Malaysia’s Muddled Experience with Islamic Law
DIN MERICAN
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.
