The Column That Wasn’t
By Marina Mahathir

Folks, I’m posting here what should have been my Musings column tomorrow. The Star has refused to publish it because, after what happened to P. Gunasegaram’s article which was pulled out after the Home Ministry gave them a show-cause letter, they don’t want any ‘sensitive’ articles that may jeopardise their KDN permit.

Now I’ve been writing for the Star for about 20 years now, believe it or not, and although it would be much easier and freer to just blog, I maintain my column because of the discipline and because of my many loyal readers who don’t necessarily read anything online. There have been other times when my column has been in danger of being censored (and very occasionally edited to sound gentler and nicer..) but still they came out when they were supposed to.

But this time they were adamant. As it happened, this evening I attended a dinner held by the MCA for NGOs. The MCA, as you may know, owns The Star. It was high irony for me to have so many people, including top MCA officials, tell me that they faithfully read my column when their own paper won’t publish it tomorrow. I was seated next to Dato Sri Ong Tee Keat himself and complained about it but he wasn’t keen to rock the boat, even though every time someone like me is censored, it’s one point gained by the conservatives who, rather than argue things out with proper facts, would simply prefer to shut everyone up.

Of course the problem is the Publishing and Printing Presses Act itself which requires every single publication to apply for a permit every year. And no media which wants to survive can afford to get shut down.

But still there is room for courage, to stand up for freedom of speech. If we capitulate every time, then why bother publishing at all?

Indeed the space for any form of public discussion is narrowing every day, with not only the PPA being used but also police reports against anyone who puts forward the slightest alternative or opposing view. This is what keeps the cops busy these days, instead of catching snatch thieves, robbers, rapists and other real social ills.

Yet online there is room for all points of view and is it really so bad? In this blog, I allow all points of view and what I’ve found is that when you allow it, apart from a few stubborn ones, eventually the humanity of everybody comes through. There is a yearning to understand one another but that can’t be done if there is no space for learning. Nor would you gain that insight into people if you didn’t allow everyone to express themselves.

And as many have pointed out, what is the point of censoring the mainstream media when there is the freewheeling internet? The other point we should make to people like The Star is, what is the point of constantly sucking up to the Government when they can still turn around and bite you? Not everyone has to be Utusan. Self-respect is important too, no?

So anyway, here’s the Column That Wasn’t:

When we want to compete with anyone in any field we seek those who are better than us. And we keep going until finally we are recognized as the best. For example, a tennis player starts at the unranked bottom and tries to play and win against better players until finally there is nobody to beat.

We do not however insist that everybody comes down to our level or to play badly in order for us to win.

This is what puzzles me about the syariah courts in our country. In 1988 a clause was inserted into our Constitution that has been interpreted as having erected a Berlin Wall between the syariah and the civil courts. Basically Article 121(1A) said “the courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts.” This has caused untold problems because real life sometimes dictates that some issues cross over both jurisdictions. But leave that aside for a moment.

Although the new clause did not say that the two separate courts were equal to one another, there are some people who are of the view that the syariah court is superior to the civil courts simply because syariah law is deemed of a higher order than civil laws. This is because apparently God made syariah laws while mere human beings made the civil laws. Never mind the fact that human beings have been changing syariah laws over the years, for instance, by loosening laws that protected women from losing all their property to their divorced husbands. Like other laws in this country, syariah laws have to be drafted, tabled and passed through our various lawmaking bodies whether at the State or Federal levels. This process leaves a lot of human fingerprints all over them.

Civil laws are drafted, tabled and passed through Parliament. The difference is that at the tabling stage , they have to be debated before they are passed. The quality of the debate may be sometimes wanting but debated they are. This process provides some sort of ‘quality control’ over the laws so that they are hopefully current, reflect realities and are just.

The same does not hold true of syariah laws. When they get tabled at State Excos, non-Muslims do not participate because there is the notion that they cannot partake in any such debate. That leaves only the Muslim Excos, few of whom are women. This means that if a bill affects women, the opinions of the female minority in the Exco can be ignored. Furthermore, most people are ignorant about their religion and tend to leave these matters to those they believe know best. Thus if the State Mufti or religious adviser says it’s a good law, they are unlikely to challenge him. Thus are religious laws passed unscrutinised.

Until, that is, something happens such as when someone gets convicted of a syariah crime and punishment is meted out. Who knew until recently that people could get caned for drinking, or for having a baby out of wedlock until the recent cases of Kartika and the three women?

Not only are these laws not debated when they are being made but they can’t be debated afterwards either, unlike civil laws. To do so, according to some people, is akin to arguing with God it seems. (There are however some who think that God welcomes such arguments just so that He can prove He is right).

If one believes that syariah laws are superior to civil laws, should they not be held to higher standards? Should they not be subjected to more rigorous debate than civil laws out of fear that they may be unjust? If syariah courts are deemed superior to civil courts, should not their processes be more transparent and efficient? How is it that there are innumerable women having to undergo tremendous suffering because syariah court orders to their divorced husbands to pay child maintenance cannot be enforced?

How is it also that we suddenly hear about women being caned without any information about the processes they went through? Did they have the benefit of legal representation and heard in an open court? If they did, who were their lawyers and what defense did they mount?

Surely the best court of law is one that strives for justice, which shows it is fair to all parties. In this case, on whose behalf was justice served?

I have no problems with syariah laws if their foundation is justice, equality and non-discrimination for all, even non-Muslims. But when their intent, processes and enforcement are unfair, they only give the impression that Islam is unjust and discriminatory. Surely to give such an image of Islam is a sin.

[The column is not in today’s Star]