G25 and Islam in a constitutional democracy

Tan Sri Mohd Sheriff Kassim of G25 on Saturday said Malays have a special responsibility to correct what was wrong in Malaysia.

He says they are responsible because they dominate high positions in our nation.

I will go further. They are responsible because they are the beneficiaries of a special provision in the Federal Constitution: the special position granted to Malays.
Thanks to Article 153, millions of Malays have moved from poverty to security.

Their special position, together with political contestation over their religion, Islam, so Umno could remain in office, is the reason they dominate high positions in government.

The G25, a group of prominent Malays, have taken the lead to acknowledge facts and fix things. In the year since they formed their association, they have made huge ripples.

They have published a comprehensive set of proposals to reform the financing of political parties and of elections. They have hosted consultations.

They have met the top echelons of society to make their case for change. They have published a collection of articles about Islam in Malaysia.

They also have taken on Islamic interpretation in Malaysia. Over the weekend, at a conference titled “Islam in a Constitutional Democracy,” they demonstrated this very powerfully. They did it mainly through experts in the law.

Professor Datuk Shad Saleem Faruqi, one of Malaysia’s foremost constitutional scholars, observed that what passed for Shariah law in Malaysia is “a fascinating mixture” of laws of the Shafie school of interpretation and Malay Adat.

He pointed out that the Shariah laws were originally called “Muslim law;” they were relabelled so they would appear more Islamic.

Shad also deftly diluted Dr Dzulkifli Ahmad’s assertions about Islamic law being divine. He did this by observing that all 13 states have divine laws which yet conflict with each other.

Several points which Shad made were also made by Associate Professor Azmi Sharom and lawyers Rosli Dahlan and Ng Heng Seng.

I will mention just two.

First, they noted that constitutional fidelity requires Shariah laws to be confined to 26 areas, focused on family and inheritance, mostly defined in “List II-State List” in the Ninth Schedule of the Federal Constitution.

The 26 areas do not include the banning of books, prevention of visits of foreign scholars, closure of Muslim-operated eateries during the month of Ramadan, banning non-Muslims from using Arabic or Malay words and punishing homosexuals.

Second, they noted the false impression of exalted status created by calling some courts Shariah High Courts. In truth, a civil magistrate’s court has greater sentencing power than a Shariah High Court.

The former can mete out maximum sentences of five years jail, RM 10,000 fine and 12 strokes of the cane (5:10:12), whereas for the latter the corresponding ratio is 3:5:6.

Retired Court of Appeal judge Justice Datuk Mohd Hishamuddin Yunus revealed much about the transgender cross-dressing case in Negri Sembilan over which he presided.

In a unanimous decision, Hishamuddin and his co-panelists Justices Datuk Aziah Ali and Datuk Lim Yee Lan, declared that section 66 of the Negri Sembilan Sharia Enactment 1992 was unconstitutional because it was discriminatory.

They agreed with the appellants that section 66 failed to recognise Gender Identity Disorder (GID) and that it discriminated against men, for the enactment contained no mirror clause for women – women who dressed like men could not be prosecuted, though men who dressed like men could be prosecuted.

The fascinating revelation is the difference between states in the Shariah Enactments concerning cross-dressing: in eight states, cross-dressing is prohibited only if done in order to engage in “immoral purposes;” another state (Malacca) exempts persons with GID.

The appellants did not argue that legislation concerning homosexuality is a Federal, civil, matter.

The speakers lamented the “Allah decision.”

In that decision, the Federal Court held that Article 3(1) of the Federal Constitution, “Islam is the religion of the federation,” takes precedence over the words immediately following it: “but other religions may be practised in peace and harmony in any part of the federation” – and thereby reduces the meaning of the latter words.

They left the audience in no doubt that the Allah decision made articles eight (Equality) and 11 (Freedom of religion) mere professions without substance.

Contrary to the normal understanding that fatwas are opinions, the veteran Umno politician, Tengku Razaleigh Hamzah, better known as Ku Li – who delivered the opening address – said fatwas issued by the National Fatwa Council are “authoritative rulings on points of Islamic law.”

He also made rather muddled remarks about increasing the autonomy of the states in matters of Islam, the need for “professional administration to manage the affairs of Islam” and the “trap of creating a religious bureaucracy which is what another faith of the book has got itself into.”

The conference succeeded in displaying the excesses of the framers of Shariah law in Malaysia and the blindness of the legislatures which turned those excesses into laws.

I wish the G25 success in restoring our Constitution as the supreme law of our nation. – December 10, 2015.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.