BY AZMI SHAROM
First came a surprise ban, but it was followed by an inspiring, heartwarming Court of Appeal decision.
THE banning of the book Breaking the Silence: Voices of Moderation – Islam in a Constitutional Democracy came as a surprise to me.
I wasn’t surprised that it was banned. The Government has banned around 2,000 books since 1960. It’s not exactly a bestseller.
Full disclosure here folks: I have a chapter in this book. I can hardly remember what I wrote, but it was about fundamental liberties in the Federal Constitution.
Anyway, the point I am trying to make is that the book is a collection of measured and scholarly articles, with a foreword by former prime minister Tun Abdullah Ahmad Badawi, not some rabble-rousing diatribe. And yet it was deemed to be prejudicial to national security.
No explanation was given how this is so.
I presume, therefore, that the Home Ministry thinks that a reasoned and thoughtful discussion of the place of Islam in our Malaysian democracy is somehow a threat. It is difficult to see how this could be so, in a moderate Muslim nation.
However, before I could get too upset about how reasoned discussion is banned and how a moderate and rational examination of the relationship of Islam and the state can be a dangerous thing, there came a wonderful decision by the Court of Appeal.
The case was essentially about a Muslim couple wanting their child to have its father’s name as his or her surname.
Unfortunately, the child was born less than six months after the parents got married.
According to a fatwa by the Fatwa Council, this meant that the child was illegitimate and therefore could not carry the father’s name.
Instead, he or she was to have “Abdullah” as his or her surname.
The court held that as long as the Births and Deaths Registration Act was fulfilled, a child can have the name of his or her father as his or her surname.
The National Registry Department is not bound by a fatwa unless the fatwa has gone through a legislative process and is made into law.
In this situation, this was not the case.
From a legal point of view, I found this decision to be very welcome indeed. The syariah laws we have are drafted in such a way as to suggest that a fatwa has to be obeyed.
If it is not, then a person can face penalties. This is even if the fatwa was not made into law by going through the normal legislative process.
This in effect, in my point of view, means that a non-elected body can make proclamations that automatically become law. This is unacceptable in a democracy. And the Court’s decision appears to support this contention.
To have a non-elected religious body with the power to effectively make law is to live in a theocracy. We are not a theocracy; we are a democracy.
If you want to live in a theocracy, fine, that is your right to want such things.
So by all means campaign for it, win enough seats in Parliament, change the Constitution and Bob’s your uncle.
In the meantime, we are a democracy – which means only the legislature can make laws; no one else. Deal with it.
But what I found truly astounding and moving about the judgment was that there was so much compassion and humanism in it.
The Court stated that to force the child to have “Abdullah” as his or her surname when the father’s name was something else was to stigmatise the child.
From the moment school starts there will be questions about why the father’s name is not the child’s surname. And if the child has siblings, they will have different names. This could be traumatic for the child.
This demonstration of caring by the Court is a wonderful thing to behold.
And yet, such caring seems to be in short supply among some quarters who are screaming that a child deemed illegitimate must not carry the father’s surname.
This is quite strange to me. I always thought that Islam does not believe in the concept of original sin.
That is to say, children are born pure and sinless. There is no need for any religious rites to purify them.
This being the case, why are some Muslims so intent on ensuring that sinless children have to suffer for the acts of their parents? It seems to me that these people don’t have that one element that makes religion worthwhile –compassion.
Azmi Sharom is a law teacher.