Islam encroaches on rule of law in Malaysia

KUALA LUMPUR ? Last week, the Malaysian administration’s actions revealed not just a growing religious conservatism, but a will to ignore the rule of (secular) law in order to pursue it.

In a space of 24 hours, two agencies under the Home Ministry made clear that the government will impose its strict version of Islam on the country, despite advocating a modern, moderate approach to an international audience. Breaking The Silence: Voices Of Moderation – Islam In A Constitutional Democracy, a book written by the country’s prominent Muslim intellectuals, was banned last Thursday – despite being on the shelves for more than a year – for being “prejudicial to public order”. The next day, the National Registration Department (NRD) said it would ignore a court order allowing Muslim children conceived out of wedlock to take their biological father’s name, preferring instead to adhere to religious edicts – that say all such children should be surnamed “bin or binti Abdullah” – issued by the National Fatwa Committee in 1981 and 2003.

Deputy Prime Minister Ahmad Zahid Hamidi backed the NRD’s stance, deepening concerns over the influence of Islamic conservatism on the government.

“Muslims must unite and agree that Islam must be respected and that we do not want any decisions made by the National Fatwa Committee to be challenged by anyone, whether an individual or a different legal system outside of the fatwa committee,” said Datuk Seri Zahid, who is also Home Minister.

Universiti Malaya’s Professor Shad Saleem Faruqi, considered the foremost expert on Malaysian constitutional law, told The Straits Times that disregarding the judgment was “clearly contempt of court and a violation of rule of law”.

The NRD’s decision is the most blatant among government agencies that seem increasingly empowered to ignore legal imperatives on the grounds of religion. It may be that they are encouraged by the importance the government places on its Islamic Development Department, which, according to Deputy Islamic Affairs Minister Asyraf Wajdi Dusuki, should be given more than its current annual budget of RM800 million (S$254 million) to protect Islam from “extremist ideology” such as liberalism, pluralism, and the threat of the lesbian, gay, bisexual and transgender lifestyle.

In this context, the book ban drips with irony, as the 21 essays in it by esteemed intellectuals – including Prof Shad – and former premier Abdullah Badawi’s foreword, examine the reach of Islam in government. It was Tun Abdullah, prime minister from 2003 to 2009, who got the ball rolling on moderate Islam, and his successor Datuk Seri Najib Razak picked it up and ran with it, gaining international praise for his Global Movement of Moderates platform to combat religious extremism.

Malaysian Prime Minister Najib Razak gained international praise for his Global Movement of Moderates platform to combat religious extremism. But his government agencies have become more religiously aligned, refusing to submit to secular law. PHOTO: BLOOMBERG

Critics are calling the ban an attack on free speech that suppresses discussion on an Islamised bureaucracy. Such a discussion is essential in a multiracial country that is governed by both secular and religious law. And it is a discussion that has become even more crucial with the NRD’s decision to disregard a court order.

The Court of Appeal agreed with a Muslim couple that the NRD was duty-bound to register their child with the father’s name according to the Births and Deaths Registration Act 1957 (BDRA), regardless of whether the birth took place less than six months from marriage. The department had been registering these “illegitimate” Muslim children as “bin or binti Abdullah” as per the fatwa, a move that some Muslim activists say deprives these offspring of rights such as inheritance and paternal financial support, and subjects them to social stigma.

Despite not obtaining a stay of the court’s decision, the NRD insisted it will not alter its current procedure until an appeal is heard at the Federal Court, the highest court in the land.

The judgment has resulted in fierce debate among Muslims themselves. Those in favour say it is fair and compassionate treatment of a child, while detractors accuse the secular courts of interfering with Muslim family law. Perak Mufti Harussani Zakaria, the state’s top religious officer, has gone further to say the ruling “encourages fornication”, which is forbidden in Islam.

No doubt, the final word on the matter will be known only after the apex court disposes of the appeal. But until then, the NRD’s defiance is plainly illegal, say legal experts.

Prof Shad explained that firstly, the issue is the naming of the child, a federal matter under the Constitution that is governed by the BDRA and not determined by the legitimacy of the child under Islam. Secondly, a national fatwa “has no force whatsoever” and is merely a recommendation as Islamic law is devolved to state governments. Thirdly, the family is from Johor, where no state enactment or gazetted fatwa exists on the matter of the legitimacy of Muslim children.

The NRD is just the latest arm of government to cite the Islamic authorities to justify not complying with common law court rulings.

In a child custody battle stretching back to 2009, the police refused to abide by a 2010 High Court order to arrest Mr Riduan Abdullah after the judge handed custody of his children to their Hindu mother M. Indira Gandhi. Police chief Khalid Abu Bakar had said the force did not comply as the Syariah Court had given Mr Riduan, a Muslim convert, custody after ruling that his unilateral conversion of the children to Islam was legal.

But custody was beside the point. The order was to arrest the father, not recover the children for the mother. The Federal Court in April last year clarified this and despite Tan Sri Khalid’s promise to execute the arrest warrant, the wanted man is still at large.

“As it has often happened in the last few decades, the constitutional perspective is shoved into the background and is converted into an issue of syariah law by politicians and bureaucrats – an Islamic elite. People are questioning whether the Constitution applies to Muslims. It is not being given the status of the highest law of the land that it used to have,” said Prof Shad.

Even Islamic Affairs Minister Jamil Khir Baharom warned in 2014 of public vigilantism if there were constant challenges to limit syariah courts and asked “why do we want to flip this over by saying syariah courts are subjected to the Constitution?”

Instead, it would appear that rule of law in Malaysia is bound by political expediency. Constitutional lawyer Syahredzan Johan, in accusing the government of disrespecting the courts in the NRD affair, pointed to the selective way in which fatwas have been adopted by the Najib administration. “The fatwa on smoking was issued so long ago but up to now, it (smoking) has not been banned. Or are only some fatwas important?” he asked.

A version of this article appeared in the print edition of The Straits Times on August 05, 2017, with the headline ‘Islam encroaches on rule of law in Malaysia’.

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