Thursday December 27, 2012
The enforcement of morality
Reflecting on the law
By SHAD SALEEM FARUQI
The 10-year-old law under which the summonses were issued to salon owners for defying the ban on gender segregation in Kota Baru is not a Syariah Enactment but a municipal by-law.
CHRISTMAS is a season of peace and goodwill; of building bridges between hearts and minds; of accommodation and understanding. Regrettably, a number of recent incidents, including the Kota Baru Municipal Council’s imposition of repeated fines on hair salons that allow females to attend to male clients, has raised the ire of many non-Muslims.
There are complaints that all hairdressing businesses are being unfairly and vicariously condemned as immoral operations due to the shady activities of a few salons.
The industry is facing harassment and heavy financial losses. It is also alleged that there is no consistency in principle.
While hair salons are being singled out for gender segregation, in other service-related professions such as nursing, medicine, transport and education, males can attend to females and vice versa.
The syariah: The most volatile criticism is that the prosecution of salon owners for defying the ban on gender segregation amounts to subjection of non-Muslims to the syariah and hudud. This criticism is terribly inaccurate and appears to be politicaly inspired.
The 10-year-old law under which the summonses were issued is not a Syariah Enactment but a municipal by-law.
The authorities enforcing the ban were ordinary local authority personnel and not Religious Department officers. If the matter were to be challenged in court, the relevant forum will be civil and not syariah courts.
Under our Constitution, the application of the syariah is subject to a number of limits. First, state assemblies do not have the power to enact laws on all matters of Islam but only in relation to the Muslim law topics specifically mentioned in Schedule 9, List II, Para 1.
Second, state power to punish crimes against the precepts of Islam is limited by the words “except in regard to matters included in the Federal List” or “covered by federal law”.
Third, syariah courts have jurisdiction only over persons professing the religion of Islam.
Fourth, the penalty imposable by syariah courts is limited to three years’ jail, RM5,000 fine and six lashes.
To raise the spectre of hudud (i.e. serious crimes like theft, punishment for which is prescribed in the Quran) is meant to instil fear. Violation of licensing conditions by salons has nothing to do with the hudud.
Law and morality: Instead of raising false issues of religious imposition, the proper agenda for debate is the perennial one of law and morality. Is it the business of the state to use the blunt instrument of the law to enforce moral propriety? Or should individual autonomy and freedom be preserved?
Legal liberalism: Supporters of legal liberalism assert that it is not the business of the law to trespass into matters of private moral conduct.
Legal coercion can only be justified for the purpose of preventing harm to others.
Unless there is a deliberate attempt to equate the sphere of crime with that of sin, there must remain a sphere of private morality that is best left to the individual’s conscience.
The so-called “moral majority” (the existence of which is extremely problematic to prove) has no moral right to dictate to the minority how it ought to live.
Individuals have a right to the widest possible autonomy and freedom of choice, unless their conduct causes detriment to the society of which they are a part.
In a democracy, value pluralism must be allowed. People have a “right to be wrong” on personal matters.
Traditionalists: Such liberalism is rejected by most traditionalists, fundamentalists and moralists.
In their view, it is not morally wrong to uphold the moral position. The state has many functions.
Promoting the virtuous life is one of them. If the state can intervene in moral issues such as women’s and workers’ rights, it can with similar justification intervene in matters of conventional morality.
The perverse new virtue of value relativism, which urges people to be non-judgmental on issues of morality and immorality, must be questioned. In many modern societies, rejection of absolute values has often led to a rejection of all values.
Belief in relativity has led to the acceptance of the Shakespearean idea that “nothing is good or bad but thinking makes it so”.
Rejection of religion and tradition have led to a situation where belief in nothing often leads to a belief in anything!
State intervention in matters of sex morality is justified because a pervasive moral permissiveness and emptiness permeate modern society.
We are threatened more by moral anarchy than by dictatorship; more by decadence and apathy than by fanaticism.
Under these circumstances, the dualism supported by the liberals between law and morality needs to be subordinated to a more complex unity, which seeks the interaction of secular and spiritual aspects ot life rather than their compartmentalisation.
Whether the liberal or the paternalistic view is better is ultimately a matter of subjective values and jurisprudential perspective. No knock-down argument is available to demolish either view.
A dialogue is necessary not only on issues of hair salons but on a whole range of issues on which the human rights and autonomy argument comes face to face with a traditionalist value system.
Not only in Malaysia, but in other societies, painful issues of personal autonomy versus moral propriety tug at our conscience.
There are debates about abortion in Ireland, same sex marriages in the United States, homosexuality and sex-change operations in Malaysia and divorce in Philippines.
No simple answers are available. All that one can say is that there must be widest posssible discussion before any decision is made.
The author wishes all Christian friends “Merry Christmas and Happy New Year”.