G25 must not flip-flop, and must not play fast and loose with the Federal Constitution — CENTHRA, iPeguam, CLJ and YP

The Centre for Human Rights Research and Advocacy (CENTHRA), iPeguam, Concerned Lawyers for Justice (CLJ) and Young Professionals (YP) are deeply perturbed and greatly shocked by the call made by the spokesperson of G25, Noor Farida Ariffin, as reported by various news portals on December 6th, 2015 (for brevity, “the 6th December Report”) wherein she was reported to have called for the decriminalisation of close-proximity among unmarried Muslim couples under the current Sharia laws in Malaysia.

This, we believe, runs contrary to the clear and established principles of Sharia, and not to mention, to the provisions of the Federal Constitution being the supreme law of the federation. The news came to us particularly perplexing, especially since on the very next day, on December 7th, 2015, G25 issued a statement entitled ‘Role of Islam in Constitutional Democracy’, wherein the group supposedly affirmed the commitment towards promoting “an informed and rational dialogue on the ways Islam is used as a source of public law and policy in multi-ethnic and multi-religious Malaysia, within the letter and spirit of the Federal Constitution, the supreme law of Malaysia” (for brevity, “the 7th December Statement”).

To put the record straight, the Federal Constitution clearly provides for “the creation and punishment of offences by persons professing the religion of Islam against precepts of that religion….” (see: List II of the 9th Schedule of the Federal Constitution). Thus, it is beyond our understanding as to how a group that supposedly affirms “the letter and spirit of the Federal Constitution” could in the same breath call for the decriminalisation of an offence against the precept of Islam.

One must be reminded that this constitutional position has been acknowledged and declared, loud and clear, by the highest court of the Federation. In the case of ZI Publications Sdn Bhd and Mohd Ezra bin Mohd Zaid v the State Government of Selangor, the Federal Court held that “a Muslim in Malaysia is not only subjected to the general laws enacted by Parliament but also to the State laws of religious nature enacted by Legislature of a State. This is because the Federal Constitution allows the Legislature of a State to legislate and enact offences against the precepts of Islam. Taking the Federal Constitution as a whole, it is clear that it was the intention of the framers of our Constitution to allow Muslims in this country to be also governed by Islamic personal law.”

While we acknowledge that private sins such as close proximity among unmarried couples are between God and the sinners only; the State — and in fact the community as a whole — on the other hand also has a duty and responsibility to enjoin good and forbid evil.

It is indeed true, as Farida claimed, that the authorities should not intrude into a person’s private spheres. However, when there exist credible complaints of wrongdoings, even when such purported wrongdoings are said to be in private spheres, there is duty to forbid such purported wrong-doings from continuing to take place any further. That being said, we must however stress that due process must be strictly complied with, and vigorously adhered to, especially and particularly having regard to the fact that it is not the business of the authorities — or of anyone else for that matter — to peek through anyone’s private lives or to be pervasively suspicious of wrongdoings all the time.

In the 7 December Statement, G25 supposedly reaffirmed its “belief in and commitment to the Islamic principles of Maqasid Al Sharia,” which is commendable save for the fact that it is a statement of too general a principle, and imbued with too abstract a concept, that would be meaningless unless and until one understands what it means by Maqasid Al Sharia (the higher objectives of the Sharia).

In this regard, learned and enlightened ulama have in general postulated that the higher objectives of the Sharia are to: (i) preserve religion; (ii) protect life and dignity; (iii) safeguard progeny; (iv) promote intellect; and (v) fortify property. As such, having regard especially to objectives (i) and (iii), the punishment for offences against the precepts of Islam must be maintained, both for religious purposes in as much as for constitutional purposes.

*Azril Mohd Amin is Chief Executive for Centre for Human Rights Research and Advocacy (CENTHRA).

Mohd Luttfi Abdul Khalid is the Chairperson of iPeguam.

Mohd Hafizuddin Khan bin Norkhan is the Director of Concerned Lawyers for Justice (CLJ).

Faidhur Rahman Abdul Hadi is Chief Executive of Young Professionals (YP).