Kassim Ahmad: Hudud Law, Again!


July 3, 2015

Please note that this article appeared in this blog sometime ago, March 23, 2015 to be exact. It is worth repeating since it explains hudud law clearly. Najib and Hadi should read it and stop playing political games with this matter.–Din Merican

Kassim Ahmad: Hudud Law, Again!

Human history is littered with errors that came to be accepted later as “facts”. We are not talking of small errors. We are talking of big ones. That explains the rise and fall of nations. One author has described this historical evolution as “recurring, multilinear, yet ascending.” That means on the whole we are progressing, but the line of progress is not ascending linear, but multilinear, sometimes ascending, sometimes descending.–Kassim  Ahmad

Kassim Ahmad on Hudud LawSome Muslims pride themselves for upholding what is called the hudud punishments. Do they really know what they are talking about? They think it is God-ordained law. Are they right?

They should remember the lessons of history. Did the Jewish Prophet Moses bring the religion of what is now known as Judaism? The answer is: No. Did Prophet Jesus, also a Jew, bring the religion of what is now known as Christianity? Again the answer is: No. Did Prophet Muhammad, an Arab, bring the religion of Sunnism and Shi’ism? Again the answer is: No.

Human history is littered with errors that came to be accepted later as “facts”. We are not talking of small errors. We are talking of big ones. That explains the rise and fall of nations. One author has described this historical evolution as “recurring, multilinear, yet ascending.” That means on the whole we are progressing, but the line of progress is not ascending linear, but multilinear, sometimes ascending, sometimes descending.

Hashim_kamaliLet me cite just one authority, Professor  Mohammad Hashim Kamali. This paragraph is taken from his book, Punishment in Islamic Law: An Inquiry into the Hudud Bill in Kelantan (Kuala Lumpur: 2000) is very telling: “When we compare the Quranic usage of hadd (in the sense of limit) with the use of this term in fiqh, we notice that a basic development has taken place, which is that the term hadd has been reserved to signify a fixed and unchallengeable punishment that is laid down in the Quran or Sunnah. The concept of the ‘separating or preventing limit’ of the Quran is thereby replaced by the idea of fixed punishment.” (p. 46)

There you have another example of a major error made by great scholar.The term hududu’l-Lah (God’s boundaries) occurs in the Quran 14 times, none of which refer to fixed punishments, as understood by some Muslim jurists. One scholar opined that, “The unchangeability of the hadd punishment is supported by the interpretation of the Quranic verse: ‘These are the limits of Allah. Do not transgress them.’” (2: 229) The verse does not actually mean what he says it means.s. That is precisely why the Quran warns us of idolizing leaders or scholars. We could be kind if we choose to pardon them by saying that it was their understanding, or their ijtihad, which must be reviewed by the next generation.

Let us take some of the so-called hudud punishments. Cutting of the head for apostasy, when the Quran advocates complete freedom of belief, some 1,400 years ahead of the Universal Declaration of Human Rights.  Take note also that the divine order to our courts is to judge among people with justice. (See Quran, 4: 58) Surely God Who decrees upon Himself mercy (Quran, 6: 12) cannot enact such archaic and barbarous laws.n Rights; stoning for adultery, cutting of the hand for theft are three of the six or seven of the so-called fixed punishments propounded by Muslim jurists.Take note these run  the Hudud punishments contrary to the teachings of the Quran.

The term ‘hudud’ul-Lah’, meaning the boundaries of God, simply means in every action there is a boundary that one should not overpass. Take the case of eating: one must eat to survive, but he must not overeat. In between there is a boundary set by God that he should not cross. As in the case of eating, so in all cases of human activities. It is sometime called ‘The Golden Mean’, the middle cause.

See how even great scholars have made mistakes. That is precisely the reason why God warns us of idolizing leaders. It is incumbent upon succeeding generations to re-evaluate the legacies they inherit from the older generations.

It is to be remembered that Muslim jurists of the four schools differ much in their views. We need not go into them. We should take note that these punishments are taken from the Torah. They crept into the so-called sunnah/hadith, or Prophetic traditions, that is, traditions ascribed to Prophet Muhammad. Muhammad’s name is so great among Muslims that anything said to originate from him is sacrosanct.

We should also note that the Quran has two dimensions, the historically-bound, and the universal. The historically-bound will be surpassed when the historical context no longer prevails. They will pass over into the universal. The two universal principles are: equal punishment, and merciful punishment. The first means punishment equalling the crime, and the second means lightening the punishment, up to and including pardon. We can see that the two universal principles have been imbibed into all modern civilized societies.

Take not that Brunei has last year declared that it would implement Hudud punishments, with the exception, according to reports, that Brunei royalty is exempt from them.

The final and unchallengeable proof that there is no such thing as the hudud fixed punishments is that they are nowhere mentioned in the Medina Charter promulgated by Prophet Muhammad himself when he migrated to Medina.

KASSIM AHMAD is a Malaysian freelance writer. His website is http://www.kassimahmad.blogspot.com

We Are Malay-Muslims, so we can do as we please


July 3, 2015

COMMENT: This article  by lawyer Syahredzan Johan on the entitlement of Malay-Muslims isdr-ahmad-farouk-and-din-merican being shared widely on social media.The article originally appeared on LoyarBuruk’s website in 2012. It was translated into Malay in 2013. And this is still relevant today.

We are too full ourselves that we expect non-Muslims not too eat during fasting day. We Malay-Muslims have become “holier than thou” bigots with an entitlement mentality that defies common consideration for Malaysians who are not Muslims. My generation of Muslims were taught differently. We do not wear Islam on our sleeves. Yes, we fast and respect the month of Ramadan with special prayers and read the Holy Quran. At the same time, we never prevented others from eating during the day in Ramadan since they are not Muslims.

We uphold the constitution under which Malaysians have equal rights.Unfortunately under Najib and his predecessors (Mahathir and Badawi) who play the politics with Islam and race, Malay-Muslims are made to feel special and exceptional. That gives us the ground to trample on the rights of Malaysians of other faiths. Our leaders pander to the whims and fancies of ulamas like Perak’s Harussani and Hadi Awang,  religious functionairies in JAKIM and JAWI and so-called intellectuals like Ridhuan Tee Abdullah and other self appointed interpreters of Islam .

Let us accept that we are not exceptional people; in fact, today we are a lost generation with inferiority complex; we are unable to think for ourselves or decide between what is right and wrong. We allow ourselves to be misled led by ulamas with warped minds who use Islam as an instrument to promote a kind of mullahism. We must learn to be exemplary Muslims who respect the dignity of difference.  –Din Merican.

We Are Malay-Muslims, so we can do as we please

by Syahredzan Johan

Syahredzan Johan

So you are fasting. The sun is bearing down on you, your stomach is growling and your throat is parched. It is only 12.30 in the afternoon; you still have hours to go before you may break your fast. All of a sudden, a non-Muslim person appears before you, enjoying an icy cold can of your favourite cola. He looks like he is savouring the cola. You could imagine the sensation of that very same cola filling your throat with diabetes-inducing caffeine goodness. So you flare up. How dare this person drink in front of you? Does he have no respect for the holy month of Ramadan, to be wantonly quenching his thirst in full view of Muslims? Does he not know that Muslims form the majority of this country and therefore must be respected?

This is the basic premise prevalent amongst many Malay-Muslims in this country. Muslims form the majority and therefore they are entitled to be respected. Malay-Muslim sensitivities must not be offended; the Malay-Muslim public must be protected from harm, confusion and many other bad and insidious things that may threaten the ummah. In recent times, these deep rooted sentiments are brought to the fore by opportunistic politicians. Thus it appeared as if Malay-Muslims have become more and more intolerant of minorities.

Malay-Muslims are entitled not to have a Hindu temple in the vicinity of their housing estate. Malay-Muslims are entitled to dictate what names others may use to invoke the Creator. Malay-Muslims are entitled to stop the sale of alcohol beverages and deny the establishment of a cinema in Malay majority areas.

Every Friday, Malay-Muslims are entitled to abandon their civic consciousness and park all over the place as if the streets belong to them. Malays-Muslims are entitled to blare religious ceramahs to every corner of the neighbourhood and into the wee hours of the night.

The Prime Minister must be Malay-Muslim, the civil service must be filled with Malay-Muslims and government bodies are seen as Malay institutions, tasked first and foremost to safeguard Malay and Muslim interests.

This premise of entitlement has also been used to justify the persecution and discrimination against sexual and religious minorities, purportedly because Article 3 provides that Islam is the religion of the Federation. So we say that LBGTs do not enjoy protection of the Constitution because their sexual orientations are against Islam, although we conveniently forget that other things, like gambling, are also forbidden in Islam but are still legal in this country. Books are seized and banned and fatwas are made absolute. In a recent decision, the Federal Court went so far to say that the integrity of the religion needs to be safeguarded at all costs. Does ‘at all costs’ include the supremacy of the Federal Constitution as the highest law of the land?

Make no mistake, this is not about Islam. It is about how we justify the discrimination, persecution and blatant disregard for fundamental liberties, all in the name of religion. It is how we view and treat others as inferior to us because we believe that we are entitled to do so. We permit transgressions because we labour under this presumption that Malay-Muslims, by virtue of being Malays and Muslims, are entitled to the best of the country as they occupy a higher standing than the rest of the rakyat out there.

There is no legal or constitutional basis for this. Article 3 does not make Malaysia an Islamic state and Article 4 expressly provides that the Federal Constitution is the supreme law of the land.  Article 8 provides that every citizen is equal before the law and enjoys equal protection of the law. The oft quoted Article 153 does not make Malay-Muslims superior in law or fact, it only provides for the reservation of quotas for Malays and natives of Sabah and Sarawak in certain matters.

So what if Muslims are the majority? We have such a flawed understanding of democracy; as if in a democracy, the rights of minorities are inferior to the rights of the majority. That is why we have a Constitution, which protects and guarantees the fundamental liberties of citizens from the tyranny of the majority.

We find ourselves up in arms at the fate of Muslims minorities in other countries like Thailand, Philippines, Myanmar and China.  We invoke freedom of religion when we hear of minarets being banned in Switzerland or burqas being banned in France. But if the rights of Muslim minorities should be protected in the face of the majority, why is it that we do not have the same vigour to protect the rights our non-Muslim minorities? Why must the rights of others here only be exercised if we deem those rights as exercisable?

So before you take offence at someone who is drinking in front of you while you are fasting, take a step back and think of your religion. Put aside your sense of entitlement and think; just because you are fasting, does it mean that everyone else around you must stow away their food and drinks?

Remember what Islam has instilled in you, not what Muslims have told you.

Malaysia at the edges of religious fanaticism with Hudud


July 2, 2015

Malaysia at the edges of religious fanaticism with Hudud.

by Markus Russin

http://www.asiasentinel.com/opinion/threat-islamic-law-malaysia/

Political expediency may deliver up harsh punishments that nobody wants except politicians

The political debate in Malaysia appears to be trapped in menace as the specter of Kelantan’s barbaric hudud law, which advocates 7th-century punishments including amputation for theft and stoning to death for adultery, among others, continues to loom over the country.

Najib and Hadi-The HudsNajib courts disaster with Hudud

A paper by the Malaysian Islamic Development Department, known as JAKIM, that was discussed on The Malay Mail Online a few weeks ago has further aggravated the already tense situation by stating that the highly controversial law, if implemented at the national level, should apply to all citizens of Malaysia regardless of religion and in spite of the fact that hudud must never exist in the first place.

For the time being, hudud can still be avoided as it has not even become law in Kelantan yet, let alone on the federal level. Its recurrent appearance on the political stage, however, shows that it is merely the symptom of an underlying disease, rather than the absurd product of a few twisted minds that can be trivialized or even ignored.

This disease is never directly addressed by the nation’s highest officials who insist on putting a God for whose existence there can never be any proof at the center of their concerns instead of a populace that, unless one adheres to solipsism, is very real and increasingly isolated from the rest of the world due to the dangerous Islamic ideas of its leaders.

That Malaysia might eventually – and quite soon – collapse on a social, cultural and humanitarian level is not solely caused by the current threat of hudud. And dodging this legal madness alone will not prevent further disintegration in a country that is already plagued by deplorable chasms separating ethnicities, religions and political groups.

Malaysia has arrived at a critical point in its history and whether or not it can survive in the future will be a direct result of the decisions made by its highest officials today.

What might happen to a Malaysia with hudud during the next few decades is of course difficult to predict and would depend on a myriad of factors. Yet, attempts at drawing a picture of the future as it could develop is crucial in order to understand what is at stake for a nation that could be the beacon of understanding and humanitarianism within Southeast Asia, but has consistently failed to live up to this expectation.

This is a rough sketch of such a future. The most likely development that has been in the making for decades is perhaps the secession of Sabah and Sarawak from the Peninsular part of the country. Justified complaints that any implementation of hudud would violate the Malaysian constitution and therefore potentially nullify the historical agreement that bans the governments of the Bornean states from leaving the federation have spread during the current controversy.

Tan_Sri_Harussani_ZakariaThe Ayatollah of Perak

That secession is considered a real threat by the elite around Prime Minister Najib Tun Razak was clearly expressed by the updated Sedition Act, which explicitly outlaws the promotion of independence for Sabah and Sarawak. From a humanitarian point of view, however, leaving Malaysia and forming an independent nation would probably be the only sensible decision for Bornean policymakers.

Independence would open the gates for a degree of open-mindedness and social inclusiveness that the current political mainstream and obsession with Islam in Putrajaya renders completely impossible. Although Islamic tendencies will remain to be a problem – particularly in Sabah – the newly founded nation would have the potential to become the freest country in Southeast Asia and rise to be a catalyst for positive change in the region. In particular, it would further isolate the religious dictatorship of Brunei whose sultan seems determined to reinvent his country as a humanitarian wasteland.

The comparatively small population of Malaysia’s eastern states might result in a challenging economic situation for a nascent nation. It would therefore be paramount to openly welcome immigrants and nationalize them quickly. Particularly if hudud should ever hit Malaysia on the federal level, an influx of ethnically non-Malay migrants from the peninsular states can almost be guaranteed. Many of them might arrive without any regrets at all as they would be leaving behind a homeland that has never really wanted them in the first place.

Ethnically Malay citizens of the western states might consider Borneo as well; and furthermore find another safe haven in Indonesia, particularly if the current Indonesian president Joko “Jokowi” Widodo can lead the country farther away from its oppressive past and strengthen its economy. The virtual lack of a language barrier paired with the option to live a moderate form of Islam that is becoming increasingly discouraged in Malaysia or drop the religion altogether could attract many.

No matter where exactly its individual citizens would attempt to build a better future, huge parts of the economic and intellectual elite would leave Malaysia. In an analogous manner, international investment would move out under hudud because neighboring countries in the region would offer equal or even better opportunities minus the legal barbarism. Sadly, it is probably this last concern that will prevent hudud on the national level because money tends to speak more directly to the hearts of the powerful in Putrajaya than human suffering.

What would a Malaysia look like in which the numbers of ethnic minorities, intellectuals and wealthy citizens will be seriously reduced? It would be a country in which only the most radical elements remain, a breeding ground for Islamism that might eventually become potent enough to topple the current pseudo-democratic government that created it. Malaysia’s future could turn into a partial re-enactment of the sad fate of some Middle Eastern nations that were on a promising path in the middle of the last century, but then were violently pushed back into darkness by religious fanatics.

Of course this is a very gloomy prognostication and perhaps a quite extreme version of what the future might bring. Yet, certain elements of this development can already be felt in Malaysia today.

Apart from the obvious necessity to never allow hudud or anything related to become even a tiny section of the law, the inevitable change that Malaysia needs goes right to the core. Islam must be dethroned as official religion of the federation. And it must not be replaced with any other religion.

When the JAKIM paper mentioned above poses the question how “citizens of a country that exalts Islam as religion of the state assume that it is their human rights to not be placed under the influence of Shariah laws,” it inadvertently exemplifies the problem. Integrity, happiness and opportunity to live a fulfilling life are withheld from Malaysia’s citizens under the current circumstances and therefore the very foundation of the nation is flawed.

The assumption that the state is obliged to do anything for the institution of Islam is based on a constitution that has become the source of racism and religious intolerance on the highest political levels. Such a constitution – and in fact every constitution – needs to be challenged. It needs to prove anew at any point in history that it can create the best possible living conditions for the citizens affected by it and thereby the best possible society.

It is not politics that needs to bend over backwards in order to please an ancient way of oppression that has lost touch with reality. It is religious institutions that have to show that they are not outpaced by humanitarian progress.

Malaysia’s elite can no longer ignore the truth that Islam needs to be challenged, needs to be reformed and in its current form will cause the country to fall apart. If politicians care more about the wellbeing of their citizens than their own political power, there is no other conclusion.

Malaysia has already been pushed dangerously far towards the abyss of religious fanaticism. It is now time for those in charge to talk human rights instead of hudud.

The author, who has lived in Indonesia and Malaysia for the last year and a half, will commence as a graduate student in International Studies at the Graduate School of Asia-Pacific Studies of Waseda University in Tokyo.

Muslim MPs ask where Malaysia is headed


July 1, 2015

COMMENT: We know the answer. So do these Muslim lawmakers. What is the point of Din and Ly2talking now, since we need urgent and drastic action. Malaysia has become a failed “Islamic state”(Mahathir’s version). Our country is divided along religious and racial lines.

The evidence is for all to see. Fortunately, the maturity of Malaysians in general has prevented our country  from  going into a state of “religious war” under this weak and corrupt leadership of chicken Najib. But then for how long?

It is amazing that the Prime Mnister is not able to discipline his Minister of Religion, Jamil Khir Baharom, a bigot from my home state Kedah, and overzealous officials in JAKIM and JAWI. Just sack all of them.

Have these Muslim lawmakers cared that these institutions have persecuted my good friend, 80-year old public intellectual Kassim Ahmad for expressing a contrarian view on Hadith and Nik Raina of Borders Book for selling Irshad Manji’s book which was not banned at the time when JAWI officials raided her bookstore in Mid-Valley, Kuala Lumpur a few years ago. Both these individuals are innocent and should not have been dragged to the sharia and civil courts.But they were humiliated and made to look like common criminals.

What about those religious policemen, snooping into the private lives of Muslims? Of course, they exempted themselves and our political bigwigs. Our ulamas and conservative Muslim intellectuals insult Muslim women and dictate how they should live their lives and how they should dress. We have a Housewives Club which tells them to be prostitutes to satisfy their husbands’ sexual appetites. What a shame. These developments are giving Malaysia a very bad international image.

Talk is cheap. Truth be told ,they have no conviction and the guts to stand on reason and logic and tell Najib to stop playing religion and race for his politics of survival. Cowards die a thousand times. So, there is only one way left for reasonable and tolerant Malaysians to react, and that is to vote them all out in the next General Elections.Din Merican.

Muslim MPs ask where Malaysia is headed

by Joseph Sipalan

Muslim lawmakers from both sides of the political divide have raised concerns over the seeming trend of Muslims imposing their beliefs on others, questioning if this is reflective of a wider agenda that is backed by Putrajaya to turn Malaysia into an Islamic state.

The federal lawmakers noted that the federal government appeared either unable to stop or even condoning of incidents in which Islamic sensibilities are imposed on the larger society by religious authorities and individuals.

malaysia-women-islam

“This issue bothers me because as our forefathers taught us, religion should be about faith and (is) personal,” UMNO’s Pulai MP Datuk Nur Jazlan Mohamed told Malay Mail Online via text message.

“I suspect the longer-term objective of these groups is to usurp power through religious means and therefore avoid being legitimately elected. While I respect their motives and intentions, the elected government of the day must control the actions of these groups and act in the interest of all the citizens of the country,” he added.

Chicken Najib 2

On Wednesday, the Malaysian Bar criticised Deputy Education Minister Datuk Mary Yap for reportedly saying that non-Muslims should consume food and drink discreetly and outside the view of fasting Muslims, in response to outrage over a “joke” told by a teacher in Kedah to non-Muslim students about drinking urine.

The Kedah incident is reminiscent of a 2013 incident in which a Sungai Buloh primary school encountered controversy after non-Muslim students were pictured eating in a toilet during Ramadan.

DAP’s Bukit Bendera MP Zairil Khir Johari argued that such posturing over religion would ultimately lead up to ridiculous rulings that benefit no one.

“Should we ban Ramadan bazaars so Muslims don’t need to look at food? When our Hindu friends fast for Thaipusam, do we go out of our way to accommodate them by not drinking or eating in front of them?” he said when contacted.

Zairil admitted that there is “no quick solution” to the religious polarisation the country is facing, but stressed that the first step to fixing the situation is to take governments and political parties out of the equation.

“It’s not even about tolerance here. The problems are cropping up today because of the incessant politicising of ethno-religious nationalism, so much so that the state flexes hegemony, thus influencing the people.

“Why do we even have JAKIM (Malaysia’s federal Department of Islamic Development) when Islam is a state issue? That’s a fundamental question because the authority of JAKIM appears to go against the 9th schedule of the Federal Constitution.

“I am suggesting that matters of faith should belong in the realm of civil society and not the state,” he said.

Nur Jazlan insisted that there is no place in Malaysia for state-sanctioned enforcement of Islam, claiming that the “collapse” of Islamist party PAS ― which is facing a split after delegates elected a new leadership made up entirely of the ulama or clergy class at their recent Muktamar – is proof that the public wants moderation over religious orthodoxy.

“The best way to develop Islam is to teach and encourage personal observations, and not enforce it to the whims of others, especially unelected ones,” he said, without referring to any group or individuals.

The Kedah school incident cropped up amid growing concerns of creeping Islamisation in Malaysia, in which the norms of the increasingly conservative Muslim majority are gradually being imposed on the rest of the country both directly and covertly.

Incidents that support the view include Muslim protests against Oktoberfest-themed events open only to non-Muslims, uproar over a gold-medallist Muslim gymnast over her leotard, and at least four reported cases of arbitrary dress codes at government departments and agencies that denied entry to non-Muslims over their dressing that was deemed indecent.

http://www.themalaymailonline.com

Janus-Faced Political Islam


June 28, 2015

Janus-Faced Political Islam

by Charles Hirschkind

http://www.merip.org/mer/mer205/what-political-islam

Janus Faced Political IslamOver the last few decades, Islam has become a central point of reference for a wide range of political activities, arguments and opposition movements. The term “political Islam” has been adopted by many scholars in order to identify this seemingly unprecedented irruption of Islamic religion into the secular domain of politics and thus to distinguish these practices from the forms of personal piety, belief and ritual conventionally subsumed in Western scholarship under the unmarked category “Islam.”

In the brief comments that follow, I suggest why we might need to rethink this basic framework.The claim that contemporary Muslim activities are putting Islam to use for political purposes seems, at least in some instances, to be warranted. Political parties such as Hizb al-‘Amal in Egypt or the Islamic Salvation Front (FIS) in Algeria that base their appeal on their Islamic credentials appear to exemplify this instrumental relation to religion.

Yet a problem remains, even in such seemingly obvious examples: In what way does the distinction between the political and nonpolitical domains of social life hold today? Many scholars have argued that “political Islam” involves an illegitimate extension of the Islamic tradition outside of the properly religious domain it has historically occupied. Few, however, have explored this trend in relation to the contemporaneous expansion of state power and concern into vast domains of social life previously outside its purview — including that of religion.

As we know, through this ongoing process central to modern nation building, such institutions as education, worship, social welfare and family have been incorporated to varying degrees within the regulatory apparatuses of the modernizing state. Whether in entering into business contracts, selling wares on the street, disciplining children, adding a room to a house, in all births, marriages, deaths — at each juncture the state is present as overseer or guarantor, defining limits, procedures and necessary preconditions.

As a consequence, modern politics and the forms of power it deploys have become a condition for the practice of many personal activities. As for religion, to the extent that the institutions enabling the cultivation of religious virtue become subsumed within (and transformed by) legal and administrative structures linked to the state, the (traditional) project of preserving those virtues will necessarily be “political” if it is to succeed. Within both public and private school in Egypt, for example, the curriculum is mandated by the state: those wishing to promote or maintain Islamic pedagogical practices necessarily have to engage political power.

This does not mean that all forms of contemporary Islamic activism involve trying to “capture the state.” The vast majority of these movements involve preaching and other da‘wa (missionary) activities, alms giving, providing medical care, mosque building, publishing and generally promoting what is considered in the society to be public virtue through community action. Nonetheless, these activities engage the domain we call the political both in the sense that they are subject to restrictions imposed by the state (such as licensing), and in so much as they must often compete with state or state-supported institutions (pedagogic, confessional, medical) promoting Western models of family, worship, leisure and social responsibility. The success of even a conservative project to preserve a traditional form of personal piety will depend on its ability to engage with the legal, bureaucratic, disciplinary and technological resources of modern power that shape contemporary societies.

This argument diverges from the common one that Islam fuses religion and politics, din wa dawla, in a way incompatible with Western analytical categories. It is worth noting, however, that this frequently heard claim does not deny the fact that Muslim thinkers draw distinctions between din and dawla, only that the specific domains designated by these terms, and the structure of their interrelations do not mirror the situation in Europe in regard to European states and the Church. Moreover, this leaves aside the fact that the division between religious and political domains even in Western societies has always been far more porous than was previously assumed, as much recent work has made clear. [1]

Indeed, as Tocqueville long ago observed, Protestant Christianity plays an extremely important role in US politics in setting the moral boundaries and concerns within which political discussion unfolds, and hence can be considered the premiere political institution in some sense. I do not refer here to the lobbying efforts of church groups and other religious advocacy associations, but rather to the way a pervasive Christianity has been to varying degrees a constitutive element of Western political institutions.

What is clear, in any case, is that greater recognition must be given to the way Western concepts (religion, political, secular, temporal) reflect specific historical developments, and cannot be applied as a set of universal categories or natural domains.

Lastly, although discussions of political motivation or class interest should continue to be important parts of accounts of contemporary Islam, they are not necessarily germane to a description of every problem the analyst poses. Statements like the following have too long been de rigueur in accounts of the Islamic sahwa (awakening): “Marginalized male elites experience socioeconomic disparities as cultural loss, and they are drawn to participate in fundamentalist cadres in order to militate against nationalist structures that they deplore as un-Islamic because they are, above all, ineffective.” [2]

Such analyses reduce the movements to an expression of the socioeconomic conditions which gave rise to them. The “marginalized male elites” speak nothing new to us, as their arguments and projects, once properly translated into the language of political economy, seem entirely familiar. Lost, in other words, is any sense of the specificity of the claims and reasoning of the actors. This is brushed aside as we reiterate what we already know about the universal operation of socioeconomic disparities.

Grasping such complexity will require a much more subtle approach than one grounded in a simple distinction between (modern) political goals and (traditional) religious ones. Terms such as “political Islam” are inadequate here as they frame our inquiries around a posited distortion or corruption of properly religious practice.

In this way, the disruptive intrusions or outright destruction enacted upon society by the modernizing state never even figure in the analysis. In contrast, the various attempts of religious people to respond to that disruption are rendered suspect, with almost no attempt to distinguish those instances where such a critical stance is warranted from those where it is not. It is not surprising, in this light, that militant violence and public intolerance have become the central issues of so many studies of al-sahwa al-islamiyya (Islamic awakening), while the extensive coercion and torture practiced by governments get relegated to a footnote.

Author’s Note: I wish to thank Talal Asad, Saba Mahmood, Hussein Agrama, Steve Niva and Lisa Hajjar for their comments and suggestions on this brief article. Its shortcomings are my responsibility alone.

Endnotes

[1] See William Connolly, The Ethos of Pluralization (Minneapolis, MN: University of Minnesota Press, 1995).
[2] Bruce Lawrence, The Defenders of God: The Fundamentalist Revolt Against the Modern Age (Columbia, SC: University of South Carolina Press, 1995), p. 226.

The Nik Raina Case: Time for JAWI to end its Persecution


June 24, 2015

The Nik Raina Case: Time for JAWI to end its Persecution

by Mark Clements@
http://www.freemalaysiatoday.com

Nik Raina wins

When then Prime Minister Dr Mahathir Mohamad announced that Malaysia was already an Islamic state, alarm bells immediately sounded, yet no one could have imagined the consequences of such a declaration.

It was September 29, 2001, at Gerakan’s 30th national delegates conference, when he boldly said –

“UMNO wishes to state loudly that Malaysia is an Islamic country.Thinks, says Mahathir This is based on the opinion of ulamaks who had clarified what constituted as an Islamic country. If Malaysia is not an Islamic country because it does not implement the hudud, then there are no Islamic countries in the world.

“If UMNO says that Malaysia is an Islamic country, it is because in an Islamic country non-Muslims have specific rights. This is in line with the teachings of Islam. There is no compulsion in Islam. And Islam does not like chaos that may come about if Islamic laws are enforced on non-Muslims.”

Almost immediately, Nik Aziz Nik Mat, the then spiritual leader of PAS, issued the following riposte –

“You can talk all you want. You can declare a piece of wood to be gold, or a wheelbarrow as a Mercedes, but in reality, nothing has changed.

For us, an Islamic country is one which is governed according to the tenets of the Quran and Hadith. Malaysia is a secular State. If the present Malaysia is already an Islamic state, then what do you call the state ruled by Prophet Muhammed and his friends?”

In a nutshell, Mahathir was arguing that Malaysia could interweave Islamic principles into the fabric of Malaysian life without the need to introduce hudud law, and without enforcing such laws on non-Muslims. Or in more current terminology, in moderation. Nik Aziz, however, took the opposite view.

Over the course of time the ever increasing infusion of Islamic principles into the public sphere led to two judicial systems taking root in the country, one governing civil law, and the other, syariah.

Those two streams of justice were never intended to meet, withjamil-khir-baharom syariah meant to only cover personal law relating to Muslims – until, of course, the Kelantan State Assembly passed its hudud enactment in March this year. But that is a discussion for another occasion.

Even in the sphere of personal law, these streams could not be kept apart. Until today, conversion and renunciation cases and inter-religious divorce and custody battles rage on unabated.

Muslim civil judges appear sometimes in a quandary when confronted with issues affecting the tenets of their own faith. In the ‘Allah’ case, for example, the train of thought of some of the judges appeared to begin from the premise of their personal faith, rather than the Federal Constitution.

In other cases, judges have been known to shy away from exercising civil jurisdiction if the cases before them showed any hint of Islamic law, often leaving disputing parties without proper resolution.

The latest manifestation of the two streams of justice mingling with unfortunate consequences has been in the case of the Federal Territories Islamic Religious Department’s (JAWI) pursuit of Borders Bookstore manager Nik Raina Nik Abdul Aziz.

In May 2012, Nik Raina was charged by JAWI under Section 13(1) of the Syariah Criminal Offences (Federal Territory) Act for allegedly selling a book that defiled Islam.

Absurdly, the facts showed that the book in question, Irshad Manji’s “Allah, Liberty and Love,” had not been banned or prohibited by the Ministry of Home Affairs or by any other religious authority at the time she was charged.

That ban only came three weeks later, presumably to justify her prosecution.

Concluding that she was charged simply because she was a Muslim and because JAWI could neither exercise jurisdiction over her employer nor her non-Muslim supervisor, the civil Court of Appeal found that the proceedings against her were “unreasonable”, “irrational” and offended “the principle of fairness and justice.”

Taking the cue from that decision, the Shariah High Court discharged Nik Raina.

One would have thought that the matter would end there, but JAWI was unrelenting. It pursued an appeal to the Shariah Appeals Court against the Shariah High Court’s decision!

Rosli-DahlanIt seems that it was only after her counsel Rosli Dahlan threatened contempt proceedings against JAWI that they relented and filed a notice to withdraw the appeal.

Elation and relief which followed, however, were short-lived and quickly replaced by anxiety and despair when the Shariah Court Registry fixed the withdrawal application for hearing on June 23.

To add unnecessary drama, Nik Raina’s lawyer was informed on the morning of the hearing that he would not be permitted to appear on her behalf unless he filed a fresh certificate of legal representation (wakalah). He eventually did, at the eleventh hour!

Thankfully, in the end, sanity was restored when the Federal Territory Shariah Court of Appeal, comprising Syariah Judges Yusup Che Teh, Hussin Harun and Aidi Mokhtar endorsed JAWI’s withdrawal of the criminal appeal and struck out the charge against her.

Yet, all is not well just because it ends well.

A teary-eyed Nik Raina lamented the three years of victimization she suffered at the hands of over-zealous officers from the religious department.

“Every time I was asked to sit in the dock, I felt like a common criminal. I felt so sad. I could not understand what wrong I had done. My family also suffered much shame and humiliation,” she sobbed.

She was grateful, though, for the outpouring of support she received. “I am proud that right thinking Malaysians, Muslims and non-Muslims, rallied behind me,” she said. “Malaysians have not lost their sense of right and wrong. They knew JAWI did me wrong.”

“JAWI’s actions give Islam a bad name not only here but internationally,” she goes on to say.

“Borders Bookstore provides a wholesome career to those who love Irshad Manji's bookbooks and knowledge. We even take interns during holidays. If this can happen parents will be afraid, and employers will be reluctant to hire Muslims.” “What good does that do for Malays,” she asks.

“I appeal to JAWI not to proceed with their leave application to appeal to the Federal Court. Please let this be the last time that I have to come to court, please, I beg you,” she pleads to listening reporters.

“JAWI cannot act arbitrarily and violate the Federal Constitution and the Rule of Law. Religious agencies should not do anything that will disrupt our multiracial, multi-religious and multicultural society. Civil and syariah laws can co-exist if interpreted harmoniously and by the authorities ensuring that they do not deliberately take advantage of any conflict of laws or other kinds of conflicts that may come into play,” he says.

Malaysia’s laws must be interpreted justly, harmoniously and with absolute clarity. The simple argument is that the Federal Constitution is the supreme law, and laws passed by Parliament and state assemblies are subordinate to it.

“Syariah courts cannot be ranked the same as the civil court as (these) religious courts are established by state laws,” retired Federal Court Judge Gopal Sri Ram was quoted as saying last year, adding that Parliament and the State Assemblies have no power to enact laws which are in conflict with the Federal Constitution.

The principle appears simple, clear and correct.Yet, are our judges brave enough to uphold it? They would do well to heed the words of former Lord President Salleh Abas, who once wrote, “[W]e have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.”

Nik Raina’s ordeal is not yet over. The Federal Court is due to hear JAWI’s application for leave to appeal from the decision of the civil Court of Appeal. Common sense dictates that they will withdraw it. But will common sense prevail?