Our experience in the past 10 years or so has shown that there are many serious issues confronting the Syariah laws as passed in this country. Much of the syariah laws are hand me downs from the colonial era with some amendments here and there. Quite apart from these. You also have for example, the Criminal Procedure Code remodified for the purposes of use in some Syariah Courts and renamed as Syariah Criminal Procedure Code.
There has also been serious problems with the manner in which discretions were used by the respective religious authorities. There are unhealthy perceptions among the Malaysian public that some of these discretions were applied selectively and arbitrarily. Such a perception needs to be addressed as it will impact upon the institution of syariah aws in the country. For example, while the syariah law of the respective state allowed the caning of Kartika for the offence with which she was charged, many were not only surprised but even appeared to question the sentence of caning. This does not augur well for the “syariah system”, for the “image of Islam” and for the Nation as a whole.
I feel that it is beyond time that the Nation embarked on a serious, long term reform of the “syariah system”. Since independence to date, it seems that there has been no effort to form a serious committee to seriously relook at the nature of syariah laws and its implementation in the country.
To this end, I humbly suggest that the Government take steps to form the commission that will be empowered to study and suggest various reforms to the syariah laws. In some cases, it can identify which areas of the laws that requires reform and further study.
Admittedly, this will not be an easy task. This is because, the task will require for the commission members to primarily start from the premise of the accepted sources of Islamic jurisprudence that is:
1) Quran - will not pose much problem
2) Sunnah – may pose some problems
3) Ijmak - will pose great problems
4) Qias – will pose great problems.
The problem with Sunnah/hadith will be the differentiation between what is authentic and what is not. Many Islamic scholars, as Dr Asri himself has pointed out before that many Islamic scholars quite uncaringly or negligently rely on doubtful hadith in thier speeches and writings. For those familiar with Islamic jurisprudence, this is trite. Apart from the basic four above, there are also other ‘accepted sources of Islamic jurisprudence.
In Malaysia, the recognized “understanding of Islam” is sunnah wal jamaah or Sunni. Shia and other “brands of Islam” is illegal. In this Sunni group, there are four main schools of thought namely, Shafie, Maliki, Hanafi and Hambali. Shafie views are given particular predominance in search for legal rulings. However, here also one may encounter problems of diverse juristic exegesis within and among the said schools.
So, as I said, it can be quite a challenge for the commission members to come up with agreed recommendations for reform especially when details are descended into. Nevertheless, the alternative seems to be continued chaos.
I would suggest that the Tajdid commission should comprise scholars from various universities and various disciplines. It will be a mistake to take only the scholars from a particular Middle Eastern University as they will probably prefer the understanding and teachings of their respective professors. Likewise, I will also suggest that the commission members should be made up of scholars and/or intellectual thinkers who have not gone through the formal “Islamic formal education system”. This is important as it will give a fresh dimension to the thinking and discussion that will take place among the commission members.
The inclusion of scholars and/or intellectual thinkers who have not gone through the formal “Islamic formal education system” may assist the commission to look beyond the form and at the substance.
Further, the commission should also include legal experts from the non-syariah system. Again, through the discussion, exchange of views among the commission members, we cannot discount the possibility that one Malaysian Legal System may emerge. Fro example, is the traffic light rules and regulations from the non-syariah system uniIslamic?
And who better than Dr Asri or Dr Maza, as he is popularly called to head the commission?
Peace !
8 comments:
Despite the fact that what you suggest is sorely needed, and a reasonable and intelligent way forward, it will be a very hard sell to accomplish.
Why? The status quo of how things are today has put certain religious "authoritative" personalities in very cushy positions, that they are very unlikely to allow to have taken away from under them - something which a Tajdid Commission would do, eventually and inevitably.
It takes a very strong and decisive political will to see such an initiative thru. Unfortunately, it is exactly that will which is very lacking today, across the various political divides.
Walski,
You are absolutely right - that was the point I had forgotten to add - POLITICAL WILL. I suppose once again, it now up to the People Power?
Bro,
I fully support your suggestion. Its about time that substance is given equal attention than merely the form of Islam as is wont being applied now by some Islamist zealots and for what if not at the expense of the good image of Islam. Its as if the religion of the good and righteous have been highjacked by these self proclaimed zealots.
Quite apart from the four references you mentioned and the great difficulties in so far as the Ijmak and Qias we also have to contend with Islam being a state matter.
Thus the states' religious department and the Sultans will also have to agree to whatever is being carried out in so far as the administration of Islam is concerned.
Even as it is I understand that some rulers have lamented that their powers have already being slowly eroded and they would not want any further chips on their authorities.
The other big hurdle is your suggestion of not including those schooled in the Islamic Formal Educational System. Here you are going against those with vested interests and they will not rest until they are represented. I am sure they will even use the Sultans for their cause.
And I agree with Walski69 view's. There is too much at stake and too much to lose by those already in place like in the various State Religious Departments.
rejal
Good idea. Will the leaders have the fortitude, sincerity, courage and understanding to do this?
I guess this is more of a realistic plan that fits the reality in life, which is biting us all on the butt btw. If it is up to me, I'd throw the whole syariah law out the door and have one law in malaysia in harmony with the One Malaysia theme, which is more islamic since it is a fair thing to do, to have the same law for everyone, rather than subjecting a set of law for non muslims and a another set of law for the muslims.... Furthermore, the injustice resumes when a muslim can get canned (in which method of “canning” is still ill-defined) in 3 states (kelantan, pahang and perils) yet people who drink in the other states get away with it. But the biggest injustice would be, implementing a law, that even God Himself did not come up with and claim it to be "Islamic". I think the big issue that the Ulama’s have to resolve is, to re-analize how Islamic is the Islamic Law…The bigger question to answer is “Where are the Muslims going with this Syariah Law?”. Unless it is clear cut God’s Law, then man made laws are meant to be amended, to suit up to date requirements of daily life of the Muslims.
And that is why this is all not up to me :-)
Salam Bro.Jay,
Good suggestion ! Should be done. May find some parties against it but if it is good for humankind, God's will, it will happen !
Bro,
Another provocative but well thought out view which any right thinking Malaysian would concur.
sometimes you get the feeling that our MPs - from both sides of the divide - do not really care for the substance of what they say in the august house but are only interested in their theatrics.
I suppose they think getting their pictures and news into the papers even for the wrong reason and at their own expense - which unfortunately they don't seem to understand and some are also lawyers - is OK.
How unwise some of these MPs can be.
You too the words right out of my mouth Uncle J
However… I question the need for Syariah Law in this country… from my point of view Islam is the official religion of Malaysia, but I don’t think that Malaysia is an Islamic country… if we are not an Islamic country then do we really need Syariah Law?
Most importantly, isn't Islam between an individual and Allah?
and if they'd like to implement Syariah Law in this country shouldn't they practice the governance that the Kalifah Urrasyiddin practice?
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