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Sunday, April 22, 2012

Rusman: Malaysia’s Muddled Experience with Islamic Law

Reposting Din Merican’s article here because his blog’s black background color, white text plus quotes with gray text made the post difficult to read:

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?

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