Islam & Human Rights
by Dr. Azzam Tamimi

The concept of human rights in Islam is rooted in the concept of divinity. Muslims believe that man was created by a transcendental God who favours no human over another except in terms of piety and good conduct. In a bid to defend Islam or to promote it, several contemporary Islamic scholars and thinkers have sought to show that Islam has from the outset laid the foundations for human rights by asserting the supremacy of the value of justice and of the principle of human dignity. Some of the effort made in this regard has been aimed at developing an Islamic, as compared to secular, discourse on human rights.

Both in the Qur’an and the Sunnah, the value of justice is considered the highest of all values, for it derives from one of God’s main attributes, The Just. Hence is the emphasis on ‘equity’ rather than equality in Islamic thought. This is one of the areas where the Islamic conception of human rights differs from the secular conception. The principle of human dignity derives from the belief that al-insan (the human being) is the vicegerent of Allah on earth. Al-insan, who is honoured and preferred to all other creatures, is expected to lead a life guided by Allah’s law, or the Shari’ah. This is another area where disagreement exists. The word al-insan, in the Islamic terminology, refers to the human being irrespective of gender, colour or race.

Three Qur’anic verses, which are crucial to determining a Muslim’s identity, summarise the concept of human dignity:

1. Behold, thy Lord said to the angels: “I will create a vicegerent on earth.” (2: 30)
2. We have honoured the children of Adam; provided them with transport on land and sea; given them for sustenance things good and pure; and conferred on them special favours, above a great part of Our Creation. (17:70)
3. O mankind! We created you from a male and a female, and made you into nations and tribes, that you may know each other. Verily the most honoured of you in the sight of Allah is the most righteous of you. (49:13)

In spite of Islam’s assertion of the value and dignity of humanity, violations of basic human rights in the Muslim countries are very common. Although repression and persecution go back to the colonial era, more subtle methods have been devised by post-independence regimes in the modern territorial states that inherited power from the colonial authorities.

The Muslim world is one of very few remaining regions in the world where local culture is being systematically eroded through the persistent violation of fundamental human rights. Mosques have been placed under direct government control, freedom of the press is non-existent, opponents are silenced or liquidated, women are punished for choosing to be modest, men are persecuted for choosing to follow the sunnah (way of the Prophet), and prisons host more prisoners of conscience than criminals.

In the absence of the rule of law, and in the courts of military ‘justice’, thousands have lost their lives without being able to defend themselves or appeal against their convictions. Even in countries where some form of democracy was experimented with, when it became apparent that democratisation did not serve the interests of minority ruling elites, the process was immediately interrupted or even reversed. Though not the only one, the Algerian case may be the best example.

Such a miserable situation has prompted many NGO’s to dedicate part of their resources to defending human rights in the Muslim world. Most of these NGO’s are foreign. Although local human rights groups are not tolerated, some have managed to establish themselves, but regrettably not without stringent conditions, either in response to pressure from local authorities or from funding institutions. As a result, some of the values promoted, defended and universalised by the Western-led international human rights movement have gained local platforms. Since these values clash with some of the basic principles of Islam, the human rights movement does not enjoy a good reputation among the Muslim masses.

The secularist discourse on Human Rights undermines Islam by negating, in the name of universalism, the right of Muslims to cultural specificity. To prove their respect for human rights, Muslims are told they must board the boat of modernity. The price they are expected to pay for this ride is to re-think their religious convictions or re-interpret their sacred texts so as to conform to international standards and universal values.

It is not surprising, thus, that some Muslims regard the human rights movement a post-colonial tool of cultural imperialism. Regrettably, such a radical view amounts to a denial of the role played by numerous organisations around the globe in defending human rights and in exposing the violations and the violators. The contribution of the international human rights movement is indispensable and should be greatly appreciated.

What is also greatly appreciated, and should in all fairness be recognised, is that the Western human rights tradition, whose roots are founded in the European Enlightenment, has enhanced both the dignity of the human being and the value of human civilisation. Four major contributions are accredited to this tradition. Firstly, it has endowed the individual with certain basic rights such as the right of free speech, the right of association, the right to a fair trial and so on. Secondly, it has strengthened the position of ordinary citizens against the arbitrariness of power. Thirdly, it has expanded the space and scope of individual participation in public decision-making. And fourthly, it has forced the State and authority in general to be accountable to the public.[1]

However, in spite of the positive contributions, there are serious misgivings. Some of these misgivings relate to the attitude of the West, both past and present, toward the issue of human rights. Historically, the ‘human’ the Europeans referred to when they spoke of human rights was none but their own citizen; the French human, the English human or the Western human in general.[2]

This probably explains why Europe, which – as a fruit of the renaissance – engaged in the process of building the edifice of the individual within its own borders, destroyed the human person without.

While human rights expanded among ‘whites’, European empires inflicted horrendous human wrongs upon the coloured inhabitants of the planet. Native populations in the Americas and Australia were eliminated and Millions of Africans were enslaved. Millions of humans throughout the world were suppressed. Western colonialism in Asia, Australia, Africa and Latin America represented the most massive systematic violation of human rights ever known in history.[3] Much of this violation involved undermining other people’s cultural and religious identities.

Though formal colonial rule has ended, Western domination and control continues to impact upon the human rights of the vast majority of the people of the non-Western world in ways which are more subtle and sophisticated but no less destructive and devastating.[4] On the one hand, the colonial ruling elite has been replaced, in many cases, by Westernised local elites, very often authoritarian and corrupt, who serve their Western masters and help to perpetuate this unequal and unjust relationship.[5] On the other hand the dominant West controls global politics through the United Nations Security Council. If the Western powers so desire, they can get the Security Council to starve a million people to death to force them to submit to their will. The dominant West controls global economics through the IMF, the World Bank, GATT and the G7 or the G8. The dominant West also controls global news and information and it has the powerful means to dictate to the rest of the world styles of life through music, cinema, fashions etc.

Some misgivings concern the way human rights organisations conduct their business. The overwhelming majority of human rights organisations have a radical secularist vision of man and the world. For the secularists, human rights are based on the idea of natural rights. This means that God is left little or no place in man’s life. While this supposes that nothing sacred remains, in reality the divine sacred is replaced by a secular sacred.

Inevitably, some of what Muslims may hold to be unquestionable, or immutable, may be considered a violation of human rights. Questions such as the roles of men and women in family life, the Islamic law of inheritance, the Islamic code of penalties and the Islamic code of moral conduct are some of the issues constantly targeted by the secularist human rights movement.

I have, over the past few years, participated in debates over these issues with representatives of international as well as regional human rights organisations. Insisting on the universality of their vision, the secularist human rights defenders refuse to entertain the mere suggestion that a common ground can be reached not by re-interpreting Muslim sacred texts, but rather by revising, re-examining, rethinking or re-writing the Universal Declaration of human rights. After all, this declaration, whose articles I would say are acceptable save for few exceptions, was born out of the global conditions that prevailed in the aftermath of the Second World War. I would like to share with you some of the experiences I had. For I believe they illustrate the magnitude of the problem.

One of these experiences was in the form of a live TV debate between me and the assistant to the secretary general of Amnesty International. The Amnesty official insisted that the Universal Declaration was binding upon all and that it was Islam which needed to be re-interpreted in a manner conducive to reconciling it with the declaration. It could clearly be seen throughout the debate that the spokesman for Amnesty found it more outrageous to cast doubt on the universality of the Universal Declaration than to cast doubt on the validity of divine revelation.

The second experience took place in two symposia organised by the New York-based Lawyers Committee for Human Rights over two successive years to discuss Islam and Human Rights. During both meetings (held in 1996 and 1997) the Muslim participants, who insisted that it was beyond anyone’s power to alter or omit a categorical Qur’anic text, were accused by some secularist participants of fundamentalism and inflexibility.

Fahmi Huwaidi, who attended the second of these symposia, was confronted by a non-Muslim participant who told him that she was told that this group of Islamists was among the enlightened and moderate. She was at a loss because she could not understand how a person could be enlightened and moderate and at the same time oppose the amendment of a text from the Qur’an.[6]

Among the Qur’anic verses that the secularists thought should be modified or re-interpreted were those dealing with family relations especially with regard to marriage and divorce, as well as those dealing with inheritance and corporal punishment.

It was not convincing enough for the secularists to be told that while no one who believed in Allah and His Book could change or tamper with certain absolute areas, Muslims were encouraged to exercise ijtihad to provide safeguards that might prevent abuse of the legal order. This ijtihad, it was stressed, would have to come from within the House of Islam and in response to real needs and not in acquiescence to pressure from outside or in order to appease the power to be.

Several Muslim participants expressed concern that the whole purpose of the project was not to initiate dialogue with the aim of reaching a common ground, but rather to impose the Western perspective of human rights and the secularist view of the world on the Muslims.

The third experience occurred last May when I was invited to participate in a symposium organised in Helsinki by yet another American foundation called “Search for Common Ground”. On the eve of the first session, which was supposed to be exclusively for the Arab participants to discuss the promotion of human rights in the Arab region, delegates were invited to have dinner in a nearby Chinese restaurant. As part of the informal discussion over dinner, a Palestinian secularist colleague of Christian origins expressed the opinion that only secularisation could bring about an improvement to the standard of human rights in the Arab region.

Together with an Islamist colleague from Lebanon, I argued against the secularist thesis and sought to prove that, contrary to the claim made, secularisation has been accompanied by a marked deterioration in the respect for human rights in the Arab region. The discussion shifted to an analysis of international standards and the universal declaration of human rights and as to whether cultural specificity should be taken into consideration.

The following morning and as I headed for breakfast, the organiser’s secretary whispered into my ear that the organiser wished to speak to me. I waited for her and we had breakfast together. She said that she was told I had a very interesting discussion the previous night. I thought she was impressed. I briefed her on the main points raised in the discussion and reiterated that if common ground is indeed what we are searching for we needed to assert the right to cultural specificity and to question the assumption that the universal declaration of human rights was universal.

She turned to me and said: “Azzam, I don’t know how to say this to you, but I would like you not to speak at today’s session.” She explained to me that my ideas would disrupt the harmony of the series of meetings her institution had held so far. In other words, it was not recommended at this stage to question what had already become an absolute.

I understood from her, and later on from other key persons involved in the organisation of the function, and who were put in charge of steering the discussions, that this forum had a well-defined, previously agreed on, agenda and that it would not be acceptable to throw in new proposals. This experience confirmed my suspicion that the whole project was designed to bolster the peace process in the Middle East through the enforcement of secular notions of human rights.

One of the ways of doing this is to assert universality and deny specificity; to come up with ideas as to how to change the perceptions of people in the Middle East to make Israel more acceptable to them. The assumption was that the values that make Israel unacceptable are those derived from Islam, and for this reason Islam had to be re-questioned.

One of the main objectives of this project was to suggest plans aimed at effecting changes in school curricula. It was suggested for instance that values that are not conducive to respecting the human rights of the Israelis or to the establishment of peace in the region should be removed from teaching curricula. The Islamic value of jihad was a prime target.

Muslim intellectuals have been critical of the position adopted by the Western human rights movement in support of Salman Rushdie and later on in support of Taslima Nisreen. It is not support for Salman against the fatwa, which concerns me. In my assessment, the fatwa was issued for purely political reasons and had benefited the author of Satanic Verses – whom it brought fame and prosperity – more than it benefited Islam and the Muslims.

What is of concern is the support for Salman’s, and later on Taslima’s, alleged right to free expression without any consideration for the fact that their writings insulted the entire Muslim community that constitutes no less than one fifth of the world’s population. While secular human rights activists talk about freedom of expression as a very important civil liberty, they forget that there is also a right to honour and to dignity for whole communities.

It has been suggested that the Western civilisation, by virtue of the way it has developed, seems unable to empathise with the notion of the sacred, which is very important in other societies. What about the rights of the people who consider the sacred and the transcendent important values? Should they not be entitled to be respected? Should not their right to honour be observed.[7] It has also been suggested, as Richard Webster once remarked, that the unconditional Western support for writers Rushdie and Nisreen is not a support for the freedom of thought, but for the European secular tradition of blasphemy.[8]

It is worth noting that although Islamic values show a high regard for human dignity and great respect for the fundamental rights of man, the secularist discourse within the human rights movement seeks to show the exact opposite. It is not surprising that the human rights movement in the West gives credence to certain individuals of Muslim origin whose main concern has been to cast doubt on the validity of Islamic sacred text.

In Western human rights circles, the followers of Mahmud Taha, such as Abdullahi An-Na’im, are regarded an authority on Islam although in the eyes of most Muslims they would just be regarded apostates. The reason such people are favoured by the Western human rights movement is that they call for repealing more than half of the Qur’anic text for allegedly contravening universally accepted values, including those related to human rights. An-Na’im is highly regarded within these circles for his role in propagating the idea of his mentor that Medinite revelation, which deals primarily with laws and codes intended to guide individuals and communities in all affairs, is a hindrance to Muslim progress. Ask any Muslim what he or she thinks will remain of Islam once Medinite Qur’an is omitted and you will hear one answer: nothing remains.

In conclusion, I would like to stress that there is a need today for the establishment of an Islamic human rights movement to defend human rights without compromising Islam. One of the objectives of such a movement would be to introduce Islam’s compassionate image to the world through the defence and promotion of human rights. At the same time, the movement would be expected to search for a common ground on which all the defendants of human rights, irrespective of their ideological convictions, may stand.

The value of Human Rights is indeed a universal value and the cause of defending these rights is a universal cause.

For both the value and the cause to remain universal and in order to prevent their monopoly by one particular culture, cultural specificity has to be recognised and respected. In fact, cultural specificity is an indispensable feature of universality.

Issues related to the Concept of Human Rights in Islam

1. Vicegerency

In Islam, man is God’s vicegerent on earth. Humans have been honoured by the Creator and gifted with the faculties of the mind and will-power. Everything else in the universe has been created for the purpose of serving them and achieving their happiness. The Divine honour bestowed on them confers upon them rights that no one else has the right to deny or violate. Humans, in their capacity as vicegerents of their Creator, are expected to defend their God-given rights and struggle for preserving them.

A fundamental difference between the Islamic vision and that of the Western civilisation. It is the difference of maintaining, as opposed to severing, ties with God. The Islamic vision is based on the belief that Divine Revelation has been intended to serve the interest of humanity, and that the most pertinent interest is the administration of justice.

Ibn al-Fahim: The subject matter of Shari’ah-based policy is justice, although no provision in respect of it was revealed. This is so because God has sent His Messengers and revealed His Books in order to administer fairly the affairs of the people. This is the justice on which the heavens and earth are based and according to which if the signs of truth become apparent and its face is revealed, in whatever way possible, then it is there that God’s law and religion are to be found.

Ibn As-Salah: Shari’ah-based policy is defined as every measure that directs people nearest to rightness and furthest from corruption, even if such policy was not prescribed by the nor was a revelation made in respect of it. The way that leads to justice is the way of religion

In contrast, Western political thought is the fruit of rationalist philosophy and the principles of natural law. It is also the product of the grinding wars which took place in the West between reason and religion; between, on the one hand, the struggle for freedom, self-determination and the right to enjoy the goodness of this world on the basis of the centrality of man in the universe and the absolute ability of reason to understand and explain the universe and to organise life, and, on the other, the church and its despotic authority which it exercised for many centuries of darkness, backwardness and oppression. The battle in this conflict was won by reason and science, and as a result the people recovered their rights and rid themselves of the church’s control over man’s mind and conscience and over the organisation of life. In end, natural law replaced God’s revelation as the philosophical basis for legislation.

2. Freedom

Classical Islamic scholars deduced from the Qur’an the golden rule of ‘no responsibility without freedom and sanity’.

Freedom contributed in the past to the progress of Muslims who built a great civilisation. It had a considerable impact on the Western civilisation as well. It is believed that through direct contact with the Muslims in the Arab East during the days of the Crusaders, as well as in Spain and in southern Italy, the Europeans were fascinated by the life style of the Muslims. Compared to their own life style, the Muslims had freedom, dignity and motivation. This influence contributed to the revival of the spirit of rebellion against the theocratic shackles imposed on the mind, conscience and social conduct of Europeans, and thus was the starting point of the Renaissance.

Freedom of faith, and what it entails in terms of freedom of thought and expression, is the basis of freedoms and rights in Islam, because of the great influence belief has on all aspects of individual and collective behaviour. If man does really have the freedom of faith and if compulsion is forbidden, even unimaginable in this zone because of its importance, then compulsion in everything below that is forbidden a fortiori, such as compulsion to marry, to take up a certain profession, to join a group or a party, or to live in a particular country or to leave it. The fundamental element is that man is free and constricting his freedom is an exception which requires a just law.

God-given freedom to man is not supposed to be absolute permissiveness nor is it supposed to be a heedless and spontaneous thrust to fulfil desires. It is primarily a responsibility and a realisation. It is one’s responsibility towards one’s conscience, Creator and fellow humans. For in addition to bearing within him an aspect of the spirit of God, man has inherent within him desires and ambitions that could lead him to misery and hardship in this life and in the Hereafter if he did not subdue them by means of a Divine guidance. While Islam clearly affirms man’s status, freedom and enormous abilities, it underlines his weaknesses. For this purpose, God sent Messengers who urged humans to respond to their Lord’s call and who warned them against the repercussions of being tempted to rebel against their Creator under the pretext of asserting their independence. A free man, who is truly God’s vicegerent, is he who worships God by contemplating the wonders of His creation in the heavens and the earth and in himself, and who exploits the resources made available to him in this universe, enjoys its bounties and meets the needs of his body, soul and society in a balanced manner without excessiveness.

The legislative implications of the Islamic concept of freedom have been addressed by Islamic jurists throughout the history of jurisprudence to the effect of establishing and refining a legal framework for man’s freedom, or ‘for his duties.’

Ash-Shatibi (d. 1388) elaborated this framework in his book Al-Muwafaqat. which sets out the objective of Shari’ah (Islamic law) as being the realisation of what he called al-masalih (pl. of maslaha, exigence, requirement or interest). These are a set, or sets, of requirements whose fulfillment is the responsibility of those in charge of the affairs of the Ummah. Ash-Shatibi divided al-masalih into three main categories.

The first category is comprised of al-masalih ad-daruriyah (essential requirements), without which life becomes unbearable or even impossible. Food, shelter and security for instance are daruriyat (essential) for the maintenance of life.

Next comes the category known as al-masalih al-hajiyah (utilities) whose absence may cause privation but does not jeopardise life, these may include requirements such as education, health and social care, etc.

Next to this category in importance is al-masalih at-tahsiniyah (ameliorative) whose realisation imparts splendour and beauty to life, such as recreational facilities.

The idea is that Islam as a religion was revealed for the purpose of guaranteeing and preserving these essentials which constitute the general framework of human rights, including the right to choose a faith, the right to life, the right to education, the right to free expression, the right to have a family and the right to own property.

3. Justice

Justice in Arabic is ‘adalah from the root ‘adala, which means to be balanced, to engage in acts that are framed by an awareness, born of the pursuit of reason over passion. The opposite of ‘adalah is zulm (injustice) from the root zalama, which means to do wrong or evil, to ill-treat or oppress, to harm or commit an outrage or to daken. An Islamic political order is supposed to prohibit all forms of injustice. Not only is injustice considered a grave sin, an atrocious crime and a cause for decline and destruction, but is considered to be an aggression against God Himself. After all, Islam’s main mission is the administration of justice and the elimination of all forms of oppression. One of the main tasks of the community of believers is to deter injustice and support the wronged.

Elaboration on the freedom of belief

When the term dar-ul-Islam is used it connotes one nationality for those residing in it, Muslims and non-Muslims, and for all of whom the fundamental rights are guaranteed by the Quran, the Sunna and Islamic jurisprudence. These are: equality, which is positive and all comprehensive, regardless of race, ethnic origin, colour, social status or creed; freedom, which encompasses freedom of thought and freedom of belief including the right of non-Muslims in a Muslim state to build churches, temples, monastries, synagogues, etc.; and freedom of movement and the right to establish schools and religious centers.

Today, when the resurgence of Islam is increasingly becoming a global phenomenon, it is imperative for Muslim leaders to face the rather complex problem of the relation between Muslims and non-Muslims within the Islamic states and in the world at large. He warns that this issue is loaded with fallacies and baseless arguments which have projected Islam as a menace that denies people their basic human rights of freedom, justice and the pursuit of happiness.

Two categories of citizenship in the Islamic state; he calls the first categoriy muwatana ‘amma, unqualified citizenship, and the second muwatana khassa, qualified citizenship.

Although a person who resides in an Islamic state has, irrespective of his or her religion or race, what he calls ‘absolute rights to a decent living,’ he or she has the freedom to choose between embracing or rejecting the objectives and principles underpinning the state. When a person chooses to embrace Islam, he or she becomes a Muslim citizen not discriminated from the rest of the Muslim members of the society save for distinctions of personal talent or qualifications. When a person chooses not to embrace Islam, then he or she would have – in order to acquire the right to citizenship – to express loyalty to the state and recognise its legitimacy so that he or she does not engage in any activity that may be construed as threatening to its order.

In the latter case, citizenship is qualified, and such qualification is only lifted when the concerned person embraces Islam. While enjoying full freedom in personal matters, that is matters pertaining to faith, food, drink and marriage, a non-Muslim citizen may still be denied a right enjoyed by a Muslim citizen, that is the right to occupy senior positions in the state – such as the Presidency – that may be considered of significant bearing on the identity of the state

Scholars and thinkers, both classical and modern, continue to disagree, except with regard to the position of head of state, on which senior positions, or which functions, are denied to non-Muslim citizens in an Islamic state.

Most modern thinkers are of the opinion that dhimmis have the right to participate in elections at all levels and may be nominated for any position apart from that of the head of state, and may therefore be members of nationally or locally elected councils.

A modern Sudanese ijtihad which grants Christian-majority provinces in Sudan the right to opt for a legal system other than Shari’ah in order to organise their affairs. Nowhere in the past or the present ‘do we know of a state whose constitution is void of certain restrictions the pupose of which is to safeguard the state, or to protect the freedom of citizens or the right of the majority to impart on public life a colour of their own choice

Riddah

Any discussion of the freedom of faith in Islam must raise the question of riddah (apostasy).

The classical definition of riddah is ‘the voluntary and conscious reversion to kufr (disbelief) after having embraced Islam by denying any of its fundamentals in matters of ‘aqidah (faith), Shari’ah (law) or sha’irah (rite), such as the denial of Deity or Prophithood, or the licensing of prohibititions or the negation of obligations.’

There are two Muslim schools of jurisprudence on the matter. The first school, to which most classical jurists belonged, considers riddah a religious offence punishable by death. The second considers riddah a political offence that has nothing to do with ‘the Islamic guarantee of a person’s right to freedom of faith.’ So, riddah in this case is not apostasy but sedition, an act of mutiny or treason, that is punishable within the framework of the authority’s responsibility for preserving the community and maintaining law and order.

Elaboration on Economic and Social Rights

While the right of an individual to own property is guaranteed in Islam, this is not considered a natural right, as in international conventions or declarations, because in the end every thing belongs to God. Therefore, all that pertains to ownership, such as the methods of acquiring and disposing of property, should take place in accordance with the rules of Shari’a.

Not only is an individual’s right to ownership guaranteed, but it has an important role to play. Power is distributed among the members of society by virtue of their shared ownership of the resources. This imparts on political freedom and shura, which he discusses later in the book, a social import. So, in the Islamic model the aim is to make ownership accessible to almost every member of the community.

Islam provides broad guidelines to guarantee the equitable distribution of wealth. These include the prohibition of usury, monopoly, extravagance, etc. and the imposition of Zakat. However, the challenge facing the Muslims in modern times is to envisage how such principles can be translated into modern Islamic economics.

Social rights are taken to mean the needs of an individual in his livelihood of social and health-care. The most important social rights stipulated by modern constitutions in the West are the right to work, the right for medical-care, and the right to social security. Some contemporary Islamic thinkders have sought to root these rights in the teachings of Islam. Some have even claimed that whereas such rights have not been of interest to Western constitutions and human rights declarations until ‘recently,’ and only as a reaction to pressure from ‘socialist theories’ and trade unions and to banish the ghost of the Marxist revolution, they are well-established in the Islamic conception. Examples are usually quoted from the era of the Prophet and the Rightly Guided Caliphs.

References :

1. Dr. Chandra Muzaffar: From Human Rights to Human Dignity, p.1,International Conference on Human Rights 6-7 December 1994, Kuala Lumpur, Malaysia.
2. Ibid.
3. Dr. Chandra Muzaffar, see ref. above.
4. Ibid
5. Hj. S. M. Hohd. Idris, International Conference on Human Rights 6-7 December 1994, Kuala Lumpur, Malaysia.
6. Fahmi Huwaidi, Hiwar At-Turshan (Dialogue with the Deaf), Al-Ahram, Cairo 11 Nov. 1997.
7. Chandra Muzaffar, from a talk at the Islam and Equality Symposium, organised by the Lawyers Committee for Human Rights, London 14-16 October 1997.
8. Richard Webster, Paper entitled: Free Speech, History and the Christian Tradition of Blasphemy, The Collapse of Secularism Symposium, Centre for the Study of Democracy, London June 10, 1995

Janet Jackson’s wardrobe malfunction and legislating morality
by Dr. Mazeni Alwi

So February is the Superbowl month, something I found out as I killed time in the airport lounges of Bangkok, Riyadh and Cairo recently in a hectic schedule of back to back lecture invitations. It is one of those facets of american life that, thanks to Janet Jackson, we now have a better understanding of. The superbowl fanfare reported widely in the media brought to mind how, many of us unfamiliar with america’s mass culture, read with uncomprehending bemusement that the american public could be so scandalized by Ms. Jackson’s exposure of one of her breasts on live television at last year’s event. She blamed that on wardrobe malfunction and her male co-entertainer tried hard to sound flustered with embarrassment.

It got us wondering that America, the most modern society on earth and the beacon of democracy and freedom, where near nudity in mainstream entertainment is thought to be part of all that notion of liberty, and pornography is a legitimate billion-dollar industry, why such fuss over the exposure of one breast and an accidental one at that? Supposing that americans did not buy Ms. Jackson’s excuse, is she as ignorant as many of us to have overestimated the american public’s liberalism (read libertinism) and mature self control? And it was not America’s sudden prudish moment of moral puritanism as the media blitz on the court trial of her more famous brother demonstrates. So, us naïve ignorants now know that even in America there are still lines that should not be crossed in matters of morality and decency, even when there are no victims.

That brings me to the question of wether or not legislating morality is anti-progress and uncivilized backwardness, which formed the backdrop to the recent debate that followed the JAWI enforcement officers highhanded treatment of muslim youths detained at a discotheque on the eve of Eidul Adha. The question was all the more vexing as I was travelling from Thailand to Saudi Arabia, two different moral planets for all we care. What is clear is that the unprofessional behaviour of some JAWI officers during that raid is categorically unacceptable and they should do something about it, and we will rest the matter there. Much less clear is wether legislating morality on the basis of religious teaching is acceptable in an age when we are supposed to have outgrown the need for moral crutches that religion affords. What is equally unclear is wether it is acceptable to the general muslim sentiment, in a country where Islam has a special place in its constitution, that on the eve of the climax of one of the religion’s major worship, some of us are in a state of behavior that thumbed its nose at its moral teachings? (I have to stress that non muslims are at liberty to indulge in all the good and pleasurable things in life anytime, anywhere as long as it is within the law).

Is it acceptable, within the framework of liberal political values that once one chooses to be a muslim, one has to give up certain public non political freedoms to conform to the religion’s basic moral teachings as it might offend the sensitivities of his/her fellow muslims and insults Islam’s status that the constitution affords? Putting in another way, is the right of muslims to consume alcohol in public as fundamental as the right to a fair, open trial and access to legal counsel? Can a muslim who is denied entry to the Genting casino file a complaint that he is discriminated against and deprived of his right to pursue “happiness”? Is such a right within the grand idea of liberty that Jefferson had in mind when he drafted that immortal document?

In this post modern age, defending religious morality is the most uncool thing. In a rapidly secularizing society, as in some parts of Kuala Lumpur where some of us feel we need a passport to enter, arguing for legislating morality and decency can be a sisyphean task, especially when terms from the human rights language are “liberally” borrowed and misapplied. People who are supposedly to be modern and rational will, in knee-jerk fashion, heap abuses like “uncivilized”, “going back to the middle ages”, proponents of “talibanaysia” on proponents of religion-based morality. In other words, we can never be civil or rational beings. But that’s okay, I can tolerate name-calling.

But let us not confuse liberalism with libertinism. Liberalism, which is about fundamental freedoms, has become universal and enshrined in every constitution even though they may not be respected. Nobody would argue of its unchanging universality of time and place, that no person should be deprived of his/her liberty without a fair trial, everyone is entitled to freedom of conscience and thought, and dignity is a basic right. No less than any liberal, someone with a religious outlook desires as much a transparent, representative government that ensures the protection of minorities and distributive justice, such that hunger, poverty and ignorance would no longer be the lot of the common man. Such an outlook is not the monopoly of those with a secular liberal view. In this regard we have great disagreement with the Taliban of recent history and we would resist Talibanaysia just as vehemently.

But libertinism is a totally different creature. Its definition is time and place bound, and to a very great extent defined in context of a society’s cultural and religious norms. What is socially acceptable in Patpong and Pattaya is libertinism in Riyadh. In the Malaysian context, people who adhere to traditional values, both muslims or non muslims, would conceive this differently as from those who choose to adopt the consumerist hedonism of the post-christian, post-modern western mass culture mistaken as liberalism. It happens that in 2005, much of Malaysia is not yet Bintang Walk or Bangsar. The general muslim-malay Malaysians are still quite traditional in sentiment and outlook. We may have to wait until 2020 when Malaysia would have achieved its progressive, developed nation status. Perhaps then, only a minority of malays/muslims would be offended by our youths partying away in the hedonistic milieu of a discotheque on the eve of the Wukuf of Hajj, and no one would really complain the melding of liberalism with libertinism.

What was also confused in the unpleasant, sometimes insensitive debate was labeling these social strictures under the purview of institutions like JAWI as strictly Islamic. Unlike in Saudi Arabia, this is not quite correct as many of these laws are not directly drawn from the Islamic moral code. For instance, the personal dress code for women and men (aurat) required in Islam is something else but the lines drawn by the Sharia code in matters of public decency is much less stringent in the Malaysian situation. It is accepted that the proper practice of Islamic teachings rests on education and self realization rather than legislation. But this does not negate the necessity for some sort of legislation on morality and decency as any functioning society would.

The argument by one prominent newspaper columnist that morality should be left to parents, and everyone should be mature enough to rein in their desires and behave within the accepted parameters of public morality demonstrates a naively shallow understanding of human nature. That the majority of people can exert self control and remain within the accepted norms of civilized behaviour does not negate the need for legislating morality, wether derived from religion or secular ethics, the least of its purpose is to protect minors. There is a big grey area between fun and victimless moral “offences” and those that may ruin many young lives. Having sexual relations with a biologically mature and fully consenting Form 5 girl may seem perfectly reasonable to modern sensibilities, and no real rational reason why not, but why is it morally reprehensible as much to a secular ethicist as to a person with a deep religious outlook, that nobody disagrees that it is a major criminal offence? Many western countries even have legislations that prosecute their citizens who sexually exploit children while on holiday jaunts in Thailand and Philippines whereas we don’t. As long as man remains man, there is no running away from legislating morality.

The question is not wether we should or should not draw a line in matters of morality and decency, but where to draw and how. Secular ethics, but more often the cultural norms, tradition and religious values of each society guide and inform this process, and this is reflected in legislation. But where does secular ethics have its roots, if not in the christianity of the age of faith? In some conservative american states we were told, until very recently, sodomy and oral sex between married couples are theoretically punishable offences, something that ostensibly has its basis in christian teachings. In Saudi Arabia, Islam’s many aspects of the personal moral code e.g. in matters of dress, alcohol consumption and the mixing of sexes find their way “as is” into legislation. In contrast, the Malaysian Shariah code does not adopt “as is” Islam’s personal moral code but merely reflect its teachings on modesty and decency. Just to illustrate the point, not wearing the tudung for women is not an offence in the Sharia code. Nevertheless the scholars of Islam agree that it is an obligation but conforming to it is a personal responsibility and not the state’s. What is adopted as legislation is also bound to evolve with varying degrees secularization in societies touched by modernity. Occasionally, it may swing to more prudish moral legislation with periods popular religious revivalism.

It needs to be appreciated that this is one area of legislation where the WTO and the IMF have no interest to intervene, where a society’s laws on morality and decency can truly reflect its traditional culture and religion. Paradoxically, when we wish to exercise that last shred of sovereignty, we are derided as proponents of “Talibanaysia” and as uncivilized barbarians by the very people who condemn at every opportunity of US hegemony and the destruction of local cultures by late capitalism’s consumerist materialism.

Finally there are two aspects of being muslims in Malaysia, one is identity and the other doctrinal. Unfortunately the debate and controversy regarding the Sharia legislation on morality and decency only looked at Islam as identity. From this perspective, of course it makes perfect sense to argue that a muslim is deprived of his right to pursue happiness when he is denied entry into the Genting casino and therefore it is only right that he lodges a complaint of being discriminated against on the basis of identity. But much more than identity, the profession of the Islamic faith is a matter of personal conviction in its doctrine, chiefly accepting the oneness of God (tauhid) and the prophethood of Muhammad as the last messenger in a line of prophets that included Abraham, Moses and Jesus. Outwardly, acceptance of this doctrine, apart from the obligatory formal rituals (rukun or the pillars of Islam), entails following some personal moral code that is seen as restrictive and outmoded in today’s consumerist culture of instant gratification. Restrictive and outdated this may be to outsiders, to muslims, living a moral life in submission to God’s will is supposed to lead to inner peace and salvation, which is akin to T.S. Eliot’s beautiful christian phrasing of “Our peace in His will” or Dante’s famous saying “In His will is our peace”. The meaning of the word “Islam” in arabic is both “peace” and “submission”.

From this other perspective which is premised upon obligations and responsibility upon profession of faith, a muslim who complains of discrimination on being denied entry into the Genting a casino or to consume alcohol in public, needs to think twice before he/she cries of victimhood.

I am not sure wether the Sharia code which legislates morality and decency, which is applicable only to muslims, will make us more deeply religious. That may not even be its purpose. That relies more on personal effort at understanding the religion and honestly following its teachings, but at least the existence of the Sharia code, which is not without its humanly imperfections, serves the aspiration of muslims in seeing Islam remain in its rightful place as the religion of federation as accorded by the constitution, and the worldwide recognition that Malaysia is among the exemplary muslim nations. For this, we have to accept giving up some of those pleasurable rights that our muslim friends enjoy.

At any rate, the people who cry victimhood are actually having the last laugh. With rapid secularization and relentless adoption of the western lifestyle among urban malays, it is an uphill task trying to enforce such a legislation beyond mere tokenism, especially when the offences are largely victimless. It is much easier to enforce against illegal hawkers and peddlers of illegal VCDs, as both enforcers and offenders come from the same social class. Both are English-inarticulate and have virtually no access to the media. The same is not true for the JAWI enforcement officers who have to deal with the clients of expensive trendy discotheques in KL’s trendiest areas. The power of money and status is limitless.

Dr. Mazeni Alwi

Deal with morals of ‘wayward youth’, says MPF
by Nurul Nazirin
Feb 8, 05 3:49pm

The public outcry over the raid on a Kuala Lumpur night spot by the Federal Territory Religious Department (Jawi) has missed the bigger picture – the “moral waywardness” of youth, says the Muslim Professionals Forum Bhd (MPF).

In a statement signed by MPF chairperson Dr Mazeni Alwi, the group said it would like to see the discourse rise above the intensifying accusations against Jawi .

“We lament the moral waywardness of our youths, the social problems arising out of the loose sexual mores and their lack of (self-confidence)…,” said the statement.

“Yet the sensitivity of Muslims who make up the majority of the population has never been taken into consideration in this emotive affair.”

The Jan 20 raid earned notoriety after it was reported that Jawi officers had, among others, verbally abused the Muslim women, who were among 100 youths detained during the raid, by passing lewd remarks about their attire and taking photographs of them.

Contacted today for elaboration, MPF board member Dr Musa Mohd Nordin said “very little is being done” about the behaviour of youths, although many have criticised the religious officers for humiliating them during the operation.

Musa said the focus has been on issues of legality of the raid, human rights justifications, how future operations should be conducted, and why laws should be reviewed.

“If Jawi has conducted its operations badly, the officers should be disciplined. However, the misconduct of the youth will also need to be dealt with,” he said.

He noted that more should be done about the morality of youths, because this is not a one-off matter and the core issues have never been properly addressed.

Respect status

The group urged Malaysians, the government, community leaders and non-governmental organisations to be more reasoned and respectful of the sensitivity of others and the status of Islam as the official religion.

It also expressed support for a proposal by Women and Family Development Minister Shahrizat Abdul Jalil, that future operations should involve women officials.

The MPF suggested that Jawi officials provide clarification in the face of allegations that they had mistreated those rounded up. If the allegations are proved, the errant officers should be disciplined.

In particular, the department should “protect and maintain the public image of Islam” within its powers of enforcement, ensuring that its personnel act in a more professional manner in carrying out their duties.

MPF is a local Muslim organisation that aims to promote Islamic studies and research, and to provide an Islamic response to the intellectual, educational, scientific and cultural challenges encountered.

The organisation was set up on July 23 last year by Dr Jemilah Mahmood, Farah Abdullah, Zainal Abidin Jamal, Dr Sarah Haniza Abdul Ghani, Mazeni and Musa.