Malaysia at the crossroads? The never-ending discourse between Islam, law, and politics

ABSTRACT

Malaysia is a multiracial and multireligious society, with an intricate relationship between its different ethnicities, religions, and the state, which is often politically, socially, and legally loaded. The paper analyses the relationship between religion, law, and politics in Malaysia, which has been contentious since independence.

There is no political consensus as to how this relationship should conceptualised.

In recent years there has been an increasing trend towards the Islamisation of law and politics in Malaysia. This trend had far-reaching consequences illustrated in the discourses surrounding unilateral conversion of children and, of course, the implementation of hudud (Islamic criminal law) to name a few.

Yet the pertinent question is whether this trend will change with the new political coalition in power since May 2018. Given the current political, social, and religious climate in Malaysia, this paper argues that a consensus on the definite role that Islam plays in Malaysia is unlikely to be reached. The positions between the defenders of secularism and the advocates for an increased role of Islam in the state have become more entrenched.

KEYWORDS:

• Islam
• Malaysia
• politics and law

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. See the 2010 Census, available at http://www.statistics.gov.my/portal/index.php?option=com_content&id=1215.

2. Lijphart uses the work of Johannes Althusius’ concept of consocatio in Politica Methodice Digesta (1603) as the foundation for a definition of a consociational democracy. In short, Lijphart (1977, 5) defines a consociational democracy as ‘segmented pluralism, if it is broadened to include all possible segmental cleavages in a plural society and combined with concordant democracy.’

3. See, for example, a summary of the arguments in Kessler (6 September 2010) and (21 September 2010).

4. Bumiputra (Malay, indigenous people—literally, ‘son of the soil’).

5. Article 153 grants the Yang di-Pertuan Agong responsibility for ‘safeguard[ing] the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities,’ including by establishing quotas for entry into the civil service, public scholarships, and public education.

6. The label ‘redshirt’ is borrowed from Thailand, where supporters of a certain party are wearing red shirts. In Malaysia, the red shirts ‘emerged from the politically charged interaction between three key organising principles in Malaysian public life: race, religion and a sixty-year-old government in crisis. They reflect a confluence of forces unleashed by the critically important election result in 2013, and the subsequent litany of national and international scandals centred on embattled prime minister Najib Razak’ (Malhi 2015).

7. Hari Raya Haji (Malay) refers for the Muslim holiday of Eid al Adha or the Feast of Sacrifice.

8. Abdul Tun Razak as quoted in Ahmad Ibrahim (1985, 217).

9. Abdul Tun Razak as quoted in von der Mehden (1963).

10. Abdul Tun Razak as cited in von der Mehden (2013, 343).

11. Abdul Tun Razak as cited in von der Mehden (2013, 343).

12. Alagesh (14 May 2014). Please note that this article—and quote—only appeared in the printed version of the newspaper. It was replaced in the online version.

13. Ulama (Ar., ^culamā,’ religious scholars, plural of ^cālim. The term ulama is often used for the singular, in Southeast Asia).

14. Imam (Ar., imām, leader of prayer).

15. See, for example, the suggestion of former PAS Deputy President, Nasharudin Mat Isa, that it is time for Malaysian law to ‘distance’ itself from Common Law (As cited in Shankar 22 November 2010).

16. Umma (Ar., ummat al-Islām, Muslim community).

17. Hadi Awang as cited by Hata Wahari and Fairuz Mazlan (2018).

18. In the states of Kelantan and Terengganu, PAS won on its own right and is forming the state government.

19. See Steiner (2017) for a detailed discussion on this.

20. Bumiputera (Malays, indigenous people; literally, ‘son of the soil’). This group has been granted special economic and educational quotas, for example, through the New Economic Policy (NEP) and similar ‘positive discrimination’ programmes intended to entrench Malay exceptionalism pursuant to Article 153 of the Constitution (Lindsey and Steiner 2012).

21. Only bumiputera can become members of Bersatu, non-bumiputera can become associate members.

22. For details on the 1MDB scandal, see Steiner (2017).

23. See, for instance, Zulaikha (7 July 2018). As Tan (27 July 2018) comments, Mujahid seems to have succeeded in alienating both opposites end of the spectrum by one hand not going far enough with his envisioned changes or on the other hand already crossing some borders by betraying Islam.

24. Hudud (Ar., h. udūd literally means ‘limit’ or ‘restriction’ and is used to refer to harsh physical punishments, such as stoning or amputation, fixed for serious crimes, in particular for crimes considered to be ‘claims of God’ such as theft, fornication, drinking, and apostasy).

25. Qisas (Ar., qi.sa.s, literally ‘retaliation,’ used to refer to crimes for which a punishment of retaliation seen as is appropriate; for example, murder or intentionally causing injury).

26. Ta’azir (Ar., ta^czīr, discretionary punishments for crimes committed by Muslims that are not mentioned in the Qur’ān, so judges are free to punish the offender in any appropriate way).

27. For a concise summary, see Othman (1994, 147).

28. The basic doctrinal point made by critics such as Norani Othman (1994, 149–150) is that the Codes are the product of selection from fiqh (Ar., Islamic jurisprudence) and represent a particular interpretative position but are presented as though they were an authoritative account of the scriptures. Hashim Kamali (1995, 1998) has offered a more detailed criticism of the Kelantan and Terengganu Codes, presenting them as being, in any case, inconsistent with ijmāc and, in some cases, in contradiction with the scriptures.

29. It was always clear to PAS that the Kelantan and Terengganu Codes could not be implemented unless the federal government of Malaysia made changes to the Federal Constitution (Kamali 1995, 7).

This is, first, because the Codes overlap with the Penal Code (No. 574) of 1936, rev. ed. 2006, with some offences dealt with in the Code already constituting offences at Federal law—for example, theft, robbery, killing, rape, causing bodily harm and ‘unnatural offences.’ This overlap raises issues of double jeopardy, prohibited by Article 72 of the Federal Constitution (Kamali 1995, 11). The Codes attempt to overcome this problem by somewhat unsatisfactorily providing that a person convicted under either Code would not be tried again under the Penal Code of 1936 (see, for example, Section 61 of the Kelantan Code). It is unclear, however, how a State provision could prohibit trial under federal laws, particularly given that the State law violates the limits of its jurisdiction under the Constitution by purporting to exercise powers reserved to the federal government, as discussed further below (Kamali 1995, 12).

The Codes also exceeds the jurisdictions granted to the Syariah courts in the Ninth Schedule to the Malaysian Constitution, which sets out the subjects of Islamic law over which they have jurisdiction. The matters reserved for the States are generally limited to family law, trusts and offences against religion. The Codes, however, cover criminal offences that are not listed in the Ninth Schedule—for example, theft.

Problems arise also in relation to punishment. The Syariah Courts (Criminal Jurisdiction) Act (No. 355) of 1965 allows these Courts to impose a maximum imprisonment of three years, a fine of up to MYR5,000, whipping up to six strokes or any combination of these punishments (Section 2). Punishments such as death and amputation obviously exceed these limits. Accordingly, unless the Syariah Courts (Criminal Jurisdiction) Act (No. 355) of 1965 is amended, the Special Syariah Courts envisaged under the Codes will not be able to impose the hudud punishments that were the very raison d’être of the Codes in the first place.

30. Murtad (Ar., murtadd, apostate).

31. Prof Dr Shamrahayu Abd Aziz, a lecturer at the Institute of Islamic Understanding Malaysia and member of the technical committee, said there already is a blueprint to amend Act 355 Syariah Courts (Criminal Jurisdiction) Act 1965 (Chi 13 May 2015).

32. The original bill was rumoured to have removed the limits of the Syariah criminal jurisdiction completely, except for the death penalty. The new bill only increased the limits from 6 strokes of a rattan to 100 strokes; the fine from RM5,000 to RM100,000; and the prison sentence from 3 years to 30 years. It is interesting to note that a judge in a Magistrate court, the lowest level of the civil criminal judiciary system, can issue fines up to RM10,000; 5 years of jail term; and 12 strokes of rattan, and hence has currently more power than the highest ranking Syariah court judge.

33. In late 2015 as several lawsuits had been filed against the bill. These lawsuits were struck out by the High Court on 9 November 2015 (Zurairi Ar 17 October 2016).

34. In early 2016, Abdul Hadi himself requested the bill to be deferred to the next meeting in October 2016. There have been speculations that this delay has been caused by the by-elections in Sungai Besar and Kuala Kangsar (Ting 2016).

35. For example, a coalition of numerous NGOs (including the All Women’s Action Society; Bar Council Malaysia; Catholic Lawyers’ Society; Malaysian Civil Liberties Society; Protem Committee; Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism; HAKAM; Sisters in Islam; Suara Rakyat Malaysia; Vivekananda Youth Movement, Seremban; Women’s Aid Organisation; and Women’s Development Collective) formed the Article 11 organisation, named for the constitutional provision providing for freedom of religion. The original website at www.article11.org appears to no longer function but the Article 11 petition affirming the secular supremacy of the Federal Constitution over Islamic law can be accessed, and signatories are listed, at www.petitiononline.com/ .

36. See, for example, Faruqui (14 November 2007); Shuaib (2007); and Whiting (2008, 223).

37. Most notable cases include Subashini, Shamala, Indira Gandhi, and S. Deepa. For a detailed discussion of the Indira Gandhi case and in particular the arguments used by the High Court in order to be able to divert from pre-existing case law, see Steiner (2013).

38. Religious matters regularly involve matters of federalism in Malaysia, and states have kept autonomy in matters of Islam. The state governments were granted legislative prerogative over Islamic matters as prescribed by the Ninth Schedule List II of the Federal Constitution. Therefore changes to the respective state enactments concerning the administration of Islam, clarifying that the consent of both parents is necessary for a conversion, could only have been made by the individual states.

39. If the federal legislature had decided to act upon this suggestion by the executive, it could have amended federal acts including the Law Reform (Marriage and Divorce) Act, No 164 of 1976 (although that would not resolve the question of whether civil courts have jurisdiction over issues of conversion) or even go further by amending the Federal Constitution to make it clear that the consent of both parents is required—neither possibility appears likely.

40. Fatwa (Ar., fatwā, legal opinion of religious scholar(s).

41. See Sivanandam and Cheng (3 July 2013).

42. On 28 July 2018, Malay-Muslim NGOs organised a rally criticising the lack of concern by the government for Malay-Muslim matters. This rally was supported by PAS and UMNO members Muhammad Alhadjri (28 July 2018).