The demolition of the famed Sky Kingdom and the rooting out of alleged deviants is testimony of our intolerance of the other.

Islam in Malaysia is an intolerant Islam as practiced by some of its adherents, including the mob-agent provocateurs cum arsonists who torched property and endangered lives of the villagers. The intolerant Muslims include those with the local authority and the police who failed to protect the human rights of the villagers and instead became part of the aggressors as they stood by while the Sky Kingdom was demolished on July 31.

Ayah Pin was found a deviant by a state syariah court which applied a Terengganu state fatwa issued in 1997. He has been convicted and he has served his sentence. He is free to believe in what he wants to believe.

I have in a number of previous columns explored the alternative interpretive views on apostasy as a crime. Whatever the juristic opinions that were selected in local state legislation for the offences of deviancy and apostasy, and rehabilitation for recantation, these opinions cannot recommend continued harassment.

In other words, this perspective which criminalizes a renunciation of Islam, does not allow the state to persecute ad infinitum. That would be illegal, haram and un-islamic.

Ayah Pin's belief after his conviction and sentence is no longer the business of the state. In other words, the state tried and failed. The failure of the state does not convert the matter into a "national security" case either, the efforts of the mob-agent provocateurs and misguided Malays notwithstanding.

It might be worth noting that a number of Muslims who wish to renounce Islam are more than willing to face the music. They are open to being charged and sentenced for apostasy under state syariah law if that means that they would then be able to live in peace in Malaysia without harassment from Muslims and the Muslim religious authorities instituted at state and federal levels.

However, many among us would rather have them ousted from the country of their birth or hunted down like prey. If we say that Islam supports multiculturalism and human rights, then these acts must surely be contrary to the message of the faith.

Fundamental liberties

The state and its functionaries should uphold the Federal Constitution and protect the fundamental liberties of its citizens and this includes the women, men and children of the Sky Kingdom. Silence is state complicity of violations.

The failure to secure protection from religious persecution and prosecution is a growing phenomenon in Muslim majority Malaysia. It is being documented at home and abroad.

As it is, I am confident that NGOs and lawyers have received requests from groups abroad on the state of religious persecution in Malaysia in order to support applications of Malaysians seeking refuge and asylum abroad.

It is only a matter of time for Malaysia to be infamous. It is unfortunate that this infamy may happen during Abdullah Ahmad Badawi's administration, a man long touted as a Muslim scholar, a distinction not accorded to his predecessors.

There is growing scholarship on Islam, law and politics (more than one discipline), that there are serious intellectual flaws to the making of Islamic law as law of the state. I may have said this in various ways in past columns, but there is I trust a virtue in recycling.

The modern nation-state in theory is the repository of legal authority. Law thus becomes law only through the will of the state and only when it is enacted by the legislature. Islamic tradition on the other hand does not recognize the state as the sole legal authority.

The process of acquiring and passing legal authority took place outside the mechanism or apparatus of the state. The idea of state-sovereignty is a 'modern' notion. In Islamic tradition, there is no notion of a particular or selected opinion by some central authority to be law to be applied.

If the Islamic tradition, medieval and contemporary should have an array of views or disputations on apostasy, all interpretations become relevant and the judge has to decide among the various interpretations/opinions offered. The judge is not to be restricted by a central authority. The serious intellectual flaw here is the inherent contradiction between a code (or legislated syariah) and the traditional syariah.

Recent writings have found that even the medieval scholars were apprehensive of developments which might produce results similar to that of codification. Scholars are accustomed to the plurality of views and their relative autonomy.

State neutrality

The idea of a close association between one particular school of thought and the ruling power is considered an infringement of the rights of other schools. The selection of one school or interpretation would marginalize another school or interpretation. Selective interpretations were perceived as an infringement of state-neutrality in matters of conscience.

In these discussions, it was argued that law itself may become a vehicle for promoting tyranny. The problem is posed thus: To ensure the rule of law, there is a need to confront the multiple, but equally authoritative legal interpretations backed by differential levels of power. Civil trained lawyers will immediately appreciate this point which is also a discourse in civil law, except as to the equally authoritative fiqh. The latter is pertinent only in Muslim jurisprudence.

Al Qarafi (writing in 1262), proposes a solution to this dilemma by according equal status to the opinions of all schools known at that time. It might be noted that contemporary scholarship on Islamic law is not confined to the historical schools of thought.

For every practical reason, a syariah judge like the civil court judge may not be altogether interested in philosophy of the law and serious intellectual flaws. However, the syariah judge must not take a position to discard an interpretation relevant to the case or charge before him when it is so offered. The law should not be a vehicle for tyranny.

In fact the syariah judge should not take a fatwa at face value. It is at best an opinion of state functionaries to which a judge may differ from after hearing relevant evidence, expert opinion/evidence and submissions by learned counsel.

There is a well known judge's guide represented by a letter said to be from caliph Umar al-Khattab (d. 644) to Abu Musa al- Ashari. Abu Musa is the caliph's deputy to Basra. In part the letter reads:

"The judicial function is an unequivocal obligation (farida) and a sunna which is followed.

Do not let a judgment which you judged yesterday and then reconsidered and about which you were guided to a wiser opinion, prevent you from returning to the truth (al-haqq), for verily truth is not avoided by anything. Know that returning to the truth is better than persisting in error. Use your understanding in matters that cause hesitation and perplexity in your heart on which there is no Quran or sunna. Learn the similarities and the analogies, then compare matters after that. Then adopt the most pleasing of them to God, and the one closest to the truth in your view.

God has taken responsibility in your stead for the secret (inner states of humans) and averted (responsibility) from you by (means of) the explicit (evidence or proofs)".

The final sentence of this advice informs the judge that he is not responsible for attaining the perfection of the omniscient divine judge, who knows the inner merit of the parties and witnesses. The judge is relieved of the inner responsibility to attain to a correct judgment of human's secret inner states.

Theology and law

Law (fiqh) is not theology (kalam). Fiqh can be defined as the normative system concerned with human acts that seeks to provide the judiciary with the standards for judgments. Fiqh are legal rules to be applied by the courts and includes norms which also address the Muslim conscience.

Theology seeks to provide rational proofs for religious truths (Eg. God's omnipotence and omniscience). Medieval scholars sought to distinguish iman (faith) from fiqh (law). It is faith not law which determines the constitution and the criterion for membership of the Islamic community.

What is the more important point to be noted at this juncture is the discussion of scholars of the tension between God's (ethical norms) and the qadi's judgment (legal norms); the latter is fallible. Contemporary philosophers and lawyers involved in translating these discussions suggest that the fiqhi discourse is always informed by an epistemological scepticism, it is forever cognizant of the moral and intellectual hiatus between revelation and its interpretations.

This "epistemological scepticism' accounts for the prevalence of pluralism of interpretations: as long as one accepts the premise that norms are to be derived from the texts, one is free to interpret them through the exercise of one's (fallible) reason. Should we allow fiqh to be 'state-mandated' a neat phrase from malaysiakini reader, Umran Kadir, this kills the very basis of this tradition. These concerns are concerns of the current legal-philosophical debate on the future of the implementation of syariah in Muslim countries.

Suggested reading:

Mashood A. Baderin, (2003) International Human Rights and Islamic Law. Oxford University Press.

Abdullahi Ahmed An Naim, The Future of the Sharia project (a work in progress for publication in 2005) I have cited some of An Naim's manuscripts in past articles, when he makes these available for public consumption over the Internet.

Baber Johansen, (1999) Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh. Brill, Leiden.

Sherman A Jackson, (1996) Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din Qarafi. Brill, Leiden.

Parvez Manzoor (2000), Legal Rationality vs. Arbitrary Judgment, Muslim World Book Review (21:1, Oct-Dec)