By Shad Saleem Faruqi*
The Star
Nov 23, 2017
Doctrinal and cultural diversity existed in Muslim societies even in the days of Prophet Muhammad.
Over the last two weeks, several religious, political and administrative issues have surged up against the Constitution and merit legal scrutiny.
Questions have been raised about the constitutionality of the Malaysian Islamic Development Department (Jakim). It is suggested by some that the agency be dissolved because matters of Islam are solely under the control of individual Rulers and their Islamic departments, and Jakim should not meddle in state affairs.
There are two separate issues here – one, the constitutionality of Jakim; two, its meddling in state affairs.
The existence of Jakim and other federal Islamic agencies is not without legal basis if we bear in mind that the Yang di-Pertuan Agong is the Head of Islam in Malacca, Penang, Sabah, Sarawak, Kuala Lumpur, Labuan and Putrajaya.
For this purpose, Article 3(5) provides that “Parliament may by law make provisions for regulating Islamic religious affairs and for constituting a Council to advise the Yang di-Pertuan Agong in matters relating to the religion of Islam”.
One must also remember that under Schedule 9, List I, Para 4(k), the federal Parliament has the authority to ascertain Islamic law and other personal laws for all federal territories.
It is submitted that if the federal religious authorities are created by an Act of Parliament, then their constitutionality is unquestionable.
As to the issue of federal meddling in state religious affairs, this is the widespread perception and it wouldn’t be surprising if many Sultans were angered by it.
In the interest of federal-state comity, the Federal Government must rein in its religious officers, scrutinize their billion-ringgit budget and respect the original scheme of our Constitution.
The reported statement by Jakim director-general that “Jakim was the only entity capable of ensuring that Islam remains the religion of the federation”, is both sensationalist as well as highly disrespectful of the Yang di-Pertuan Agong, the Malay Rulers and their respective religious authorities.
Islam and cultural diversity: A March 28 booklet by the Malaysian Islamic Research Institute (IKSIM) argues that “secularism, liberalism and cultural diversity are elements that will undermine the Islamic agenda and destroy the country’s sovereignty”. The booklet also states that “although Malaysians can embrace other religious faiths, the country is not duty-bound to protect other religions”.
It is not possible here to discuss the open-endedness of the terms “secularism” and “liberalism”, but I am shocked to read that “cultural diversity” is seen by IKSIM as a threat to Islam and to our nation.
IKSIM’s views paint Islam as a despotic and intolerant religion. In fact, Islam is an intellectual and cultural mansion with many rooms.
Doctrinal and cultural diversity existed in Muslim societies even in the days of Prophet Muhammad.
For example, the Prophet’s Charter of Medina, negotiated and drafted in 622 AD, brought together the pagan Arabs, Christians, Jews and Muslims into a united, pluralistic and democratic community. The Charter guaranteed freedom of faith and conscience and cultural and legal autonomy to all religions and tribes.
The belief that we have no duty to protect other religions is both un-Islamic and un-Malaysian. Prophet Muhammad’s Charter to the Monks of St Catherine’s Monastery is a stirring affirmation of Islam’s respect for other faiths.
The Charter says: “Christians are my citizens; and by Allah! I hold out against anything that displeases them. No compulsion is to be on them. Neither are their judges to be removed from their jobs nor their monks from their monasteries. No one is to destroy a house of their religion, to damage it, or to carry anything from it to the Muslims’ houses…”
Supremacy of the Constitution: The IKSIM booklet challenges the supremacy of the Federal Constitution. It asserts that it is a “misperception” that Islam’s status is lower than that of the Constitution. It states, “The Constitution has stated clearly that Islam is the religion of the Federation and is therefore one of the country’s most supreme laws”.
Most respectfully, this is a revolutionary view of the place of Islam in the constitutional setup of the land.
Indeed, Islam has an exalted position under Article 3(1) as the religion of the Federation. However, IKSIM adroitly avoids or evades Article 3(4) which says that “nothing in this Article derogates from any other provision of this Constitution”.
Islamic principles and laws apply only in 24 areas (mostly of family law) permitted to the states under Schedule 9, List II, Para 1.
The syariah is not the litmus test of the legality of executive or legislative acts. No law or institution or procedure can be set aside simply on the ground that it is un-Islamic. For example, a mandatory death penalty law for drug trafficking cannot be nullified just because it is contrary to Islamic principles of criminal justice.
The litmus test of validity is the supreme Constitution. This is crystal clear in Articles 4(1) and 162(6) which permit the courts to invalidate any pre- or post-Medeka law if it contravenes the supreme Constitution.
The Constitution establishes a federal-state division of power. Crime is mostly in federal hands. Thus, the states do not have the power to punish Islamic crimes like murder or robbery if they are covered by federal law.
Syariah courts are created under state enactments but their jurisdiction to punish crimes and impose penalties is derived from and limited by federal law.
Enforcement authorities: IKSIM propounds the view that Islam does not come under the jurisdiction of any political power. According to it, religious enforcement authorities come under the patronage of the Sultans, not state governments. This is a remarkable vision of an autonomous, almost all-powerful, religious elite that is like a state within a state.
In sum, the IKSIM view of the place of Islam under the Constitution is purely aspirational and finds no support in the original scheme of things. Regrettably, the IKSIM document paints Islam as intolerant to other faiths and hostile to any intellectual or cultural diversity. This is not the Islam many of us love and respect.
*Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. The views expressed here are entirely the writer’s own.
