Islamic governance of modern nation-states is now at an experimental crossroads. Since the Iranian revolution, and the subsequent experimentation of an Islamic republic of governance, we are now facing the changing nature of newer and more definitive models of modern governance of Islamic populations, organised as nation-states. Egypt, in their post-revolution against feudalism, is the latest experiment in Islamic forms of modern democratic governance.
Therefore, Egypt’s new regime received democratic support from 64 percent of those who voted for their new and written civil constitution, even if their number of voters seemed to be the lowest level of any national vote.
The real debate now shifts to what kind of governance will be deployed within the new Egyptian model of democratic governance? The Egyptian people with their Muslim brotherhood leaders and advocates will become the newest experiment with evolving a true blue Islamic democracy. The only other serious ones were Turkey and Iran.
Although Malaysia does not fit as an Islamic model in the same vein, there have been experiments within Malaysian Parliamentary democracy in terms of balancing between ‘rule of law’ and ‘the rules of God’. These are worth learning from; at least for the failures, if not also for their many successes.
The most pertinent success story is adoption of Islamic banking in Malaysia; which can be considered a great success. The most problematic one however, is the attempted implementation of hudud (Islamic personal and family law) in Kelantan.
Ever since PAS came into full control and governance of Kelantan since 1990, there has been an espoused attempt to implement hudud in Kelantan, arguably because its population is 90 percent Malay and made up of an equal majority of Muslims. But can we review even this, for the re-education of all those concerned?
Possible green abuse?
Recently, we saw the negative effects of the Kelantanese version and interpretation of Islamic law as applied within the context of Malaysia’s constitutional governance. In fact, to my mind, it may even be an abuse of the rule of law principle, to say the least. Non-Muslim hair salons were mandated that they cannot cut the hair of male customers, if and when the hairdressers were ladies.
In his regular column in The Star addressing this issue, Professor Emeritus of Constitutional Law of the UiTM, Shad Saleem Farouqi wrote, that there are at least four limits to test if those Local Government laws are valid and constitutional. They are:
“First, state assemblies do not have the power to enact laws on all matters of Islam but only in relation to the Muslim law topics specifically mentioned in Schedule 9, List II, Para 1.
Second, state power to punish crimes against the precepts of Islam is limited by the words “except in regard to matters included in the Federal List” or “covered by federal law”.
Third, Syariah courts have jurisdiction only over persons professing the religion of Islam.
Fourth, the penalty which can be imposed by Syariah courts is limited to three years’ jail, RM5,000 fine and six lashes.”
Legislation of morality?
According to Professor Shad Saleem Farouqi first assertion, a state assembly’s role even within Islamic law is only limited to topics related to Schedule 9, List II, Para 1; that is Islamic personal and family law. What is this schedule actually? It is a full, positive and comprehensive listing of the rights and privileges of the state assemblies in terms of Islamic law, except for the Federal Territories and Labuan.
In List 1 (the Federal List) of Schedule 9, in Para 4 e (ii) defines the same list in an exclusionary form when it defines the federal jurisdiction of civil and criminal laws and the administration of justice:
“the matters mentioned in paragraph (i) do not include Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate;”
Having read both the positive listings and negative affirmation of basically the same list of what constitutes state ‘authority’ as provided for by the federal constitution, it is very clear to me that civil and criminal law does not come under the jurisdiction of the state assembly, by any stretch of imagination.
Therefore, my question to the Kelantan state assembly, and thereby, also to all local authorities of Kelantan, where then do you get the jurisdictional rights for ‘Muslim-values based enforcement of morality’ on either the Muslims or worse still on non-Muslims?
To my mind, all such ‘enforcement’ can only be applied under criminal codes, as agreed to by the Federation of Malaysia, and never by the State Assembly Enactment. Moreover, all such enforcement must become the jurisdiction of federal authorities and never under state authorities, except for Syariah laws, and even that only on issues and jurisdictions as provided by List II of Schedule 9 of the constitution.
Islamic governance and its challenges
Good governance worldwide does not belong to any religion, race, or geography, but it often tests all religious values and their espoused theories about life and living.
Therefore, as the world can observe until today, Islamic republics worldwide have failed to deliver on their promises of ‘God’s Governance’. What is often delivered is some version of governance as interpreted by the holders of power and authority. In all such systems abuse prevails and justice is often not ‘seen to be done’.
Any good democratic system of governance will be one based on what is justice, of the people, by the people, and for the people but also considerate of the fact that all human beings are created equal by an Almighty God. If all humans are equal before God; then the system of governance so premised and practised will ‘guarantee the dignity and destiny of all peoples regardless of the particular system of values adopted in the name of improved or good governance.’
Green waves of governance are no different than earlier red or blue waves; the only difference is the governors and their execution of the system of governance. The world now knows that power corrupts and absolute power corrupts absolutely; therefore there must always be proper system of checks and balances. May God help us recognise human weaknesses always.
