Fatwa on ‘Pokemon Go’ is unconstitutional — Surendra Ananth

AUG 9 — The Fatwa issued by the Wilayah Persekutuan Fatwa Committee on August 1, 2016 has unsurprisingly engendered controversy on various fronts. This is but one of the many fatwas that has sparked controversy. The said fatwa states that “permainan Pokemon Go dan Pokemon adalah tidak dibenarkan bagi Umat Islam” (the “Fatwa”).

My esteemed colleague from the Malaysian Bar, Syahredzan Johan, had recently written an apt article explaining the fatwa-making process and the scope of the Fatwa. That article can be found here. I will not repeat what he has said. This article is intended to show that the Fatwa is unconstitutional and is a result of the unconstitutional creeping of Islamisation into society.

The Fatwa Committee can make a fatwa on “any unsettled or controversial question relating to Islamic law”. Islam in itself is a complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial.This would mean that the phrase “Islamic law” could cover almost anything. However, no matter how wide one construes the phrase “Islamic law”, the power of the Fatwa Committee is circumscribed when it concerns any matters listed in the Federal List of the 9th schedule to the Constitution (for all legislative fields in Item 1 of the State List). Why so?

This country was established as a federation. The terms of reference of the Reid Commission required it to make recommendations for a federal form of constitution with a strong central government. This was supported by the Alliance (the then Barisan Nasional), who vehemently argued for greater legislative powers to be vested in the central government. This was eventually crystalized in the Constitution. Inconsistencies between laws passed by Parliament and the State Legislatures were to be resolved in favour of federal law (see article 75 of the Constitution).

Parliament is given power to enact laws on matters listed in the Federal List. The State Legislatures are given the power to enact laws in the State List. Each legislative body cannot encroach into the domain of the other. If the State enacts a law that comes within the scope of any of the matters in the Federal List, such law would be unconstitutional. Deference must be given to Parliament in light of the intention of the framers of our Constitution that the central government be vested with greater powers.

Therefore, if the Fatwa Committee issues Fatwa on any matter that is within the scope of the Federal List, albeit under the label of “Islamic law”, such fatwa would be unconstitutional. This is in line with the intention of the framers of our Constitution that Islamic law as understood in Malaysia only covers personal law (see Che Omar bin Che Soh v Pubic Prosecutor [1988] 2 MLJ 55). This is further reinforced by the current position of law that once a fatwa is gazetted, it comes within the legislative field of “precepts of Islam”. That field, has an express caveat which states, “except in regard to matters included in the Federal List”. Therefore, the moment any fatwa or Islamic law falls within the matters in the Federal List, the Fatwa Committee or State Legislatures are deprived of power to legislate on such matters.

Now let’s proceed to examine the Fatwa. From the outset, mobile applications are covered under the Communications and Multimedia Act 1998 (see definition “content” and “content application services” under section 6 of the said act). This is a federal law. This in itself disentitles the Fatwa Committee from issuing fatwas on mobile applications as such matters are within the scope of Parliament’s legislative power.

Even if one were to go further and analyse the reasoning behind the Fatwa, it will become apparent that they are all matters that are beyond the scope of the Fatwa Committee. The Fatwa was issued on the following grounds: “Bahaya dari segi pengintipan pihak luar, pencerobohan ruang peribadi, faktor keselamatan seperti kemalangan, kelalaian, ketagihan melampau terhadap gajet, kehilangan fokus terhadap realiti sekeliling, gangguan emosi seperti mudah marah akibat kekalahan, membawa kepada akhlak yang buruk, dan ancaman kepada pekerjaan dan pelajaran”. These are all matters for Parliament to deliberate on, specifically under the legislative fields of, amongst others, defence of the federation, internal security, civil and criminal law, communications and transport, education, health, and censorship (see Federal List in the 9th Schedule of the Constitution). The only arguable reasoning that can be used is “akhlak yang buruk”. However, the Fatwa Committee seems to be referring to morality in general as opposed to morality within the religion, i.e. by reference to Sharia or Fiqh (juristic reasoning based on the Quran and Hadith).

This is what I meant by creeping Islamisation. The Fatwa Committee has been freely allowed to make Fatwas that are far beyond its power. For example, fatwas on vaping and smoking, the regulation of companies (i.e. Sisters of Islam) and sex re-assignment surgery, are all matters for Parliament to deliberate and legislate on (items 8(c) and 14 (federal list) on corporations and health respectively). It is this author’s opinion that all these fatwas are also unconstitutional.

This article is not about Islam, or being anti-Islam. It is about standing by a shared commitment that our forefathers undertook when they formed an independent nation in 1957. The Constitution was aimed at the essential objective of inter-communal co-operation and national unity, where religion would play a minor role only in the personal sphere. It is essential that the Constitution be appreciated for what it has always represented. We have now come to a period where religion is actively enforced in the public sphere, and is used to control even the freedom of thought of Muslims. The danger of compromising on this matter of fundamental significance cannot be understated. As Tunku Abdul Rahman said in the early 1990s:

“After all these years of trying to build a genuine multiracial and multireligious Malaysia, we are now confronted with a new danger – Islamic fundamentalism they are now raising all kinds of ideas to Islamise the country, and this is not good. Malaysia cannot practise Islam fully because half of the population is not Muslim. They have a different culture and different ways of life, and they don’t want Islam In the past, and I know this since I have been through all this since Independence, Malays, Chinese and Indians had no problems because we stuck to our constitutional bargain and we don’t want to impose our values on other people. Today, even the party that I led for so long has done a lot of new things about Islam and want to Islamise the party.”

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

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