The reasons to curtail speech put forward by the Persatuan Ulama Malaysia are quite problematic. The PUM alleged that the media and Western oriented writers have insulted "the fatwa institution, ulama [religious scholars] and sacred texts" and the ulama 's "expertise in religious instruction is questioned and denied".

The PUM also urged political organisations to refrain from using their debates as opportunities to smear Islam and the ulama for narrow and party interests.

It would appear that the PUM had equated insult to the ulama (fallible human beings) as insult to scared texts of the faith.

It would be difficult to understand or maintain that some criteria that would justify restricting speech o­n sacred texts are to be applied in the same way to the ulama . Then again the question arises if the ulama can and should constitute a special class of persons that deserve protection beyond the ordinary laws applicable to any o­ne person who has been vilified.

The o­nus is certainly o­n PUM to establish a persuasive, if not convincing, argument that the ulama form a special class of persons deserving protection from free speech. As far as I can recollect from my readings, and I stand to be corrected, there is no clear injunction in the text of the faith to support a notion that any category of Muslims including the ulama should be above criticism.

Umar al-Khattab challenged

There is a very simple story and very often told that during the time of the second rightly-guided caliph, Umar al-Khattab, he spoke in public for the reduction of the marriage-dower ( mahr ) for women. This was challenged in his presence by a woman in the congregation and Umar relented. There is no record of a charge being made against the lay person for that challenge. The early caliphs were both religious and political leaders in the community.

This story informs us that Umar accepted a challenge to his knowledge, or lack of it, in a particular case relating to marriage-dower and was corrected by another Muslim. Thus a PUM complaint of a challenge to the expertise or scholarship of the ulama should not be the basis for restricting speech.

Therefore, the alim (singular for ulama ), scholar, theologian or lawyer, wherever trained, can be challenged. o­ne succeeds o­n sound arguments, not o­n o­ne's calling. A calling presupposes a level of expertise required for that field of endeavour, but o­ne's integrity in that calling depends o­n o­ne's professional ability to defend o­ne's opinion or argument or methodology in arriving at that opinion or decision. This is just how it is.

'Kill all lawyers'

As another analogy, lawyers as a group are vilified all the time. William Shakespeare for instance had an infamous call to kill all lawyers. Under standard speech-harm principles, this type of speech will justify suppression if (1) harm results from violent reaction by lawyers, (2) others are incited to commit violence, and (3) lawyers suffer psychic injury as a result of it. However, lawyers have to first convince all of us that they form a special class of persons deserving of protection.

The sort of groups or class of persons which have traditionally been seen as deserving special legal protection against majoritarian oppression are the powerless, the subordinated and disadvantaged minorities.

Thus the protection of private feelings, short of vilification or defamation of the specific alim or any other specific person, may not be considered sufficiently compelling to restrict speech as a whole.

The question is how will censorship promote tolerance and respect for the beliefs of others. There must be a countervailing right which demands priority over right of speech. Unless that is so warranted, censorship in such a case will not assist us in determining whether the suppressed speech act would educate us in respecting or tolerating the beliefs of the ulama .

Politics is about power

There are two concerns of the PUM which I have some immediate trouble with. It may be that the press statement did not adequately capture the discussions of the special conference o­n March 17 in Kajang. I do not thus have the benefit of how these issues, if at all, are problematised by PUM.

My views are based o­n an understanding of how these have been debated by Muslim scholars past and present, who are similarly concerned with these issues across Muslim countries and across time.

One relates to the complaint that political organisations are using Islam "simply for narrow and temporary party interests". The other is the call to Muslim groups "to face challenges from those who wish to distort the truth about Islam and to carry out a campaign of war against Islamic values with the excuse of fighting international terrorism".

It is hard to remain innocent to the fact that the first political act of the Faithful upon the demise of the Prophet in 632 AD was in essence, a partisan act. The Quraysh secured its tribal dominance by rendering an interpretation of a hadith in favour of the Quraysh over the Ansars, over the partisans of Ali ( shi'at Ali) and the community as a whole.

Historians note that the Sunni and Shi'i leaders were preoccupied with a struggle of power which led to the uprising of the tribes (the Great Fitnah) and culminated in the murder of Uthman the 3rd caliph in 656 AD. The Battle of Karbala (680 AD) between the factions ended with the death in battle of Imam Hussayn, Ali's second son. The division of the ummah into the two schools survive to this day. Even as I write this, the two factions continue their hostilities in some countries.

Politics is about power. Politics has been with the ummah since the birth of the community of believers in the city of the Prophet in Medina. The political leaders in the community in the early period are fuqaha ( ulama , jurists) in their own right. They are the rulers, governors, military leaders and other political authorities, collectively referred as al-umara .

There is a group also of ulama but not in political leadership. It is said by the 8th century AD there are two distinct groups, the umara and the ulama , oftentimes in uneasy truce with each other. Sometimes the ulama are invited to be judges in the various courts. Sometimes refusals were held in contempt by the umara . These are well documented and we are not in the proverbial Dark Ages. A good library has wall-to-wall of such information.

While the umara are dealing with matters of state and it has been said that expediency and partisan interests do get the better of them, the ulama developed highly idealistic, normative doctrines. Some of these are build upon hypothetical questions, that is, they do not deal with actual situations. For example, the normative ideals do not actually help in the development of institutional mechanisms to deal with situations where the political system (read governments) oppress and exploit the people.

Epistemological crisis

We are faced with an epistemological crisis. We do not have a hands-on knowledge, or information, or an objective evaluation of how rational decisions were achieved in applying Islamic norms during the 'glorious golden age'. We do not have a practical knowledge of realising normative ends through worldly means.

There are inadequacies in methods of inquiry and forms of argument that have shaken our confidence in the capacity of our inherited knowledge of the past to give solutions to the concrete problems faced by us in contemporary social and political contexts.

To help take us to speed, a most accessible recent work with updates up to the Iranian revolution and beyond is The Islamic Roots of Democratic Pluralism by Abdulaziz Sachedina (Oxford University Press, 2001). We need to read more if our own umara and ulama are not forthcoming in their intellectual debates.

Another work, Between the State and Islam (Cambridge University Press, 2001) edited by Charles E Butterworth and I William Zartman offers an important insight of civil society efforts in the 19th and 20th centuries in reform, opposition, anti-conformism and interpretive thinking. There has been a neglect in the study of the forces that struggle against Islamic conformism and state hegemony, which this work attempts to address.

I remember placing a call in the aftermath of the 1998 reformasi demonstrations, to a former rector of the esteemed Al-Azhar o­n the right of resistance. It was to share my distress in locating o­nly o­ne mention of resistance in the classical works as the Great Fitnah (the uprising) which divided the community into two factions and Muslims are forever reminded of the possible schisms of protest.

Hegemonic state

Protest, reform, militancy, opposition and terrorism are very difficult issues any day especially so after Sept 11. The PUM call to face challenges o­n terrorism is valid. But is PUM ready to face the challenges of civil society?

For instance what is meant by PUM in its statement o­n the distortion of truth about jihad in the name of fighting terrorism? Are the ulama prepared to counter ISA detentions as a "war against Islamic values with the excuse of fighting international terrorism"? Is civil disobedience necessarily a 'fitnah' which justifies detention without trial?

In some Muslim countries it is not uncommon for the government to also find religious justifications for policies to curb the universal rights of non-Muslims and Muslims. The important question remains, what is the role of the ulama in a hegemonic state? In some countries, the legitimacy of de facto Muslim governments depended upon the support of the ulama . Is it quid pro quo ?

It is unfortunate if the PUM would contemplate a call for the restriction of speech o­n grounds of public order, when it indicated (as reported) that action against individuals who have insulted and abused Islam is valid under the Constitution.

Article 10 (speech, assembly and association) of the Federal Constitution has been curtailed by this government through constitutional amendments. Restrictions to Article 10 include the grounds of public order, national security and sedition. The state has immense powers of detention without trial.

To call upon the state to exercise its powers to censor and detain would at o­nce isolate the ulama in PUM from civil libertarians in this country who have struggled long and hard against preventive detention laws such as the ISA. Silap mata, pecah kepala . We must be extremely careful where we want to go with this.

SALBIAH AHMAD is a lawyer. 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.