Introduction: Dr Tamir Moustafa is an associate professor at Simon Fraser University and currently researching Malaysia in the areas of comparative law and society, religion and politics, and state-society relations.
Below is an excerpt from his study on the Malaysian government's ‘Islamic’ credentials and how far and how successfully (or not) Umno has managed to adopt ‘Islamic law’ as the state law.
The 3 Abstracts
Judging in God’s Name: State Power, Secularism, and the Politics of Islamic Law in Malaysia
Oxford Journal of Law and Religion, vol. 2 (2013).
Abstract: Malaysia ranks sixth out of 175 countries worldwide in the degree of state regulation of religion. The Malaysian state enforces myriad rules and regulations in the name of Islam and claims a monopoly on the interpretation of Islamic law. However, this should not be understood as the implementation of an ‘Islamic’ system of governance or the realization of an ‘Islamic state’. Rather, the Malaysian case provides a textbook example of how government efforts to monopolize Islamic law necessarily subvert core epistemological principles in the Islamic legal tradition. As such, Malaysia provides an important opportunity to rethink the relationship between the state, secularism and the politics of Islamic law.
Islamic Law, Women’s Rights, and Popular Legal Consciousness in Malaysia
Law and Social Inquiry, vol. 38 (2013) 168-188.
Abstract: Drawing on original survey research, this study examines how lay Muslims in Malaysia understand foundational concepts in Islamic law. The survey finds a substantial disjuncture between popular legal consciousness and core epistemological commitments in Islamic legal theory. In its classic form, Islamic legal theory was marked by its commitment to pluralism and the centrality of human agency in Islamic jurisprudence. Yet in contemporary Malaysia, lay Muslims tend to understand Islamic law as being purely divine, with a single “correct” answer to any given question. The practical implications of these findings are demonstrated through examples of efforts by women’s rights activists to reform family law provisions in Malaysia. The examples illustrate how popular misconceptions of Islamic law hinder the efforts of those working to reform family law codes while strengthening the hand of conservative actors wishing to maintain the status quo.
Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics
Law & Society Review, vol. 47 (2013) 771-802.
Abstract: Why are liberal rights and Islamic law understood in binary and exclusivist terms at some moments, but not others? In this study, I trace when, why, and how an Islamic law versus liberal rights binary emerged in Malaysian political discourse and popular legal consciousness. I find that Malaysian legal institutions were hardwired to produce vexing legal questions, which competing groups of activists transformed into compelling narratives of injustice. By tracing the development of this spectacle in the courtroom and beyond, I show how the dueling binaries of liberal rights versus Islamic law, individual rights versus collective rights, and secularism versus religion were contingent on institutional design and political agency, rather than irreconcilable tensions between liberal rights and the Islamic legal tradition in some intrinsic sense. More broadly, the research contributes to our understanding of how popular legal consciousness is shaped by legal mobilization and countermobilization beyond the court of law.
It is not only the structure of the shariah court system that resembles the English common law model. Procedural codes also follow suit. The Syariah Criminal Procedure Act (1997) and the Syariah Civil Procedure Act (1997) borrow extensively from the framework of the civil courts in Malaysia. The drafting committee literally copied the codes of procedure wholesale, making only minor changes where needed. When they are placed side by side, one can see the extraordinary similarity between the documents, with whole sections copied verbatim. Abdul Hamid Mohamad, a legal official who eventually rose to be Chief Justice of the Federal Court, who was on the drafting committees for the various federal and state shariah procedures acts in the 1980s and 1990s candidly described the codification of shariah procedure as follows: ‘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.Mohamad acknowledged that the similarity between the shariah criminal and civil procedure are ‘to a large extent, the same as those used in the common law courts’. So much so that ‘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’’’.
It should be further noted that Abdul Hamid Mohamad and most other legal personnel involved in the codification of shariah court procedures did not have formal education in the Islamic legal tradition. Mohamad’s degree was from the National University of Singapore where he had studied common law, yet he was centrally involved in the entire process of institutionalizing the shariah courts. The ‘Islamization’ of law and legal institutions in Malaysia was, ironically, more the project of state officials who lacked any formal training or in-depth knowledge of Islamic legal theory rather than the traditional ‘ulama.
State Power, Secularism and the Politics of Islamic Law
This study opened with the observation that Malaysia ranks among the top six countries worldwide in the degree of state regulation of religion. From this vantage point, Malaysia appears to be the antithesis of a secular state and the realization of a religious state, at least for the 60% of Malaysian Muslims who are subject to such rules and regulations. Indeed, former Prime Minister Mahathir Mohammad famously declared Malaysia an ‘Islamic state’ and government officials have subsequently repeated the claim. Yet despite the fact that aspects of religion and governance are clearly intertwined, the Malaysian case illustrates how the simple dichotomy of ‘secular’ versus ‘religious’ obfuscates more than it reveals. As recent work on secularism shows, the secular-versus-religious dichotomy leaves unexamined the troubled genealogy of secularism itself. Most important for our purposes, the dichotomy takes its own starting point for granted and overlooks the ways that both categories were constructed as mirror opposites with the expanding regulatory capacity of the modern state.
The Malaysian case illustrates why the secular-versus-religious dichotomy provides a particularly poor schema through which to understand state incorporation of Islamic law. Perhaps most obviously, the conventional labels of ‘religious’ and ‘secular’ impose a binary with zero-sum properties. At any given point, the religious and the secular are imagined to be in an uneasy truce, a state of simmering tension, or an all out struggle for supremacy. An advance for one is a loss for the other. Indeed, the two most common narratives in studies of Islam and politics in contemporary Malaysia depict an otherwise secular state capitulating to pressure and adopting Islamic law, or, alternately, proactively harnessing Islamic law for political advantage. While both readings capture important dynamics in the competition over religious authority, these sorts of arguments tend to present Islamic law in an ‘additive’ manner. That is to say, at any given moment Malaysia is understood as being somewhere on a continuum between a ‘secular’ and ‘religious’ state. Media frames and popular political discourse cycle through the same tropes ad nauseam, incessantly asking the anxious question of whether Malaysia is, will become, or was ever meant to be a ‘secular state’ or an ‘Islamic state’.This is not to deny the fact that Malaysians have diverse (and often divergent) visions for the future of their country. And this is not to minimize the very real consequences that these political struggles have for individual rights, delibera- tive democracy, and a host of other important issues. It is only to say that the secular-versus-religious schema too often assumes a unidimensional and ahistorical conception of Islamic law and thus tends to take the state’s claim to Islamic law for granted. In other words, anxiety over ‘how much’ Islamic law is incorporated as state law too often assumes that the outcome is consistent with the Islamic legal tradition in the first place. What drops out of the picture are the specific ways that state incorporation of Islamic law, at least in the fashion documented here, subverts the Islamic legal tradition itself.
As select fragments of fiqh (Islamic jurisprudence) are constituted within an emerging field of state law, little or no space is left for usul al-fiqh, the interpretive method that undergirds Islamic jurisprudence. Stripped of its methodological underpinnings, these transformations subvert the epistemolo- gical approach of classical Islamic legal theory (usul al-fiqh) by collapsing the important conceptual distinctions between the shariah (God’s way) and fiqh (human understanding), with the ultimate result of facilitating the state’s claim to ‘speak in God’s name’. But more than this, by monopolizing interpretation, codifying select fragments of fiqh, and deploying those laws through state institutions, the Malaysian state is ‘judging in God’s name’. The religious councils, the shariah courts, and the entire administrative apparatus are Islamic in name, but in function they bear little resemblance to the Islamic legal tradition. 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.
The simple dichotomy of the religious versus the secular papers over this paradox and obscures the ways in which a completely new (and authoritarian) legal form has been created with only tentative connections to the Islamic legal tradition. Ironically, the state’s claim to sacred authority rests upon the subversion of the very tradition that the state claims to establish. It is perhaps for this reason that the Malaysian state has paid careful attention to semantics and symbolism. Terms such as ‘fatwa’, ‘shariah court’, and myriad others paper over the ways that the Malaysian state’s ‘Islamic law’ marks a radical break from the very tradition that it claims to represent.
The secular-versus-religious schema also tends to invite emotive tropes that further obfuscate agency and effect. In such schemas, secularism is often cast as a fundamental good in the sense that it is understood as providing a space for deliberation and rational discourse, two elements that are considered essential components of democratic governance.80 Religion, on the other hand, is typically cast as a potential threat to the rational deliberation that democracy requires. In depictions of Malaysian politics that follow this schema—such as in the rendering that is often deployed by the Malaysian government vis-a`-vis its Islamist opposition party rival, PAS—the state is cast as a bastion against religious resurgence. This is particularly ironic considering the fact that the government subverts the rationalist and pluralist epistemological stance within the Islamic legal tradition, replacing it with an authoritarian legal form. This familiar trope is enabled by the secular-versus-religious schema, providing the ruling UMNO with a rhetorical tool to undercut political rivals and to bid for the support of liberals, secularists and non-Muslims. Yet, in other renderings of Malaysian politics, the ruling party claims to have delivered an ‘Islamic state’. With this pivot, the government highlights its ‘Islamic’ credentials, in a bid to curry favour with UMNO’s Malay Muslim base, and (ironically) to (again) undercut its Islamist party rival, PAS. In each guise—as bulwark against religious resurgence or as the guarantor of an ‘Islamic state’—the government seeks to benefit from the emotive tropes that are evoked by way of the secular- versus-religious schema. Perhaps most telling is the fact that even when secularists criticize the adoption of ‘Islamic law’ as state law, the Malaysian government reaps precisely the sort of religious legitimation that it seeks
