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Reflecting On The Law

Thursday, 12 October 2017 | MYT 12:00 AM

Drift towards intellectual intolerance

INTERNATIONALLY acclaimed Tur­kish Islamic intellectual Mustafa Akyol was detained by the Federal Territories Islamic Affairs Depart­ment (Jawi) on Sept 24 for giving a talk on Islam without prior accreditation from the relevant Religious Teaching Supervisory Committee.

His host, Dr Ahmad Farouk Musa of the Islamic Renaissance Front, is being investigated for abetting him.

This embarrassing episode throws up significant issues of constitutional law. Let us note that in a country with a supreme Consti­tution, any civil or criminal, federal or state, secular or religious law cannot be enacted to confer absolute powers on any one.

Violation of Article 11(4): In the matter of freedom of religion, Article 11(1) grants to every person “the right to profess and practise his religion and, subject to clause (4), to propagate it”. Clause 4 provides that “State law ... may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam”.

The term “propagation” is not defined in the Constitution but can be understood to mean to preach, proselytise, proclaim, promote or disseminate.

This unique restriction in Article 11(4) was part of the “social contract” between the Malays and non-Malays to shield Muslims against well-organised evangelical groups that had gained a foothold during colonial days.

The constitutional problem is that since the eighties, Article 11(4) has been used by the States to frame catch-all laws against any intellectual discourse on Islam without prior permission of syariah authorities.

Take section 11 of the Syariah Criminal Offences (Federal Terri­tories) Act 1997 (Act 559) which provides that “any person who teaches or professes to teach any matter relating to the religion of Islam without a tauliah (accreditation) ... shall be guilty of an offence ...”. This is the provision used against Mustafa Akyol.

First of all, Mustafa was not “teaching” but taking part in a forum with peers. Second, “teaching” is not synonymous with “propagating”. A teacher may teach criminology but is not propagating criminal conduct.

Third, the words “any matter relating to the religion of Islam” cover the whole range of Islamic thought.

University autonomy: If section 11 is to be interpreted literally, then any lecturer of Islamic theology, law, economics, banking, commerce, history, good governance and philosophy or any participant in a seminar or workshop on any aspect of Islam must first obtain a tauliah or risk a RM5,000 fine or three years’ jail!

All public and private universities have statutory powers to recruit staff and allocate subjects to be taught. Must all lecturers in Islam-related subjects seek clearance from the syariah authorities first?

It is understandable if there is a law against “false doctrine” as in section 4, but the section 11 catch-all provision is an overkill and clearly in conflict with Article 11(4) and all statutes empowering universities and schools.

Schedule 9: This Schedule contains the federal and state lists of legislative powers. Paragraph 1 of the State List empowers the States to create and punish “offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List”. It also empowers the States to control the propagation of doctrines and beliefs among persons professing the religion of Islam.

These provisions were relied upon by the Federal Court to uphold state laws imposing the tauliah requirement in the cases of Sulaiman Takrib v Kerajaan Negeri Terengganu (2009) and Fathul Bari Mat Jahya & Anor v Majlis Agama Negeri Sembilan (2012). Both decisions have been criticised on several scores.

First, the requirement of a tauliah is not a precept of Islam. As opposed to religious absolutism, there is a spirit of shura (consultation) and reasoned dissent within the Islamic tradition. Prophet Muhammad once said: “There is mercy in the differences of my community.”

Second, what is disturbing about these decisions is that the actual content of a speech or presentation are irrelevant. Intent to indulge in deviationism is not needed.

Any intellectual discourse, no matter how learned and respectful, is a crime unless there is prior permission. The authorities can act against anyone they wish. It is on record that the late Dr Kassim Ahmad, the Mufti of Perlis and Khalid Abdul Samad have been charged for speaking without a tauliah.

Third, the view of the learned judges in Fathul Bari that diversity of views may lead to deviationism and that, in turn, may lead to disharmony and disorder is fanciful and not supported by social reality or logic.

Fourth, the provisions of Schedule 9 are subject to the chapter on fundamental liberties. An unfettered power to impose prior restraint and censorship goes far beyond the permitted restrictions on freedom of religion (Article 11) and freedom of speech (Article 10).

Fifth, there is a sufficient body of opinion that the reasonableness and proportionality of restrictions on human rights are reviewable by the courts: Sivarasa v Badan Peguam Malaysia & Anor (2010).

Federal law: Whatever one’s views may be about the Sulaiman Takrib and Fathul Bari decisions, these cases are not fully applicable to the federal territories because in the Mustafa Akyol and Dr Farouk cases, Act 559 of the federal Parliament is involved. This Act was passed under List I of Schedule 9.

In List I there is no blank-cheque power to create offences against the precepts of Islam. Nor is there any authority to control the propagation of doctrines and beliefs among Muslims. Reliance may, however, be placed on the limited provision of Article 11(4).

Article 5: There are allegations that Mustafa was detained for 17 hours without proper sleep. If that is so, there are clear violations of constitutional guarantees and rules about treatment of detainees.

In sum, the Mustafa Akyol arrest and Act 559 are constitutionally questionable.

The tauliah laws denigrate all Muslims as servile subjects who must speak about Islam only when allowed to do so and who are so gullible that they are likely to be confused by unlicensed thinkers who must therefore be controlled by prior restraints.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. The views expressed here are entirely the writer’s own.