Rephrasing Article 3?
Zulkifli, the MP for Bandar Baru Kulim, recently sponsored a private member’s bill to change Article 3 of the federal constitution. Article 3 is to say ‘Islam is religion for the federation including in terms of the law and syariah’.
We cannot keel-haul PAS for this, as some of us would like to. He is no longer in PAS. He does not appear to have PKR’s blessings either, as it is a private member’s bill. We wait to see if PKR officially distances itself from this, after all Zulkifli is a member of the House on a PKR ticket.
It will be highly improbable that the bill will see the light of day as opinions and positions in the House would be divided.
However something is amiss! Where are the hoards of nay-sayers plotting reports of sedition, insulting Islam and the like to police, to the National Fatwa Committee and every federal and state administration of Islamic law institutions? Do not think for a moment that I am in any way suggesting that legal action be taken in this case. I respect his right of expression.
A dive into the past history of the federal constitution tells us that in the making of Article 3, the Reid Commission and the Alliance (after winning the first general election) had received representations from the Malay rulers.
The history of Article 3 is also embedded in the constitutions of the Malay states before 1957. The hereditary Malay rulers are heads of the religion of Islam in each state.
Has Zulkifli elicited the opinions of the Malay rulers?He is an elected representative. He is Muslim. He has some standing but it is stretching it to say he can claim to represent all those who may have an interest in moving this bill. We have had no information if the Malay rulers were consulted, or have assented to his making representations on their behalf.
The history of Article 3 makes it arguably a basic structure of the federal constitution. As a matter of principle, efforts to amend a basic structure in the constitution by a mere Act of Parliament – through a private member’s bill at that – must be strongly resisted. Otherwise every politician of the day would remake the constitution to fit his cause.
There is a growing professional interest in the study of the making of modern constitutions in Muslim states and in Muslim-majority states. Experts are identifying ways in which such constitutions can assist a country on the path to a strong, stable democracy characterised by good governance and rule of law in which Islam, human rights and international obligations are respected.
Framing the issue in human rights terms proposes that human rights constitute an appropriate framework for human understanding of Islam and interpretation of Islamic law.
These studies show that an inclusion of the term ‘syariah’ can add more grey or more difficulties than is necessary. As the constitution is a legal document, the legal meaning of the word ‘syariah’ is essentially ‘fiqh’ or interpretations of the Quran and Sunnah (sayings and practices of the Prophet).
These encompass the first body of work formulated in the 8th to 9th centuries of Islam, the expansion of those ideas by students of the master jurists and contemporary transformative efforts up to date.
The problem lies in the claim that syariah-fiqh should be that knowledge accumulated between the 8th to 9th centuries of Islam only. This accumulated knowledge includes the methods of deriving syariah-fiqh from the Quran and Sunnah.
Modern day scholars say that new and alternative methodologies of deriving sharia-fiqh like a gender analysis should be part of how Muslims today shape sharia-fiqh. It is much like the English Common Law – it is a work-in-progress.
Gender analysis is the methodology for collecting and processing information. It examines the relationships between males and females and their access to and control of resources, their roles and the constraints they face relative to each other.
A gender analysis helps us understand the enjoyment of women, girls, boys and men of rights, opportunities, resources and rewards and that these should not limited or governed by whether people are born male or female.
The constitutional formulation of using the term ‘Islam’ or ‘principles of Islamic law’ are preferable to usage of ‘the syariah’ because of these historical debates in the last century. This is to avoid the understanding that sharia-fiqh is unchangeable and static.
Currently in a number of Muslim-majority countries, reforms are being rolled back, democratic structures threatened and controversial legal provisions made and applied.
These new studies in constitutional law reform of Muslim countries suggest that the term ‘syariah’ has been highly politicised to mean that the application of Islamic teachings is mechanistic based on a frozen interpretation of Islamic law.
Let’s not add more grey to Article 3.
SALBIAH AHMAD is a lawyer.