Implementing Islamic Law within a Modern Constitutional Framework: Challenges and Problems in Contemporary Malaysia

Abstract

Abstract Muslim countries in the post-colonial period are faced with the challenge of developing political structures consistent with Islamic teachings. The uniqueness of the task stems from the fact that these structures have to be raised in a constitutional framework very different from their historical experience until modern times. This paper studies the case of Malaysia whose Federal Constitution proclaims Islam to be Malaysia's official religion. Opinions have fiercely diverged among legal scholars and practitioners as to how substantive should the relevant clause on this matter be interpreted. Such vagueness is typical of the document whose drafting took place amidst intense negotiations among Malaysia's multi-racial communities, resulting in an informal bargain or 'social contract' which till today remains a subject of dispute amidst the rising polarisation largely along 'Muslim versus non-Muslim' lines. Locating origins of contemporaneous legal conflict to divergent understandings of constitutional clauses, this paper proceeds to discuss contemporary controversies which shed light on Malaysia's struggle to identify itself as a nation-state which integrates the best of both modern and Islamic civilisations. It is argued that this delicate balance has been recently threatened by the increasing penetration of a form of orthodox Islamist legalism which seems to antagonise non-Muslim minorities and unduly homogenises its Malay-Muslim population. The cut-off point for this article is Abdullah Ahmad Badawi's tenure as Prime Minister of Malaysia, which drew to a close in April 2009 under embattled circumstances. Historical Background It has been widely established that Islam in Malaysia locates its provenance to seventh/thirteenth century peripatetic Sufi missionaries whose trading guilds simultaneously played the role of fronts for proselytisation.1 As the indigenous Malays were then deeply steeped in Hindu-Buddhist and animist traditions, the Sufis prioritised social over politico-legal transformation. Many elements of the pre-Islamic customs were initially incorporated as part of early Malay- Muslim polity, giving rise to the once-popular view of Malaysian Islam as being imbued with syncretic qualities. Islam in traditional Malay society has not uncommonly been discussed in terms of constant tension between shar'ah (Islamic law) and adat ['dah] (customary law).2 In terms of legal systems, as documented by Winstedt,3 contradictions between the shar'ah and indigenous legal digests of pre-colonial Malay states abound. Nevertheless, there was evidence of the politico-legal structures of medieval Malay states gradually being Islamised, such that by 1908, wrote colonial administrator R.J. Wilkinson, There can be no doubt that Moslem law would have ended by becoming the law of Malaya had not British law stepped in to check it....4 This checking came in the form of treaties between the British and Malay states which bound Malay rulers into accepting a ceremonial role as protectors of Islam and Malay custom. Clause VI of the Anglo-Perak Pangkor Treaty of 1874, a model for subsequent British treaties with other Malay states, specified that a British Resident's advice must be asked and acted upon on all questions other than touching Malay religion and custom.5 Malays' individual lives were thereafter governed by Muhammadan law, which was essentially culturally defined personal and local religious law applied to those who acknowledge Islamism.6 Through a gradual formalisation of its substantive rules into statute, Muhammadan law became a prelude to the Civil Law Enactment for the Federated Malay States, which recognised English law as the law of the land.7 In 1951 its application was extended to the whole Federation of Malaya, formed in 1948 out of the former Federated Malay States and the Unfederated Malay States. The Civil Law Ordinance of 1956 secured a permanent place for English law in Malaya's legal system. …

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