ISA is against Islam
Repeal this unjust law
by Syed Ibrahim Syed Noh
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Perhaps the early years of the ISA, since its enactment in 1960, did not produce that much literature. But with increasing awareness of human rights and civil liberties, books and articles have been written by not only legal practitioners, political scientists and academicians but more importantly also by detainees, ex-detainees and family members.
To quote a few, Said Zahari wrote a famous book entitled, Meniti Gelora (Dark clouds at dawn); Syed Husin Ali wrote Two Faces; Lee Ban Chen wrote a series of books and now is a prolific column writer in Malaysiakini; Saari Sungib wrote a series of eight books, fittingly entitled Suara Dari Kamunting (Voice from Kamunting), while he was still detained under ISA; and his wife, Aliza Jaafar wrote Diari Perjuangan (Diary of a struggle) depicting her experiences as the wife of a detainee.
These are but some examples of literature that have raised awareness of the ISA as the country’s most draconian detention law that denies a person the right to trial and natural justice. The ISA enables the Home Affairs Minister to detain a person indefinitely based on the suspicion or belief that the detention of that person is necessary in the interest of public order and security. Detention without trial is the antithesis of the rule of law and goes against the teachings of all religions, including Islam, the official religion of the country.
Why ISA is against Islam
I wish to focus on the reasons why the ISA and other laws that allow arbitrary detention without trial are against Islam. My reference to this is Saari Sungib’s book, Suara Dari Kamunting 8 – ISA Undang-undang Haram…Wajib dimansuh-kan (Voice from Kamunting 8 - ISA Forbidden Law - Must Be Repealed).
The ISA is against Islam for it violates the principles of truth and justice as mentioned in the Holy Book of Al-Qur’an in Chapters An-Nisa’, As-Syura, and An-Nahl, verses 58, 15 and 90 respectively. To arrest and detain a person only and only on the basis of suspicion and without trial, without opportunity to defend oneself is forbidden and considered haram in Islam. Even if the Government wishes to detain a person for preventive purposes, the matter must be decided in an open court. Detention without trial - without the opportunity to defend oneself in an open court - violates the rights and denies the guarantee that Islam provides to all individuals. The guarantee is that everyone has a right to freedom and well-being.
The ISA is against Islam for it overrides the limitation of powers of the ruler imposed by Islam. The power of a ruler is subject to due process in an open court to ensure that justice is done. Whenever a decision is made to detain a person without due process in an open court, the ruler has clearly exceeded the limitation of power entrusted to him as determined by Islam. It is on this basis that Section 8 of the ISA - which gives outright power to the relevant Minister to issue a detention order to anyone as long as he is satisfied that the person needs to be arrested - is a clear violation of the principles that Islam upholds.
The ISA is against Islam for it violates the principles of embracing all that is good, enjoining what is right and forbidding what is wrong as advocated by Islam. This principle also takes into consideration the freedom of speech and expression in the context of upholding truth and justice as mentioned in the Holy Book of Al-Qur’an Chapter Ali-‘Imran, verses 105 and 110. In Islam, laws are established to advance and expand the truth, not to obstruct and destroy it. Laws established to obstruct initiatives to improve society and which divert leaders and rulers from the path of truth are therefore to be condemned and negated by Islam.
Likewise, laws that instil fear in the people and inhibit them from telling the truth and criticising the ruler are wrong and go against Islam. It is a violation of the principles of al-hisbah or assessment in Islam. The enactment of ISA instils a culture of fear among the people in this country that discourage the people from criticising the misconduct and wrongdoings of the Government. The democratic rights of the people are diminished due to this culture of fear, especially amongst social and political activists. A law that cultivates fear to safeguard the position of the ruler is clearly against Islam.
Muftis' ruling requested
It is for these very reasons that Gerakan Mansuhkan ISA (GMI) or Abolish ISA Movement (AIM) categorically supports the letter dated 5 August 2004 submitted to the Council of Muftis by 22 ISA detainees. In this letter, the detainees requested the Council of Muftis to state categorically their position on the ISA from an Islamic perspective.
GMI had actually made a similar call a year earlier in May-June 2003 when one of its members, Jamaah Islah Malaysia (JIM), an Islamic NGO, met several State Muftis and sought their opinion and stand on the ISA. At that time, a special report by Saari Sungib, who was then an ISA detainee, was forwarded along with all the other books and studies on the ISA in the hope that further studies could be undertaken by the State Mufti’s office.
Although GMI could not meet all the State Muftis, it raised its concern in all the meetings about the cruelty of the ISA and how the law violated Islam. It was stressed that, from an Islamic perspective, the ISA is a major calamity for the country as it denies human rights. The justice process that stops with the Police and the Home Affairs Minister is a gross injustice; it is oppression by any yardstick.
Muftis and the national fatwa council
The office of the mufti institution is one of the most respected Islamic institutions in the country as the State Muftis are the advisors to the State Rulers and the State Governments on religious matters. Its role covers matters of concern relating to faith, Syariah laws, social, economic and current issues that affect the people or certain deviations that are identified. A mufti is a learned person and an authority on Islamic law. The main function of a mufti is to pronounce a determination or hukum or fatwa that is related to Islamic law.
State Muftis are appointed by the State Rulers or Sultans and in the case of the Federal Territory, by the Yang di Pertuan Agong. The Council of Muftis is made up of all State Muftis and regular annual meetings are held to discuss issues that concern Islam and the general public. Once in a while, statements will be issued on certain matters agreed to by all muftis. An example of this was when Dato’ Seri Harussani Zakaria, the Perak State Mufti, issued a statement recently on behalf of the Council of Muftis declaring that TV3’s Sure Heboh Concert was prohibited in Islam and therefore it was haram as it encouraged vice and immoral activities among Muslims in the country.
Another body that exists currently is the National Fatwa Council, which consists of all State Muftis in the country. The Chairman is appointed by the Prime Minister and he may not necessarily be chosen from among the Muftis. The National Fatwa Council goes through certain procedures namely organising Council meetings to arrive at a decision on certain issues. At times, a consensus may not be reached on certain issues and therefore no fatwa will be issued.
State Muftis have jurisdiction at the state level. In this case, matters agreed will be tabled at the State Fatwa Committee to be endorsed for a fatwa to be issued.
ISA a clear violation of Islam
It is GMI’s belief that the ISA concerns national, social, economic and syariah issues. It is important that the State Muftis and the National Fatwa Council state their position on the status of the ISA. It is all the more urgent since Saari Sungib’s and the 22 ISA detainees had made serious allegations of inhumane treatment and violations of their religious rights - such as the right to perform the congregational Friday prayers - revealing a gross conflict with Islamic law.
It is distressing for Malaysia to continue to implement the draconian ISA when it has declared itself an Islamic country. It is my belief that since Muslims and muftis uphold Islamic principles in this country, oppressive laws that violate Islam such as the ISA should be abolished even if the Government is opposed to this move.
I believe that if Muslim scholars (especially the muftis) are sensitive to the danger the ISA poses from an Islamic perspective, they will play their rightful role as guardians of morality by advising and demanding a review of the ISA and all preventive laws which do not accord fair trial. This would be on the basis of enjoining what is right and forbidding what is wrong.
The ISA is evidently cruel as those who are detained are denied their right to trial and to be presumed innocent until proven guilty. There are no judicial or legislative safeguards against the abuse of discretionary power under preventive detention laws, nor are there statutory provisions that require periodic reports on preventive detention to be tabled before Parliament. All action taken under the ISA is only subject to the discretion of the Home Affairs Minister, whose decisions are based on the recommendations of the police. This is a clear violation of Islam.
All ISA detainees should be released or be charged in an open court for a fair trial as required by Islam.
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