The FT mufti bill: Unconstitutional and divisive

The debate on the Mufti (Federal Territories) Bill 2024 continues unabated, raging like wildfire. Surprisingly, the strongest voices against this bill were from the so-called liberal factions ― much to the chagrin of some people ― especially the conservatives. 

The liberals stand for fundamental liberties; they see this bill as trampling on that basic right. It is no secret that with the majority of the parliamentarians being from the government’s alliance, this bill will be passed. 

Consequently, the show of resistance against this bill is part of civil society’s struggle to ensure a more inclusive and democratic nation. We believe that apart from being an election gimmick, inclusivity should be reflected in the laws that we promulgate.

However, there was an unfounded discontent that this bill will turn Malaysia into an Islamic state overnight. The fear of our archipelago becoming a theocracy is groundless. 

There is no way this country can become an autocratic country even if the parliamentarians voted in favour of this bill. 

But what about Malaysia turning into an authoritarian state? Certainly, there is a possibility that this country may turn into an authoritarian Sunni state — one that recognises only Ash’ari and Maturidi theology and the Shafi'i mazhab (perhaps including the three other Sunni schools), besides, strangely enough, the Sufism of al-Ghazali and al-Junaidi. 

This is a very alarming issue and it should not be taken lightly.

The Universal Declaration of Human Rights (UDHR) was drafted by representatives with different legal and cultural backgrounds. It was meant to be a milestone document in the history of human rights. The preamble to the UDHR was so beautifully crafted that we should all be made aware of it:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

"Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

"Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…."

The above is the preamble to the 30 articles of UDHR, the most relevant to our case being the first article which states: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Whether we like it or not, the mufti bill disregarded the very essence of human rights: the freedom of conscience. When the bill specifies that being a Sunni Muslim means prescribing exclusively to the theology of Ash’ari and Maturidi, it trampled contemptuously on the freedom of conscience of being a Muslim. 

Islam is a religion that celebrates diversity. Historically, Islam flourished due to its ability to accommodate different ideas and thoughts that do not contradict its basic tenets. Reducing this universal religion to only two state-approved strands (Ash’ari and Maturidi) is equivalent to restricting the freedom of conscience and thought in Islam, thereby restraining its intellectual growth. This goes against the inclusivity concept of Madani, purportedly one of the core principles of the current government.

Strangely, Malaysia sits on the United Nations Human Rights Council for the term 2022-2024. The question that begs an answer is that how can a country sits on the UN Human Rights Council, but at the same time does not understand the language of human rights?

On another note, some advocates of the FT mufti bill have convincingly argued that this bill bears a striking resemblance to that passed by the Sabah state assembly. 

Indeed, most of us are not aware of the severity of the bill passed in Sabah. Through its fatwa council, the state government of Sabah has gazetted that a Muslim person who does not adhere to the fatwa that they should only believe in the theology of Ash’ari and Maturidi and follow the jurisprudence of Shafi'i (and other established schools) and the sufism of al-Ghazali and al-Junaidi — similar to the one phrased in the FT mufti bill — has committed a shariah crime and is liable to be prosecuted under the shariah laws of Sabah or any other relevant state laws. 

This is indeed very scary. Although we did not see any of these provisions under the FT mufti bill 2024, the insinuation that this bill follows that of Sabah should have sent shivers down our spine since it denigrates the basic foundation of human rights: the freedom of conscience.

The Amman Message

Admittedly, some die-hards were trying to push for this agenda in response to the perceived threat of the Salafis.

By turning Islam into an exclusive club, they hoped to thwart the rapid advances made by the Salafis and stymie any threat from them. 

Nonetheless, this bill is not only authoritarian but also very sectarian in nature. Isn’t Islam supposed to stand against sectarianism? 

We recall that on Nov 9, 2004, almost 20 years ago, Muslim leaders, including Prime Minister Anwar Ibrahim himself, were signatories of the Amman Message declaration that called for tolerance and unity in the Muslim world. 

Has the prime minister forgotten about the Amman Message that he himself endorsed so passionately?

The Amman Message reverberates the magnanimity of Islam which stresses the brotherhood of mankind and honours every human being, regardless of colour, race or religion:

"Now, indeed, We have conferred dignity on the children of Adam, and borne them over land and sea, and provide for them sustenance out of the good things of life, and favoured them far above most of Our creation. (Surah al-Isra, 17:70)

This bill clearly goes head to head against the Amman Message whose the core agenda is to clarify to the modern world the true nature of Islam and the nature of true Islam. 

Sadly, what we have gained 20 years ago was somewhat erased by this sectarian bill overnight.

Constitutionality

Restricting the interpretation of Sunnah wal-Jama’ah only to those adhering to a certain school of thought can be challenged in the spirit of constitutional flexibility and the diverse Islamic interpretations. 

Article 8 of Federal Constitution on equality states that there shall be no discrimination against any person and that all persons are equal before the law. 

How then can only persons of certain denominations within Islam be appointed to the position of Mufti in the federal territories when it definitely defies Article 8 of the constitution, which makes it unconstitutional.

Granting the mufti excessive power also has constitutional implications. 

We feel that this provision is ultra vires in view of Articles 3(5) and 34(1) of the Federal Constitution which stipulate that the king is the head of Islam in the federal territories. 

While it is debatable whether it is Islamically right or wrong, it is definitely unconstitutional as it stands. This remains the case unless there is a debate on whether the Yang di-Pertuan Agong should be the head of Islam in the federal territories.

Furthermore, Article 5 of our Federal Constitution guarantees the right to personal liberty while Article 11 protects freedom of religion. 

However, Clause 11 of the mufti bill states that fatwas shall be binding on every Muslim without exception. This clause contradicts Articles 5 and 11, which makes it unconstitutional. 

Making fatwas binding on all Muslims infringes on the rights of individuals insofar as making decisions regarding their personal beliefs and religious practices are concerned. 

Undoubtedly, this bill does not celebrate the idea of diversity in Islam. This quality was obvious even among the first generation of Muslims. It is mind-boggling that some lawmakers could think that having such a retrogressive and restrictive bill would bring unity among Muslims.

Political expediency and CVE

Finally, some have argued that the bill gave a veneer of religiosity to pander to the more conservative camp. 

However, we do not think that the bill will achieve this aim if that was a prime motive. 

Lest we forget, PAS president Abdul Hadi Awang was the first to go against this bill. Sadly, he is an ulama more cherished internationally than domestically. 

As the saying goes, no man is a prophet in his own land. If Hadi himself was against this bill, then how would this bill pander to the political conservatives? 

Therefore, the argument that this bill seeks to appease the conservatives doesn’t hold water except among the religious conservatives.

Of course, we have heard that one of the reasons to come up with the bill was to curb extremism. We think it was a convenient excuse to make this bill more relevant. 

Suffice to say, there are so many laws in Malaysia — such as Sosma and Pota — that were meant to curb extremism, and they have been vehemently criticised by human rights advocates. 

Human rights advocates have referred to the current terrorism laws as “unjust”, “regressive” violations of basic human rights and laws that need to be abolished immediately. 

The reformists in PH used it as a battle cry during the last general election, only to renege it when they ascended to power.

Why then do we need such a bill for that matter? In what sense can it curb extremism? 

Let us add here that this whole agenda of Countering Violent Extremism (CVE) is a Western construct, crafted by the West, especially the US, to tarnish the image of Islamic resistance against foreign occupation, subjugation, and oppression. 

Extremist groups such as IS was created and funded by them to fulfil their agenda to "liberate" (read: occupy) Muslim lands. We naively swallowed this rhetoric and came up with laws like Sosma and Pota. 

Enough is enough; there should be no more repressive laws to curb these fanciful and imaginary extremists.

We have expounded on the problematic issues relating to the FT mufti bill, beginning from the fundamental rights of human liberty in terms of freedom of conscience to the debatable constitutional issues contained therein. 

While the prime minister sought neutrality by passing back the buck to the religious minister to answer any criticisms against the bill, in the end, it is within the domain of the elected parliamentarians to vote with their conscience. 

They have failed many of us with their broken promises to repeal all the repressive and regressive laws such as the archaic Sedition Act 1948, which is a violation of international standards on the rule of law and freedom of expression; what more of the newer undemocratic laws such as Prevention of Terrorism Act 2015 (Pota) and the Security Offences (Special Measures) Act 2012 (Sosma). 

While we are moving towards a more progressive democratic version of governance, any controversial new laws that disrespect basic fundamental human rights should be prevented from seeing the light of day. 

We do not want to be seen as replacing one oppressive regime with another.

Dr Ahmad Farouk Musa is the founder and director of the Islamic Renaissance Front and holds a PhD in Surgery from Monash University Australia.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.