Oleh 		: 	DATO SERI DR MAHATHIR BIN MOHAMAD 
Tempat		: 	IKIM, KUALA LUMPUR
Tarikh		: 	24-10-2000 
Tajuk 		: 	THE INTERNATIONAL SEMINAR ON 
			ISLAMIC LAW IN THE 
			CONTEMPORARY WORLD
Penyampai	: 	PM


 I would like to once again
thank the Malaysian Institute of Islamic Understanding for inviting me to
speak at this International Seminar on Islamic Law in the Contemporary
World. 2. Law is about ensuring justice. There are bad laws which fail to
bring about justice. The laws which permit slavery and the harsh treatment
of slaves are among the bad laws. But as human society becomes more
enlightened bad laws have been annulled and the new laws which replace
them are much more equitable and just. In modern times liberal ideas about
rights and wrongs, about what is just and what is not, have resulted in
justice for some while resulting in injustice for others. Thus in liberal
democracies the right of the majority may be ignored and negated in order
to protect and uphold the rights of a minority or even an individual. The
result is a travesty of justice. Throughout history over correction of a
perceived defect often leads to a violent swing in opposite direction
which is no less defective. 3. Today equality is almost a religious
dictum. Everyone must be equal before the law. To be treated differently
because of status or wealth would not be acceptable. Yet not so long ago
society was elitist and equality was not an unchallenged principle. The
slave owner or the employer merits different treatment from that meted to
slaves and workers. 4. Then the pendulum began to swing. Slavery was
abolished and workers demanded to be treated with fairness and justice as
much as enjoyed by their employers. Eventually workers used their numbers
to seize power. The Communists went one step further and they seized the
property of their rich former employers, killed most of them or subjected
them to indignities and injustice. Clearly the quest for justice for
slaves and workers had ended in injustice for the others. 5. Perhaps this
can be regarded as poetic justice but injustice cannot be considered as
justice, poetic or otherwise. The tendency to be unjust to the unjust is
very strong. But being unjust even to the unjust is still an
injustice. Even the unjust must be accorded due justice. 6. The world has
not yet learnt to understand what constitutes justice. And so there will
always be injustice within human society and between human societies. This
is made more so because the concepts of justice differ as between
different societies and cultures. What may appear to be just under certain
laws may appear to be unjust under other laws. Still there are certain
aspects of justice which are universal. Thus to punish the criminal is
considered right but to punish his victim can never be considered fair or
just. 7. The Prophet of Islam, Muhammad S.A.W. brought his message from
Allah Subhanahu wa Ta'ala to a society that was manifestly oppressive and
unjust. Slaves were ill-treated and regarded as hardly human. Infant girls
were killed by being buried alive. The rich oppressed the poor. Women were
regarded as chattels and a man may take as many wives as he pleased and
may discard them without compensation or support whenever he
liked. Quarrels between individuals were settled through tribal wars which
knew no end. The strong will always have the better of the weak,
regardless of rights and wrongs. 8. To this anarchic and oppressive
society the Prophet brought the laws of Allah and the true concepts of
justice. In the teachings of the al-Quran and later the true Hadis, the
idea of justice was paramount. If injustice is the outcome of any act or
procedure then it is forbidden. That is the substance of Islamic law and
Islamic justice. 9. Form has never been as important as substance in
Islam. Thus it is not the way that the `solat' is performed that is
important but the `niat' or the intent associated with the ritual that is
important. If possible the physical performance may be carried out. But if
circumstances do not permit, as for example by illness or distance, or
constraints of time, or whatever circumstance, the performances can be
abbreviated or curtailed or the physical movements done away with or as in
some cases foregone entirely. 10 It is unfortunate perhaps that so many
Muslims believe more in the form than the substance of Islam. Thus whereas
Islam enjoins the brotherhood of the Muslim `ummah', most Muslims would
find any number of reasons for not regarding other Muslims as their
brothers. Indeed they are likely to emphasise the minor differences
between them or to declare that other professed Muslims are not Muslims in
order to justify the enmity and rejection of brotherliness. 11. The Quran
as we all know contains very specific injunctions which do not lend to
misinterpretation. But the al-Quran also guide through parables which lend
to many and different interpretations. Even the specific injunctions are
qualified. But where Islamic laws are concerned justice is
paramount. Unfortunately there are people who put a premium on form and
care little about justice. For as long as form is achieved then the
Islamic stress on justice matters not at all. Indeed such is the
veneration of form that injustice must somehow be regarded as justice as
long as form is followed. That is why Islamic justice often appear harsh
and pitiless. 12. The other problem that is faced by those adhering to the
principles of Islamic justice is the tendency to mix tribal cultures with
Islam. Thus in a recent case a brother shot dead his sister because the
sister who had been forced into marriage with a man that she had had an
affair with was divorced and had to return to the family. There is nothing
in Islam which advocates or even permits this. But the impression given is
that the fratricidal act was in accord with the teachings of Islam. In
fact the alleged shame on the part of the family was the result of
pre-Islamic culture. 13. The fact that Islamic laws are largely uncodified
opens them to many interpretations, some of which must be contrary to the
tenets of Islam. In Malaysia an attempt has been made to codify Islamic
laws pertaining to certain societal behavior and activity. But because
Malaysia is multiracial and multireligious, complete codification is not
possible. However the laws of the country are not such as to negate the
principles of Islamic laws and Islamic justice. The punishment may be
different but the principles are the same. 14. Islamic laws are not
rejected in Malaysia by the Malaysian Government. But it is acknowledged
that at the moment under prevailing circumstances it is not possible to
implement all of them fully. 15. In other Muslim countries Islamic laws
are apparently not codified or not fully codified. It is quite impossible
to obtain examples of codified Muslim laws from these countries. Indeed it
is difficult to determine the procedures followed in carrying out due
process of law. As a result there have been many arrests involving
foreigners which were made quite arbitrarily. The relevant Islamic laws
under which the arrests were made were not quoted and made known to the
offenders. The subsequent charges and trials did not follow any given
procedure. The presiding Judge would make reference to any book or
writings, or the Quran or Hadis and sentence pronounced. Procedures for
the defence to put up its case are not generally available. 16. Perhaps
this is as it should be for the laws of Islam are based directly on the
Quran and the Hadis. But the Quran and the Hadis have always lent
themselves to different interpretations. It is entirely possible for
different judges to interpret differently and for punishment to be
variable. Justice must mean the same punishment for the same crime. It is
questionable whether the differing punishments meted out are in accord
with Islamic justice. 17. It is in order to avoid such injustice that in
Malaysia Islamic laws are codified. This is entirely in keeping with the
teachings of Islam. Differences in the interpretations of Islam are common
of course. Hence there are differences in the teachings of the `Sunnis'
from the `Syiahs' and among the `Sunnis' as well as the `Syiahs' there are
many different schools based on the teachings of different imams. It
follows that codification of Islamic laws will result in at least minor
differences between the different sects and schools. But at least within
each sect or school there would be uniformity. 18. How difficult it is to
achieve uniformity is shown by the Malaysian experience. The Islamic
religion is not within the competence of the elected Federal
Government. The Sultans have absolute authority over Islamic religious
affairs. Despite the fact that all Malays are `Sunni' Muslim of the
`Shafei' school, the different states have got different and frequently
contradictory laws. Such are the differences that it is entirely possible
for a Muslim from one state to escape the specific Islamic law by going to
another state. Attempts have been made to have uniform laws but this has
not been completely successful. 19. Now if Islamic laws governing people
of the same sect and school in one country cannot be made uniform how much
more difficult it would be to have uniform laws for all the Muslims of the
world, or even for Muslims of the same sect in the world. It does seem
that there is a great need for Muslims to meet and to compare notes and to
discuss Islamic laws and their implementation in their
countries. 20. Strictly speaking the head of a country, i.e. the person in
authority over the administration of the country should be the final
arbiter. At the time of the Prophet, he was the arbiter or at least the
reference point. The Quran specifically enjoins Muslims to submit to the
ruler and such submission must include judging over a dispute or the
sentencing of the wrong doers. But with the population of countries
exceeding tens of millions it is not quite possible to refer legal cases
to the ruler of the country. Hence the institution of `Kadis' or `hakims'
as provided by Islam. Whereas the head of Government would be less likely
to pass judgement which differ when the cases are similar, different
judges are likely to judge and sentence each according to his own
assessments. Thus similar cases may receive differing assessments and
sentences. Such differences would not be fair or just. And this would not
be good for the perceptions of justice in Islam. It would seem therefore
that there is a need for codification of Islamic laws and standardisation
of procedures and punishment for given offences. It is not that Islamic
justice as prescribed by the Quran or the Hadis is inherently unjust. It
is just that human fairness and weaknesses have tainted the laws and
justice is often denied. 21. Whatever may be the way Islamic laws are
implemented, there is no doubt that in the contemporary world where
Muslims and Muslim countries can no longer be isolated from other peoples
and countries, there is a need to demonstrate that Islamic laws and their
enforcement are as just as can be. While Islamic laws cannot be in full
accord with modern liberal thinking, it can be compatible with the
universal concepts of justice. It cannot possibly condone homosexuality
which is today accepted by Western society as normal and is therefore
regarded as not contrary to the law. In Islam homosexual practices would
still be treated as criminal and punishable by law even if Western society
would consider this as an injustice. But Islamic justice would not differ
much from Western justice when it comes to punishing the criminal and
according justice to his victim. It can never be that Islam would punish
the victim and let the person responsible for the crime against the victim
to go free. 22. There are some Muslims who would consider that if the
enforcement of Islamic laws results in the victim being punished and not
the criminal, then it would still be just. Thus if a girl is raped but she
could produce no witnesses then she would still be guilty of `zina' if she
conceived. While the rapist should not be brought to justice and punished,
the girl must be stoned to death because the punishment for `zina' is
death by stoning. In the eyes of most people this could be unjust but some
Muslims would still claim that in some way or other it would be just
because it is prescribed by Islam. That Islam stresses justice is
irrelevant to them simply because the correct prescription for trial and
punishment has been followed. 23. When Muslims so interpret the teachings
of Islam, then the religion would appear to be uncaring and unjust not
only to non-Muslims but to the majority of Muslims as well. Still the
learned Muslims who have made this interpretation would be regarded as
correct because they seem to adhere rigidly to the letter of the Islamic
laws. The mitigating circumstances which allow for justice to prevail if
cited would make the proponents less ardent in their faith or even less
Muslim. The extremely orthodox would condemn mitigation even if it would
make Islam a more just religion. They would claim that the truly faithful
must ignore the opinions of non-Muslims when it comes to adhering strictly
to the injunction of Islam. That their interpretations of the injunction
of Islam might be wrong does not occur to them. For them the more the
suffering they inflict on themselves or on other Muslims, the stronger
would be their faith. For them challenges to their views would simply mean
a lack of faith in the religion. 24. Islam is the religion which brought
justice to the heathen `jahiliah'. Because of this the Arab tribes and
their slaves embraced Islam. The Prophet as the ruler of Madinah was the
epitome of justice. While the laws of Islam were enforced under his rule,
he nevertheless accepted the existence and legality of other laws. Thus
when a Jewish couple admitted to having committed `zina' he sentenced them
to death because Jewish law provided for this punishment. 25. On other
occasions he was very circumspect and did not appear anxious to punish
until there was irrefutable proof of misdeeds. The quality of mercy was
strong in him. It is no wonder that the `jahiliah' Arabs flocked to the
religion of Islam. For them Islam implied justice. 26. In Eastern Europe
the Christian Serbs readily accepted Turkish Muslim rule because their
feudal lords were oppressive. The Turkish conquerors allowed the peasants
to own and work their land, paying only normal taxes. It was the same in
Muslim states where Muslims, Christians and Jews lived together and
accepted Muslim laws. When Spain was re-conquered by the Catholic King of
Spain, Jews and Muslims were given the choice of converting to
Christianity or expulsion. It is interesting to note that most Jews chose
migration to Muslim Magreb to staying in Christian Spain. To this day more
than one million Jews live in Morocco. 27. But the Muslims of today,
including the Malays are less tolerant and care little for the views of
others when practising the teachings of Islam, including the
interpretation of Islamic laws and their implementation. It would seem
that a Muslim is only Muslim if he is harsh in the execution of Islamic
laws. Even when Islam permits flexibility it should be rejected in favour
of rigidity. The greater the rigidity in the interpretations the more
Muslim is the faithful. 28. Rivalry between Muslim groups in politics for
example has led to each trying to outdo the other in the rigidity of
interpretation. Any sign of tolerance or flexibility would be regarded as
being unfaithful to the religion. In their desire to be holier than their
rivals they have misquoted and misinterpreted. The religion is made as
intolerant as possible in the process of demonising the rivals. And so a
perfect religion in which the upholding of justice is paramount has been
made to be uncaring and oppressive. 29. Today, Islam has become different
from the religion of peace and tolerance that was brought by the Prophet
Muhammad S.A.W. Islam has become a rigid, intolerant and seemingly an
unjust religion to the faithful and to others because of the fanaticism
and misplaced orthodoxy of people with vested interest. 30. If Islam is to
be once again the religion of justice then modern Muslim jurists must look
again at the old interpretations of Islam, in particular those relating to
justice. There can be no doubt that Islam upholds justice. If it does not
seem to do so it is not because Islam is wrong. It must be the
practitioners of Islam who are wrong. 31. It is for this reason that I
welcome the International Seminar on "Islamic law in the contemporary
World". I am sure it will help the Islamic cause and in particular the
proper interpretation and codification of Islamic laws. 32. I now have
great pleasure in declaring this seminar open. Sumber : Pejabat Perdana
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