Originally published at Rapera.
Dr Mohd Asri’s recent debacle with Jais has raised very pertinent questions for the Nation as a whole. Initially reports seem to suggest that his dramatic arrest (there were almost 30 police personnel and Jais officers) concerns him delivering a lecture on Islam without a “tauliah”. For all practical purposes, a “tauliah” will denote permission from the relevant religious authorities to lecture on “matters Islamic”. This need for permission from religious authorities before someone can speak on Islamic matters raises serious issues.
1. Firstly, the impact on an ordinary Muslim’s right and duty to share and exchange views on Islam. It is every Muslim’s duty to call people towards the performance of good deeds and the avoidance of evil deeds. This duty will necessarily involve a Muslim speaking from his Muslim perspective and from his understanding of the Quran and Sunnah. It will appear from the arrest of a former Mufti for purportedly giving his views on Islamic issues that prior permission must be obtained from the religious authority before any Muslim wants to express his views on Islam. There is now this confusion and concern among the Muslims in the country.
The ordinary Muslim is not aware that there is a need to obtain prior permission from the religious authorities before they can share their views on Islam or engage in a discussion on Islamic issues. If indeed this permission is required under the State syariah laws, several other questions may arise. What are the criteria of approval or is it merely arbitrary? Who decides the criteria on behalf of the millions of Muslims in this country? Will this impinge on the Muslim’s duty to practice his Muslim obligations without fear or favour? If at all the Muslims in this country feel that there must be control over the Muslim’s right of expression, then surely there must clear and publicized set of guidelines/rules?
2. Secondly, it also raises concerns whether academics, bloggers, columnists and such will now be subjected to the requirement that they must first obtain prior approval from the religious authorities before they can express their views and thoughts. Again, one needs to consider whether such a requirement will in the long run stifle academic and intellectual development in Islamic thought since the ones who are going to determine whether permission should be granted or not are paid civil servants. There is also the issue of mazhab preference and issue-centric preference. What will happen if the “approval person” of the day is not inclined to the thoughts of a particular mazhab? This will result in the general public not benefiting from the knowledge.
3. As a result of point (2) above, we have to seriously consider the impact on the growth and development of Islamic thought in the country. It is a real possibility that control over the expression and discussion of diverse views on Islam will lead to the existence of only one mode of thinking and state of mind which need not necessarily be consonant with the principles of the Quran and the Sunnah. If laws and state apparatus are used to control the ordinary Muslim’s mind, then who is to question whether what is stated is indeed consistent with the Quran and the Sunnah? Under such a regime, any sincere effort to invite alternative thinking and to consider alternative interpretations will become a state offence.
4. Thirdly, one has to ask what is the role of the Federal Constitution in all this. Article 10 (1) of the Federal Constitution guarantees freedom of speech and expression to all the citizens subject only to such restrictions as Parliament may pass pursuant to Article 10(2). It is arguable that requiring a Muslim to seek permission from the State before he can speak or write on his own religion is an infringement of his constitutional rights so long as they do not offend the provisions under Article 10 (2).
5. Fourthly, Article 11 (1) guarantees that, subject to clause (4), every citizen has the right to practice and profess his religion. Surely this right must also extend to the Muslim citizen to profess and practice his religion. Surely the Muslim also has equal protection (Article 8) and rights under the law as the non-Muslims? However, while the non-Muslim does not have to seek prior approval to organize talks or seminars with regards to his religion, the Muslim citizen appears to have this added hurdle to cross in order to exercise his rights under Article 10 and Article 11 (1). Is this constitutional? Is this legal? I will not ask the question if this hurdle is consistent with the Quran since it is not (my humble view – stand to be corrected).
6. Fifthly, this Dr Asri episode also requires us to visit and understand article 11 (4) of the Federal Constitution. Art 11 (4) provides that state and federal laws may control or restrict the propagation of any religious beliefs or doctrines among persons professing the religion of Islam. All this while, many lawyers I have spoken to have usually interpreted this to refer to the propagation of other religions to Muslims. However, the word used in the constitution is “any” religion and in the “Islamic world” there are diverse views even though the basic belief is the same. Hence, on these two facts coupled with Dr Asri’s episode, will it not be correct to say that Article 11 (4) may be interpreted to mean that even a Muslim may be restricted to propagate Islamic doctrines and beliefs to another Muslim or group of Muslims? Possibly the “correct” interpretation is that only authorized persons can propagate “Islamic beliefs and doctrines” to Muslims citizens. In other words, “state determined Islam” which will therefore be largely dependant on “who (person/individuals) is the real ‘state’ at the particular time”. Mind boggling? Yes, this is what happens when you legislate faith!
I welcome comments on the above article as I think it has immense far reaching implications not only on the issues of law but also on the position of the Muslim as being a servant of Allah.
Tags: Article 10, Article 11, Article 8, Democracy, Dr MAZA, Dr Mohd Asri, Expression, Federal Constitution, freedom of thought, Islam, Islamic world, JAIS, legislating faith, Religious Authorities, religious propagation, state control of religion, Syariah, tauliah
Jabar tries to walk with God. He has been active in advancing social, national unity and human rights issues for years. He wears many hats and is ever willing to work with any group that promotes the general welfare of Malaysians without any partisan boundaries. Apart from having a busy practice with Messrs Jahaberdeen & Co, he has been active in the various Bar Council committees over the years such the Human Rights Committee, the Syariah Law Committee and the Corporate and Conveyancing Law Committee. He has been passionate in promoting the humanistic face of Islam, and blogs regularly at jahamy.blogspot.com and jahaberdeen.blogspot.com. He thought he could escape the LoyarBurok pull, but instead found himself sucked into larger movements like SABM and UndiMsia!
Posted on 5 November 2009. You can follow any responses to this entry through the RSS 2.0.
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