Making majority, undoing family: law, religion and the Islamization of the state in Malaysia

Abstract

The formation of the family around Islam and Sharia showcases successful state Islamization and the viability of the Muslim population to continue as a cohesive, homogenized political majority. In Malaysia this is a state-directed project filled with tensions and contradictions. Legal outcomes around Muslim-non-Muslim family litigations (through either civil or Sharia courts) have evidenced the inability of the state to protect the welfare of the family. Sharia reforms have also overprivileged a version of patriarchy which exalts a new Malay-Muslim masculinity as an end to Islamization rather than as a condition of achieving family wellbeing. The cases presented here show how state policies do not inherently put a premium on welfare and productivity as the main motive of family development. Instead, state performativity is aimed at naturalizing the majority (and hegemonic) status of Muslims in the ethnically and religiously plural Malaysian society. The paradox of this situation is that partners, parents and children are torn apart for keeping together the imagined unified collectivity of a Malay-Muslim majority.

Keywords:

• Islam in Malaysia
• Sharia
• Islamic family
• Malay-Muslim majority
• Muslim–non-Muslim litigations
• Muslim masculinity

Notes

1. For example, the Syariah Criminal Enactment of Perak states categorically that ‘[a]ny Muslim who wilfully either by his action or words or in any manner claims to denounce the religion of Islam or declares himself to be a non-Muslim is guilty of an offence of deriding the religion of Islam and shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or both’.

2. I rely on written judgments to piece together the background of litigants and litigation in the cases cited throughout this article. The MLJ (Malayan Law Journal), CLJ (Current Law Journals) and MLJU (Malayan Law Journal Unreported (Judgments)) are examples of where these judgments could be found. The citation will be listed as such [2004] 2 MLJ 628 or [2005] 5 MLJ 40 at 46. The figure stated within the parentheses refers to the year of publication or year that judgment was delivered, while the last figure refers to the section within the report from where the quotations are extracted. On the specific administrative law mentioned, See Lina Joy (No. K.P. 640108-10-5038) v Majlis Agama Islam Wilayah Persekutuan and Others, [2005] MLJU 335.

3. [1998] 1 MLJ 757 at 763.

4. Facts taken from Re the detention of Leonard Teoh Hooi Leong [1998] 1 CLJ 857.

5. Stated in judgment of Abdul Aziz Mohamad JCA in Lina Joy (No. K.P. 640108-10-5038) v Majlis Agama Islam Wilayah Persekutuan and Others, [2005] MLJU 335.

6. A message relayed widely through the internet at the height of demonstrations over the Lina Joy case, titled, ‘Peringatan Mufti Perak Perlu DiRenungi’ (Need to reflect on Perak Mufti's reminders), dated 10 August 2006, called for all Muslims to defend their faith unless they wish to see Islam destroyed by its enemies.

7. See for example the webpage: http://bantahifc.bravehost.com/ACCIN_reasonfornoncountenance.htm.

8. See Priyathaseny & Ors v Pegawai Penguatkuasa Agama Jabatan Jal Ehwal Agama Islam Perak & Ors [2003] 2 MLJ 302.

9. [2003] MLJ 302 at 308.

10. Statement by Opposition Member of Parliament, Lim Kit Siang, quoted in Kuek (2007).

11. These amendments had already been passed by the various states in 2004, for example, Islamic Family Law (State Of Penang) Enactment 2004 was passed on 13 October 2004. However, the controversy over these amendments was picked up by women's groups only in 2005 when the bill was debated in Parliament. Unlike Islamic laws in the thirteen other states, which were all passed by their state assemblies, the Federal Territory Syariah bills have to be passed by the national Parliament. For a sense of protests mounted by women's groups see website postings on this issue by Sisters-in-Islam at:http://www.sistersinislam.org.my/index.php?option=com_content&task=category&sectionid=42&id=129&Itemid=194 and the Women's Aid Organization at http://www.wao.org.my/news/20060101mfl.htm.

12. I even have doubts about the ‘just’ clause as there is a discrepancy between the Malay words and the official English translation of the enactment. The Malay version of this section of the Islamic Family Law (State of Penang) Enactment 2004 had these words as grounds for the application – ‘alasan alasan mengapa perkahwinan yang dicadangkan itu dikatakan patut atau perlu’ while the English translation of this is ‘the grounds on which the proposed marriage is alleged to be just or necessary’ (emphasis added). A straightforward translation of ‘patut atau perlu’ should read ‘required or necessary’ and in fact does not contain any suggestion that the marriage should be just at all.

13. Jakim is the Department of Islamic Development that is housed under the prime minister's department and is de facto the most powerful Islamic policy-making body in the country.

14. In the Islamic Family Law (State of Penang) Enactment 2004, section 23 (8) merely requires a man to compensate his existing wives with money given at the time of marriage (mas kahwin) if he had contracted polygamy without court permission, as in ‘any person who contracts a marriage in contravention of subsection (1) shall pay immediately the entire amount of the mas kahwin and pemberian due to the existing wife or wives, which amount if not so paid, shall be recoverable as a debt’.

15. Section 23 (4) of the Islamic Family Law (State of Penang) Enactment 2004 states that any application for polygamy must ‘be accompanied by an iqrar stating the grounds on which the proposed marriage is alleged to be just or necessary, the present income of the applicant, particulars of his commitments and his ascertainable financial obligations and liabilities, the number of his dependants, including persons who would be his dependants as a result of the proposed marriage, and whether the consent or views of the existing wife or wives on the proposed marriage have been obtained.

16. The highest registration for polygamy was in 2002, which was 2.7 per cent of all registered Muslim marriages. These figures are reported by Jakim, the Malaysian Islamic Development Department.