Friday, October 16, 2015

Reflecting On The Law by Prof. Shad Saleem Faruqi - The STAR

Not a mere ceremonial body

THE 239th meeting of the Conference of Rulers on Oct 2-3 issued a strongly worded statement about the need to bolster transparency, credibility and integrity in government.

It also expressed strong support for our tradition of inter-racial and inter-religious harmony, and expressed dismay that some political leaders and non-governmental organisations are sensationalising racial and religious issues to garner support for their party or themselves.
The Rulers’ intervention on issues of governance may raise some eyebrows about the proper relationship between constitutional rulers and the elected government of the day.
Previous precedents: It is humbly submitted that the Rulers were well within their constitutional role under Article 38 of the Federal Constitution to issue their call for good governance and racial and religious harmony. There are previous precedents for such royal statements, for example on Oct 14, 2010 when the Rulers expressed concern about political trends that undermine the supremacy of the Constitution.
Article 38: Clauses (a) to (e) of Article 38(2) confer on the Conference of Rulers a number of specific duties and functions like the election of the Yang di-Pertuan Agong and his Timbalan, matters of religion, consent to some types of legislation, advising on some key constitutional appointments, nomination of members of the Special Court and granting pardons.
What is significant is that Article 38(2) ends with the words that the Conference “may deliberate on questions of national policy (for example changes in immigration policy) and any other matter that it thinks fit”.
These words clearly envisage that the Conference is not a mere ceremonial body. It is also a constitutional auditor; a part of our check-and-balance mechanism.
The Conference’s discretion to deliberate on policy issues extends to the whole panorama of events. It is not hampered by the Federal-state division of powers.
It can scrutinise any issue, ask any questions, seek any information. It can advise on any matter. It can seek to build bridges between communities, heal wounds, unify our divided and disparate communities.
Limitations: However, it must be noted that the Article 38(2) function is deliberative, not decisional. In the exercise of this discretion the Yang di-Pertuan Agong and the Rulers are accompanied by the Prime Minister and the Chief Ministers and are bound by any advice tendered. Further, the views of the Conference are not binding on the Federal Government.
Nevertheless, the very fact that the Constitution explicitly authorises the Conference to deliberate on national policy points to the potential for influencing the nation’s goals and the means to achieve them.
One must remember that even in Britain the constitutional monarch is not prevented from “advising, cautioning and warning”.
Because of the prestige of their offices and the long years on the throne, the Sultans can bring to bear on the deliberations of the Conference a large fund of expertise in public affairs. There is a large potential for statesmanship.
Another unmet need: The unifying, dignifying and stabilising influence of the Conference can also be utilised in another area where things have lost the balance that was contemplated by the 1957 and 1963 Constitutions. And this is the question of overzealousness by religious authorities.
Since the mid-eighties, an extra-legal interpretation has been given to State powers to enact “Islamic legislation”.
The constitutional division of powers between the federation and the states is often ignored. For example some states are operating rehabilitation centres for Muslims. Under the Constitution all prisons, rehab centres and reformatories are in federal hands.
State legislatures are passing hudud laws, legislating about homosexuality, betting, lotteries and HIV testing even though these are within federal jurisdiction.
The fundamental rights of Muslims are often trampled upon. For example, Selangor and Negri Sembilan laws confer power on Ta’uliah Committees to forbid Muslims from conducting a religious talk if they are not issued a letter of authority.
In Fathul Bari Mat Jahya (2012), a Negri Sembilan law was challenged on constitutional grounds but the court looked the other way. Such a prior restraint on free speech and such a repressive, monopolistic view of Islam has no support in the syariah.
Fatwas are being issued against liberalism without defining a term that occurs in our Rukun Negara. Religious pluralism is condemned even though the Holy Quran in Surah Al-Kafirun says “to you your religion, to me mine”.
Instead of uniting the Muslim community, periodic tirades are conducted against an ever-increasing number of Muslim groups.
Whether such hate-mongering contributes to the milieu in which some misguided Muslims join the murderous mercenaries in Syria and Iraq, is open to debate.
Islam is a beautiful mansion with many rooms. Differences and diversity are part of Islam. But lately in this country, a very narrow, pedantic, obscurantist view and vision of Islam has taken hold.
The gates of ijtihad (independent reasoning) are closed. Taqleed (unquestioning conformity) is mandated.
Any rational discourse is suppressed on the pretext that Muslims may get confused. We perhaps stand alone in giving to religious fatwas by unelected officials the full status of law.
Muslims from other lands express surprise that questioning a fatwa is regarded as a criminal offence!
The syariah authorities often exercise powers over non-Muslims they have no right to exercise e.g. raiding Christian churches or Hindu temples, seizing copies of the Holy Bible legally imported into the country, dissolving non-Muslim marriages, converting non-Muslim infants without the knowledge or consent of both parents.
There are instances of body-snatching and exhumation to ensure that the deceased is given a Muslim burial.
In the seizure of Bibles in Selangor and the raid on the Borders bookstore, syariah authorities defied the advice of the Attorney-General, the state government, the High Court and the Court of Appeal.
The over-assertiveness on religious issues in Peninsular Malaysia is causing unease in Sabah and Sarawak.
Given the country’s commitment to pluralism and tolerance, we need an eminent institution whose unique position qualifies it to play the role of a conciliator.
With the political executive, the judiciary and parliament unwilling to rise to the task, the Conference of Rulers is the only institution that can restore balance, counsel moderation and rein in the extremists.
Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.

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