Friday, January 24, 2014

Storm in a teacup


Reflecting On The Law

Published: Thursday January 23, 2014 MYT 12:00:00 AM
Updated: Thursday January 23, 2014 MYT 2:52:46 PM
We need to sit down with humility and maturity at the table of fellowship for a dialogue.
ON Prophet Muhammad’s birthday it was heartening to hear the clarion call by the Yang di-Pertuan Agong, the Ruler of Negri Sembilan and the Raja Muda of Perak for accommodation and tolerance on issues of religion.
Their sentiments are in line with Islam’s recognition of religious pluralism and its affinity with Judaism and Christianity. It is said in Surah 29:46: “And say: We believe in that which has been revealed to us and revealed to you. And our God and your God is one; and we are Muslims [in submission] to Him.”
Abu Dawud reports that Prophet Muhammad once warned his people: “Whoever is cruel and hard on a non-Muslim minority, or curtails their rights, or burdens them with more than they can bear, or takes anything from them against their free will; I will complain against the person on the Day of Judgment.”
I wish that on the Kalimah Allah issue, a spirit of respectful dialogue with humility and maturity could replace the shrill voices of discord and threats that have characterised the debate in the last few weeks.
If we could calmly listen to each other and try to understand each other’s fears and suspicions, we could arrive at some broad agreements.
In fact, a middle path already exists in the assiduously arrived-at Ten-Point Agreement of April 2011.
We need to honour this solemn pact and do whatever is necessary legally and politically to overcome the obstacles that stand in the way. The obstacles are indeed many.
Exclusivity: Many Muslims are claiming that the word Allah is exclusive to Islam and for this reason its usage by others must be banned.
This argument is based purely on local laws and on local perceptions. It has no theological, etymological or global basis.
The term Allah precedes Chris­tianity and Islam and is widely employed by Arabs of all faiths.
The Guru Granth Sahib of the Sikhs uses the term 46 times! Christians in Indonesia and in Sabah and Sarawak have for centuries invoked the term Allah to refer to God. Having said that, it must be pointed out that the concept of Allah, as shaped by Islam for 1,435 years, is radically different from the concept of god in most denominations of Christianity.
Wounding religious feelings: In the theology of Islam, Allah cannot be depicted in any human form. Allah cannot be an aspect of the trinity of Father, Son and Holy Ghost. Allah does not beget and cannot be begotten (Surah 112:3). There is a clear distinction between God Almi­ghty and His many noble Prophets.
That being so, if it were to be preached publicly that Allah was born of Mother Mary; that Allah was born in the manger; that He was crucified and resurrected, this will blaspheme Islam and could be caught by Section 298 of the Penal Code. There will be implications for public order.
Proselytisation: I believe that the unspoken factor behind the Kalimah Allah dispute is the fear in some Muslim minds that Christian evangelical groups in peninsular Malaysia are using the word Allah to circumvent the restriction in Article 11(4) on converting Muslims. This suspicion must be addressed.
State laws: Article 11(4) authorises state assemblies to enact legislation to regulate the preaching of religion to Muslims. Ten states plus the Federal Territory have such laws in place. Till these laws are repealed or amended by the state authorities or nullified by the courts, their provisions will override the admirable 10-point solution.
I must add that some provisions of state laws enacted under Article 11(4) appear as unconstitutional as can be. The spirit of the Constitution in Article 11(4) is to forbid any att­empt to proselytise Muslims to other faiths.
Nine of the state laws resort to overkill by banning the usage of a number of Muslim or Arabic words without linking the usage to any attempt at proselytisation.
Even if the words are used in private, or to followers of one’s own faith, the usage is outlawed.
This appears unconstitutional. It would be useful to move the Federal Court for a ruling on this issue as to whether various state enactments under Article 11(4) are partly or wholly contrary to the Constitution.
State Rulers: Many state rulers, acting on advice, have relied on state enactments to issue edicts against the use of the word Allah by non-Muslims. However, questions of constitutionality of the legislation cannot be prevented from reaching the Federal Court.
Schedule 9, List 2, Para 1: The Constitution specifically asserts that Syariah courts have jurisdiction only over persons professing the religion of Islam. It is arguable therefore that Syariah authorities likewise have juri­s­diction only over Muslims. It is my submission that to the extent that state laws under Article 11(4) are addressed to non-Muslims, these laws are civil laws and are enforceable only by civil authorities in civil courts.
The Herald decision: The Court of Appeal decision contains sweeping statements that may adversely affect Sikhs, Christians of Sabah and Sara­wak and other parties that had no opportunity to submit their case before the court.
Hopefully, the Federal Court will confine The Herald decision to the facts of the case and to the parties involved. Hopefully all state laws under Article 11(4) will be interpre­ted narrowly to relate only to proselytisation.
There should be close examination of the Court of Appeal’s attempt to subordinate Article 11 (freedom of religion) to Article 3 (Islam). In this context, Article 3(4) should be taken note of: “Nothing in this Article derogates from any other provision of the constitution”.
A line of court decisions including the Halimatussaadiah and Herald cases imply that freedom of religion is restricted to essential and integral parts of the religion. Surely this is not so. Whatever is permitted, even if not mandated, is a fundamental right.
All in all, it is submitted that there is no issue that is so intractable that it cannot be resolved. We all need to sit down at the table of fellowship. I am encouraged by the Quranic inj­unction in Surah 29:46: “And do not argue with the People of the Scripture except in a way that is best.”
> Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.
~ The Star

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