Framing organisational life
Any group of people, once they become a community, get organised to fulfil larger purposes socially and politically agreed to, whether by democratic or other means; including historical realities. When that group or community is called a nation-state; they are recognised by the United Nations (UN) and included as an equal member of the community of nation-states.
Various histories define different ways the nation-states were formed, or developed, or even artificially created. The reality is they all exist today to make for modern civilisation within the UN framework.
Such communities at every level have ‘different framing structures,’ but which define their intent of formation and the goals and purposes of their existence. Usually these are defined in their constitution, as a legal document, which defines creation and rules of shared conduct.
In some cases, of some structures, or nation-states like the United Kingdom, there is no written constitution but an unwritten one strewed throughout their lifestyles and embedded in their culture and civil record of history and precedents.
The most modern and written example of a written constitution is found in the United States. It structurally brought together more than 50 states to become a Federation of United States; although it is called ‘the Union.’ They created among the earliest modern federal structures for the world, if I am not wrong.
Since then, many other decentralised non-unitary structures are also made up for three tiers of organisational governance; of local jurisdictions, states, and the federation as a whole. Without these framing structures the rest, as sub-structures, cannot exist in isolation; especially in a state of peace and order.
Structure defines the peace and order principles. In Ukraine such central organising structure and framework is being severely tested!
The Federation of Malaya, and Malaysia
Malaya became a new nation-state in 1957; a federation of nine Malay states and two Straits Settlements. Then, in 1963, Malaysia was formed, premised upon the same constitution but with some important changes, all moderated by Britain. The new Malaysia was the coming together of four former British colonies; namely, Malaya, the two Borneo colonies of Sabah and Sarawak and the former Straits Settlement, Singapore.
All political parties in 1957 and 1963 were part and parcel of the process of formation of Malaysia. So were all the nine Malay royalty included vide the Conference of Rulers. Finally also, all foreign and legitimate agencies were involved; including the UN.
So, our federal constitution was agreed to by all relevant and important parties, but nowhere in that document was the secular nature of the federal constitution discredited or diluted in favour of an official role of Islam. And, especially in the nine Malay states special provisions were made for the rulers as the head of Islam for each of the nine states. These were however excluded in the specific cases of Sabah, Sarawak and Singapore.
Islam is not official religion of Malaysia
I have to repeat this point, a hundred more times, if needed. As a student of none other than the late Professor Emeritus Ahmad Ibrahim, he clearly and consistently, argued and explained why the framers of the constitution did not use the term ‘official religion’ but only refrained to ‘the religion of the federation’.
The primary reason was the secular (although he did not explicitly use this word in my memory) nature of the federal constitution but which has since been formally attested to by none other than the late Suffian Hashim; our former Chief Justice.
And, because the words, ‘official religion’ are not used for instance, the Chief Ministers of Sabah, Sarawak and Penang and Malacca can be non-Muslims, unlike those of the nine Malay states. Even Singapore, which framed their subsequent constitution premised upon ours, does not have these words ‘official religion’.
Therefore, as with the debate in Indonesia now, our nation-state must remain secular, to allow all other religions to be practised but also promoted as faith to their other generations. That is also why, I presume, the words, ‘Kepercayaan Kepada Tuhan’ and not ‘Allah’ was included in the Rukunegara and the Panchasila.
The sultans and ‘fatwas’
The nine rulers are head of Islam of each of the nine states of Malaya. That is the only the jurisdiction of the religious office of rulers; and, for their respective states. But, as rulers they are also heads of state for the non-Muslims; as tax-paying citizens of the state and local governments. So, using logic alone, in the pursuit of the faith of Muslims, they cannot deny or disallow the practice of the faith of other religions; Allah crisis included.
Therefore, while it is legitimate for the rulers to offer and seal the ‘fatwas’ of each state; as advised by the Muslim elders of that state, these ‘fatwas’ do not have the power of even civil or criminal law of the federation. Furthermore, from my understanding of Islamic jurisprudence also, these ‘fatwas’ are only opinions of a collective of elders of the faith, but they do not yet carry the weight of Quranic injunctions for an entire Muslim community.
They can be researched, challenged, and argued before any common practice is adopted nationwide; but they must be consistent with constitutional provisions for all citizens. Unlike the Catholics, they have no Pope issuing encyclicals.
Consequently, and because such Islamic Syariah governance under our federal constitution are related to rules and guidelines focused upon personal and family governance, to me at least, the fatwa recently issued by the Selangor Islamic Affairs Council (Mais) is out of their jurisprudence and legal authority, especially when it was issued against Sisters in Islam. The transgender case is similar. Let me explain why.
Sisters in Islam is an NGO, like any other secular NGO in this nation-state, as allowed and protected by the federal constitution and related laws. The Selangor state’s religious jurisdiction does not stretch outside personal and family law; especially related to interpretation of Islamic jurisprudence and the related enforcement outside of the state.
Therefore, the sultan, in my view, was ill-advised by scholars who may not fully understand the federal constitution; our document of destiny.
Wikipedia records that: Sisters in Islam (SIS) is a civil society organisation committed to promoting the rights of women within the frameworks of Islam and universal human rights. Its efforts to promote the rights of Muslim women are based on the principles of equality, justice and freedom enjoined by the Qur’an.
SIS’ work focuses on challenging laws and policies made in the name of Islam that discriminate against women. As such it tackles issues covered under Malaysia’s Islamic family and syariah laws, such as polygamy, [1] child marriage, [2] moral policing, [3] Islamic legal theory and jurisprudence, the hijab and modesty, [4] violence against women and hudud [5].
Ampun Tuanku, beribu ribu ampun. This is my opinion from my reading of the federal constitution.
