Sajakkini

Salbiah Ahmad

Being away for most of last month, I was spared the predictable commotion to the Federal Territory Islamic Affairs Department (Jawi) raid on Zouk in Kuala Lumpur. I read the reports and responses online last week and then hopped on to the Inter Faith Commission (IFC) conference last week. This is a civil society initiative facilitated by the Bar Council.

On the morning of Feb 27, a SMS alerted me to a New Sunday Times front-page report that Prime Minister Abdullah Ahmad Badawi is opposed to the setting up of the IFC. I am most surprised at this reaction. But Pak Lah was not there to appreciate the professionalism of the facilitators and experience the fellowship that the conference generated.

The Star Online offered another angle. It reported that the premier at a launch of a Proton plant spoke to reporters that IFC idea be placed on hold to study the “objections against the formation of the commission”. That report was more redeeming of the premier.

It would be most unfortunate for the premier to be perceived as pre-empting the civil society initiative. I doubt that the steering committee of the IFC, chaired by lawyer Malik Imtiaz Sarwar, had the chance to meet the premier to convey the aspirations of the IFC participants, the conference having ended last Friday.

SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of ‘Malaya’ in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes o­n the process of reclaiming the many facets of independence.

The premier appeared to make a preference for inter-faith relations through dialogue over the establishment of the IFC. With due respect, I really do not see how the formation of the IFC would put a stop to inter-faith dialogue.

The IFC is in fact, an aspect of an inter-faith dialogue. We can draw a parallel from the Human Rights Commission of Malaysia (Suhakam). Just because a matter is sent to Suhakam for mediation does not prevent the public from deliberating or expressing their concerns on the issue.

The IFC, much like Suhakam operates at another level of dialogue. The procedures to the IFC are yet to be developed and there is no bar at the present time, to think through them. I would think that the IFC may for example, receive any number of representations on any matter relevant to the IFC’s concerns.

Respect and understanding

The participants to the IFC conference are not ‘agitators’. We are well aware of the possibility of a long period of gestation for the IFC. In that time, I would imagine that we need to continue the conversations with our constituencies in fostering respect, understanding and peace.

But I do not want to pre-empt the work of the steering committee of the IFC, who are entrusted by the conference to work the steps to realise the common vision. I am sharing my views of the IFC as a participant at the conference and as a response to Pak Lah’s initial reaction.

On another note, it so happened that the IFC conference was convened at the tail-end of what appeared a month-long controversy relating to claims of irregularities in the arrests/detention of a 100 Muslim youths by Jawi on Jan 20. This incident perhaps heightened the ambivalence of some parties towards the IFC conference.

I am at this late stage, reluctant to put my two sen worth to the so-called ‘Jawi raid’. I do wonder if yet another response would make any difference. One can only try, again.

I had made an earlier reference to the predictability of responses to an incident of this nature. If I may provide a summary, these are as follows:

1. Blaming the enforcers (for doing their statutory tasks) and/or alleging the ‘irregular’ use of statutory powers and/or for selective enforcement

2. Blaming those who lay blame on the enforcers, as preventors of the application of Syariah over Muslims
3. Disputes on the authenticity or basis of the particular legislation in the Qur’an and Sunnah and/or ‘authority’ of the speaker
4. Calls for law reform (there is little clarity on whether this call relates to the substantive law in question or procedure for enforcement or voting out the legislature in the next general election)
5. An assumption that speakers mean the same thing when they refer to Syariah and state legislation
6. Whether morals should be enforced by law or the family (despite the law in the statute book)
7. Lack of clarity when references are made to ‘secularism’ in the context of religion, more particularly, Islam
8. PAS, more than Umno claiming to be protectors of Islam (Umno is the underdog as most of these laws are BN sponsored laws. Any ‘detractors’ to the legislation in dispute are often perceived as ‘inauthentic’ Muslims).

The reader may well add to the list. Ending at point eight is purely arbitrary.

Adequate response

I do not propose in this small column to try working an adequate response to the matter before us. I think much of that ‘adequate response’ as I call it, is actually a work in progress, in which case some kind of engagement is required beyond the occasional column.

Prof Michael J Perry of the University of Emory Law School, recently sent me an article by David Glenn entitled ‘Who owns Islamic Law?’ It is useful here to share some concerns in that article in relation to the predicament here.

Khaled Abou el Fadl (law/UCLA, USA) contests that ijtihad (in this context, the term may be understood as interpretation) is open to all and sundry. He was quoted as saying, “This kind of thing is why there is such a vacuum of authority. This is why we have people like (Osama) bin Laden going around claiming to be Islamic.”

There must be real effort to study classical Arabic and study the texts. El Fadl views the notion of ijtihad for all (‘popular ijtihad’) as extremely ill-disciplined.

Other scholars perceive el Fadl’s view of ijtihad as elitist. Muqtedar Khan (political science/Adrian College, USA), for example claims that el Fadl’s model of jurisprudence “allows the intellectual colonialism of Islamic legalism - its tendency to engulf and marginalise other fields of study - to subvert (the) quest for an Islamic democracy”.

There is a middle ground offered by Mattson (Hartford Seminary, USA). Ms Mattson suggests that the role of scholars and legal specialists, “is simply to point out when certain boundaries are being crossed. Not to dictate the process of ijtihad, but to monitor it in a way that is helpful and supportive of the development of society”.

I must say that these discussions and disputations have been around for the 10 years and more of my own involvement on issues of reformation. The pertinent question is not whether anything has changed. In fact these issues remain contested among scholars and policy makers.

I do not, however, believe that we are going around in circles. At this point we have to make a choice for purposes of policy and implementation. There is an compelling need to direct our course.

Islam in the public sphere

One important theoretical point in that article relates to yet another “contested relationship” between Islam and the public sphere. Abdullah Ahmed An Naim’s recent project on the ‘Future of the Shariah project’ is extremely useful as a frame of reference. I have introduced his concerns elsewhere in previous columns.

I have not however seen any serious engagement of our policy makers on this point of Islam in the public sphere. There may be claims by politicians and their religious advisors of referencing the point, but in my view the discussion (or the official response in the media to incidents like the Jawi raid) does not appear to be informed.

I would like the policy makers and religious advisers to Umno, like Ikim (a ‘government’ body set up under Mahathir’s islamisation agenda) for instance to explain why riba (usury) is not criminalised under state law but left as an option to Muslims. It was important for the government’s ‘islamist developmental state’ concept not to outlaw usury and cripple the banking system.

Why then, do we legislate for morality crimes like ‘indecent behaviour’? It can be argued that accepting usury is immoral. Why do we not leave the issue of behaviour to the Muslim conscience and not compel obedience by law?

Why do we place trust on the Muslim conscience for usury and not for ‘indecent behaviour’? (By the way, I do not think PAS (or even Parti Keadilan Rakyat) has a coherent informed response on this point either. And I am not interested in the pedantic ‘kafir-mengkafir-munafiq-inauthentic Muslim’ response).

Will Pak Lah’s Islam Hadhari elicit a decent response? According to Jeff Ooi’s Screenshots, the Islam Hadhari website is still under construction.

These and related issues relate to a wider concern which An Naim refers to as the “European positivists approach to law and (the) totalitarian Marxist view of the state”.

That is, we seek to enforce Syariah principles through the coercive power of the state, not the moral authority of the religious doctrine, “and to control the state in order to transform society on their own terms, instead of accepting the free choices of persons and communities”.

I may in due course try to expand on these ideas. Every new predicament does not necessarily require a whole new response. It’s just that we have not knocked the kinks in whatever theory or framework we have (do we have one?), from which to draw our policy and implementation.

References

1) David Glenn (2005), ‘Who owns Islamic law?’, The Chronicle of Higher Education. http://chronicle.com. Section: Research & Publishing. Vol. 51. Issue 25. Page A14

2) Abdullahi A. An Naim (2005 February update), Concept paper for current research project on Secularism from an Islamic Perspective.

Let’s be civil about religion