may be committed by the other half (men) is reprehensible and illogical. The priority for the ulama in educating the community on religion, must be in changing such patriarchal attitudes which regard women as inferior to men and hold women largely responsible for the misbehaviour of men and ills of society. Such attitudes have no basis in the message of the Qur'an. If Malaysia aims to be a prosperous industrialised society by 2020, 50 per cent of our human resources cannot be denied equal opportunities to participatefully in public life. We thank you for your attention and enclose for your record a bound copy of the two Memoranda submitted earlier. Wassalam, |
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Copyright© 2000 SIS Forum (Malaysia) Sdn Bhd. All rights reserved. JKR No. 851, Jalan Dewan Bahasa, 50460 Kuala Lumpur, Malaysia. |
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