(I start a monthly column with The Malaysian Insider today. My column will appear on the first monday of each month. This is the first (I have made some minor changes since submitting it))
The Freedom To Be
In his seminal work, “Islam And The Secular State: Negotiating The Future Of Shari’a” (Harvard; 2008), the noted scholar Abdullahi Ahmed An-Naim observes that it is not possible for people of any society to keep their religious belief, commitments and concerns out of their political decisions and choices. He notes that the categories of understanding that people employ in their everyday life cannot neatly be parsed into the non-religious and the religious, an approach which has led to tensions and a spiral of mutual violence and destruction.
An-Naim as such propounds that it is both practical and healthy to recognise the role of religion and then regulate it as a source of guidance for political decision. This must however take place in the context of a secular state. An-Naim defines this as a state in which institutional separation between Islam and the state is maintained and the influence of religion in the public domain is open to negotiation, such negotiation being contingent upon the free exercise of the human agency of all citizens, Muslims and non-Muslims alike. Religion needs secularism, he argues, to mediate between different communities (religious and non-religious) as well as securing the legal and political space for religions to develop as they should. In this context, he observes that the safeguards of secularism, constitutionalism, human rights and citizenship are vital to set limits on the power of the majority and impede oppression.
The points An-Naim makes are of great relevance to us.
It is beyond question that Islam is closely linked to politics in this country with Malay-centric political parties PAS and UMNO making use of the religion for political advantage to their respective ends. For PAS, this has been portrayed as an advancing of its own ideological positions, centered on Islam as they are. UMNO on the other hand invokes Islam in aid of its Ketuanan Melayu ideology. In this, Islam has become political currency and a strategic weapon in the campaign against each other to the detriment of other political and civil society actors who have in any event been largely silenced by the stranglehold maintained by PAS and UMNO on Islam and Malay rights. The spectre of race riots and heavy-handed policing of anti-expression laws have stifled necessary and practical discussion of the very serious issues that arise and which affect all Malaysians.
The upshot is that both parties have ultimately positioned Malaysia as an Islamic state in one form or the other. UMNO continues to push boundaries on the application of Islamic law in an effort to showcase its Islamist credentials. Less circumspect and notwithstanding its membership of the Pakatan Rakyat, PAS insists in the face of constitutional limitations that the syariah must be the supreme law of the land, characterizing its demands for the same as being nothing more than allowing Muslims to fulfill their religious obligations. This has unfortunately given rise to tensions in various quarters.
The controversy over the implementation of hudud laws illustrates the foregoing. Under the Constitution as it is currently framed, it would not be possible for hudud and qisas law to be implemented at either the State or the Federal level. As it stands, the Constitution divides legislative power between the State Legislative Assemblies and Parliament. The power to enact criminal law is vested in Parliament with the State Legislative Assembly having only the limited power to enact offences against the precepts of Islam where such offences do not concern any of the matters within Parliament’s power to enact criminal law. These offences are only as against Muslims. Furthermore, the syariah court is limited to imposing a maximum sentence of three year jail or a fine of RM5,000 or six strokes of the whip or any combination thereof. It is obvious therefore that the State has no power to make hudud and qisas laws, which amongst others are punishable by amputation and stoning. This was the basis of Zaid Ibrahim’s legal challenge against Kelantan and Trengganu in 2003.
The constitutional scheme is not beyond PAS’ comprehension judging by its shift in rhetoric. The suggestion that hudud and qisas would now be introduced if the Pakatan Rakyat forms the Federal Government strongly suggests that PAS appreciates that criminal law is a matter for Parliament. It would nonetheless be impossible for PAS to replace the current criminal law system with a syariah based system without a constitutional amendment and an overhauling of the entire system of justice. The constitution as it stands allows for the enacting of criminal law that does not fall within the ambit of offences against the precepts of Islam or, put another way, neutral or secular criminal law. This is consistent with the guarantees of religious equality and harmony as well as individual autonomy under the Constitution that impede the imposition of religious based law on person of other or no faiths.
That PAS continues with its posturing nonetheless reflects the continued political value of the religious card, as does UMNO’s failure to reject the possibilities outright. In doing so, both have adopted a majoritarianism that in projecting Malaysia as a hybrid-Islamic state oppresses both Muslim and non-Muslim alike.
For non-Muslims, the public space for expression and discussion has been limited through discriminatory policies that are justified by reference to their aim of protecting Islam. The recent directive to cease publication of the Herald in the Malay language illustrates this as do a range of other policies or directives. The question must be asked whether Islam or even the Malays are in need of protection and, if so, from what. Islam is already protected under the Constitution and the legal framework, and ample provision has been made for Muslims to practice their faith.
For Muslims, the freedom and diversity provided for by the syariah have been obscured in the shadow of the monolithic Islam that authorities have been permitted to erect. Through laws and fatwas and denunciations, it has become such that only one type of Islam may be permitted, that type which the State defines and applies. This does not concern only the so-called deviationist types of Islam, the Ahmadiyah movement in Selangor being the latest target for a display of religious zeal on the part of the state; it equally pertains to the freedom to be a thinking and conscious Muslim. The banning of books and the recent yoga controversy epitomizes the status the Islamic administration has in this country and the detrimental impact this has had on the life of a Muslim. As An-Naim candidly observes, “As a Muslim. I need a secular state in order to live in accordance with the Shari’a out of my own genuine conviction and free choice, personally and in community with other Muslims, which is the only valid and legitimate way of being a Muslim.”
These trends are worrying, more so for their exploiting a tremendously weakened system that does not safeguard society as it is intended to. We must find the space that will allow each of us to be who we are in the way An-Naim suggests.
To do that, I believe that we do not have to look any further than the Constitution. The key elements of An-Naim’s model are provided for in this manner: it limits the administration of Islam to matters of personal law and in doing so mandates the neutrality of the public law system. It nonetheless allows for Islam to be developed fully through a separate system of personal law administration. The Constitution also guarantees the freedom of expression and association that allows entities such as PAS and ABIM to exert influence to the extent that they can, their views being counterbalanced by different views. These and other guarantees guarantee the free exercise of human agency.
If this system were permitted to achieve equilibrium as it once did, it would be possible to see a flourishing of Islam and the development of a truly just, compassionate and fair society for all. That is something one does not need the label of an Islamic state to attain.