On khalwat, and not being Muslim…

A serious piece, for a change… For my dear sis, who found this development truly disquieting…

Concerns have been expressed about proposals made at the conclusion of a seminar organized by the Islamic Institute of Understanding Malaysia (IKIM) and the Syariah Judiciary Department recently. As reported by the media (‘Proposal to prosecute non-Muslims for khalwat’, The Star, 3rd April 2008), these proposals include the prosecution of non-muslim parties to the offence of khalwat, though in the civil courts, increasing the penalties to include whipping for the syariah offences of khalwat, prostitution, consuming alcohol and involvement in gambling activities and the establishment of rehabilitation centres for those convicted of moral and faith offences. Though reference is also made in the media to a proposal concerning apostasy, no details have been given. Judging by the other proposals, it would not be improbable that it proposes the criminalization of apostasy.

In a nutshell, these proposals, formulated as a draft resolution, which is to be submitted to the Attorney General’s Chambers, aim at increasing the role of Islamic law in the public life of Malaysians. As I have said before, in my view, the extent to which Islamic law has been made to be applicable in the public law sphere in Malaysia is not supported by the Federal Constitution. The Constitutional framework envisaged Islamic law being relevant only to the personal law of persons professing the religion of Islam to the extent that the same did not conflict with the fundamental liberties of these individuals. We have however seen how constitutional safeguards have been eroded through judicial pronouncements, a situation which has culminated in a deeply entrenched mindset that the Islamic legal system is legitimately a system of parallel standing to the secular civil law system.

The draft resolution of the seminar reflects this mindset. It is eerily consistent with the statement issued by a coalition of Islamic NGOs shortly before the General Election, one which, in effect, called for the implementation of Islamic State measures.

I do not agree with the correctness of these views. As I have said elsewhere, the Federal Constitution does not envisage the establishment of an Islamic State nor does it allow for the implementation of measures aimed at the articulation of Islamic law in public life. For this to be permitted, the Federal Constitution must be amended. Until this is done, no matter how well intentioned proposals to this effect are, they must remain as just that, proposals.

It is wholly repugnant to any notion of a united, harmonious Malaysia for non-Muslims to be convicted, directly or indirectly, of offences that might rather ambiguously be called Islamic moral or faith offences. In my view, it is equally repugnant to subject Muslims to moral policing. I believe that there is constitutional basis for rejecting the validity of such offences though this remains, as yet, unarticulated in the courts.

The proposals are basis for grave concern for two reasons. Firstly, apart from the questionable legality of the proposals, they are deeply worrying for the fact of whose views they are. In this I do not intend to refer to individuals but rather the agencies involved. IKIM is the government linked agency that is charged with the articulation of Islam Hadhari. The Syariah Judiciary department is the department charged with overseeing the administration of Islamic law through the syariah courts. The resolution that is being submitted could therefore be said to be a resolution of agencies of the Government and are, to that end, potentially of great influence. This state of affairs is not easily reconciled with the declared vision of the Barisan Nasional Federal Government of a progressive and moderate nation. Not only do the proposals smack of ‘talibanism’, they have quite predictably failed to address the more fundamental problems affecting the ummah in Malaysia in their not unusual preference of form over substance.

Secondly, the proposals suggest an intent on the part of the agencies concerned to persist in attempts to perpetuate divisive delineations of race and religion as well as the underlying supremacist positioning. Coming so soon after the devastating results of the General Election, I cannot help but ask whether the proposals are in a way an attempt to up the ante, so to speak, in what is already a very confused state of affairs. Whatever the case, civil society and the political parties must be vigilant in ensuring that responses are measured and tactful. Were they the views of individuals who were in the extremist minority, aggressive responses might not have any serious consequences. These views are however being presented as the views of IKIM and the Syariah Judiciary Department. Responses carry with them the possibility of serious reprisal or repercussions.

As to how this reflects on the Barisan Nasional Federal Government, much will depend on how the Government responds. Civil society is entitled to expect a response. Religious supremacism was one of the key issues in the last General Election and the Adbdullah Badawi administration has promised reforms across the board. This could be one of the first tests of the sincerity of the administration. A failure to respond from a moderate, progressive and constitutional perspective will further convince Malaysians that the Government only pays lip service to notions of unity and harmony.

On a lighter note, what about same-gender couples? They’re not committing khalwat? Forget about same religion or not… Food for thought, ehh?

Wondering when our society will finally mature into a more tolerant one – Jasmine.


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