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Posted on Sep 18, 2006 at 08:34 PM

Part 2 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 the 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? ar

SebastianJoshua a.k.a SeaBass
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