This paper was presented by Zainah Anwar, Executive Director of Sisters in Islam at the Public Forum organised by Liberal Forum Malaysia and Friederich Naumann Foundation in Kuala Lumpur on 27 April 2005
I speak from the perspective of a Muslim, a believer, a feminist and an activist who believes that Islam is just, that God is just. Therefore my commitment to this society is to bring about an understanding of Islam that upholds the principles of justice, equality, freedom and dignity and that any law made and implemented in the name of Islam must be a just law.
1. What Constitutes Public Morality
What is public morality? Who defines it? Can there be a consensus as to what constitutes an offence against public morality? Without a consensus, should punitive laws be used to enforce public morality?
Public morality must depend on public consensus. For example, there is public consensus that sex in public constitutes immoral behaviour. Hence such behaviour is criminalised by the state as a display of public indecency. There is public consensus that wearing a bikini in the streets of Kuala Lumpur or in the halls of Parliament, even among the non-Muslims, is unacceptable behaviour. You don’t even need a law to enforce this. Therefore one will not expect any public outrage should a couple be arrested for having sex in public or a woman arrested for wearing a bikini along Bukit Bintang.
Within the context of a multi-ethnic, multi-religious, pluralistic, democratic society, is it possible to reach public consensus on morality and then to criminalise its violations? Even among Muslims, there are differences on what is a moral obligation and what is a legal obligation in Islam. In a country where Islam is used as a source of law and public policy, those in religious authority can no longer claim monopoly over the interpretation and meaning of Islam. The question as to what interpretation and understanding of Islam should be law and whether state apparatus should be used to demand compliance to religious values must be open to public debate.
Neither should this debate exclude citizens of other faith. They when have every reason to engage in the debate because too are affected by the law – when their children are charged for indecent behaviour for holding hands in a park, for being denied entry to the public library or to a government department because they wear clothes considered indecent by the norms of another religious group.
Over the past few months, a debate has revolved on whether private behaviour should be morally policed and punished on the basis of religious values and teachings. Or whether these values should be best left to the religious conscience of the individual.
One can of course argue that all laws in a sense are moral laws. Laws against killing, stealing, child abuse, domestic violence, slandering. There is consensus that the state must criminalise such behaviour to protect persons and property. Such laws are not being questioned here. Specifically at issue are several provisions in the Syariah Criminal Offences Law of the country which have turned what the religious authorities and law makers deemed to be sins in Islam into crimes against the state. And how such vaguely drafted laws to regulate the morality and faith of Muslims have led to abuse, selective prosecution and gender bias. Questions have also been raised on the constitutional and legal basis for these laws, both at the civil and syariah levels.
If there is no public consensus, public morality laws become unenforceable. Look at Iran after 25 years of Islamic rule. Look at Afghanistan under Taliban rule. In spite of the moral policing in the streets, in the offices, in the neighbourhoods, on the university campuses, the moral laws imposed by the state have failed to bring about a more pious, moral and obedient ummah. At best, the laws can command outward conformity to moral rules; but in the end they hinder the very moral education they were designed to assist.
Women were forced to wear the hijab, without fully understanding or imbibing the reasons for it. The streets of Tehran today are filled with young women displaying far more hair than hijab because 25 years of compulsory hijab law have only brought about defiance, not compliance. The question this raises is: would it have been more effective to educate young people to be able to freely choose to do the morally right thing for the right reason, and not because of the fear of the coercive power of the state.
This then brings me to the second issue I want to discuss:
2. The Role of the State in Legislating on Faith and Morality
SIS public position on moral policing did not begin with the recent JAWI raid. SIS has been monitoring the Syariah Criminal Offences law since 1997 when three Muslim women were arrested for taking part in a beauty contest and charged and found guilty for violating a fatwa and for indecent dressing. This had generated a public debate, not just over the way the women were arrested, but also over the very existence of a more expansive and punitive Syariah Criminal Offences law.
How did such a law with so wide an impact on the lives of the citizens get drafted and enacted by the legislative bodies, without a squeak of public discussion or knowledge until they were enforced? Of concern were provisions in the law considered unprecedented in Islamic legal theory and practice, violates Qur’anic principles of privacy, conflict with the Federal Constitution and the Penal Code. To this day, the record of enforcement raises doubt as to whether such a law can indeed ensure that Muslims lead a life according to the teachings of their religion.
In 1997, Sisters in Islam submitted a memorandum to the Government on the Syariah Criminal Offence Act and Fundamental Liberties. Our concerns covered several areas criminalised by the law:
- It is a crime for a Muslim to defy, disobey or dispute a fatwa once it is gazetted.
- It is a crime for a Muslim to print, publish, distribute, or possess books contrary to Hukum Syarak.
- It is a crime to insult Islam or the religious authorities. What constitutes an “insult to Islam” is not defined. In the case of one pub singer, being in a place that served alcohol constituted an insult to Islam;
- It is a crime to act or behave in an indecent manner in any public place. What constitutes “indecent manner” is not defined. It has included to “hold a woman’s waist in a shopping complex” and “sit closely together and hold hands”. Hundreds of Muslim women and men, mostly young, have been arrested and charged under this provision.
- In Terengganu, the Syariah Criminal Laws were further amended by the PAS government in 2001 to make it a crime for Muslims who fail to perform their five daily prayers, for a woman to reveal any part of her aurat that arouses passion in the public space or for a virgin woman to abscond from the guardianship of her parents without a reasonable justification valid under hukum syarak. What is reasonable justification, what constitutes valid reason under hukum syarak? Of course this is left to the discretion of the enforcement officers.
These are only a few of the areas of concern in the Syariah Criminal Offences law that we have called for review and repeal. Should this law be fully implemented, hundreds, if not thousands of books in public and private libraries would be confiscated, the jails and prisons will be overflowing, our criminal justice system will collapse under the weight of cases, and our streets and neighbourhoods will be patrolled by moral policemen. How do you enforce a law that criminalises a Muslim who fails to pray five times a day?
Do you do this by placing moral officials in neighbourhoods, offices, university campuses, outside mosques and suraus and in the streets – which was what happened in Kabul under Taliban rule. If the Malaysian religious authorities choose to implement the Syariah criminal offence law fully, this could also happen in Malaysia.
Is it the duty of the state – in order to bring about a moral society – to turn all “sins” into “crimes against the state”?
Should the state extend the long arm of the law to what should be best left to the religious conscience of the individual?
What is the effect of such laws on nation-building and the relationship between the communities in multi-ethnic and multi-religious Malaysia?
What role do evolving societal norms and behaviour play? Should taxpayers’ money and Government resources be utilised to police the conduct of Muslims? On a scale of priorities, shouldn’t the limited resources of the syariah judicial system be focussed on improving the implementation of provisions under the Islamic Family Law to ensure that all parties, in particular women and children access their rights granted under the law and that justice and compassion prevail? What is the impact of such syariah criminal laws and the abuse in enforcement on the image of Islam and Malaysia worldwide?
If the indisputable objective of syariah is justice, then how can laws made in the name of Islam in substance and implementation be allowed to bring injustice. In a country that embraces modernity like Malaysia, it is imperative that the Government examines these concerns and take due consideration in enacting and implementing laws in the name of Islam.
3. Religious Convictions and Public Law
A law that turns sins into crimes against the state raises numerous difficulties in its conception and enforcement.
For example, the Selangor Fatwa Council has gazetted a fatwa to say that smoking is haram. Under the Selangor SCO enactment, it is a crime to violate a gazetted fatwa, therefore it is a crime for a Muslim to smoke in the state of Selangor. But this law is not enforced, perhaps because the court and prison systems in Selangor would not be able to cope with the thousands of violators of this fatwa. So why promulgate a law that in reality is not enforceable?
There is also gender bias in the substance and implementation of the law. If there can be a fatwa that prevents Muslim women from taking part in a beauty contest, then by the same argument should not there be a fatwa on Muslim men taking part in a body building contest? When the three girls who took part in the Ms Petite Malaysia contest in 1997 were charged for revealing their aurat by wearing a swimsuit covered with a scarf, why not the men who paraded their bodies in tight skimpy swimming trunks in a Mr Malaysia contest just a few days later? Does not the Constitution say all are equal before the law and that there can be no discrimination on the basis of gender? We are not saying the simple solution is to ban all such activities. The point raised is one of inconsistency and double-standards, and this goes on.
If a pub or discotheque in Ampang is raided, then why not the pub in a 5-star hotel? If I can be detained for wearing an “indecent dress” in Kampung Bahru, why not when I am attending a concert at the Malaysian Philharmonic hall. If by singing in a place that serves alcohol, I can be charged for insulting Islam, then why not when I work in a supermarket that sells alcohol? If I can walk safely in Bangsar on a Tuesday night, why is it on a Friday night I can be stopped, detained and forced to take a breath analyser test and hauled into a lorry and taken to some place of detention even though the test proved negative?
How, where and on what basis do the religious authorities draw the line as to what is indecent dress or indecent behaviour, what constitutes an insult to Islam, where is a safe place for Muslims to go without the fear of being stopped, tested or detained for “indecent behaviour”?
As the state intrudes deeper and deeper into our lives and regulate our fundamental liberties, then it can only be expected that citizens will react and protest. The questioning and public debate on the meaning of Islam takes place because religious values are used to support positions that impose on other people restrictions in the exercise of their rights and freedoms that they find unacceptable and intolerable. Any attempt to impose one group’s morality on everybody else’s and to translate that morality into criminal law , a law that is then imposed not for the believers who don’t need it, but for the believers who reject it is doomed to failure.
To then try to silence dissent by conferring religious sanctity and infallibility on these man-made laws and place them beyond contestation and dialogue, and accuse those who question or oppose these laws as being against Islam and the infallibility of God is to expose oneself to the charge of despotism.
We all know that faith comes from the heart. Islam itself means submission to the will of God; but the submission of the self to faith and belief must be attained through conviction and reason, not through coercion and duress.
The moment religion is coerced, it breeds hypocrisy.
“Can we not be a good Muslim without Big Brother watching over our shoulder with every step we take, ready to send us to jail, fine us or whip us should we transgress?”
“To be a good Muslim, must one live in a state that codifies all religious values into laws and regulations of the state?”
“Does this mean that Muslims who live in secular states or in Hindu or Christian majority states can never be good Muslims?”
“Then how is it that Muslims living in such countries are able to abide by the teachings of Islam by praying, fasting, avoiding alcohol, dressing modestly? Isn’t that a better measurement of one’s faith when one’s submission to the will of God comes from conviction, not from state coercion.”
“We all hear the stories what certain women from certain countries do once they are settled in their jumbo jet seats and what certain men from certain countries do when they are in Bangkok.”
“Is our faith so weak then that we demand the Government to make criminal what we believe to be sinful because we ourselves cannot stop committing the sin?”
Compelling obedience to God in this manner could suggest a failure in the way Islam is taught in this country. Is the solution then to turn to politicians to legislate on our lives and compel our obedience or is it for us to search for more effective ways to teach Islam, to imbibe Islamic values so that obedience to God comes from a genuine act of faith, belief and submission. Is it beyond our ability to lead the ummah to God’s way by love, beauty, kindness and compassion rather than through coercion and punishment?
4. The Challenge
The challenge before Muslims is great. How do we as Muslims reconcile the tenets of our faith to the challenge of modernity, of plurality, of changing times and circumstances? How do we deal with the new universal morality of democracy, of human rights, of women’s rights, and where is the place of Islam in this dominant ethical paradigm of the modern world?
The search for answers to all these important questions cannot remain the exclusive preserve of the religious authorities, be they the ulama in government or in the opposition parties or Islamist activists pushing for an Islamic state and syariah law.
Muslims and all citizens must to take responsibility for the kind of Islam that develops in our society. The fact that Islam is increasingly shaping and redefining our lives means all of us have to engage with the religion if we do not want it to remain hijacked by those who preach hatred, intolerance, bigotry, misogyny.
Of course, Muslim societies face a particular hurdle in dealing with this. Most Muslims have traditionally been educated to believe that only the ulama have a right to talk about Islam. Ordinary Muslims like us who do not speak Arabic, who don’t wear the hijab, who don’t have a degree in Islam from the “right” universities, are told again and again that we do not have a right to speak publicly on Islam.
What are the implications to democratic governance, to multi-racial Malaysia, if only a small group of people, the ulama, as traditionally believed, have the right to interpret the Qur’an, and codify the text in a manner that very often isolates the text from the socio -historical context of its revelation, isolates classical juristic opinion especially on women’s issues, from the socio-historical context of the lives of the founding jurists of Islam, and isolates our textual heritage from the context of contemporary society, the world that we live in today.
For us in Sisters in Islam, when Islam is used as a political ideology to gain power or to remain in power, when Islam is used as a tool for mobilisation for political objectives, when Islam is used as a source of laws and public policies to govern the lives of Muslims, when the use of Islam in public life affects the rights of others, the non-Muslims, when Islam is stripped of its ethical, intellectual, and spiritual dimensions and reduced into a one dimensional punitive legal system, then everyone has a right to speak on Islam and its impact on us as citizens, no matter what our credentials are and whether we are a Muslim or not. It is the future of Malaysia that is at stake here.
It is high time we wake up and reclaim the Islam that liberated women 1400 years ago, the Islam of justice, compassion and mercy, the Islam that upholds human freedom and dignity. That was our rich heritage lost. We need to reclaim that heritage and all must participate in this project.
Sisters In Islam