Thursday, January 9, 2014

Bonding a segmented society by Prof Shad Saleem Faruqi

FOR most of its 56 years Malaysia’s segmented society has managed remarkably to preserve peace, tranquillity and development. Lately, however, some intractable religious and racial disputes have besmirched the gentle face of our land. We must maintain a sense of balance.
Disagreements are natural: Human interaction is impossible without some conflict. The more free and democratic a society is, the more likelihood latent dissatisfaction will come to the fore! This is what is happening in Malaysia’s evolving democracy. As freedom takes root and knowledge of constitutional rights spreads, views and values are expressed, often with belligerence.
Managing conflict: Despite all these disputes, the real issue is not the existence of conflict but how it is handled so that society’s social equilibrium is not threatened.
Jais raid: I am appalled at the profane action by the Selangor Islamic Affairs Department (Jais) of entering the premises of the Bible Society of Malaysia and seizing 331 copies of the Bible in the Malay and Iban languages. Despite Father Lawrence Andrew’s undiplomatic and ill-conceived public declaration that the Church will persist in its usage of the term Allah (in effect defying the Court of Appeal decision on the Kalimah Allah issue), this raid by Jais was most unfortunate.
It was contrary to Islam’s respect for all Revered Books and it was violative of several provisions of the Federal Constitution.
Article 11(1): Everyone has the right to profess and practise one’s religion and subject to Article 11(4) to propagate it. Article 11(1) must be read together with Article 3(1) that the practice of religion must not disturb peace and harmony.
Article 11(3): Every religion has the right to manage its own affairs, to acquire and own property and to hold and administer it in accordance with law.
Article 3(4): Though Article 3(1) declares Islam to be the religion of the federation, nothing in this Article derogates from any other provision of the Constitution. This means that no constitutional right or duty is affected or abridged as a result of the adoption of Islam as the religion of the federation.
Article 11(4): This provision permits state legislatures to restrict the propagation of any religious doctrine among Muslims. Nine state legislatures, among them Selangor, have passed such laws. The Selangor Non-Islamic Religions (Control of Propagation Among Muslims) Enactment 1988 goes so far as to ban non-Muslims from using 34 or so prescribed Arabic/Malay words.
Jais is oversimplifying the situation by banking solely on this law to justify its raid. In fact many other related provisions impact on the matter.
First, in Article 11(4) State Enactment imposing a criminal liability on non-Muslims cannot be enforced in the state syariah courts because under Schedule 9, List II, Paragraph 1, syariah courts have no jurisdiction over non-Muslims. This implies that syariah officials, likewise, have no authority over non-Muslims. Take for example a khalwat case involving a Muslim and a non-Muslim. The syariah authorities have no right to arrest or charge the non-Muslim.
Any offence by non-Muslims under an Article 11(4) State Enactment must be tried by federal courts and by federal authorities. If Jais had become cognisant of any offence under the Enactment, it should have filed a police report and left the matter to the police and to federal prosecutors.
The spirit of Schedule 9 List II Paragraph 1 is that the ecclesiastical authorities of one faith should not prosecute the followers of another faith.

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