Of Nik Elin and religious bigotry

 

From Dr Ahmad Farouk Musa

We read the news about the death threat against Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman with much consternation. They have also received immense threats on social media, including calls for their house to be burnt down.

The reason is due to the legal challenge they mounted to nullify 16 Kelantan shariah law provisions, which saw the provisions invalidated by the Federal Court. As a result, they have been demonised as enemies of Islam to such an extent that some extremists think it is halal for their blood to be shed.

In our opinion, the framing of the whole issue is politically motivated, manipulated and blown out of proportion. As concerned and responsible lawyers, both Nik Elin and her daughter understood that what the Kelantan state assembly intended to do was blatantly in excess of the provisions of the Federal Constitution.

We have to remember that the constitution is the supreme law of the Federation. Article 4 of the constitution says it loud and clear: ‘This constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this constitution shall, to the extent of the inconsistency, be void’.

However, if one were to examine the constitution as a whole together with the history behind the seeming paradox, it will be discovered that at the heart of this “supreme law” of the country—and arguably that of the founding fathers of the nation—is the desire to create a pluralistic and equitable society.

Yes, Article 3 of the constitution reads: “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation”.

But does this clause mean that Malaya purported to be an Islamic state? The answer is a clear resounding NO, according to the Report of the Federation of Malaya Constitutional Commission (page 73). Upon examining the draft constitution, the Reid Commission Report clarified: “The observance of this principle…shall not imply that the state is not a secular state”.

This has been the bone of contention with many Islamists in Malaysia. From the statement above, it is very clear that Malaya was never meant to be an Islamic state. This is not just an assertion by the Reid Commission; it is a statement made by the very people who were to become the government of the newly independent nation.

Combined with Article 4 which places all laws in the country under the Constitution, it shows that any claim that Malaya was meant to be theocratic is disingenuous. Hence, the idea that a state has the right to promulgate laws to show that we are moving towards an Islamic state is only a disillusionment.

Looking further, under Item 1 of the Federal Constitution’s State List, state legislatures can enact laws on Islamic law, including the “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List”.

The caveat “except in regard to matters included in the Federal List” was as a “preclusion clause” is a provision that excludes the state legislatures from making laws on matters falling under the federal jurisdiction. This is the fact being overlooked, if not purposely ignored, by some religious bigots who think that they have the power to override the constitution and enact state laws that are already covered by federal laws.

Accordingly, the threats against Nik Elin and her daughter are not only vile and contemptuous but also present a very bad image of Islam as an intolerant and belligerent religion. In our opinion, Islam and the state must be separated institutionally to preserve the agency of the Muslim to act out of free will rather than compulsion out of fear of the government’s apparatus.

Thus, all acts of loyalty would solely be motivated by genuine faith in Allah, not out of fear or action from any other external factors or state apparatus.

The premise for such an argument is simple: the shariah and its objective can only be practised freely by those who believe, and would lose all its religious authority and significance if coerced by the state. Therefore, from this religious perspective, a state ought not to be given power to have authority over Islam.

Additionally, we also believe that the wordings in the Federal Constitution on the Ninth Schedule List II – State List, viz. “creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion…” should be revised.

This provision has led to a situation where the State goes on to punish Muslims even for personal sins, when personal sins have nothing to do with the state. Muslims must practise Islam out of conviction, not out of fear of state sanctions.

Indeed, this is what piety is all about, something that Nik Elin and her daughter have sought to remind us. - FMT

Dr Ahmad Farouk Musa is a Founder and Director of Islamic Renaissance Front and an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.