Is the common Malaysian Muslim’s faith easily swayed? Are Malaysian Muslims not very intelligent so as to cause the merest deviant teaching to create ‘division within the community’? Have the authorities, and our Courts, have no faith in the Malaysian Muslim’s resiliency of faith? A consideration of the case of Fathul Bari Mat Jahya & Anor v Majlis Agama Islam Negeri Sembilan & Ors
Fathul Bari Mat Jahya gave a religious talk on Islam on 28 February 2010 in Kuala Pilah out of his house to non-family members. He was arrested and charged for doing this by the Negeri Sembilan State Religious Authorities. A second person was arrested and charged for aiding and abetting him.
What’s wrong with that?
Under section 53(1) of the Syariah Criminal Enactment (Negeri Sembilan) 1992 a Muslim is only allowed to teach Islam to his family members at his residence only. If he wants to teach Islam to any other person or out of his house, he needs a tauliah issued by the Tauliah Committee. A person who guilty of the Provision can be sentenced to a fine not exceeding RM 3,000, or imprisonment not more than 2 years, or both. This will be referred to as ‘the Provision’.
A tauliah is akin to an accreditation and licence. The Tauliah Committee is comprised of the Mufti, who acts as the Chairman and between 3 to 7 others who are supposed to have the appropriate experience, knowledge and expertise in Islamic matters.
Fathul Bari didn’t have a tauliah when he gave the talk.
What’s the case about?
Fathul Bari filed a civil proceeding to challenge the constitutionality of the Provision on 2 grounds. He says:
What was Fathul Bari’s argument?
Fathul Bari argued that the Provision breached Article 74(2) of the Federal Constitution, which states that a State in Malaysia can make laws for matters contained in the 2nd List of the 9th Schedule or the Concurrent List of the Federal Constitution. For the purpose of this case only the 2nd List of the 9th Schedule is relevant. It is known as the ‘State List’ because it sets out what laws a State Legislature may make.
A State generally cannot make a law about an matter not stated in it. It cannot, for example, make a law about matter stated in the 1st List of the 9th Schedule which contains matters Parliament can make such as pertaining to the defence of the nation like the National Service Training Act 2003.
More importantly he also argued that the Provision breached Item 1 of the State List, which gives power to the State Legislature to make laws with regards to the ‘creation and punishment of offences by persons professing the religion of Islam against precepts of that religion.’
Fathul Bari argued that requiring a tauliah to teach Islam is not an offence against the precepts of Islam. He contended there is no such offence in Islam. The State Legislature therefore does not have the power to create such an offence because it does not come under Item 1 of the State List.
What did the court decide?
The court first considered what a ‘precept of Islam’ meant. It did this by referring to an earlier Federal Court decision of Sulaiman Takrib v Kerajaan Negeri Terengganu; Kerajaan Malaysia (Intervener) & Other Cases  2 CLJ 54. This case decided that a ‘precept of Islam’ is derived from the Qur’an and Sunnah, and covers 3 main area: belief (‘aqidah’), law (‘shari’ah’) and morality (‘akhlak’).
The court then considered conflicting opinions from:
The court took the view that despite their differences both opinions agreed on a need for the teaching of Islam to be regulated to prevent deviant teachings. The tauliah is therefore an appropriate mechanism to achieve this purpose. Only a person qualified to teach should be allowed to do so.
The court said that when deciding what was considered as a precept of Islam, a wide and liberal interpretation should be applied. It declared that the purpose of the Provision was clearly to protect the integrity of the belief, law and morality, which together make up the precepts of Islam. A deviant teaching is against the precept of Islam so by implication the teaching of Islam without a tauliah is an offence against the precepts of Islam.
The court decided that the Provision was made pursuant to public interest not simply to prevent deviant teachings but to maintain order and prevent division within the Islamic community. It opined that ‘it is necessary in this day and age for the authority to regulate the teachings or preachings of the religion in order to control, if not eliminate, deviant teachings. The integrity of the religion needs to be safeguarded at all costs.’
The court said that Fathul Bari’s arguments are ‘devoid of any merit’ and dismissed his case.
What is the effect of the decision?
Firstly, a tauliah is required by anyone who wishes to teach Islam to someone not part of his family and outside of his home. What he can teach is regulated by the State Islamic Authority.
Secondly, any Syariah enactment created by a State that regulates the belief, law or morality of Muslims will be valid. The State has the power to make such laws and it is within the scope of its power under the Federal Constitution.
Thirdly, any future interpretations by the court about what is to considered a precept of Islam should be given a wide and liberal interpretation. If a matter is somehow related to the belief, law or morality of Muslims, it should be considered as a precept of Islam.
Fourthly, obedience to a direction by a State Islamic Authority is considered a precept of Islam and it is obligatory for Muslims to follow it.
Fifthly, a Muslim is not supposed to have their own ideas about Islam. They must abide by a State Islamic Authority’s outlook and ideas about Islam because the court thinks that a difference in opinion about Islam would lead to a division within the Malay Muslim community.
What can be said of this decision?
The logic of the Federal Court is flawed on the issue of tauliah being a suitable form of control to prevent deviant teaching and maintaining order and division within the Islamic community for the following reasons:
The Federal Court also appears to take a uncritical and simplistic view on the interpretation of ‘precepts of Islam’. It makes no attempt to explore its scope and constituents.
Aside from that how the Federal Court decision was disappointing for the following reasons:
The decision is also disappointing because of the following impact it will have on the social, cultural, political and spiritual landscape:
The case however leaves it open for Malaysian Muslims to challenge State Syariah enactments to test and ensure that laws passed for Muslims by any State Islamic Authority are consistent with the fundamental liberties provided for in the Federal Constitution. Where it relates to this case, it is still open to test whether the Provision is constitutional in view of the right to freedom of expression (Article 10(1)(a) of the Federal Constitution) and the right to freedom of belief (Article 11(1) of the Federal Constitution).
Decision by a Federal Court Bench comprised of Arifin Zakaria CJ, Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong FCJ, Suriyadi Halim Omar FCJ and Hasan Lah FCJ
Written Judgment prepared by Arifin Zakaria CJ,dated 30 May 2012
Tags: 1st List of the 9th Schedule, Abdull Hamid Embong, akhlak, aqidah, Arifin Zakaria (Chief Judge Malaya), Article 74(2), Fahri Azzat, Fathul Bari Mat Jahya, Federal Constitution, Federal Court, Hasan Lah FCJ, Islam, jurisdiction, Kerajaan Malaysia (Intervener) & Other Cases, Kuala Pilah, mufti, National Service Training Act 2003, Negeri Sembilan, Quran, Ramadhan, Shahadah, Shari'ah, State legislature, State List, State religious authorities, Sulaiman Takrib v Kerajaan Negeri Terengganu, Sunnah, Suriyadi Halim Omar FCJ, syariah court, Syariah Criminal Enactment, Syariah Legal Adviser, tauliah, Tauliah Committee, Ulil Amri, Zulkefli Ahmad Makinuddin FCJ
Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.
Posted on 3 August 2012. You can follow any responses to this entry through the RSS 2.0.
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