Analysis of the Draft Bill for the Proposed Inter-faith Commission

ANALYSIS OF THE DRAFT BILL

FOR THE PROPOSED INTER-FAITH COMMISSION

by

Zainur Zakaria

The proposal to set up the Inter-faith Commission was met by strong opposition by Muslim organizations, groups and individuals. Their underlying fear is that the proposed Commission in the exercise of its function and role would encroach into, transgress and interfere with Islam and the Syariah. The proponents of the proposed Commission on the other hand argue that the Commission has no such intention and such perception is entirely misconceived. Whatever may be said by those who support or oppose the setting up of the Commission, disagreement on the issue will not dissipate.

The purpose of this paper is to examine in detail the draft Bill on the setting up of the Commission which was intended to have been tabled before Parliament but has been shelved due to opposition aforesaid. This paper seeks to examine in particular the functions and powers of the proposed Commission and other relevant provisions of the draft Bill for a clear understanding and appreciation of their effect.

Proponents of the Commission have tried to allay the fears of the Muslim community by strenuous persuasion that the proposed Commission shall only undertake advisory, consultative and conciliatory role in the discharge of their statutory functions. If that be so, then why should there be all the furore and opposition to the proposed Commission? Can the assurance by the proponents be sustained upon a close examination of the provisions of the draft Bill?

Let us begin by looking at the provisions pertaining to the functions of the Commission as stipulated under section 4 of the draft Bill. I do not propose to deal with and every function of the proposed Commission, but only those that I feel are of significance; and among those of particular significance are those functions stipulated in sections 4(1)(a), (b), (d), (f), (g), (h) and (j) of the draft Bill.

If one scrutinizes the functions of the proposed Commission referred to in the above sections, particularly with regard to the words used therein, then one may be able to understand and appreciate the extent and scope of the functions of the proposed Commission and the effect the exercise of such functions may have or impact upon matters of Islamic law, precepts and beliefs. This undoubtedly is the main cause for concern among those Muslims groups or individuals who came out in opposition to the proposed Commission.

Before we proceed to consider those particular functions, I wish to refer to a case decided by the then Supreme Court on 8 November 1991 i.e. Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam & Anor [1992] 1 MLJ at pg 1. The above case concerns the foremost questions as to whether the deceased had renounced Islam during his lifetime.

The facts of the case are as follows. The appellant (Dalip Kaur) had applied for a declaration that her deceased son at the time of his death on 3 October 1991 was not a Muslim and/or had renounced the Islamic faith and for the consequential declaration she was entitled to the body of the deceased. The deceased was born a Sikh and brought up in the Sikh faith. He converted to Islam on 1 June 1991 before the District Kadi of Kulim and the conversion was duly registered with the Majlis Agama Islam Negeri Kedah in accordance with section 139 of the Kedah Administration of Muslim Law Enactment 1962. The appellant had contended that subsequent to the conversion, the deceased had by a deed poll on 9 September 1991 renounced the Islamic faith and resumed the practice of the Sikh faith. It was also alleged that deceased had been rebaptized by a Sikh priest at a Sikh temple and that the deceased had regularly attended the congregation at the Sikh temple. It was also contended that the deceased continued to eat pork and had not circumcised. There was evidence that the deceased was engaged to be married to a Muslim girl and that the marriage was scheduled to take place on 25 November 1991. At the trial before the High Court, the learned Judicial Commissioner found that the signature on the deed poll was not that of the deceased and he also rejected th evidence of the Sikh priest and that of the deceased’s brother with regard to the baptism and the congregation at the Sikh temple. He held that the deceased was a Muslim at the time of his death. The appellant appealed. At the hearing of the appeal, the Supreme Court remitted the case to the High Court for the learned Judicial Commissioner to refer certain questions of Islamic law that arose to the Fatwa Committee of Kedah. This was done and after receiving the fatwa, the learned Judicial Commissioner confirmed his earlier findings and decision. The appellant appealed.

The Supreme Court dismissed the appeal. Hashim Yeop Sani CJ (Malaya)(as he then was) held among other things, that the learned Judicial Commissioner was entitled to accept the answers of the Fatwa Committee to the questions which were referred to it and which were agreed by all parties. The Fatwa Committee was of the opinion that the deceased was a Muslim as he had duly converted to Islam and there was no decision of a Syariah Court which decided that he had renounced or left the Islamic faith.

Justice Mohamed Yusof SCJ (as he then was) held that the foremost question to be determined was whether the deceased had renounced Islam during his lifetime, and the only forum qualified to answer the question is the Syariah Court, and went on to say:

It is apparent from the observations made by the learned Judicial Commissioner that the determination of the question whether a person was a Muslim or had renounced the faith of Islam before death, transgressed into the realm of Syariah law, which needs serious considerations and proper interpretation of such law. Without proper authority to support his contention, it is not sufficient to say whether there is or there is not a condition precedent for a person to become a Muslim; or that if the deceased were proved to have said his prayers at a Sikh temple he was definitely an apostate.

The present question, in my view, cannot be determined by a simple application on the facts as has been found by learned Judicial Commissioner on the basis of veracity and relevancy of evidence according to civil law. Such a serious issue would, to my mind, need consideration by eminent jurists who are properly qualified in the field of Islamic jurisprudence.

On this view it is imperative that the determination of the question in issue requires  substantial consideration of the Islamic law by relevant jurists qualified to do so. The only forum qualified to do so is the Syariah Court.”

In the case of Majlis Ugama Islam Pulau Pinang lwn Isa Abdul Rahman & Satu Yang Lain [1992] 2 MLJ at pg 244, the then Supreme Court ruled that when a civil court hears a claim for an order (and the order that is applied for did not fall withing the jurisdiction of the Syariah Court to issue) the civil court should hear the claim and if, in the course of such hearing, a question of  Hukum Syarak should arise, the parties involved may call experts in the religion of Islam to give evidence at the hearing; or the Court can refer the question to the Fatwa Committee concerned for a ruling on the matter.

From the above decisions it is therefore evidently clear, that in any proceedings in the civil court, should there arise questions that transgress into the realm of Islamic law or relate to Hukum Syarak, such questions must be dealt with in one of three ways, i.e. (1) by the Syariah Court, (2) the court can refer such questions to the Fatwa Committee of the relevant Majlis Agama Islam (Council for Muslim Religion), or (3) experts may be called to give evidence at the hearing.

Opinion from Muslim religious experts were relied upon by the High Court in the case of Hajjah Halimatussadiah bte Hj Kamaruddin v Public Services Commission Malaysia [1992] 1 MLJ at pg 513 when it had to decide the question as to whether the religion of Islam requires a Muslim woman to cover her body, including her face, except for her eyes.

Now, one may ask what is the relevance of these cases in relation to the functions and powers of the proposed Commission; after all, the proposed Commission shall perform such functions only in an advisory, consultative and conciliatory capacity [section 4(2) of the draft Bill] and has no power to make any determination on questions of Islamic law or matters pertaining to the beliefs or precepts of the religion of Islam. My reason for making reference to the above cases is to highlight the position taken by our highest civil court when it comes to questions or matters of Islamic law, beliefs or precepts and the approach to be taken in the determination of such law, beliefs or precepts. The position taken by our highest court as to the approach or manner, whether such issues or matters pertaining to Islamic law, precepts or beliefs should be dealt with, reflect as to how important it is that such matters be dealt with in the appropriate way so as to avoid friction between the religious communities. The reason why I have referred to the aforesaid cases is because of the wide scope of the functions and powers of the proposed Commission and the effect of the exercise of such functions and powers.

Apart from the functions and powers under section 4(1) which I have referred to, one also has to look at the other relevant and significant provisions of the draft Bill, in particular section 5 – Powers of the Commission, section 16 – Inquiries, section 17 – Conciliation, Mediation and Negotiation, and section 19 – Results of Action by Commission. Let us now look at these sections in greater detail.

Section 4 – Functions of Commission

Section 4(1)(a) reads:

Advance, promote, and protect every individual’s freedom of thought conscience and religion.”

This provision is extremely vague, wide and far-reaching. The words “advance, promote, and protect” are very wide in their scope and application. Take an example. What if the views expressed by a certain Muslim individual is considered blasphemous (mencaci Tuhan atau agama) by the religious authorities, will the proposed Commission get involved and protect such individual and should it decide to protect such individual, will it be canvassing or arguing views or opinions opposed to that of the religious authorities?

Two questions then immediately come to mind. Firstly, does the proposed Commission have the right to do so, and is such an involvement consonant with its overall function as an advisory, consultative and conciliatory body? Secondly, is the proposed Commission comprised of a body of persons who are “properly qualified” in the field of Islamic jurisprudence and can claim to have the authority to determine whether the views in question are blasphemous or otherwise, bearing in mind that the members of the proposed Commission will also comprise those belonging to other religious faiths. Apart from these non-Muslim members of the proposed Commission, who are undoubtedly not properly qualified to determine questions of Islamic law and matters pertaining to the precepts or beliefs of the religion of Islam, are the Muslim members of the proposed Commission themselves properly qualified?

The qualification for membership of the proposed Commission is found in section 8(1) of the draft Bill which reads as follows:-

Members of the commission shall be persons of integrity and of good character with experience in the promotion of religious of religious harmony”.

Thus the requirements for membership are (1) integrity, (2) good character, and (3) experience in the promotion of religious harmony. Nothing is mentioned about the member having the proper qualification in the field of religious jurisprudence or the like. Thus the proposed Commission may comprise of members who though professing the faith, may not be properly qualified to deal with religious issues or matters which the proposed Commission seeks to “advance, promote and protect.” The anxiety and concern felt by the Muslim community is that matters of Islamic law, precepts and beliefs may be interpreted by those who are not suitably and properly qualified to do so. This is simply not acceptable.

I will briefly touch on the other functions to show why there is a great deal of concern among Muslims. Take for instance section 4(1)(b); it speaks of “identify values and ethical standards universal to all religions, faiths, beliefs and ways of life with a view to promoting same.” What does “identity values and ethical standards universal to all religions, faiths, beliefs and ways of life” mean? Then there is section 4(1)(d), which reads as follows:

Receive, address and make recommendation … in connection with the individual’s right to profess and practise his religion or faith of choice”.

In the course of “identifying values” and making “recommendations”, will the proposed Commission be dealing with religious precepts and beliefs? Will the proposed Commission in its effort to promote these “values and ethical standards” be expressing its views on the precepts and beliefs of the religion in question? When making recommendation under section  4(1)(d), will the Commission be formulating certain views on the religious issue which it feels may have contravened or impinged upon the “individual’s right to profess and practise his religion or faith of choice.”

Above are some of the functions of the proposed Commission, which by the very words used to describe such functions, have caused a great deal of anxiety, concern and anger among Muslims.

Apart from the functions of the proposed Commission, let us look at the powers it seeks to have. Section 5 of the draft Bill deals with the powers of the Commission. Take for example  section 5(1)(d) i.e. “To study and verify any infringement of religious harmony” in accordance with the provisions of this Act. Infringement of religious harmony has been defined under section 2 of the proposed draft Bill as – “includes an act or omission which has as its effect the nullification or impairment, enjoyment or exercise by any person or community of persons of his or their freedom of thought, conscience, religions or belief as prescribed by international norms subject only to such limitations as arise under article 11(5) of the Federal Constitution.”

It will be observed that the definition of “religious harmony” i.e. that as prescribed by “international norms” subject to such limitations as arise from article 11(5) of the Federal Constitution, would clearly exclude any consideration of Islamic law, precepts, beliefs and practices. The foundation upon which the definition of religious harmony is based on, i.e. international norms, though subject to such limitations under article 11(5) of the Federal Constitution, is incompatible with Islam, since Islam comprises not only the beliefs and precepts but also laws that govern and regulate the life of every Muslim. And it cannot be denied that there are international norms that are incompatible with Islamic law, beliefs or precepts.  Thus the definition of “religious harmony” in the draft Bill can give rise to friction in the discharge by the proposed Commission of its powers under section 5(1)(d).

Then we have sections 5(1)(f) and 5(1)(h). Section 5(1)(f) gives the proposed Commission the powers to:

issue public statements on infringements of religious harmony or on anything touching as and when necessary”.

Section 5(1)(h) gives the proposed Commission the power to:

to resolve any dispute or rectify any act of omission, emanating from or constituting an infringement of religious harmony by means of mediation, negotiation or conciliation”.

Though the proposed Commission is meant to be only an advisory, consultative or conciliatory body, how is it going to go about discharging the above powers without affecting sensitive religious issues and sentiments.

Consider also its powers under sections 16 and 17. Section 16 deals with the holding of inquiries. In order to determine whether there has been any infringement of religious harmony, the proposed Commission is empowered to take (which of course includes “to accept or reject”) opinion from religious experts (section 16(2)(b)); to examine witnesses (section 16(2)(a)); to summon any person to give evidence, produce documents and to be examined (section 16(2)(d)) (which may include the head of the religious departments or anyone for that matter who in the view of the proposed Commission may be relevant) and to question such witnesses.

Can one discount the possibility of an ulama who is the head of the religious authority in a particular State being summoned to appear before the Commission to answer allegations of infringement of religious harmony and to be questioned and examined in matters of the religion or an expert having his opinion rejected by persons who are not properly qualified.

Notwithstanding that the draft Bill speaks of the proposed Commission being an advisory, consultative and conciliatory body, consider the effect of section 19 of the draft Bill, and in particular section 19(3) which states:-

All organs of State shall have regard to the findings and recommendations of the Commission”.

Though the results and findings of the proposed Commission may not be binding on the relevant authorities, the word “shall have regard” carries with it an important and far- reaching connotation. The New Shorter Oxford English Dictionary explains the word “regard” as “to take heed, take into account, pay attention to.” Though the draft Bill contains no provision for the enforcement of such findings or sanctions for disregard, it is simply unacceptable for the Muslim community that organs of State including the relevant Ministry, religious department, Syariah Courts, Fatwa Committee and the like should be required to take heed of the findings and recommendations of the proposed Commission.

The above are some of the provisions of the draft Bill which in my view are of grave concern to the Muslim community. After having considered them, it is my view that the concern and anxiety expressed by the Muslim bodies, organizations and individuals over the proposed Inter-faith Commission are not unreasonable.

*****

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