Having read the letter written by the 25 eminent people entitled “Need for Consultative Process’ in an english newspaper dated 8th December 2014, WE, a group comprising of concerned bodies and on behalf of our members felt compelled to respond to the disturbing statements raised in the said letter.

Foremost it is observed that the writers of the said letter (“The Writers”) have taken the stance that the continuing application of Islamic laws in relation to the position of Islam under the Constitution in this country is against the ideas of moderation that the government of Malaysia has adopted.

Effectively, the point that The Writers are advocating is that upholding Islam’s position under the Constitution is equivalent to acts of extremism and fundamentalism.

Ironically The Writers did not explain the concept of moderation adopted by the Malaysian government and in what manner the constitutional position and application of Islamic laws conflict with concept of moderation.

It is thus incumbent upon us to elaborate on its meaning within that context and to elucidate the pertinent differences between moderation and extremism.

The concept of moderation adopted by the government of Malaysia is based on the Quranic embodiments of justice and equity, moderation in all aspects of life, and aversion towards excessiveness or extremism. These principles of moderation are inscribed in JAKIM’s official publication in 2013 during the Maulidur Rasul celebrations.

It is indeed difficult to define ‘extremism’ as it depends largely from which perspective one derives its meaning; whether from a purely secular view, liberal view or religious views. Each view would bring forth very different outcome. A more congenial way would be to define ‘extremism’ as concepts that are opposed to ‘moderation’. The Quranic principles of moderation places justice and equity as the main qualities. Therefore, any concepts, philosophies, ideas or acts that are against justice and equality is ‘extremism’. The line that divides between ‘moderation’ and ‘extremism’ is thus, justice and equity.

The Writers suggest that the application of Islamic law through issuance of fatwas violate the Constitution and against moderation. It is based on misconception that Islamic law is incapable of dispensing justice and equity; the embodiments of moderation. More importantly, it reveals The Writers’ view similar to secular view of placing individual rights uppermost over rights and interests of community. The Writers view that fatwas should be subjected to the process of open consultation, where everyone is at liberty to debate on Islamic law, irrespective whether the person has little or no knowledge of Islamic law.

The Writers cite the decision of the Shariah Court on transgender issue as extremist views and therefore, against moderation principles. In actual fact, muslim juristic views abound on the recognition of transgender rights under Shariah. What is noted is that the Shariah court did not specify the guidelines or the process flow pertaining to evidential rules required to support a claim that the transgender person has valid justifications based on medical report. What originates from administrative and human failure in application of Shariah principles have been portrayed by The Writers as failure of Islam as a belief to recognize these rights.

The attack by The Writers against Datuk Seri Jamil Khir Baharom, the Minister in charge of Islamic affairs; on the transgender issue is perplexing. Whether one agrees or disagrees with his stand is a totally separate issue. It behoves that in his capacity as the Minister in charge of Islamic affairs, for him to come forth with a strong stand on issues within his ministerial responsibilities.

The Writers suggest that in the application of Islamic law on matters affecting the muslims, there is constant conflict with the Constitution. There are sufficient case laws to disprove this point. Islamic law is not in conflict with the Constitution as both share the same objectives; to dispense justice and equity. In the Titular case, the Court explained : ‘…Article 3 of the Federal Constitution that states Islam is the religion of the Federation means that “…obligation on the Federation to protect, defend, promote Islam and to give effect…to the injunction of Islam…encourage people to hold their life according to the Islamic injunction spiritual and daily life’. The basic premise is to educate individuals that muslims are all part of a large community where we put the interests and well being of the community before our personal interests. This is the very essence of moderation; ensuring justice and equity applied for the communal well being based on Shariah principles within the framework of the Constitution.

The Writers assert that the existence of Islamic law within the framework of the Constitution is plurality of laws considered as negative elements. The Writers thus imply that there can only be one law within the Constitution; and Islamic law should not be a part of it.

The reality is that the Constitution is plural in nature from the very first day it was drafted. Its origin is from canon law, meaning laws derived from ecclesiastical jurisprudence composed of Christian Roman law. Over time it has evolved to incorporate Islamic law principles vide Court decisions since Islamic law principles are part of culture and way of life of muslims in this country. It is a natural progression towards the development of our own Malaysian common law. A law common to us all as it takes cognizance the way of life, cultural practices and religious beliefs of different communities.

As for The Writers’ call for a dialogue pertaining to the application of Islamic law; we would like to state that we are not opposed to such measure; however it shall have to be within the common understanding and respect towards the position of Islam under the Constitution.

On a last note, we write this response as it is consistent with fitrah (human nature) that whenever our religion, Islam is being spoken in a derogatory manner, it is a question of moral dignity for muslims to make a firm stand. For a community that cannot defend its own belief and how it is to be practised within its own community; is a community that has no honor nor pride in its own identity.

Dated: 13th December 2014.

Dato Haji Zainul Rijal Abu Bakar, President
Persatuan Peguam Muslim Malaysia (PPMM)

Tuan Musa Awang, President
Persatuan Peguam Syarie Malaysia (PGSM)

Azril Mohd Amin, Chief Executive
Centre For Human Rights Research & Advocacy (CENTHRA)

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