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Posted: 31 Oct 2012 05:26 PM PDT

An Islamic state can be defined as a type of government in which the primary basis for government is the Syariah, or Islamic law. Here, the Islamic law reigns supreme, as it is derived from the Quran, the Muslim holy scripture, and the Hadith, a record of the Prophet's deeds and words. At the centre of the Islamic state concept is the implementation of the hudud.

Salim Othman, The Straits Times (Singapore)

One fundamental question gripping Malaysians today is whether Malaysia is a secular or Islamic state.

The issue came to the fore when de facto Law Minister Nazri Aziz remarked in Parliament last month that "Malaysia has never been determined or declared as a secular state", and that the word "secular" was not even present in the Federal Constitution.

The minister stopped short of saying Malaysia is an Islamic state, in his reply to a question by a Member of Parliament from the opposition Democratic Action Party (DAP).

His remarks were made in the context of ongoing polemic between the DAP and its rival, the Malaysian Chinese Association (MCA), on the question of hudud - the Islamic penal code - and the goal of the DAP's coalition partner, Parti Islam SeMalaysia (PAS), to establish an Islamic state.

This has emerged because the Chinese party is warning voters that a vote for the DAP equals a vote for the PAS, which means a vote for an Islamic state and hudud. This is to scare non-Muslims away from voting for the DAP, because of the implication that the PAS would turn Malaysia into an Islamic state and introduce hudud if the opposition Pakatan Rakyat (PR) coalition - which includes the PAS and the DAP - forms the government after the general election due by April next year.

The MCA is capitalising on the fear of hudud's harsh punishments. It is also reminding voters of the danger that non-Muslims, who form 40 per cent of the population of 28 million, would be relegated to being second-class citizens if Malaysia becomes an Islamic state.

But the reality is quite different. There is only a remote chance that hudud will ever be implemented by the PAS if the PR were to take over the government, as the Islamic penal code and the concept of the Islamic state are not in the agenda of the coalition.

It is also unlikely to happen in a country where only 60 per cent of the population are Muslim. This is because hudud law can take place only if a constitutional amendment is made to provide for the strict Islamic penal code. That would need an endorsement by a two-thirds majority in Parliament.

While this secular-Islamic state debate may be purely a smokescreen in the tussle for votes between the opposition and the ruling party, the issue has rekindled interest in the identity of the country some half a century after its independence.

Did Malaysia's founding fathers envisage the country to be what it is today?

There is no consensus as to what kind of state Malaysia has become since its independence in August 1957 - whether secular or Islamic.

One definition of a secular state is that it upholds the concept of secularism whereby a state or country is neutral in matters of religion, supporting neither religion nor irreligion. It treats all its citizens equally regardless of religion, and avoids preferential treatment for a citizen from a particular religion over another. More importantly, a secular state does not have a state religion or equivalent.

Both Malaysia's first prime minister Tunku Abdul Rahman and third prime minister Tun Hussein Onn had said Malaysia is a secular state, contradicting Datuk Seri Nazri's remarks in Parliament that the country had no secularist roots.

Tunku Abdul Rahman had referred to Malaysia as a secular state, and not an Islamic one, on a number of occasions, including one when he told the Parliament on May 1, 1958: "I would like to make it clear that this country is not an Islamic state as it is generally understood; we merely provided that Islam shall be the official religion of the State."

But after 55 years of independence, Malaysia does not quite fit the standard definition of a secular state because Islam is declared the religion of the federation.

At the same time, the Constitution guarantees non-Muslims the freedom to practise the religions of their choice - but they cannot preach these to Muslims.

The state is therefore not neutral to religion as it gives preference to Islam. Malaysia's secular Constitution, as the supreme law of the land, allows certain aspects of Islamic laws to be implemented in the country, hence blurring its status as a secular state.

Is Malaysia then an Islamic state as declared by the country's fourth prime minister, Tun Dr Mahathir Mohamad, in September 2001?

Dr Mahathir, who had previously described Malaysia as an Islamic country, declared Malaysia to be an Islamic state to ward off attacks from the PAS, which had accused Umno (which has a Muslim membership base) of not fulfilling its religious obligation to set up an Islamic state.

Dr Mahathir argued that Malaysia could be an Islamic state even without the implementation of Islamic law. But this goes against most theories of the Islamic state which hold that the Syariah, in which the hudud is a significant component, lies at its heart.

But the former prime minister, who was against hudud as propounded by the PAS, maintained that Malaysia was an Islamic state as shown by its acceptance as a member of the Organisation of Islamic Cooperation. The grouping includes countries which do not implement the hudud.

Dr Mahathir's concept of an Islamic Malaysia is the result of his Islamisation programme during his two decades of premiership. The expansion of religious bureaucracy is abundantly evident; so are the controls exerted on citizens' rights in the name of Islam, such as a prohibition against the use of the word "Allah" for God by Christians, a restriction on Malay bibles and a ban on proselytisation of Muslims.

Indeed, Malaysia has become so Islamic that even civil courts have ceded their jurisdiction to the Syariah courts in disputes involving Muslims under the country's dual legal system.

The secular-or-Islamic debate will emerge from time to time as the issue will be raised by the ruling party or opposition to score political points with voters.

And this is not a matter only between the Malay parties Umno and PAS. Increasingly, non-Malay parties are also caught up with the issue as their constituents remain wary of the Islamic-state concept and the implications of the country becoming more Islamic.

Debates rage on many fronts

Posted: 31 Oct 2012 05:17 PM PDT

There are some law issues being argued of late like secular state, parliamentary committee and death penalty.

In support of this view, one can point out that the word "Islam" is mentioned at least 24 times in the Constitution, the words Mufti, Kadi Besar and Kadi at least once each. In Schedule 9, List II, paragraph 1, state legislatures are permitted to apply Islamic law to Muslims in a variety of civil areas.

Prof Shad Saleem Faruqi, The Star

IN the last fortnight, a number of engaging public law issues captured the public imagination.

> Secular state: De facto law minister Datuk Seri Nazri Aziz crossed swords with DAP's Lim Kit Siang over the latter's claim that Malaysia is a secular state.

The law minister correctly pointed out that nowhere in the Constitution is there any mention of the word "secular".

Further, as Islam is recognised in the Constitution as the religion of the federation, it would be improper to regard the country as a secular state.

In support of this view, one can point out that the word "Islam" is mentioned at least 24 times in the Constitution, the words Mufti, Kadi Besar and Kadi at least once each. In Schedule 9, List II, paragraph 1, state legislatures are permitted to apply Islamic law to Muslims in a variety of civil areas.

The state legislatures are also permitted to create and punish offences by Muslims against the precepts of Islam except in relation to matters within federal jurisdiction.

Syariah courts may be established. Under Article 121(1A), syariah courts are independent of the civil courts.

On the other side, Lim correctly pointed out that Malayan constitutional documents and pronouncements by early leaders indicate that at its birth the federation was meant to be a secular state.

To back this view, one can point to the Supreme Court decision in Che Omar Che Soh's case that although Islam is the religion of the federation, it is not the basic law of the land.

Article 3 on Islam imposes no limits on the power of parliament to legislate contrary to the syariah. Islamic law is not the general law of the land either at the federal or state levels.

It applies only to Muslims and that too in limited and specified areas. It is noteworthy that non-Muslims are not subject to syariah or to the jurisdiction of the syariah courts.

Ever since Tun Dr Mahathir Mohamad's declaration on Sept 29, 2001 that Malaysia is an Islamic country, this debate ignites periodically and no firm conclusion is ever possible because of the problem of semantics – the assignment of different meanings to the words "secular" and "theocratic" by participants in the discourse.

My personal view is that if by a theocratic state is meant that the law of God is the supreme law of the land and that the temporal ruler is subject to the final direction of the theological head, then clearly Malaysia is not a theocratic state due to the presence of a supreme Constitution and the overriding power of secular authorities over the religious establishment.

At the same time if by a secular state is meant that law and religion are separated from each other; that there is no legally prescribed official religion; that religion is not interwoven into the affairs of the state; that no state aid is given to any religious creed; and that religion is left entirely to private establishments, then Malaysia is certainly not a secular state.

Then how should we be described? It is submitted that the Malaysian legal system is neither fully secular nor fully theocratic. It is hybrid. It permits legal pluralism.

It avoids the extremes of American style secularism or Saudi or Taliban type of religious control over all aspects of life. It walks the middle path. It promotes piety but does not insist on ideological purity.

Muslims are governed by divinely ordained laws in some fields but in others their life is regulated by Malay adat and by secular provisions enacted by elected legislatures. Non-Muslims are entirely regulated by secular laws.

In sum, the secular versus theocracy debate is full of semantics and polemics and will take us nowhere.

> Parliamentary committee: The Government is contemplating setting up a permanent select committee in Parliament to scrutinise Suhakam reports.

If this move comes about it will not only catapult human rights to the forefront of parliamentary discussion, it will also do a great deal to bolster the image of parliament as the grand inquest of the nation.

A system of well integrated and well serviced investigatory committees as in the United States and the Philippines holds the only key to enabling parliament to become an effective countervailing force to the ever increasing powers of the executive.

An increase in the number of permanent select committees from the present five to one for each government department as in Britain, one joint committee on Human Rights, a Dewan Rakyat committee on Public Complaints to examine the reports of the Public Complaints Bureau and a joint committee on subsidiary legislation will do much to improve the institutional efficacy of parliament and to enable backbenchers to play a more meaningful role.

To assist parliamentarians in this oversight function, non-partisan support structures ought to be established.

MPs should be assigned research assistants. The Houses should have their own legal counsel. In the manner of INTAN and ILKAP, an Institute of Parliamentary Affairs should be established to train MPs and to hone their abilities to research and analyse issues.

> Death penalty: Amnesty International has praised Malaysia for the proposal to abolish the death penalty for drug trafficking. The proposal is in its early stage and it is a matter of speculation which of the three alternatives will ultimately be accepted.

First, maintain the death penalty for serious crimes but remove its mandatory nature. Restore judicial discretion to tailor the punishment to suit the factual matrix of each case.

Second, reduce the number of offences for which the death penalty may be imposed as at present for waging war against the Yang di-Pertuan Agong, offences against a ruler or governor, abetting mutiny in the armed forces, murder, abetment of suicide, attempt by a life convict to murder if hurt is caused, kidnapping or abduction in order to murder, hostage-taking, gang robbery with murder, drug trafficking and unlawful possession of firearms.

Third, abolish the death penalty altogether as in 87 countries plus 27 others that have not executed anyone for the last 10 years.

Which of the alternatives will be chosen will ultimately be a matter of high policy dictated as much by human rights considerations as by public opinion. It is submitted that on fundamental issues of right and wrong, popular opinion, while given due weight, should not be allowed to dictate ultimate decisions.

As Jesse Jackson once said: "Leaders of substance do not follow opinion polls. They mould opinion, not with guns or dollars or position but with the power of their souls."

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM.

Free speech fanaticism

Posted: 31 Oct 2012 05:08 PM PDT

Different countries may define blasphemy differently but some common elements must be there. There must be a clear intention to wound religious feelings, a likelihood of breach of public order, and an element of religious insult or vilification.

America's actions in Hiroshima and Nagasaki, Vietnam, Kampuchea, Laos, Afghanistan, Iraq, Gautemala, Chile, Panama, Nicaragua, Cuba, El Salvador, Colombia, Congo/Zaire, Haiti, Somalia, Iran, Grenada, Costa Rica and Dominican Republic can also be defined as terrorist.

Prof Shad Saleem Faruqi, The Star

THIS column on Oct 4 on "Hate speech hypocrisy" had argued that the right to free speech is not unlimited and carries concomitant responsibilities.

My article elicited a number of responses, some very learned, and I welcome them and wish to respond.

Sarachandran wrote that the perception among Muslims of their persecution is genuine and based on an objective overview of world happenings.

But "how would we weave into this paradigm the unprovoked destruction of priceless Buddhist iconic images by the Taliban and the mere murmuring protestations by the world community and deafening silence of enlightened Muslims?"

I totally agree with Sarachandran that we must not be selective in our condemnation and must take a stand against all atrocities no matter who the violator is and who the victim.

The first function of freedom is to free someone else.

Two readers asked about blasphemy against other religions besides the state religion. The answer to this has to be that the law must not be selective.

It must shield all religions against vilification. For example, the Malaysian Penal Code in section 298 contains the general offence of wounding religious feelings. The provision protects all faiths.

It must be acknowledged, however, that around the world the law on blasphemy is either discriminatory in its reach or administered unequally.

For a long time till its repeal in 2007, the UK law on blasphemy defined the offence only in relation to the Church of England.

Though the law was rarely enforced, the same effect was achieved by convicting those who insulted Jews under the common law offence of breach of peace.

However, when a Muslim citizen of Britain, humiliated by Salman Rushdie's Satanic Verses, filed a police report, the public prosecutor got cold feet. The citizen then tried to initiate a private prosecution but the High Court rejected his application.

In Greece and South Africa, blasphemy is only against the Christian Church. In the European Union, despite laudable activism in the cause of human rights of non-Muslims, constitutional jurisprudence is not free of anti-Islam bias.

For example, Muslims girls are prosecuted for wearing the hijab. Mosques with minarets are vigorously opposed because that would ruin the skyline.

Reader Buyung Adil raises a question about "who will define blasphemy?" My view is that the offence must be defined by law and tried before non-sectarian, civil courts.

Different countries may define the offence differently but some common elements must be there. There must be a clear intention to wound religious feelings, a likelihood of breach of public order, and an element of religious insult or vilification. Mere disagreements with or respectful criticism of religious rulings should not be prosecuted.

What penalty must be prescribed? One reader strongly argued against the death penalty and I totally agree.

Fines along with counselling and community engagement sessions may be adequate. The purpose should be to re-educate and banish the ignorance that leads to the prejudices on which hate speech is based.

Reader Buyung also asks the provocative question: "Why aren't Buddhists, Hindus, Catholics, Protestants, Confucianists, Bahais, Zoroastrians creating violent terrorism over acts of blasphemy?"

This is a very large and involved question and only a few points can be explored.

First, it is probably true that deep, unquestioning veneration for their faith is more widespread in Muslim societies.

The militant secularism (e.g. the banning of Bible-reading in public schools as in the United States) is impossible in Muslim societies.

Secondly, it is not true that other civilisations do not indulge in religious-racial violence and persecution.

In the US, firebombing of black churches by white racist groups is known. Right-wing Christian groups destroy abortion clinics and shoot dead the patrons.

The Ku Klux Clan used to lynch blacks. During George Bush's government, nearly 7,000 Muslims were profiled, detained and harassed.

Was there no religious violence in Ireland till the 70s – inquisitions and burning of heretics; Jew-baiting and discrimination against Catholics; and the holocaust in Europe? Are not Europe and the UN to be blamed for the genocide in former Yugoslavia?

Who committed and who helped the slaughters in Sabra, Shatila and Jenin?

In India, religious, caste and tribal violence is endemic. The Babri mosque was razed to the ground and Muslims were butchered in Gujarat with political and police connivance.

In Sri Lanka, race/religious violence claimed more than a hundred thousand lives. In Thailand and the Philippines, religious violence by both sides is well known.

Thirdly, reader Buyung implies that terrorism is a speciality of Muslims. Much depends on how one defines terrorism.

Israel's brutalities in Palestine and Lebanon are flagrant violations of international law. Actually, humanity has a bloody record and no civilisation can claim superiority in this area.

What has happened today is that through selective demonstration and fear-mongering, the topic of Islamic terrorism is allowed to demonise a religious community.

Blind faith in politics

Posted: 31 Oct 2012 04:46 PM PDT

Even if the Pakatan Rakyat takes over the office, it is impossible for it to solve the national debt problem within three to five years, particularly the Pakatan Rakyat also advocates populism, and promises to increase oil royalty for oil-producing states by 20%. Unless if the Pakatan Rakyat can control its spending and open up new revenue, or it will fall into the same financial predicament of the BN government.

Lim Sue Goan, Sin Chew Daily

I do not know if others are sick of politics just like me. I have been skipping news reports about mutual attacks between the ruling and alternative coalitions.

However, many people are still passionate in politics. For example, a recent political dinner organised by the DAP in Skudai had attracted 11,000 people and some stayed until midnight and were reluctant to leave. The dinner collected RM63,110 and one of the supporters bade RM30,000 for the "Ubah" mascot with the signatures of party Parliamentary Leader Lim Kit Siang and his son, Penang Chief Minister Lim Guan Eng. Meanwhile, Prime Minister Datuk Seri Najib Razak was also welcomed by passionate people when touring the country.

On the other hand, social media have also been passionately talking about politics. Some people even believe that all the country's problems will be solved once the regime is changed.

Is politics so magical? Is it true that everything will become better after the general election? I am not pouring cold water here, but I am afraid that everything might remain as the status quo after the election.

The runway landing lights failure at the Kota Kinabalu International Airport (KKIA) had caused thousands of passengers stranded. Such imperfection can be reguarly found in Malaysia and the government is not a panacea that can cure the sloppy working attitude.

The flaws in the Automated Enforcement System (AES) reflected execution problems and politics is not a miracle drug. It is impossible to be cured completely even if the government is changed.

The various absurd acts in financial management exposed by the Auditor-General's Report involve frauds and it is an institutional issue. The decision made by the Finance Ministry at meetings did not reach the borrowing department and as a result, the department continued lending money to the National Feedlot Centre. It is a problem of blocked communication. The disappearance of evidence in police stations is a result of the lack of discipline.

The turtle-speed progress of the road upgrading works in Petaling Jaya is a result of low efficiency and it is a waste to place dozens of 3R recycling bins in Section 13 and 14 where there are not may pedestrians.

All the above mentioned drawbacks require a long time to reform and correct. It is impossible to be solved by politicians alone. The greater the expectation, the greater the disappointment. It is also not practical to apotheosise any political leaders. They also have to face institutional and human problems.

In terms of work efficiency, Pakatan Rakyat state governments are not doing better than the federal government, unless if the Pakatan Rakyat rectify the administrative system immediately after taking over the office.

The national economy has currently slowed down while the US third Quantitative Easing (QE3) is expected to bring inflation problems. Regardless of whether it is the BN or the Pakatan Rakyat, the federal government must have appropriate measures to cope with the situation after the election.

Therefore, it is over optimistic to hope that the general election and politics can change the country. It is also only an idle theory to compare the BN with the Pakatan Rakyat. The key actually lies on who has the ability to implement institutional reforms and eradicate the deep-rooted malady.

It requires time to clear administrative drawbacks. A few politicians and a general election are not able to bring massive changes.

You may be passionate in politics but please do not put blind faith in it. There is hope in politics only if we purify our minds first.

Vote for party, not candidate

Posted: 31 Oct 2012 04:42 PM PDT

Our politics has obviously moved towards duality in which those who are not categorised as friends will be regarded as enemies. It has also made it difficult for independent candidates or a third force to rise. The by-election held in Johor Bahru on August 25, 1988 serves as the best example here.

Lim Mun Fah, Sin Chew Daily

The next general election seems so near yet so far. Political parties seem to have decided their candidates and it is now just the question of time for the official announcements by party leaders.

Candidates are indeed important as they are representatives of their respective parties and might be leaders of the country in the future. However, I am more and more convinced that the next general election is going to be a battle between the BN and the Pakatan Rakyat. Except for a few heavyweight candidates or those who are really notorious, voters would basically tend to vote for political parties, instead of candidates.

According to my personal observation, supporters of the alternative coalition basically voted for the party instead of the candidates in the past few general elections. For them, it was more important to let the alternative coalition expand its political map than supporting the candidates. Moreover, the alternative coalition had been facing a talent shortage problem even in the last general election.

However, the next general election will be different from the previous ones. After the 2008 political tsunami, many young intellectuals have joined the Pakatan Rakyat and it has strengthened the base of the coalition while enabling it to have a large number of potential and talented candidates with political ideals.

It also means that this time, BN candidates will no longer face opponents who are incomparable with them in terms of personal knowledge, image and talent. Instead, they will compete with opponents with equal strength or even stronger.

Undeniably, the quality improvement of candidates can strengthen the trust of voters while making the election campaigns more worth seeing. However, similar personal qualities might cause voters to further tend to vote for parties and not to care about comparing the candidates.

There was an outbreak of struggle between team A and team B within Umno at that time. Former Welfare Minister Datuk Shahrir Samad, a team B leader along with former Finance Minister Tengku Razaleigh Hamzah and former Deputy Prime Minister Tun Musa Hitam, resigned from his Johor Bahru parliamentary seat after being sacked from Umno, forcing a sensational by-election.

The then Umno was divided into the confronting team A and team B and the voters would also like to take the opportunity to teach the domineering Umno a lesson by intensifying the confrontation. Therefore, they urged Partai Sosialis Rakyat Malaysia (PSRM) Deputy Chairman Abdul Razak Ahmad to withdraw from the election, but Razak insisted to contest. As a result, Shahrir won with a majority more than double the votes of BN candidate, while causing the prestigious Razak to lose his deposit.

The by-election illustrated the fact that in an era asking for changes, the situation is always prioritised over people. It is not changeable by personal prestige. Similar to the current situation, voters generally want to see a showdown between the BN and the Pakatan Rakyat and therefore, the next general election is doomed to be a battle in which voters vote for political parties, instead of candidates.

Kredit: www.malaysia-today.net

Khamis, 1 November 2012

Malaysia Today - Your Source of Independent News

Malaysia Today - Your Source of Independent News

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