Malaysia’s muddled experience with Islamic Law

April 22, 2012

Malaysia’s Muddled Experience with Islamic Law

Guest Writer: Rusman

We all know that Malaysia has become more and more ‘Islamic’ over the last 20 years. By ‘Islamic’ we mean not that people have become more inclined towards personal piety, to strive for establishing justice and mercy on the Earth, etc. Rather we are referring to the external dimension of Islam whereby you see institutionalized religion crystallized in the form of an official bureaucracy that seeks to legitimize itself by exerting social, cultural and political influence on  Malaysia.

There are various reasons for this. Certainly there has been a global resurgence of Islamic identity brought on in different countries for different reasons as a response to modernity, secularism, crass consumerism, colonialism and neocolonialism, export of Saudi ideology funded by Saudi petrodollars. I could go on.

In Malaysia some of these factors are also relevant. But we can also attribute the increase to a concerted effort by the government and ruling party to create and strengthen a series of administrative institutions designed in part to flex Malaysia’s muscles as a modern but very Islamic country. And behind these ostensibly unbiased public policy decisions was certainly some political motives driven by the competition between UMNO and PAS to attract the conservative Malay Muslim voter by being seen as the true defender of the faith.

As of late the rhetoric around Malaysia’s so-called Muslim identity has reached the level of the irrationality. Over the last few years we have seen rulings such as the banning of yoga, the banning of non-Muslims using the word Allah, the enlistment of neighborhood Imams as virtual religious police with the power to arrest. In Kedah, a state governed by PAS under the banner of Pakatan Rakyat, the ruling which makes Islamic fatwas unchallengeable in the court of law is yet another example of the gradual encroachment of Islamic law into the space of Malaysia’s secular legal system.

As an outside observer of Malaysian politics its downright confusing. Where does religious authority lie in Malaysia? With the federal government and its many agencies and bureaus of religion? With the sultan? With the state governments? With imams? What are the legal implications of a fatwa in Malaysia?

Tamir Moustafa, Associate Professor at Simon Fraser University in Canada has a forthcoming article in Law and Social Inquiry entitled “Islamic Law, Women’s Rights and Popular Legal Consciousness in Malaysia. [Tamir Moustafa: Islamic Law in Malaysia]

His article raises some valuable insights about the history and development of Islamic law in Malaysia to better understand some of the questions I raise above. Moustafa’s objective is to understand if there is a disconnect between “fundamental conceptual principles in Islamic legal theory and how those concepts are understood  among lay Muslims in Malaysia.”

It is important to appreciate the theoretical framework of Moustafa’s argument- which is to differentiate between sharia and fiqh. Sharia is the Divine Law as revealed by God. Fiqh is the man made laws and regulations based on authoritative sources of Divine Law: 1) the Quran 2) traditions of the Prophet Muhammed 3) qiyas (analogical reasoning) and 4) ijma’ (scholarly consensus). [In actual fact the methodology is more complex that this and takes into account much more including local custom among other things; however for the purposes of this blog we’ll keep things simple].

Moustafa aims to find out how well do Malaysian Muslims understand the difference between the Sharia and the laws that they follow in Malaysia which are said to be Sharia, but which are in actual fact fiqh, by definition, because, as he demonstrates, they are neither based on any direct precedent from the Quran or the Sunnah.

Citing William Roff’s 1967 The Origins of Malay Nationalism

A direct effect of colonial rule was thus to encourage the concentration of doctrinal and administrative religious authority in the hands of a hierarchy of officials directly dependent on the sultans for their position and power. . . . By the second decade of the twentieth century Malaysia was equipped with extensive machinery for governing Islam. (pg 72-73)

Moustafa explains that in the span of less than 100 years there emerged in Malaysia a massive religious bureaucracy intended to centralize control of the the religious life of Malaysia (as opposed to leaving it decentralized and autonomous).

Furthermore what is truly shocking about this institutionalization and codification of the laws governing the Islamic religion is that the Shari‘a Criminal Procedure Act (1997) and the Shari‘a Civil Procedure Act (1997) borrow extensively from the framework of the civil courts in Malaysia. Moustafa says that “[t]he drafting committee literally copied the codes of procedure wholesale, making only minor changes where needed.”

Citing Abdul Hamid Mohamed, former Chief Justice of the Federal Court, who was on the drafting committee for various federal and state shari’a procedures acts in the 1980s and 1990s:

We decided to take the existing laws that were currently in use in the common law courts as the basis to work on, remove or substitute the objectionable parts, add whatever needed to be added, make them Shari‘ah-compliance [sic] and have them enacted as laws. In fact, the process and that “methodology,” if it can be so called, continue until today.

The provisions of the Shari‘ah criminal and civil procedure enactments/act are, to a large extent, the same as those used in the common law courts. A graduate in law from any common law country reading the “Shari‘ah” law of procedure in Malaysia would find that he already knows at least 80% of them . . . a common law lawyer reading them for the first time will find that he is reading something familiar, section by section, even word for word. Yet they are “Islamic law.” (Mohamed 2008, 1–2, 10)27

Moustafa adds that Abdul Hamid Mohamed himself, as well as most other legal personnel involved in the codification of Islamic legal procedures in Malaysia DO NOT have any formal education in Islamic jurisprudence. Let me repeat. The laws that govern Islam in Malaysia were codified by many people who have no formal training in Islamic Jurisprudence.

I’m starting to understand one of the reasons why the issue of authority and Islamic law in Malaysia is so confusing. It’s because the people who set up the system in the first place were themselves likely confused and had no real idea what they were during from the standpoint of Islamic jurisprudence. Whether intentionally or unknowingly, their lack of familiarity with the topics they were confronting was one reason why Islamic legal theory was subverted or ignored even though these individuals probably felt they were working for the sake of Islam.

 Moustafa’s conclusion is:

The religious councils, the shari‘a courts, and the entire administrative apparatus are “Islamic” in name, but in function they bear little resemblance to anything that existed before the British arrived. A deep paradox is therefore at play: the legitimacy of the religious administration rests on the emotive power of Islamic symbolism, but its principal mode of organization and operation is fundamentally rooted in the Weberian state  [i.e that state that wishes to have a monopoly of [violent] control over its people].

We’ll review the results of the survey Moustafa conducted in Malaysia on a later post. For now I think it’s worthwhile to discuss what these facts mean for Islam and Muslims in Malaysia.

Politics aside (and politics play an important role no doubt), when Malaysians grapple with the trials and tribulations of how to be a good, practicing Muslim in the modern world, they are not only confronting a formidable adversary in the prevailing materialistic, secular, consumer-driven culture of consumption and instant gratification that is encroaching on every open society.

In addition they have to confront incredibly aggressive and, one might argue, ill-conceived bureaucracy of Islamic affairs that exists throughout Malaysia. Given that many of the laws enshrined in this bureaucracy are not even remotely based on derivations from traditional Islamic sources but are more likely vestiges of British colonial law “adapted” to an Islamic language, what kind of Islam are Malaysians supposed to be following? Furthermore if the people entrusted with the controls of these organizations are themselves ill qualified to carry out their tasks, then where are Malaysian Muslims to turn and what recourse do they have when the system (inevitably) fails to operate in a just and truly Islamic manner?

27 thoughts on “Malaysia’s muddled experience with Islamic Law

  1. I have always said the syariah courts are kangaroo courts ( excuse the pun) but there you have it. Not qualified, incredible injustices to mothers and children, bias towards one party, no legal qualification, do they know what Jurisprudence means, no discourse, no theology , no thought behind it, do they know what thediffirence between Syariah is and fiqh is.
    As long as the word “Islam” is in the sentence the Malays think , it is ok. It is all about form without substance. WHY does this not surprise me?

    It is always about form and no substance.We have known this forever. The people who have suffered at the ‘syariah” courts have suffered a long long time and telling me this is not the Islam I know. But who can counter them because if you do , you will be labelled an infidel and they will become emotional and violent and declare that you an infidel and you are going to hell , all in one breath. So we keep quiet, that is until now.

    What a farce and a huge shame. For now my advice for those who seek to divorce go to the Civil courts, they are more Moslem than the Malaysian syariah courts as presently constituted.

    Look at what the PAS-led state government of Kedah has done. It has given absolute power to the Mufti and the Religious Council. This stupid legislation will remind Malaysian voters what PAS is really all about. The so-called Erdogan faction has yet to state their stand on this enactment.–Din Merican.

  2. “In addition they have to confront incredibly aggressive and, one might argue, ill-conceived bureaucracy of Islamic affairs that exists throughout Malaysia”

    I have always said the malays are the fourth class in Malasyia, not only are we now hated by the other Malaysians because of this unfair NEP practice, we have to face agressive, oppressive and downright abusive holier than thou people who play God. Is it a wonder why we go around afraid to live because we are only told everything is SIN. Soon even breathing is sinful. So we walk around like the living dead, afraid , of absolutley everything.

  3. Malaysia’s mistake was allowing Muslim youth fundamentalists like Anwar Ibrahim to become a leader and lawmaker in the first place. 30 years later, his political decisions have resulted not only in the Islamization of Malaysia but also the deterioration in the standards of our education, which is now affecting the second generation of Malaysian and Malays in particular.

  4. More restating of the obvious, even to non-believers watching from the outside. If JAWI/JAKIM-style Islam is to be considered the primary indicator of Muslim piety and thought in Malaysia, non-believers must surely be excused for thinking Muslims belong to a long-bygone age, with nary any commonsense left over.

    In this respect alone, institutionalized Islam in Malaysia has already done the Ummah a great disservice.

  5. To begin with, the retiring Chief Justice, Tun Hamid Mohammed, gave the view that the Dual System, Syariah Court & the Civil Court can be merged, why the Duplicity ? i agree that there is a kind of confusion in thoughts on the part of Islamic scholars.
    First Question i like to pose here is : keep aside the current Syariah Court’s jurisdiction which is Confined to purely Matrimonial matters & Family law, Divorce or other conjugal matters, are the Civil Disputes affecting Contract or Tort being tried in the civil Court, Not ” Islamic ” ? For that matter, even Criminal trials relating a wide range from stealing, robbery, rape, murder, tresspases to property or bodily or mental harm caused by libel, slander and defamation…etc. are these Not ” Islamic ” in nature ?
    I whole heartedly echo Kathy’s consternation, that Muslims generally too :preoccupied with Form, rather than Substance…..
    Very shortly, Syaria ? if i am proven wrong, i will apologise & retract.
    Syaria concerning itself with the ‘ Outward Form ‘ mainly covers with rites, rituals & forms, a lot to do with Symbols…

    In that same breath, that because people of other Faiths or Religion, in whatever way they believe in their’ God ‘ , they too have their own mode of ‘syaria’, that is, governing their mode of worship, rites, rituals & form, which is their ” outward mode ” –
    My point is, Muslims have to strive to remove the Schackles of their own Mind, and proceed beyond Syaria….to the underlying truths which can remove them from a a state ” Mental Seige “, which is very Unhealthy.

  6. Why complain ? Hassan Ali has promised HEAVEN to all true believers, and he will drag all,screaming and kicking if he has to !! Virgins waitinf and all infidels will burn in hell, including Mother Theresa !! Simple lah !!

  7. First of all religion should be used for working towards good governance and not for political purpose.

    Second men of religion should make sure that whatever they do is for the benefit of all irrespective of the what religion the minorities belong to. If you just work only for your own members then you are a poltical party and that is not the spirit of any religion.

    Third people should be allowed to be as religious as they want.Some of us survive by doing good deeds while other pray that they want to do good deeds.

    And finally commitment to religion is inversely proportional to your age. When you are young religion plays a role in guiding you to do the best you can but as you get older you have to be more committed because your time has come.

  8. Let’s us not forget that Islamic Laws are strictly enforced on only those with no clout or connections or status.

    In the town where I live the budget hotels are raided every other night and even non-Malays are being disturbed from their sleep.

    Some Muslims are arrested for drinking beer or for not fasting during Ramadhan or sleeping with their girl friends.

    However, there is a lot of illicit sex and drinking going on in 5 Star Hotels, Golf Clubs and in some Royal Houses.
    Tell me, which religious officer dare raid or arrest these high heeled groups. Even Hasan Ali will turn his face the other way when he sees one of these VIPs or the VVIPs.

    What has he got to say about UMNO ministers bonking their maids or actresses or pinching waitresses’ bottoms? How many of them have ever been arrested.
    Come on, some rich Malays drink like fish. Pray, Tell me.

  9. Ask Hassan Ali,when he was the exco incharge of Islam religious affair,why he didnt take any action against his sultan sleeping with Kavitar Khor in his palace.Ha ha ha.

  10. A little bit of history doesn’t hurt.

    Foreign observers of Malaysian politics could be excused for asking, “How did matters come to this? How did you guys mess it up so bad??”

    Except for an amendment made in the mid ‘80s steamrolled into law without so much as a debate, it is the same Constitution and doesn’t Article 4 of that Constitution explicitly state that the Constitution is the supreme law of the federation? Those eager to take the Oath and swear their allegiance to their adopted country do so to a Constitution that is facially and therefore presumptively secular. How else do you explain the use of the word “religion of the federation” and not “state religion” If the parliamentary draftsman intended for the new nation to have Islam as the state religion he would have so stated. Clearly that was not the intention.

    The first three Prime Ministers all western educated lawyers, educated in the western tradition of liberal democracy of the west with its emphasis on fundamental liberties and the rights of the individual understood that fine balance which has to be maintained. After all Malaya was 50% Muslim then and not predominantly Muslim as it is today and the government was ruling over a population consisting of substantial minorities The Constitution acknowledges the importance of religion (read: Islam) to the Malays and Malay national leaders seeking political legitimacy for their role look to state ceremonies being conducted along Islamic tradition. The nation is to be given a Muslim face. It is not a coincidence that a role has also been carved out for all nine Malay Rulers and what better role for them then to act as the secular heads of the Muslim religion in their respective states and at the national for them to collectively act to protect the Muslim religion and Malay special position. But there the role ends.

    Not until one stormy day Mahathir whilst walking along the Beach of Passionate Love (since renamed by PAS) found a bottle apparently washed ashore by the waves of the Iranian Revolution and not being the collector of curious looking bottles and not being a connoisseur of fine wine and women had the bottle unceremoniously uncorked and voila there was the Islamic Genie looking down on the man. Since then no one has been able to put the Genie back in the bottle.

    The rest as we say it is history.

  11. Hamid,
    That beauty queen is Kavita Kaur not Khor. Then she would seem to be Chinese.
    Anyway, this is an open secret.

  12. The “muddled experience” comes when we are not allowed to debate and discuss before any laws are introduced.

    We shall get deeper and deeper into a religious mess unless there is first a debate and then a referendum on Islamic Law.

  13. For those who reckon they are second class citizen, I will trade places with you because being malay and moslem, we are failed economically, we are failed in education, we are harrassed about religion and told that our very existence is sinful and finally we cannot even be friends with other Malaysians any more , why ? Becasue they think we got our riches free. Fourth class citizens all the way . So dont tell me the malays have got it good ok. The next person who dares tell me themalays have got it good I will punch them in the face.

  14. This is a worrying trend globally. That is why I support the regime of President Basher el Assad as I believe if he falls there will be rapid Islamicization of Syria and the future of the Alawis, Christians and the Druze would be bleak…very bleak. Though we should condemn the systematic killing of civillians, torture and desecration of mosques by the government troops, we also cannot ignore the attacks on religious minorities and their places of worship by the anti-regime supporters. God save Syria and Malaysia too!

  15. Yes Dato, they are playing with peoples lives and trying to be God. It has gone backwards. We are fourth class citizens in every aspect of our lives.

  16. soalan: bolehkah tertuduh (melalui peguam bela) meminta pihak pendakwa membuktikan yg terduduh itu islam? adakah melayu/islam yg dicatit dlm kad pengenalan itu boleh dijadikan bukti? kalau tidak dakwa di mahkamah sivil saja la.

  17. The people should now demand/ challenge these so called experts in Malaysia that are dictating our lives as moslems and putting us in fear, to read this 21 page by Professor Tamir Moustafa and have an open debate of the content and explain and justify to us how they construe the practices of Islam, how they distinguish from what this Professor is saying and prove to us why they are more superior in their practice and justify to us why they should lead us in the practice and interpretaiton of Islam in Malaysia. if they cannot do this then they should be sacked and M’sia needs a total revamp of our Islamic Jurisprudence and Islamic Legal consciousness.

  18. In Malaysia, ordinary Muslims are scare to be labelled as an apostate and the non-Muslims scare to be labelled as anti-Islam. Hence, anyone who uses Islam to strengthen or defend his actions will be given a free hand.

    Worst of all, the judges in the civil courts refuse to hear any case that ‘touches’ on Islam; saying that such case is solely under the jurisdiction of the syariah courts.

    We here are being ‘screwed’ by the religious mullahs and the politicians who manipulate them to control the Muslims.

  19. “That is why I support the regime of President Basher el Assad as I believe if he falls there will be rapid Islamicization of Syria ….” Farouk Omaro

    You are glossing over the murders of children, women and old men and that to me is nothing less than abhorrent.

  20. Worst of all, the judges in the civil courts refuse to hear any case that ‘touches’ on Islam; saying that such case is solely under the jurisdiction of the syariah courts. — Jamal Majid

    And that brings us back to the case of the Indian who supposedly converted to Islam on his death bed. All his wife wanted to do is to get the High Court to determine if foul play was not involved. He was barely conscious and so how could he have uttered those words and how and why his thumb prints found their way on to that piece paper that appears to have confirmed his conversion. The issue was to determine through independent and corroborative evidence whether the guy was conscious at the time which is a civil matter. There shouldn’t be any doubt where jurisdiction lies. In any case it is well within the discretion of this High Court judge to remove doubts about the jurisdiction of the matter. But as we already know he fell victim to the ‘kecut teloq’ syndrome and the case found itself at the door of the syariah court. When that happens there can only be one outcome.

    The case of the Kelantanese Four was not so lucky either. In that case it did find its way to the Supreme Court. The highest court in the land had the first and only opportunity ever to rule on the constitutional issue as to whether Malays have the right to choose their own religion. In that case the three federal justices together suffered a massive stroke and all six balls fell to the floor rolling out the door and on into the arms of the syairah court judge.

  21. It is time we have ladies among these federal justices. Then at least the balls will stop rolling out the door and into the arms of the waiting syariah court judge or judges.

  22. When the going was good people like “Ka..y were enjoying the ride. They knew then what will happen. Give a man a fish he will have fish for the day but if you teach him to fish he will have fish for the rest of his life. But like that long necked bird they left their heads firmly in the concrete of Putrajaya.Will the person who prevented people frm knowing this stand up. Will the people who prevented common knowledge of ‘ Harap Pagar, Pagar Makan Padi ” stand up. Let us not try to turn the tables on others. You are the leader with all the powers to make policy and you have failed to deliver. The next step is to take the medicine and try to build a better Malaysia. If we cnnot do that and cannot learn from our mistakes we will be left in the dustbin of history for a very long time to come.

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