[Malaysia] Of morals and public morality

Of morals and public morality

Salbiah Ahmad

Oct 7, 2005 Malaysiakini

In his references to sodomy at the Sept 9 conference on Human Rights, former premier Dr Mahathir Mohamad appears to suggest that the views of the majority must prevail in the enforcement of public morality. He was reported as saying that since the ‘society here’ was against sodomy, he had acted accordingly in sacking his ex-deputy Anwar Ibrahim.

There is not a single legal system today that excludes morals. Morals may be rules or set of values, beliefs or tenets which govern a person’s or group’s behaviour. These are concerned with what is right and wrong. There are situations where law and morality (religion and ethics) intersect on euthanasia, genetic engineering, abortion, corruption and more.

Our sodomy law is under the Penal Code, a ‘secular’ law derived from British India. It may have its roots in the Judeo-Christian tradition. Sodomy is also classified as a hadd offence in the unenforced state hudud laws of Kelantan and Terengganu. States which do not have hudud laws classify sodomy as a ta’azir offence in its state Islamic legislation. Sodomy is perceived to be about morals. A law outlawing sodomy is a public morality law. Public morality is the moral standards we maintain for everyone, not just the ones we insist on in our private lives.

Public morality depends on a consensus view of right and wrong. Was Mahathir right to assume that there is a consensus of sodomy as a public morality offence by his reference to ‘society’? We can point out that the values of religious belief will not and should not be accepted as part of public morality unless they are shared by the pluralistic community at large, by consensus.

We might note that the Penal Code is a pre-Merdeka law. This law was just shoved in our faces upon independence. The provisions on anal intercourse between two persons of the same sex laid dormant until this century.

Participation

Martin Luther King Jr, was known to have said that, it is axiomatic to justice that laws in a democratic society must permit some form of participation by those subject to obeying them. However, in reality, the less powerful political and social groups in any case, do not or they have fewer opportunities to influence policy and lawmaking. This latter point was not a concern to Mahathir as he feels that the rule of the majority, which he assumes to be the case, must prevail.

We are familiar, more so here in Muslim majority Malaysia that religion has arguably a valid place in political discourse, as an extension of the freedom of religion and beliefs. It is not too presumptuous to think that Malaysians generally believe in the place of religion in political discourse. In other words religion is not separate from politics.

There are differences of opinion on the notion if religion should hold sway in policy-making and in lawmaking. In other words, many insist on the separation of religion and state.

I have stated elsewhere that the notion of secularism may not necessarily be a strict separation of religion and state, but a notion of state neutrality in matters of religion, in which case, state intervention is then subject to negotiation according to context.

Where laws are premised on ‘inaccessible’ religious values of one faith or belief system, in a multicultural society, it appears unfair that discussion and debate are not available to non-believers in the way that laws based on ‘secular’ rationales can.

Whatever may be the outcome of the recent Mahathir outburst against his ex-deputy, the incident has allowed an opportunity for this writer to share some of that ‘inaccessible’ discussion at least from the writings by Muslim scholars.

Islam encourages its adherents to enjoin good and forbid evil. It enjoins humankind to do justice. The Quran does not define the constituent elements of justice but emphasises the ability to achieve justice as a unique human charge and necessity. The Quran requires a commitment to a moral imperative that is vague, but is recognizable through intuition, reason or human experience (el Fadl).

Justice

Human diversity and difference is a central key in the discovery of justice. The Quranic statement that people are created different from one another and made into nations and tribes so that they will come to know one another, indicates the need for social cooperation and mutual assistance in order to achieve justice. This is not far from what we may today understand as consensus or participation.

The Quranic celebration and sanctification of human diversity in the pursuit of justice can be developed into an ethic that represents dissent and honors the rights of human beings to be different, including the right to adhere to different religious or non-religious convictions (el Fadl).

The ruler is entrusted to serve the core value of justice. The government is restrained from derailing the quest. If the government fails to discharge the obligations of its covenant, then it loses its legitimate claim to power. The mechanical enforcement of legal rules, even if such rules are the product of interpretation of divine texts is not sufficient for the achievement of justice. Human subjectivities are accommodated to the extent that they contribute to the fulfillment of justice. Thus every possessor of a right (haqq) is granted his or her right.

The challenge to a vicegerency is first to recognize that a right exists, then to understand who is the possessor of such a right, and, ultimately, to allow the possessor of a right to enjoy the prescribed right.

Right to privacy

We may not realise it, but the so-called zina offences may in its evidentiary requirements actually prescribe for a right to privacy. At least two categories are implicated in zina: (1) consensual intercourse between a man and a woman who (a) are not married to each other and (b) are or have been lawfully married to a third person where the marriage was consummated (‘adultery’) and (2) consensual sexual intercourse between an unmarried man and an unmarried woman (‘fornication’). There is a moral prohibition, then a criminal prosecution in the text (Q, 17:32; 24:2).

The majority of Sunni jurists regard heterosexual anal intercourse between a non-marital couple as zina. Such an activity within marriage although sinful is not a crime of zina.

Homosexual sodomy is zina according to the Shafii, Hanbali and Maliki schools (liable to hadd punishment). The Hanafi school consider homosexual sodomy a crime of ta’azir, or discretionary crime.

Zina is proven by eyewitness testimony of four persons or confession of the accused. The quadruple testimony is strict. It requires an actual observance of sexual penetration. Doubt invalidates the application of hudud. It is thus virtually impossible to meet this evidentiary requirement unless two individuals were having sex completely uncovered in a public place. Scholars have argued that the crime of zina is one of public indecency rather than private sexual activity.

The criminalisation of two nude individuals engaging in sexual conduct serves to protect “public health, order and (public) morality” rather than private sexual activity. Thus the position is the same in Islam as in several legal systems based on civil (’secular’) law.

A private activity, sexual (zina) or otherwise (e.g. drinking alcohol), which may be an offence of public indecency, remains a private activity if committed in private and protected from state intrusion and prosecution. This position is supported by the text of the faith and the practice of early Muslim rulers.

Against spying

A verse protects a private dwelling and the inhabitants (owners and guests) against entry without consent (Q, 24:27-28). A hadith reflects this proprietary privacy by safeguarding homes, correspondence and conversations from unlawful intrusion. There is also an injunction against spying (Q, 49:12).

It was reported that Caliph Umar al-Khattab and a companion chanced upon a private gathering, where behind locked doors, alcohol was being consumed. Realising that they had unlawfully spied upon the individuals in the privacy of their home, they disregarded the party and left.

The argument for privacy also finds support in the prohibition of propagation of scandal and defamation of a person’s character especially public discussion of another’s sexual indiscretions (Q, 24:19). Muslims might be cautioned that the failure to prove an accusation of zina might visit the accuser and witnesses with severe penalties and that they may be disqualified as competent witnesses thereafter.

We may well argue that drinking alcohol like corruption is immoral. Muslims have references in Quran, hadith and examples of the Prophet’s companions in relation to zina and drinking alcohol. There is arguably a line drawn between what we think is moral or immoral and the rights to privacy.

The public, you and I, should decide if something is better left to private discretion than public policy. Certainly, many of us I would think would not render corruption similar to sexual indiscretions or the drinking of alcohol. What constitutes public morality is still debatable and contested. If a so-called immoral act is not a private activity that is protected by a right to privacy, we still have to get over the hurdle if it is ‘immoral enough’ to have offended our moral sensitivities.

We can all believe in a moral wrong. But much of the problem is in the nature of application of those teachings-how we translate them into action, the specific laws we propose, the exact legal sanctions we seek. What is true is there may be no one clear, absolute path that as a matter of doctrine, we must take.

References:

Khaled Abou el-Fadl (2003), Islam and the Challenge of Democratic Commitment. Fordham International Law Journal. vol 27. no. 1. 4-71.

Seema Saifee (2003), Privacy in Islamic Law. Fordham International Law Journal. vol 27. no. 1. 370-453.

SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of 'Malaya' in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes o­n the process of reclaiming the many facets of independence.