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Islamic laws and non-Muslims

Senior Fellow/Director,
Centre for Syariah, Law and Political Science 

One of the fundamental teachings of Islam is that non-Muslims are guaranteed freedom to practise their religions and customs without any restriction as long as non-Muslims reciprocate by not being insensitive to the Muslim community. The Constitution, too, categorically restricts Islamic laws to Muslims.

IMPOSING Islamic law on non-Muslims? Answer: A big ‘NO’. It should not have been an issue and was utterly misconceived in the first place.

All the hue and cry surrounding it, I believe, was due to the misrepresentations made by Muslims as well as non-Muslims which created confusion in both communities, and which lead to a considerable refusal by the non-Muslims to listen and understand more.

The combination of this cause and effect situation has created substantial islamophobia.

One of the fundamental teachings of Islam is that non-Muslims are guaranteed freedom to practice their religions and customs without any restriction as long as the non-Muslims reciprocate by not being insensitive to the Muslim community.

Many Quranic verses and Prophetic traditions, as translated into state policies by various Muslim governments over the centuries, bear witness to this fact.

Islamic laws were never imposed on the non-Muslims unless they themselves, freely and by their own will choose to be adjudicated according to Islamic law.

If there exists any interference or oppression by Muslims on non-Muslims, it does not originate from the teachings of Islam, but rather from the “dark side” or confusion of Muslim themselves.

This is most likely due to their ignorance of their own religion, personal motives, socio-political interests or all three.

The position of Islam vis-à-vis non-Muslims is clear as far as doctrine is concerned.

During the time of Prophet Muhammad, it happened several times that when non-Muslims were caught committing offences with Muslims as their cohorts, the former were adjudicated according to their own laws, be they religious or customary.

Conversely, there were also occasions where non-Muslims would willingly submit to Islamic law in settling their disputes with Muslims.

The most famous case is perhaps one between the fourth caliph, Ali b. Abi Talib and a Jew over a saddle. Ali failed to produce sufficient evidence, and the case was decided in favour of the Jew.

In the case of Malaysia, the 9th Schedule of the Federal Constitution, consolidated by numerous other Acts of Parliament and state enactments, simply affirm the above said basic doctrine of Islam, that in general Islamic laws are not applicable to non-Muslims.

The Constitution not only categorically restricts Islamic Law to Muslims, but also places it under the jurisdiction of state assemblies. Due to these states having limited resources, this consequently deprives the Syariah judicial system of a better infrastructure, reliable human capital management and related facilities/amenities.

The impact of the Constitution is far-reaching. It allows two different legal and judicial systems to run parallel with each other: civil and Syariah.

While some may argue that Islamic Law is superior to all other man-made laws, the reality is not so. For example, the most severe form of punishment that can be meted out by the Syariah courts is still less than that of the punishment meted out by the lowest court in the civil system.

It is against this sorry tapestry that many concerned Muslims crave for the improvement in the administration and management of Islamic affairs in this country.

Let’s draw reference to the question of charging and punishing non-Muslims for khalwat (close proximity) in Malaysia. It’s clear, especially to those in the legal fraternity, that the Syariah court has no jurisdiction whatsoever to try such a case.

Justice means to put things in their right and proper places. In a situation involving a non-Muslim offender who does not profess the religion of Islam, justice in this context would be to not subject him/her to Islamic law.

A more appropriate measure would be to refer him/her to other laws in accordance with his/her religion or custom, if indeed any such law exists.

As alluded the situation may be different if he freely agrees or is willing to be adjudicated according to the Syariah court. But the current legal practice of this country is primarily shaped by the Constitution; and therefore to subject a non-Muslim to Islamic law is unrealistic, until and unless certain constitutional provisions are amended.

The modern legal requirements appear to prescribe that every single legal provision must be officially put in writing, otherwise no court can claim any clear jurisdiction.

This problem leads to several questions: Are we relying too much on laws passed by Parliament or state assemblies? If one were to accept this, then we tend to become too legalistic and mechanical. Does not the court have this notion of “inherent jurisdiction,” whereby judges are expected to be more innovative and creative in making their judgments or in exercising personal reasoning (ijtihad, in the case of Syariah courts)? To what extent is this notion of “inherent jurisdiction” realised by the judges of both the civil and Syariah courts?

Another question emerges: If there are no specific laws available in the religion or customs of the non-Muslim offender, how do we deal with him/her? Can we charge him/her under the Malaysian Penal Code? Even if we could, there will be some who will stand up against what they see as “moral policing.”

Because of our different backgrounds, upbringing and education, and hence different worldviews, there are perhaps certain elements of conduct that some may deem immoral but may not appear that way to some others.

What is wrong with khalwat or even adultery if it involves consenting parties? It may be religiously and morally disgusting, and yet completely acceptable in the legal sense.

One may argue that when some object to the application of Islamic law on non-Muslims, they were unaware of the greater wisdom behind such an idea.

They should not look at the issue strictly from the religious perspective alone. Evil acts like deliberate murder, theft, breach of trust, adultery, same sex relationships, etc, are all at the lowest standards of morality, some of which drag humanity towards bestiality or worse, and is abhorred by all religions.

I cannot think of any particular religion or culture condoning such acts. On whatever grounds, only the mentally retarded would say that those acts are neither immoral nor irreligious.

Therefore, when Islamic law specifies certain punishments for certain immoral actions, its primary aim is to preserve good conduct, the natural order, justice, peace and tranquillity for the individual self and consequently for society at large. This objective is in fact shared by many value systems, be they religious or ethical in nature.

The fact that many subscribe to absolute freedom devoid of any moral consideration, let alone religious consideration only portrays how detached they are from the principle of right and wrong, good and evil.

They have become secularists, denying the role and importance of ethics and morality, and ultimately of religion itself, and yet it is they who loudly demand religious freedom.

They propagate the notion of liberating man first from all forms of metaphysical foundation, namely ethics and morality and then religion over his reason, language and action. In this process correctly referred to as secularisation, values are sacrificed.

What they desire ultimately are secular morals where all value systems including religion are rendered momentary and relative, where man is absolutely free to behave according to his lust and bestial desire. Therefore, in reality they are actually the propagators and defenders of a life without morality or religion.

The notion of freedom of action and expression stemming from the doctrine of human rights cannot be referred to as freedom, because freedom means to choose what is good and beneficial. 

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