This is great commentary by Dr. Chandra Muzaffar about the above said landmark Federal Court decision:
However, if the Federal Court decision is viewed from the perspective of the underlying values and principles of the Quran and the example of the Prophet Muhammad, it makes a lot of sense. The well-being of the child is paramount in Islam.
In concrete language, a 2-month-old baby who is being breast-fed should remain with her non-Muslim mother, even if the father has embraced Islam. In this case, it is not the religious identity of the baby that should be given priority. The bond between mother and child, which the Quran treasures, is of utmost importance.
Prioritising the welfare of the child, the mother-child bond, and other principles implicit in the Federal Court decision – such as the rights of both parents, gender equality, the prohibition of coercion in all matters of faith, conversion with full knowledge of what the testimony of faith signifies, the importance of harmony in society, the protection of the dignity of both Muslims and non-Muslims, and ensuring social justice for all citizens regardless of their religious and cultural affiliation – are consonant with the Islamic public law doctrine of siyasah shar’iyyah.
This doctrine, which is recognised by all leading mazhabs, authorises the lawful government to issue ordinances and enact rules and procedures, including legislation and policy measures that serve the cause of justice and good governance, especially in situations where the rules of shariah may have fallen short of addressing a certain situation or development.
As Professor Hashim Kamali, one of the world’s leading Islamic jurists, and other authors point out in a policy paper published by the International Institute of Advanced Islamic Studies (IAIS) in 2012, “siyasah is an instrument of flexibility and discretion that enables government leaders to respond effectively to extra-shariah issues, emergency situations, and now modern society dilemmas, which may or may not have been regulated under the established shariah”.
“As the term suggests, policy measures that are so taken must be in conformity with the goals and purposes (or maqasid) of shariah, even at the expense of a departure from some ijtihadi rulings of fiqh.
“Ibn Qayyim al-Jawziyyah thus characterised siyasah as ‘any measure which brings the people nearer to beneficence (salah) and moves away from prejudice and corruption (fasad), even though the measure in question has not been approved by the Prophet nor regulated by the revealed words of God.’
“When a siyasah-based initiative serves the cause of justice, it is deemed to be in harmony with the religion and can never be against it.”
The IAIS policy paper was translated into Bahasa Malaysia and updated and enhanced in 2016 by IAIS deputy chief executive officer Dr Mohamed Azam Adil and Ahmad Badri Abdullah. The Bahasa version has been widely circulated, and yet in almost all the analyses and commentaries on the Federal Court judgment, there is no evidence at all of the impact of the arguments advanced by the IAIS policy paper. This is a reflection of a much larger problem.
Apart from the fact that literate Malaysians do not really appreciate serious stuff, whether in Bahasa or English, there is a certain mindset within the Muslim population in the country which constitutes a formidable barrier to intellectual discourse on matters pertaining to Islam. Positions associated with and advanced by the established, conventional ulama are invariably perceived as the indisputable, only truth – even if there are other different views which are legitimate from a Quranic perspective.
This is not just a Malaysian-Muslim problem. In any number of Muslim majority societies, the word of the ulama on religious issues is almost sacrosanct. This gives them a grip over the Muslim mind – a grip which impedes reform-oriented ideas, especially in relation to Islamic law and Muslim identity, from striking root within the community.
Continuous and conscious efforts at building awareness will help to change attitudes among the masses. As shown by the experience of other Muslim majority societies, this time-consuming process is often accelerated by a courageous and committed civil court system that is prepared to make decisions which, on balance, are seen as fair and just.
An even greater impetus for change is a political leadership that has the integrity to push for reform through legislation and policy, even if it means incurring the wrath of diehard conservative voices that have never really understood the progressive essence of Islam. – February 6, 2018.
* Dr Chandra Muzaffar is chairman of the Board of Trustees of Yayasan 1Malaysia.
The Federal Court judgement is superb and should be accepted by all Malaysians.