Monday, March 14, 2005

Essays To Be Submitted

I have just completed 2 essays wich are due today. Both of the essays entitled: Is Malaysia an Islamic State, and What I have gained from the course I am taking now. The Islamic state essay, I would post it in this entry, while the other one, I will post it in another entry.

I have actually written a short explanation regarding my opinion on Islamic state some times ago. That can be read here. However, it was not much of an essay, as it was simply a breif opinion. This one, on the other hand, is a more thorough essay relating to the Islamic state.

According to the Dictionary of Oxford Advanced, the word Islam means the Muslim Religion, based on belief in one God and revealed through Muhammad as the prophet of Allah. Whilst the word state simply means an organized political community controlled by one government. So now, comes the question, what is an Islamic state? There is actually no real definition to the concept of an Islamic state. Even the holy quran does not define the term Islamic State.

Some Islamic scholars prefer to define Islamic state as the one practiced during Prophet Mohammed's heyday. Thus, in order for a country to be considered as an Islamic state, it has to adopt the practices of the state, during Prophet Mohammed's ruling. However, some says this is unnecessary, because as time changes, the needs of a country change as well. As long as the changes are not of the fundamentals, which clearly contradict the teachings of Islam, it is acceptable.

In order for Malaysia to be called as an Islamic state, it has to full fill three features, which are Tawhid (unity and supremacy of Allah), Risalat (prophet hood), and Khilafat (representation). However, in this essay I would only focus on the first element, which is Tawhid. This is because; Tawhid is the backbone of the Islamic teachings. Failure to comply the Tawhid would mean total failure of the other two elements.

Tawhid means to declare the syahadah, which is to deny the existence of god other than Allah and declare that Mohammed is His messenger. The sovereignty of the state is vested only upon Him. This would mean putting Allah’s command in the top priority, and whenever there is conflicting command between the divine law and the man made law, the divine ruling shall prevail. In Malaysia’s case, let us have a look at the federal constitution of the federation.

Article 3(1) states that Islam is the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the federation. At first sight, it seems Islam is placed in a high pedestal. However, according to ex Chief Justice of the Federal Court, Tun Muhammad Sufian Hashim, the main reason why Islam was addressed as the federal religion is only for festival purposes and nothing else. So that, in official ceremonies there would be recitations of prayers or so. While according to Professor L.A Sheridan and Harry E. Groves, Article 3(1) does not have any legal effect.

Article 4(1) state that the Constitution is the supreme law of the Federation and any law passed after the Merdeka Day, which is inconsistent with the constitution, shall, to the extent of the inconsistency, be void. This provision, according to Prof. Madya Hj. Salleh Buang, has actually restricted the applications of Islamic laws in Malaysia. This article in other words declares that the Federal Constitution is the supreme law. It is superior over any other laws, including the Islamic laws itself. Therefore, an Islamic law may come into effect only if it does not contravene the federal constitution, which is mainly imported from the English and Indian legal system. This article demands that divine law being altered so that it comply the human made law. Thus, impliedly denies the syahadah.

That is why; we see there are decisions made by the court which clearly in contrast with the Islamic teachings, as in Ainan v Abu Bakar. In this case, it was decided that a child who was born only 2 months after the parent’s marriage is considered valid to be the lineage of the father.

Despite the harshness of the Federal Constitution to the Islamic Law, there are still certain aspects, which clearly recognize Islamic laws. This may be seen in cases such of Rahmah v Laton, the Official Administration F.M.S v Mohihiko and Fatimah binti Haris v Haji Ismail bin Tamin. In Rahmah’s case for example, in the court of appeal, the presiding judge, Thorn J stated that Islamic law is no foreign to the country, instead it is the law of the local, and the country’s law. The court should take into account these Islamic laws in the judiciary, and declare the validity of these laws. Sad to say, this case was decided before the Independence of Malaya, which makes the validity of this case no longer acceptable in our legal system.

Islam, theoretically under the Federal Constitution is a state matter as in Article 74. This on the other hand shows the inferiority of Islam, as in Article 75, whenever state law is inconsistent with the federal law, the federal law shall prevail. However, in practice through the likes of Majlis Fatwa Kebangsaan, JAKIM, Pusat Islam and IKIM, research as well as drafting of Islamic legal provisions is very much a federal matter now. This actually shows great potential that Islam would one day be placed at a better priority than it is today.

In conclusion, Malaysia has not yet full fill the first and for most essential feature of an Islamic state which is the syahadah. Suffice to say, I am of the opinion that Malaysia is not yet an Islamic state. However, seeing at the various Islamic aspects adopted, and at the practices through the Majlis Fatwa, JAKIM, etc, there are potential that Malaysia would one day be an Islamic state.

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