Sunday December 7, 2008

Failing the test of public reason

SHARING THE NATION BY ZAINAH ANWAR

The more the religious authorities are bent on regulating our lives in the name of Islam, the more defiant Muslims will become. Why should so many Muslims who have practised yoga and not felt their faith undermined be bound by an edict that addresses a problem that does not exist?

The National Fatwa Council edict that made practising yoga haram and the subsequent uproar are symptomatic of many things that is wrong with the way we understand Islam in this country and how we use it as a source of law and public policy.

And thus the fear and opposition to the idea of an Islamic state and rule by syariah law.

It needed the Prime Minister to clarify the fatwa which sowed confusion because the Chair of the National Fatwa Council, Dr Abdul Shukor Husin, had stated that, “Doing yoga, even just the physical movements, is a step towards an erosion of one’s faith in the religion, hence Muslims should avoid it.”

I received a flurry of e-mail and text messages from family, friends and strangers on the fatwa. What is going on in this country? What kind of mindset rules this country? Should they just give up on Malaysia and prepare to emigrate? How can they persuade their children living abroad to come home to a country that makes yoga haram?

A young friend googled fatwa and found in every piece of writing she read that fatwa is an advisory opinion only; how has it come about in Malaysia that it becomes a criminal offence to violate a fatwa that has been gazetted, she questioned?

Well, it is Bolehland for all the wrong reasons. As early as 1997, Sisters in Islam (SIS) submitted a memorandum to the then Prime Minister about the shocking provisions in the Syariah Criminal Offences Act (SCOA), many of which have no precedence in Islamic legal history and practice, violate constitutional provisions on fundamental liberties and conflict or overlap with the Penal Code.

Public outrage

Among the most outrageous are two provisions which state it is a criminal offence to defy, disobey or dispute a fatwa, or to give, propagate or disseminate any opinion contrary to any fatwa that is in force! This really tantamounts to thought policing that criminalises differences of opinion! Not even Saudi Arabia makes it a crime to violate or dispute a fatwa.

Datuk Seri Dr Mahathir Mohamed ordered the Attorney-General’s Chambers to review the SCOA. But we don’t know the outcome of that process, or if it ever took place.

SIS commissioned two research papers examining the SCOA on constitutional and Islamic juristic grounds. Both experts concluded that the SCOA is a deeply flawed piece of legislation. We have submitted our report to the Government.

The late Tan Sri Harun Hashim who sat on the Syariah Technical Committee said he had recommended to the committee that criminal law be taken out of syariah jurisdiction and all criminal matters should come under the Penal Code. That was why the SCOA was not submitted for review in the government exercise to establish uniformity of all state Islamic laws in the late 1990s.

But it is obvious that over the past few years, the strategy is to expand syariah jurisdiction, not limit it according to law.

The public outrage over the yoga fatwa serves notice to the authorities that Malaysians and Muslims today are far more confident of their knowledge of Islam and far more aware of their rights and liberties in a democratic state.

Prof Hashim Kamali who now heads the International Institute for Advanced Islamic Studies had warned in his research paper on the SCOA that a law that seeks to regulate a citizen’s life to the minutest detail cannot be enforced fully and equally, and will only result in selective prosecution and victimisation.

And in the end, he said, this was likely to erode the credibility and survival of both the law and the law-making process.

Malaysia must learn from Iran. When a government that rules in the name of Islam fails to deliver on the aspirations of the people, then this failure is seen as the failure of Islam.

Widespread public criticism and defiance of rules and regulations to regulate the moral behaviour of its citizens and to suppress the thinking of dissenters have given birth to a reformist movement that brought women, young people, academics and religious clerics into the open to challenge the official Islam of the state.

An Islamisation process that implements pre-modern conceptions of Islamic law which are so out of touch with the realities of Iranian lives today has led disenchanted Iranians to believe that Islam has no answers to the myriad problems and challenges they face.

Many clerics in Qom, some of whom have been prosecuted and jailed for their differing views, now seek to separate religion from state power.

The dogmatism of the religious authorities and the Islamists in Malaysia will forever make their insistence for Muslim unity wishful thinking.

The more the religious authorities become bent on controlling and regulating our lives in the name of Islam, the more defiant Muslims will become.

Because in our subjective experience of what it is that they forbid, be it practising yoga or dressing or behaving like a tomboy, or celebrating the festivals of our friends of other faiths, we do not experience what it is they say we are supposed to experience. That our faith will be eroded or that we would be attracted to the same sex or that we would be led astray to behave like the so-called infidels.

The public anger over the yoga fatwa is because so many Muslims who have practised yoga, some for decades, have not for a moment felt their faith undermined. They have experienced no inner conflict between doing yoga and their religious convictions. So why should they be bound by an edict that addresses a problem that does not exist in their subjective experience of yoga?

In the Islamic tradition, only those who sincerely believe in the truth of the advisory opinion of the mufti or mujtahid (jurist who strives to find the correct answer) are morally bound to adopt the fatwa. Not others. And never legally bound.

More debate ensued when some of those in religious authority then pronounced that questioning the fatwa is tantamount to questioning God. This is a favourite tactic used to silence dissent. Cloak yourself and your actions in the divine will, in order to force compliance.

But what the rakyat see is just a group of fallible human beings making a decision on a problem that they don’t experience, and then imposing that solution on those who do not need it.

Formidable power

As the Islamic juristic scholar Khaled Abou El Fadl said, the discourse of Shari‘ah enables human beings to speak in God’s name, and effectively empowers human agency with the voice of God. This is a formidable power that is easily abused, he wrote.

The classical jurists in the early period of Islam never claimed certainty or infallibility. They ended every pronouncement with “And only God knows best”. Theirs was but a humble and honest individual effort to try and understand God’s revelation.

The maxim that every mujtahid is correct, that every mujtahid will be rewarded, implies that there could be more than a single correct answer to the same question. That is why the doctrine of binding precedent did not develop in Islamic jurisprudence.

The opinion of one mujtahid can never be regarded as the final wisdom in understanding the infinite message of the Quran. Another ‘alim can give an equally valid opinion based on his learned understanding of the text.

In the context of a modern democratic state where public law and public policy are open to public debate and pass the test of public reason, then any law made in the name of Islam must also go through this process. If not, that law becomes unenforceable.

The fact that public uproar has led the Cabinet to intervene over the past many years to overrule decisions made in the name of Islam, be it a ban on a Sheila Majid or a Michael Jackson concert, to the arrest of young people and women caught in raids, to attempts to set up snoop squads by state governments, means that a policy that fails the test of public reason, in the end, becomes untenable.

While most might agree that smoking is bad for their health, most would not agree that smoking should be criminalised. Perhaps that is why the Selangor state authorities saw it in its wisdom not to enforce their gazetted fatwa that smoking is haram.

If not, their syariah courts would be overwhelmed and their prisons overflowing with smokers and, more likely, the state government and economy might just grind to a halt because these recalcitrant smokers just do not have the willpower to stop. Or could the reason just be simple, that it is men who will be affected most, so let’s close one eye.

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