Various parties have applauded the proposed abolition of the Internal Security Act (ISA), the Banishment Act and the lift of all three emergency proclamations as declared by our Premier recently. Some other laws would also be reviewed.
Among the noble objectives made known by the premier in his historic address were: to spearhead the country’s political transformation, to turn the land into a modern and progressive nation and to ensure check and balance among the three branches of the Government.
It was also reported that the changes were announced to accommodate and realize a mature and functioning democracy, to preserve public order, enhance civil liberty and maintain racial harmony.
How can we appreciate this sweeping plan from an Islamic perspective? This brief exposition is by no means whatsoever flattery in nature. Free of any political inclination, this is simply an academic attempt to call a spade a spade.
From the outset, it must also be noted that Malaysia, as a predominantly Muslim-populated country ruled by Muslims, is arguably not an Islamic state in the strict sense of the word. This nation is neither secular as its constitution sanctions religion and enshrines religious provisions therein.
Our political system of parliamentary democracy and constitutional monarchy, therefore, represents a unique hybrid of Islam and secularism. This is hardly deniable.
Generally, all the proposed changes aforementioned are in line with the spirit of Islam. These initiatives or policies may fall under the Islamic legal concept of siyasah syar’iyyah (SS). Literally it means a Shari’ah-based or Shari’ah-oriented policy, or governance in accordance with Islamic law.
The following discussion echos Prof. Hashim Kamali’s writing. The doctrine of SS allows the ruling authority to ascertain the manner in which the state should be administered. It provides flexibility for leaders (ulul amri), political or otherwise, to make decisions. It denotes discretionary powers.
In our modern context, it lends power to the ruler or his legislative body to take discretionary measures, enact laws and introduce policies that he considers are in the best interest of good government and ultimately, of his subjects.
As a concept, SS may be applied to all government policies, either on matters having clear references from the sources of Syariah or vice versa. But, by and large, SS implies decisions and policy measures taken by those in power on matters whereby no speciï¬c ruling could be derived from the Shariah.
In this sense, Abdul Wahhab Khallaf observes that SS tantamount to acting on public interest (maslahah, pl. masalih) which the Lawgiver has neither upheld nor overruled.
This may cover areas like domestic or foreign relations, constitutional, ï¬scal, administrative or judicial affairs. In short, all measures taken to ensure an efficient management of public affairs fall within the purview of siyasah syar’iyyah.
As long as these initiatives do not contradict any substantive principle of Islamic law, there is no harm in introducing, implementing, executing or enforcing any of them. The question of whether or not any given government is fully Islamic is irrelevant.
In other words, SS “denotes administration of public affairs in an Islamic polity with the aim of realizing the interests of, and preventing harm to, the community in harmony with the general principles of the Syariah even if it disagrees with the particular rulings of the mujtahidun.”
To make it clear, there are two primary conditions to be fulfilled in the materialization of any Shariah-based policy by Government: (i) it must not contravene Shariah principles, and (ii) it must be carried out in consideration of public interest of people.
According to Ibn Qayyim, SS does not necessarily mean conforming to the explicit rules of the Syari‘ah. It is sufficient that any initiative under SS has to be in harmony with the spirit and general objectives of Islamic law (maqasid al-Syari’ah).
To this effect he further says that, “Any measure which actually brings the people closest to beneficence and furthest away from corruption/evil partakes in just siyasah even if it has not been approved by the Prophet (pbuh) nor regulated by Divine revelation.”
In this regard, the culmination of public interest may be achieved in five areas: the protection of religion, life, mind, lineage and property. There is an established consensus of Muslim scholars (ulama) that the protection of these values constitutes the ultimate objectives of the Syariah.
Bearing the preceding deliberation in mind, one can hardly point out any inconsistencies between the goals aspired by the Prime Minister in his political transformation agenda with the characteristics of Islamic theory of siyasah syar’iyyah.
Until proven otherwise, we can obviously see that the bold courageous initiative has nothing against any explicit or specific ruling of the Shariah. On the contrary it bodes well with the higher objectives of Islamic law. On top of that, it seeks to protect, promote and enhance public interest or the people’s welfare.
Every citizen should welcome and hail the Government’s efforts to reform the nation in good faith. Let’s wait for the repeal or review of the widely acclaimed draconian laws to take place.
Kamali writes that siyasah syar’iyyah does not rule out “the possibility of the regulation and control of discretionary power through the medium of statutory legislation.” In fact, it enjoins diligence on the part of the leaders concerned to take all necessary measures that may contribute to the idea of good governance under the rule of law.
However, if at the end of the day all these turn out to be insincere and theatrical acts of the current ruling ulul amri, then surely we have the democratic means to voice out our dissatisfaction and rectify the situation.