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[2014] 1 MLJ

FLESH-EXPOSING BEAUTY PAGEANT – HOW MUSLIMS ARE STILL IN THE DARK

OVER ITS IMPERMISSIBILITY? A SHARI’A PERSPECTIVE

By

Abd Hakim Abd Razak

PhD Candidate

School of Law, Trinity College Dublin

House 39, New Square, College Green, Dublin 2, Ireland

abdrazaa@tcd.ie / abdhakim107@gmail.com

ABSTRACT

During the last two decades the attempt to implement Sharia’ law in Malaysia has always

being put under fire, no thanks to the unsuccessful assimilation it had had integrating into the

existing Malaysian law. The fact that Malaysia practiced a dual legislative system doesn’t

mean that equality is on the table as by virtue of the Malaysian Federal Constitution,

regulation of Sharia’ law is pretty much practical only in a limited range of areas inter alia

betrothal, marriage, adoption, and at the center of this paper’s discussion; the creation and

punishment of Sharia’-prescribed offences. The Federation has witnessed mild-to-hot

prosecution of Sharia’ offenders being put to rest on the typical ground of unconstitutionality

and this failure of Sharia’ law enforcement is unsurprisingly bewildering to the ‘layman’

citizens, and just another tropical day to fellow scholars and lawmakers.

This paper examines the comparative Sharia’ precepts over the practice of beauty pageantry,

of both men and women, and describes further Islam’s stance on its prospect as a profession.

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It will then present the concept of Ta’zir and Siyasa, justifying logical rationale of the

administrative action recently undertook by the Department of Islamic Development Malaysia

(commonly known as JAKIM) in enforcing the ban on beauty pageant contest, and discuss

the common constitutional restraints plaguing Sharia’ law enforcement in the Federation to at

least inject reasonable insights to fellow readers pertaining to the much-discussed practice

which has created quite a furore lately. The findings suggest the whole strife did not just play

around the contest of who’s being constitutionally-compliant and who’s don’t, and uprooting

the Federal Constitution is not going to be a bed of roses for lawmakers. The prospect of

having a working Sharia’ law side by side with the existing law is already being made

possible as reflected within the Islamic Banking and Finance industry by having a centralised

Sharia’ Advisory Board at federal level. Albeit being in a different industry, it is a project

worth to be looking at. Alternatively, a little twist to the disputed beauty contest could provide

a better solution.

INTRODUCTION

“O ye Children of Adam! We have provided you with garments to cover your bodies, as well

as for luxury. But best is the garment of the righteousness. Such are among the signs of

Allah, that they may take heed.”

(Al-A’raf 7:26)

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The recent uproar over participating Muslims in a Malaysian beauty pageant contest

triggered a jolt in the majority Muslim populated nation. From political parties to non-

governmental organisations (NGO), the currently-led government of Prime Minister Dato’

Seri Najib Tun Razak has bastioned countless criticisms over the way it was handled. Take a

feminine NGO blast over the Department of Islamic Development Malaysia’s (commonly

known as JAKIM) administrative decisions; reminding the latter not to act as if it were the

Voice-of-God (The Malay Mail 2013), or take an ex-Minister’s cynicism of Malaysia as being

akin to the Taliban (The Malay Mail 2013), or thousands of other acidic critics; a large part of

them being vented out of sheer feelings rather than wisdom. It appeared that the Malaysian

community particularly Muslims, are still in the dark over the taboo-nature of this subject.

THE CONFLICT

In mid-July 2013, amidst the month of Ramadhan within which Muslims are obliged to fast

from sunrise to dawn and refrained from several activities deemed to be disrespectful

towards the holy month, the news of four Malaysian Muslims girls barred from participating in

a local beauty contest due the flesh-exposing nature of the contest which is against both the

Quranic teachings and local religious edicts (else known as fatwa), was being under fire from

several parties ranging from political to NGOs for the way it was handled. This resembles the

2002 incident in Nigeria which resulted in a nationwide rioting at the Miss World beauty

contest and Malaysia’s very own 1997 prosecution of three beauty pageant contestants in

Selangor for ignoring a similar fatwa1. One feminine NGO was quoted arguing that the

religious edicts which was relied upon by JAKIM, ought to be deliberated by a legislative

body like Parliament or a State Assembly before they are made binding on Muslims, while

adding the procedures to be un-Islamic and undemocratic (Malaysia Today 2013). The edict

or fatwa, which was gazetted pursuant to Section 34 and 35 of the Administration of Islamic

Law (Federal Territories) Act 1993, prohibits Muslim woman from participating in beauty

1 Pendakwa Syari’e v Fahyu Hanim Ahmad dll [2000], 8(1) JURNAL SYARIAH 137.

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pageants and according to Sec. 7 of the Syariah Criminal Offences (Federal Territories) Act

1997, provides a penalty of three-year jail term or a RM3, 000 fine or both upon conviction

for insulting, or bringing into contempt the religion of Islam. Subsequently, it is also an

offence to question or disobey a fatwa once it has been gazette. This has considerably draw

flak of criticisms from several proponents of Islam questioning the NGO’s advocacy for

fundamental freedoms that ran counter to Islamic teachings (Malaysia Today, 2013).

GENERAL TERM

Beauty pageant or elsewhere known as beauty contest, is defined as a contest in which the

winner is the woman judged the most beautiful; a public entertainment consisting of a

procession of people in elaborate, colourful costumes, or an outdoor performance of a

historical scene (Oxford Dictionaries 2013), and could even include judgment based on

fellow contestants’ intellect, personality, talent and responses to judges’ questions.

In these modern times, it may not be surprising to have a homosexual or transsexual beauty

contest as a result of human’s unrestricted nature to modernise or improve themselves; of

which I am unsure where we are heading to, and at times, could tantamount to a

transgression against God’s commands.

“But those who disobey Allah and His Messenger and transgress His limits will be admitted

to a fire, to abide therein: and they shall have a humiliating punishment.”

(An-Nisa’ 4:14)

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BEAUTY PAGEANT IN SHARI’A TEACHINGS

“O Prophet! Tell Thy wives and daughters, and the believing women, that they should cast

their outer garments over their persons (when abroad): that is most convenient, that they

should be known (as such) and not molested. And Allah is Oft- forgiving, Most Merciful.”

(Al-Ahzab 33:59)

“And stay quietly in your houses, and make not a dazzling display, like that of the former

times of ignorance; and establish regular prayer, and give regular charity; and obey Allah

and His Messenger. And Allah only wishes to remove all abomination from you, ye members

of the family, and to make you pure and spotless.”

(Al-Ahzab 33:33)

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Beauty pageant contest has been lately seen as not only an opportunity to promote beauty

and elegance, fashion and modern trend but also a chance for commercial gain which is

hard to resist for the opportunist. It is not too much to say it could have the potential to

generate significant inputs to the extent of probably contributing to the tourism industry,

which is part of the current NKEA policy the country is undertaking (Performance

Management & Delivery Unit 2011). Without a doubt, it’s capability of encouraging a strict

and healthy lifestyle; while at the same time diverting fellow contestant and members of the

public from drugs and other useless activities, is absolutely spot-on. On the other account, it

must also be remembered, particularly by Muslims, that not everything in our worldly affair is

without its prescribed limits. If we turn our attention to the term “hudud law”, which

surprisingly stirred controversies among several Malaysian lawmakers, it actually originated

from the Arabic word of “hadd” which means limit, or restriction. From here we can get the

idea that the hadd penalty shall only be implemented should a Muslim acted beyond the

limits prescribed by Sharia’. Moreover, the Holy Quran provides a moderate view on the

value of this life compared to the Hereafter.

“What is the life of this world but play and amusement? But best is the home in the Hereafter,

for those who are Righteous. Will ye not then understand?”

(Al-An’am 6:32)

The feminine NGO’s lambast over JAKIM’s action as undemocratic could perhaps be a right

call but calling it as “un-Islamic” is totally something short of convincingness. There were

even instances where non-Muslims objected to beauty pageant contest, realising that it

sexually subjugated women, as demonstrated by the master of ceremonies’ instruction to

fellow contestants in London’s 1970 Miss World contest, to “turn” while in their swimsuits in

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order to show off their bottoms to full advantage (Murray, Yxta 2012). Unsurprisingly, this

resulted in feminists hollering that the Miss World pageant had turned women into chattel; a

reflection of why viewing Islam’s prohibition on modesty as “un-Islamic” is not something a

wise-thinking Muslim ought to do.

The Holy Quran, which is deemed by the Muslims as both a complete and final set of

commandments from God Almighty, has laid down provisions pertaining to how believing

females ought to dress themselves.

“And say to the believing women that they should lower their gaze and guard their modesty;

that they should not display their beauty and ornaments except what (must ordinarily) appear

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thereof; that they should draw their veils over their bosoms and not display their beauty

except to their husbands, their fathers, their husband's fathers, their sons, their husbands'

sons, their brothers or their brothers' sons, or their sisters' sons, or their women, or the

slaves whom their right hands possess, or male servants free of physical needs, or small

children who have no sense of the shame of sex; and that they should not strike their feet In

order to draw attention to their hidden ornaments. And O ye believers! Turn ye all together

towards Allah, that ye may attain bliss.

(An-Nur 24:31)

The above Madinah-period verse distinguished between female body parts that can be

revealed and what ought to be concealed from public view. The Holy Prophet s.a.w. was also

cited as saying: ‘A man cannot see another man’s aurat, and a woman cannot see another

woman’s aurat. A man is prohibited from being in the same blanket with another man, as a

woman is also prohibited from being a blanket with another woman’2.

The origin of the obligation for female to cover their bodies can be traced back to the time of

the Holy Prophet s.a.w. (translated “peace be upon him”) when Islam witnessed the

increasing participation of women in community service. It was reported that the two

Zaynabs devoted themselves to the poor; Rufaydah nursed Sa’d ibn Mu’adh wounds at the

Siege of Madinah by the Confederates; and Muslim women had to go out of Madinah for

nursing service during the Khaybar expedition. Even the Prophet’s daughter, Fatimah, had

once nursed her father’s wound during the Battle of Uhud (Ali, 2008). Islam solicits not to

curb the involvement of women in social activities, which is in fact encouraged, but rather to

cultivate Muslim women to distinguish themselves from the kufr and jahilliyah3 populace who

prefers to display their beauty for attention, particularly from men. Imam Zamakhsyari,

2 Recorded by Muslim, Ahmad, Abu Dawood and Tirmidhi.

3 An Arabic word which connotes ignorance, but not lack of knowledge.

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despite his belief in Mu’tazili, viewed that the above can be understood as an intentional act

to protrude those which ought to be concealed e.g. body, movement (including one’s way of

speech, walk etc) and ornaments4. Further, if Muslims are to act and behave as infidels, it is

feared that we are only worthy as Muslims by name instead of faith.

It is also noteworthy to consider the points of Ibn Rushd in Bidaya al-Mujtahid (1:83) that no

part of a woman’s body should be evident to those who are not among the prohibited

degrees of relationship (mahram) or her husband. Al-Qardhawi (2009) forwarded a handful

of justifications to support the above Nas5 or authorities. Among other, he proposes that it is

prohibited for Muslim females, particularly the young ones, to wear tight or thin clothes or

that which protrude the shape of one’s body especially the segments which would stimulate

sexual desire e.g. breast, belly, one’s back etc.

As for elderly women, Al-Qardawi (2009) opined that they neither have any sexual desire or

feelings for men, nor any men would be attracted to court them like young girls. As such, it is

not sinful for them not to wear outer garments which are normally visible e.g. baju kurung,

mantle, blanket, jilbab, scarf etc as long as it is done without any mischief. It is, however,

best for them to continue covering what has been ordained of them.

4 A Mu’tazili’s view can be refuted for their different faith or akidah than the Sunni. However, Zamakhshari is

generally relied upon for his mastery in Arabic or for views that he had narrated from earlier Imams of the

Madhab. It is advised for readers to take this view with caution and consult learned Sharia’ scholars for further

opinion.

5 An Arabic word which connotes a form of reliable authority.

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“Such elderly women as are past the prospect of marriage, there is no blame on them if they

lay aside their (outer) garments, provided they make not a wanton display of their beauty: but

it is best for them to be modest: and Allah is one who sees and knows all things.”

(An-Nur 24:60)

The above Nas are often viewed as old-fashioned, disallowing women from looking smart

and displaying their natural beauty, and worse, a form of slavery. Notwithstanding these

arguments, a Muslim’s lady dress has a religious and moral function. Fashion is never

stable; it is ever changing. Islam simply prescribes the requirements and does not specify the

colour or type of attire.

BEAUTY PAGEANT AS A PROFESSION

It is without a doubt that beauty pageant has gradually transformed into a profession for

some. Possible awards e.g. titles, tiaras or crowns, sashes, savings bonds, and cash prizes

could guarantee a decent living for the winner or a much welcomed top-up to keep up with

the ever rising cost of living. It is even true that there shall only be one winner and it could be

a bit too much to suggest the above applied to the rest of the girls. Most are merely taking up

chances, and despite losing, some could still manage to create valuable contacts which

would be tremendously helpful. This issue is not the first to arise within the Islamic

community; take Miss Rima Fakih’s crowning as Miss USA in 2010, which had not just attract

heavy criticisms from Muslim conservatives, but also from modernist who otherwise

positively viewed beauty contest as a medium for Muslim Americans to gain acceptance

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among the general American public; of course to the extent of breaking down the typical

stereotype of the subservient Muslim female. Could it be that un-Islamic practices such as a

beauty pageant brings positive turnover for Muslims?

Al-Qardawi (2009) opines that Islam prohibits the sort of profession which would engender or

create sexual desire even if it is categorised as a form of art or expression. As Islam

outlawed sexual relationship outside of wedlock, simultaneously it seeks to hinder any

possible loopholes, of which a beauty pageant contest would fall into such criteria.

“Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (to other

evils).”

(Al-Isra’ 17:32)

In conjunction with this view, the Pulau Pinang Fatwa Committee had decided in their

muzakarah session held on March 2012; declaring it to be haram or illegal against the

precepts of Islam for any Muslim to participate, organise, advertise or associate themselves

with beauty pagent competition (Jabatan Kemajuan Islam Malaysia 2012). Despite it has yet

to be gazetted, this move could mitigate some of the critics on the long forgotten

ambitiousness of the Penang government’s policy of ‘Amar Makruf Nahi Munkar’ and

following the leadership of Khalifah Umar bin Abdul Aziz (HARAKAH Daily 2008).

In order to judge a fellow contestant beauty aspect, it is of general practice for her to wear

tight and thin garments to fit in the modern prescription of “beauty” before the judges, which

definitely goes against the precepts of Sharia’. As the males do also have their own version

of “beauty contest” i.e. bodybuilding, the restraint on exposing one’s body parts is also

applicable to the dominant sex, albeit differences as to their respective limitations. This

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regrettably, has been overlooked by the authorities as to date, there has yet to be any fatwas

implying equal prohibition as that was implemented to women.

Imam Malik in his Al-Muwaththa’ recorded a hadith narrated from Salamah bin Shafwan bin

Salamah Al-Zuraqi, from Zaid bin Thalhah bin Rukanah, that the Holy Prophet s.a.w. said,

“Every religion have their ethics, and the ethic for Islam is diffidence (or shyness).”6

Further, Abu Hurayrah had also narrated that the Prophet s.a.w. said, “A woman is married

for (one of) four reasons: her wealth, her lineage, her beauty or her religiousness. So obtain

the one who is religious and may your hands be filled with dust (that is, may you then

prosper).”7

ISLAMIC CONCEPT OF TA’ZIR AND SIYASA

The act carried out by JAKIM can be further justified by the Sharia’ concepts of Ta’zir and

Siyasa; both referring to the meting out of discretionary punishment on the basis of simple

procedures without formal rules of evidence . Despite both being synonymic, they are in fact

different. Ta’zir can only be imposed for acts that are forbidden by the Sharia’; of which it

consists reformative and deterrent-type of punishments, whereas Siyasa may be

administered for any act threatening public order in further curbing danger to law and order

(fitna), regardless of whether the perpetrator ought to be blamed for it (Peters 2005). The

second Great Caliph, Umar Al-Khattab r.a. was once cited banishing a Nasr bin Hajaj from

Medina because his good-look was a source of temptation for women. Umar realised this

when he heard a woman recite:

Is there a way to come by wine so that I can drink it?

Or is there a way to meet Nasr bin Hajaj?

6 Recorded by Ibn Majah who also recorded it from Ibn Abbas r.a.

7 Recorded by Bukhari, Muslim, Abu Dawood, Ibn Majah and Nasa’i.

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A youth of noble family, in the prime of life

With a soft face, obliging and not obstinate

When Nasr remonstrated and asked what he had done to deserve punishment, Umar is

reported to have said: ‘You have not committed a sin, but I would have committed one if I

had not cleansed this town from you.’

Obviously Muslims have heard a Quranic tale of similitudes; the stories of Prophet Yusuf a.s,

on how beauty; not necessarily afflicts men but women as well, could act as a double-edged

sword. The point here is that being beautiful is never a sin. Those wonderful ladies who went

up there and participate in the pageant had done a terrific job in showing to the world that we

have confident and beautiful Muslims; squashing all those wild claims that Muslim women

were ugly. On the other, it must also be well noted that their beauty could then be manipulate

by irresponsible parties, regardless of the presence of any contractual relationship which

negates them to do so.

As for instance, in Sherinna Nur Elena Bt Abdullah V Kent Well Edar Sdn Bhd [2011] MLJU

150, the case is not exactly pertaining to any prohibition of beauty pageant contest amongst

Muslims but rather potential complication which could arise in such controversial practice.

Here, prior to her conversion to Islam, an astounding beauty pageant contestant who won

several titles in Sabah, sued for breach of right to privacy when her photographs which

appeared on several of the Defendant’s product. On top of that, she also argued that as she

is now a Muslim and wears headscarf as her daily religious practice, the Defendant has

violated her rights to her personal and religious values and principles. It was further decided,

inter alia, that since she couldn’t prove that she is the owner of the copyright in the

photograph, she cannot sue and has no locus standi. This was due to the fact that privacy

rights is not recognised under English law except under specific circumstances e.g. if the

photographs were highly offensive, embarrassing etc (see Ultra Dimension Sdn Bhd v Kook

Wei Kuan [2004] 5 CLJ 285). Australia is also taking a similar stance in ABC v Lenah Game

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Meats Pty Ltd [2001] HCA 63 in which the High Court declined to declare invasion of privacy

as a new tort.

As exposure of a woman’s hair inter alia, is restricted to those mentioned in Surah An-Nur

24:31, it may prove to be difficult for a Muslim woman to prevent the circulation of her

‘unveiled’ photographs. A woman’s dignity has been put in high regard by Islam that it

allocates privileges to her beauty and honour only to those who deserved it.

CONSTITUTIONAL RESTRAINTS

“And I have not created the jinn and the men except that they should serve Me.”

(Adh-Dhariyat 51:56)

From the constitutional perspective, a number of difficult issues have been brought to the

centre stage. First, there is the question on the constitutionality of Section 9 and 12 of the

Syariah Criminal Offences (Federal Territories) Act 1997 i.e. whether they are reconcilable

with the constitutional right to freedom of speech and expression guaranteed under Article 10

(1) (a) of the Federal Constitution. This constitutional covenant encapsulates communication

by signs, symbols and gestures, freedom of press and freedom to propagate ideas through

advertisements (Faruqi 1997). It even incorporates “symbolic speech” e.g. the manner of

one’s dressing and grooming like a beauty pageant. For there is no such thing as unlimited

liberty, this fundamental right can be restricted on eight (8) grounds i.e. security of the

Federation, friendly relations with other countries, public order, morality, privileges of

Parliament or of State Assemblies, contempt of court, defamation or incitement to an

offence; as per Raja Azlan Shah J in PP v Ooi Kee Saik [1971] 2 MLJ 108;

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“There cannot be any such thing as absolute or uncontrolled liberty wholly free from restraint;

for that would lead to anarchy and disorder. The possession and enjoyment of all rights …

are subject to such reasonable conditions as may be deemed to be … essential to the safety,

health, peace and general order and morals of the community. What the Constitution

attempts to do in declaring the rights of the people is to strike a balance between liberty and

social control”

Section 9 of the Syariah Criminal Offences (Federal Territories) Act 1997 provides that it is

an offence to act in contempt or defiance of religious authorities, be it expressed or given by

way of fatwa, which is punishable by a fine not exceeding RM3, 000 or imprisonment not

exceeding two (2) years or both. Section 12 also makes it an offence to give opinions

prejudicial against any issued fatwa within the Federal Territories, imposing a similar

punishment. There should not be any issue on this as according to the Syariah Courts

(Criminal Jurisdiction) Act 1965, State is authorised to impose penalties up to a maximum of

three years jail, RM5, 000 fine and six lashes. Anything above these shall be deemed

unconstitutional.

The recent remarks made by Sisters in Islam (SIS) arguing the above provisions to be ultra

vires the Constitution were responded with initial warning from JAKIM higher officials, citing

that investigations could be initiated against them in compliance with the same. This is due to

the fact that many State enactments penalise criticism or challenge to a fatwa 8 . As

Parliament and State Assemblies are not given a carte blanche to pass laws on Islam

irrespective of the guaranteed fundamental rights under Article 5 to 13, any State laws

cannot override the Constitution (Faruqi 2011). This has been confirmed in Dewan

Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 343 that restriction on Article 10 is

the sole prerogative of the Parliament, not the State Assemblies. Further, Article 75 which

8 Section 21, Crimes (Syariah) Enactment 3/1992 (Perak); Section 12 Enactment 3/1996 (Penang); Section 12,

Act 559 (Federal Territories).

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could be a good benchmark in this sort of conflict between State and federal law summarises

that “if any State law is inconsistent with the Federal law, then the Federal law shall prevail

and the State law shall, to the extent of inconsistency, be void”. However, over the years,

despite the presence of Article 75, State laws seem to have administrative pre-eminence

over conflicting federal laws. Eventually, section 9 and 12 of the above legislations could

arguably be said to be unconstitutional.

Secondly, Article 8 (1) of the Constitution prohibits discriminatory practices against several

criterions, in this case; gender. As such, the bans on participation in beauty contest as

enforced by several States, which subjected women to adverse attention of the law, have

arguably been in direct contravention with the expressed provision. However, according to

(Faruqi, 2008), there are several constitutionally permissible exceptions to this. Realising that

no legal rule can be absolute and unbending, departures from this constitutional guarantee

are permitted to cater to the exigencies of a complex and political life. As for instance, Article

8 (5) and Article 11 (4) respectively allow the existence of separate personal laws for

Malaysian multiracial communities and permit the States to control or restrict propagation of

any religious belief to Muslims.

In tackling the above issues, the correct question to be asked here is: To what extent can

State regulate Islamic affairs? The common view understood by majority of lawmakers is that

enforcement of Islamic morality among Muslims can be made as per Paragraph 1, List II

(else known as State List) of the Ninth Schedule, without prejudice to List I (else known as

Federal List). However, this is only a residual power; not an unlimited or sovereign power

and subjected to several constitutional limitations inter alia, State Assemblies shall only have

jurisdiction in respect of matters mentioned in Paragraph 1 List II, and not over the entire

aspect of Islamic law. On top of that, not everything related to Islam is within the purview of

State Assemblies. Some matters of Islamic law are assigned to federal jurisdiction e.g.

banking and mercantile (includes Islamic Banking and Takaful industry), administration of

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Hajj or pilgrimage, Islamic commercial and contractual agreements etc. When it comes to

creation and punishment of offences, State shall only have authority to “creation and

punishment of offences by persons professing the religion of Islam against precepts of that

religion, except in regard to matters included in the Federal List”. The fact that civil and

criminal law (List I, Item 4) are contained within the Federal List has brought a halt to the

creativity of State Assemblies in prescribing offences related to Muslims to suit the current

unrestrained modernisation. Lotteries, betting, murder, theft, rape, robbery, incest and

unnatural sex are some of the offences in Islamic law, yet they are clearly within the federal

jurisdiction by virtue of List I (Item 4(h) and (l)) and the Malaysian Penal Code. In practice,

States have been seen interpreting their powers over Islamic law expansively and some had

gone too far, trespassing many civil and criminal areas assigned by the Constitution to the

central government.

At this present time, each unit of the Federation has its own Mufti office and possibly,

different State Muftis interpret Islamic law differently. As for instance, according to JAKIM

(2012), the prohibition on participation of Muslim women in beauty contest is only being

followed by a handful of States i.e. Pulau Pinang (not gazetted), Johor (gazetted), Kuala

Lumpur (gazetted), Selangor (gazetted), Terengganu (not gazetted) and Sabah (gazetted).

This means that the prohibition has yet to be implemented throughout the Federation with

some States still in the process of weighing its pros and cons. (Shuaib 2012) viewed that

there ought to be a “Grand Mufti for the Federation of Malaysia” whose opinions would bind

all Muslims in Malaysia. However, it is much easier said than done. The Constitution

provides for Islamic matters to fall within competency of the States. Thus, such office could

not be established unless all the States voluntarily agree to subordinate their Muftis to a

federal Mufti. Up until now, however, there has been a National Fatwa Committee which was

set up in 1970 and placed directly under the purview of the Prime Minister’s office, and it has

since actively debate numerous issues involving Islam and appropriately issuing suitable

recommendations in the form of fatwa. Despite the fact that it is only persuasive and non-

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binding, some State laws stipulate that the State fatwa committee should adopt the advice or

recommendation of the National Fatwa Committee. This is believed to ensure uniformity

between fatwas issued at federal level and that of States. A similar experiment has already

been implemented within the Islamic banking industry which sees the creation of a National

Sharia’ Advisory Council under the arms of Bank Negara Malaysia as the sole entity

authorised to issue fatwas pertaining to Islamic Banking and Takaful industry9. This move

has in fact enhanced Malaysia’s global reputation in terms of its competitive strength and

stability within the ever expanding industry.

The above are merely a quarter of the biggest hurdles faced by lawmakers in enforcing

Islamic morality in the Federation. It is similarly challenging for Islamic matters presently put

under the State jurisdiction to be fully in tandem with the Federal jurisdiction; which in turn

could be non-Sharia’ compliant. Perhaps the situation could be made easier by putting

Islamic affairs within the purview of the federal so as to erase doubts over its constitutionality,

which resulted in an endless and pointless debate. If only Malaysia is truly an Islamic State,

this issue would not have arisen in the first place but Malaysia is neither an Islamic nor a

secular State (Malik Munip 2012), and it has even been described as an ‘Islamic secular

federal monarchy’ 10 . Centralisation and uniformity of laws akin to what Malaysia had

implemented in the Islamic Banking and Takaful industry could be an ideal role model and

potential key to unlock the above issues. However, this is easier said than done as doing so

could transform Malaysia into a fully-Constitutional compliant Islamic State and another

much welcomed political agenda for the Opposition Coalition; which would then bring us to

another debate.

9 Section 56(1) of the Central Bank of Malaysia Act 2009.

10 Sheridan L.A. in “Federation of Malaya’s New Constitution” [1957] MLJ 1xiii.

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CONCLUSION

It is still possible for Muslim women to fight for their right to express and be appreciated for

their beauty, and as Islam seeks only to preserve one’s modesty whilst simultaneously

allows women participation in social activity; barring those involving immodest acts, a little

reformation could just be the perfect formula 11 . A discreet beauty contest without the

presence of any male audience, judges or photographers, or requiring all Muslim participants

to adhere to an acceptable Islamic code of attire, or importing the Saudi Arabia’s version of

beauty pageant called “Miss Beautiful Morals” which emphasized on contestants’ devotion

and respect for their parents, instead of judging based on one’s perfect figure or face, could

be worth to be considered.

Of course when it comes to enforcing the religion, on one hand, JAKIM ought to exercise due

diligence so as not to suggest to the public that Islam is a religion of force, while on the other,

it should not succumb to public’s pressure easily. Participating in a flesh-exposing beauty

contest is forbidden whilst to contest beauty is not. Punishment-wise, there is no nas

requiring the guilty contestant to be publicized so as to put them to shame, unless it is an

offence which ought to reasonably attract capital punishment. But is it not the one who

publicized the event ought to be blame as there is no evidence to suggest that JAKIM had

been publishing the contestants’ pictures, not even on their official website. Abu Hurayrah

had once reported that the Prophet s.a.w. said, “Whoever conceals (the faults) of a Muslim,

Allah will conceal (his faults) in this life and the Hereafter.”12

It is also worth noted that individual is even recommended by the Sharia’ to keep his own

faults concealed. The Prophet s.a.w. said, “Everyone of my Nation is apt to be forgiven

11 Arguably, fatwas ought to disallow only the present practices in beauty contests which involve impermissible

acts, as what is immodest is the manner of dressing, not the competition itself.

12 This hadith is saheeh. See Shaykh al-Albani, Mukhtasar Saheeh Muslim, no. 1888. Recorded by Muslim,

Tirmidhi, Ibn Majah and Abu Dawood.

20

except for those who commit sins openly. Included among those who commit sins openly is

where a person performs a deed during the night and, although Allah had concealed that sin,

in the morning he says, ‘O’ so and so, last night I did such and such.’ He spent the night

being concealed by Allah and in the morning he uncovered Allah’s concealment from

himself.”13

Over this matter, there is none worthy to be blamed apart from the press and tabloids.

However, is it not the right of the public to have access to information and latest news?

Should the press be restrained of their freedom of speech then? Perhaps there is a need for

them to also take heed of the above nas on concealment of one’s fault and to only publicize

those offences which reasonably ought to attract capital punishment; not those which could

be remedied via appropriate reformative medium. Again, there is no compulsion in Islam.

“Let there be no compulsion in religion: truth stands out Clear from error: Whoever rejects

evil and believes in Allah hath grasped the Most trustworthy hand-hold, that never breaks.

and Allah heareth and knoweth all things.”

(Al-Baqarah 2:256)

13 Recorded by Bukhari and Muslim.

21

“Say, "The truth is from your Lord": let Him who believe, and let Him who will, reject (it): for

the wrong-doers we have a Fire whose (smoke and flames), like the walls and roof of a tent,

hem them in: if they implore relief they will be granted water like melted that will scald their

faces, How dreadful the drink! How uncomfortable a couch to recline on!”

(Al-Kahfi 18:29)

22

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24

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Legislations

Administration of Islamic Law (Federal Territories) Act 1993

Central Bank of Malaysia Act 2009

Syariah Courts (Criminal Jurisdiction) Act 1965

Syariah Criminal Offences (Federal Territories) Act 1997

The Federal Constitution of Malaysia

Legal Authorities

ABC v Lenah Game Meats Pty Ltd [2001] HCA 63

Che Omar Che Soh v PP [1988] 2 MLJ 55

Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 343

PP v Ooi Kee Saik [1971] 2 MLJ 108

Sherinna Nur Elena Bt Abdullah v Kent Well Edar Sdn Bhd [2011] MLJU 150

Ultra Dimension Sdn Bhd v Kook Wei Kuan [2004] 5 CLJ 285