It is bizarre how angry some Muslims in Malaysia can get. One bunch is offended that some dare question the syariah judge presiding over Kartika's beer case. It is somehow offensive to point out the judge failed to consider mitigating circumstances for a first offender.

I think that was the crux of the concern of human rights defenders in the Kartika case. This is a common concern in any sentencing process in any court of law. group

I fail to understand the posturing of groups, lawyers, political parties and teachers of Islamic law calling for restrictions to speech, banning of groups and calling for arrests for sedition. That piece of legislation cannot be questioned - according to some teachers of Islamic law in a local university.

It just so happened that I re-read the Ibn Rushd classic, the Bidayatul al-Mujtahid (the Differences Among Scholars) of late and found the information instructive enough to share.

In the Book on Offences (jinayat), we are told that there is agreement among scholars on criminalising the drinking of wine.

Ibn Rushd did not discuss the disputes arising from the several verses referring to wine drinking and the methodology used by scholars to identify which verses were abrogated and which verse is the abrogating verse and which verse to finally prevail. References have to be made elsewhere on that.

However, it is still instructive that Ibn Rushd noted that there was disagreement about whether the drinking of intoxicants (not wine) should be criminalised. Interesting enough, there was no annotation of these scholars being arrested, detained, shunned by their community, their innards dried under the sun or whatever.

Beating for drinking 101

There was also disagreement if drinking wine per se without intoxication should bNONEe criminalised.

In one note, the jurists from Iraq would accept the criminalisation of the state of intoxication in the case of other intoxicants other than wine. Meaning that the drinking of beer (made from whatever) per se, should not be prohibited. That wasn't earth-shaking in the century that it was decided. As we know, fiqh was developed between the 8th and 9th centuries.

Other notable reference works on the drinking of wine, will tell you that the Prophet had not determined a fixed punishment for the drinking of wine.The text of the Quran did not specify any punishment. A fortiori, it could be said that there is no fixed punishment for the drinking of beer and other intoxicants.

The Prophet in his time had ordered beating but there was no specific method of beating offenders. There were reports that offenders were beaten with articles of clothing, hands, and sandals.

There were also reports that offenders were beaten with sticks and palm branches in addition to sandals. There appears to be a long and cherished tradition in the Arab world of using footwear on offenders and perceived transgressors.

It was after the death of the Prophet during the time of the caliph Abu Bakar that lashes were imposed on offenders reportedly due to the problem of drinking among the Arabs. Abu Bakar ordered 40 lashes.

The caliph Umar al-Khattab in his time decreed 80 lashes after a consultation with scholars in Medina. There were jurists who entertain the view that a recidivist be executed after the fourth offence. Some jurists claimed to have abrogated this opinion.

A useful piece of information not often disclosed, is the report that the Prophet forbade more than 10 lashes to be inflicted to an offence which is not prescribed (hadd) in the Qur'an. The question did arise in treatises if the drinking of wine is a prescribed offence.

Some jurists argue that as there is no prescribed penalty for the drinking of wine, the offence is not a prescribed offence.

It would appear from these scholarly works that views are entertained, claimed and abrogated over time.

So how has it come in this day and age that a piece of legislation passed by the state legislative assembly in Pahang on the drinking of beer cannot be questioned as a matter of law and religious belief?

The rules of law and the rule of law

I would say that a legal fiction has been created by the state in creating law which forbids the questioning of that law. That provision suppresses speech and religious expression by making the selection of opinions or interpretation, otherwise known as fiqh in the Islamic law on offences beyond question.

This is a case of undemocratic governance. Period. It encourages ignorance among Muslims and Malaysians. It confuses the believer into thinking that this is God's law.

I do not think human rights defenders and Muslim reformers of the sharia are questioning Kartika Sari Dewi's piety. Every good Muslim wants absolution from Allah for his/her transgressions.

If one is not used to questioning any law, then one would certainly think that "if it is the law, then it must be correct" or in the worst case scenario, "it is God's law".

As long as Islamic law relies on the subjective agency of the state for its articulation and enforcement, any law enforced by the state is necessarily not God's law.

Reformers make the point that a government bound by law is also bound by the processes that produce the law. It means that the processes of law themselves are bound by fundamental and unwavering moral commitments that ensure that the law is not used as an instrument of tyranny and oppression.

These processes are themselves to be bound by fundamental and moral commitments to human dignity and freedom.

The piece of legislation on beer drinking can be said to be "syariah/fiqh-compliant" yet it flouts the rule of law. The rules of law (technical compliance to the law) cannot flout the rule of law which is the more fundamental and moral commitments to human dignity and freedom.

This means any one person, voter and taxpayer, believer and kafir, should have his or her rights to raise concerns in this case, protected and defended.