demarginalizing the sharia

20 Pages·2016·0.17 MB·English

DEMARGINALIZING THE SHARIA: MUSLIM
ACTIVISTS AND LEGAL REFORMS IN MALAYSIA
Syed Muhd Khairudin Aljunied
Abstract: This article examines the active roles played by Muslim activists in agitating for
the expansion of the functions of Sharia (Muslim legal and ethical code) within a given
country’s constitution and in society at large. Using the Angkatan Belia Islam Malay-
sia (ABIM) – the largest Muslim youth movement in Malaysia – as an illustrative case
study, the article examines a process which I term as “demarginalizing the Sharia” by
Muslim activists, which connotes an endeavour to reformulate and reassert the position
of the Sharia to cover all aspects of the country’s laws. Building upon recent works on
Islamic activism and drawing from various strands of social movement theory, this essay
attempts to conceptualize and explain the various tactics which Muslim movements such
as ABIM had adopted to make the case for the Sharia to wield a wider influence in the
public domain. Among the tactics which will be discussed are institutional subversion,
ideological collaboration and dramatic contention, all of which have been utilized by
Muslim activists since the advent of global Islamic resurgence in the 1970s.
Keywords: Sharia, Muslim activists, Malaysia, tactical repertoires, demarginalization
Introduction
It is now widely accepted that the movement for the implementation of Sharia is
one of the most significant developments facing the Muslim world today. In
Indonesia, Nigeria, Sudan, Pakistan, Egypt, Iran, and even the once “secular”
Turkish state, advocates of the Sharia have become more and more visible and
influential. Taking on a variety of strategies to push for the implementation of the
Islamic legal and ethical code so as to regularize the personal bearing of Muslims
and their social conduct, these Sharia-minded activists contend that Muslims have
been bound to systems and ideologies that are foreign to the spirit of Islam because
of legal frameworks that were imposed upon them during the colonial era. Sharia,
then, is seen as but one (if not the most important) means by which the Muslim self
can be reconstituted and preserved. Indeed, the most vehement of believers regard
Sharia as the means to accomplish a complete change in the lives of ordinary
Muslims and to reconstitute an ideal Muslim social order.1
Syed Muhd Khairudin Aljunied, National University of Singapore.
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This article examines the dynamics and impact of Sharia activism – a form of
contentious struggle that seeks to reassert the Islamic legal and ethical code as a
frame of reference that would guide the daily actions, practises, and discourses of
Muslims and non-Muslims alike. I will focus my attention on Malaysia, a country
that has been relatively under-researched in the expanding literature on the topic,
despite the fact that Malaysia is home to close to 20 million Muslims of varying
ideological and linguistic backgrounds and is a major player in the Muslim world.
Since the 1970s, Malaysia has witnessed endeavours by Islamic groups to imple-
ment the Sharia as part and parcel of these groups’ shared dream of creating an
“Islamic state” (Mutalib 1993).
The attempts by the local PAS (Parti Islam Semalaysia) government to impose
hudud laws in Kelantan in the early 1990s was one of the most pivotal moments in
the history of Sharia activism in the country (Seda-Poulin 1993). This experiment
in the total implementation of the Sharia, along with others that follow soon after,
invited responses from politicians in the national ruling party, UMNO (United
Malays National Organization), to initiate reforms that would give more promi-
nence to the Sharia in the public sphere. Since both rival parties have competed
with each other to display their credentials as the “true defenders and enforcers” of
Islamic laws and precepts in Malaysia, much ink has been spilled by scholars and
analysts in delineating the underlying reasons and effects of such overtures. It is,
perhaps, little surprise that most observers have paid scant attention to the roles of
civil society actors and their resolve to bring the Sharia to the forefront of legal
and social reforms in Malaysia. Scholars working on this topic have tended to
adopt a descriptive approach rather than an analytic one, or an approach that is
prescriptive rather than theoretical and conceptually nuanced (see, for example,
Kamali 2000).
In moving away from the inordinate attention given to the PAS-UMNO rivalry
in Sharia activism and attempting to fill the reflexive and theoretical gaps in the
literature, this essay focuses on the roles of the Angkatan Belia Islam Malaysia
(ABIM), a civil society organization that has been deeply involved in Sharia activ-
ism since its founding in 1971. Priding itself on a membership of more than 65,000
youths, all of whom are below the age of 40 years, and maintaining branches in
several Muslim majority and minority countries, ABIM has produced globally
recognised Muslim personas in the likes of Anwar Ibrahim, the former deputy
prime minister of Malaysia and current leader of the coalition of opposition par-
ties, and the Muslim philosopher-historian Professor Osman Bakar. ABIM has
also developed the reputation, both locally and internationally, of being part of the
Muslim counter-public sphere that appeals to Islam as an axis of difference and as
a tool of reformation. By challenging and demanding the reformation of the secu-
lar systems that have been established in Malaysia, and by continuously agitating
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DEMARGINALIZING THE SHARIA 129
for more room for the Islamization of the state and society in the last four decades,
the movement has earned the rather hyperbolic label of serving “as a transmission
line for fundamentalist political ideology” (Rabasa 2004: 388).
Much like the Ikhwanul Muslimin in Egypt and Sudan and the Jamaat-e-Islami
in Pakistan, ABIM activists devoted themselves to circulating Islamic counter-
discourses and “formulat[ing] oppositional interpretations of their identities, inter-
ests and needs” (Fraser 1992: 123). Among such counter-discourses and
oppositional interpretations are those that relate to the Sharia. This essay develops
the argument that one of ABIM’s main thrusts has been to demarginalize the
Sharia through the use of tactical repertoires so as to elevate the Sharia from the
marginal position that it has occupied since the coming of colonialism to what is
now Malaysia, to a much more prominent position that would address almost all
aspects of life in this nation. I use the term “demarginalizing Sharia” to refer to a
process by which the Islamic legal and ethical code is being redefined, repackaged
and represented in a manner that departs from its parochial mould of covering
specific areas of family and property laws. It is a process that runs parallel with
what Jose Casanova has termed as the “deprivatization of religion,” a turning point
in modern history that began in earnest in the 1970s. The “deprivatization of reli-
gion” is a process by which religions or aspects of religiosity have attained a wider
public significance in modern-day societies (Casanova 1984). Dissatisfied with
the fact that divine laws and injunctions have been marginalized to deal with only
specific areas of Muslim life, Muslim movements such as ABIM seek to expand
the scope and reach of the Sharia to include criminal laws, business activities and
other aspects of social and political life that have been placed under the jurisdic-
tion of secular courts in modern nation-states.
Because of the contentious nature of any efforts to “demarginalize the Sharia,”
such a venture would inevitably necessitate negotiations and conflicts with key actors
in society whose interests and interpretations of laws and morality have been condi-
tioned by norms that may run counter to those that are propagated by Sharia activists.
In the Malaysian context, Sharia activists have been especially entangled in contesta-
tions with the ruling state. The raison d’être of the Malaysian state as defined by its
constitution is to ensure the protection of the equal rights of Muslims and non-Mus-
lims alike, while upholding a strict division between the sacred and profane (Kheng
2003: 51). Sharia activists, in contrast, have called for more restrictions to be placed
upon non-Muslim Malaysians, especially in areas related to the conversions out of
Islam. The state is thus placed in the uneasy position of acquiescing to the demands
of Sharia activists, who are influential persons in society, while having to defend the
constitutional guarantees to protect the freedom of religion in the country.
The second tier of key societal actors that Sharia activists have had to contend
with consists of secularized intellectuals and leaders of civil society groups. These
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societal actors regard the process of demarginalizing the Sharia as running counter
to the exigencies of modern life whereby religion should be a private and personal
matter that does not inform public morality. Sharia activists are locked in an ideo-
logical position that requires them to rationalize the expansion of the scope of the
Sharia while competing with other civil society groups to win the hearts and minds
of the general public.
Indeed, Sharia activists must also grapple with the task of shaping the sensibili-
ties of the informed masses, the ordinary yet well-read laymen on the street who
may all too often consider the efforts of demarginalizing the Sharia as either
impractical or undesirable, or as an exercise of futility. This factor is especially
important in Malaysia given that non-Muslims form nearly 40% of the total popu-
lation. Their scepticism towards the implementation of the Sharia and towards
Islam in general is a result of their experience of being marginalized within a
nation-state that promotes Malay supremacy (e.g., Baxtrom 2008).
Viewed from this perspective, ABIM’s struggle to demarginalize the Sharia is
therefore fraught with multiple barriers and impediments that may hamper its pro-
ject of reform. I will show in the pages that follow that ABIM has negotiated its
way through these obstacles through the use of tactical repertoires that include a
range of tactics to tenaciously propagate the demarginalization of the Sharia.
Tactical repertoires are “established ways in which pairs of actors make and
receive claims bearing on each other’s interests” (Tilly 1995: 43). They are, as
social movement theorists have it, periodic and yet predictable, and serve as “tool-
kits” (Taylor and Van Dyke 2007: 266) that are often used by movement activists
to further the contentious aims.
Four main tactics can be identified, and these tactics are not sui generis to
ABIM. Rather, such tactics are often used by Muslim activists globally to push for
the demarginalization of the Sharia in their home countries. Quitan Wiktorowicz
(2004: 3) puts it well when he wrote that the tactics used by Muslim activists are
but “common instruments in repertoires that exhibit consistency across time and
space.” The most important of these tactics, which I will elucidate in the pages that
follow, is institutional subversion. This tactic involves movement activists’ strate-
gic entry into state bodies and political parties to further the agenda of expanding
the functions of Sharia in Malaysia – sometimes discretely, and other times openly.
While infiltrating state and political bodies has provided ABIM members with the
political influence needed for the demarginalizing of the Sharia, there are limits to
how far politicians can gain the backing of intellectuals and other social activists
who are proposing new reforms in Malaysia’s legal framework. ABIM has there-
fore adopted the tactic of ideological coalition with many independent thinkers
and non-governmental organizations (NGOs) that share its aspiration of demar-
ginalizing the Sharia. The third tactic is dramatic contention in the form of public
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DEMARGINALIZING THE SHARIA 131
demonstrations, protests and the use of policing agencies that have sometimes
been organized in concert with other civil society groups. This third tactic is usu-
ally used as and when the first two tactics seem inadequate or do not appear to
achieve enough public attention for a particular issue.
It should be stressed here that ABIM has consistently employed these tactics
over the past four decades since the 1970s. Of course, ABIM was not alone in
campaigning for the demarginalization of the Sharia in Malaysia; other groups
have also worked towards that goal. Efforts by ABIM and other organizations
have strengthened the existing provisions in Malaysia’s constitution relating to
Sharia while bringing about reforms in areas involving Muslims and Islamic
affairs.2 In addition, the employment of these tactics over the years has given rise
to conflicts between secular and religious courts and other affiliated personalities
and institutions, with ABIM supporting the religious courts’ claims for more
autonomy and interference in legal matters affecting Muslims and sometimes non-
Muslims in Malaysia. Did ABIM derive any inspiration for successful models and
thinkers from overseas in the course of employing these tactics to demarginalize
the Sharia in Malaysia? How have secular intellectuals and civil society actors
resisted ABIM’s Sharia activism? Have there been any shifts in the public recep-
tion of ABIM’s efforts over the years? More importantly, what changes in the
Malaysian constitution have come about as a result of ABIM’s tactics of infiltra-
tion, coalition, contention and persuasion? Answering these and other related
questions may enable us to comprehend how Muslim activists can seek to elevate
the status of the Sharia in society and the tactics they employ to achieve that end.
A deeper implication of this is that such a study will reveal the impact that legal
dualism has had in a country where Muslims are predominant and where Islamic
consciousness and Muslim politics have been on the rise. And yet, before delving
fully into ABIM’s tactics to demarginalize the Sharia, I will first outline the
peripheral place that the Sharia has occupied under the Malaysian constitution and
the wider context that fostered Muslim activist groups to agitate for radical change.
Islam in the Malaysian Constitution and Muslim Resurgence
Sharia was relegated to a marginal position in Malaya during the colonial era. The
consolidation of British colonial rule in Malaya in the 1920s gave birth to a system
of “legal dualism” which meant that secular laws predominated in all legal matters
in the colony, with the Sharia covering specific aspects pertaining to Muslim life
(Harding 2010: 495). Under this new legal arrangement, each of the Malay states
was allowed to enact its own respective Sharia laws in line with the adat (customs)
of Malay society but covering only the areas of family laws, waqf (Islamic endow-
ments), the structure and jurisdiction of Sharia courts. The Majlis Ugama Islam
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(Islamic religious councils), managed by a group of kathis (Muslim judges), ula-
mas (religious scholars) and muftis (expounders of Islamic laws), would advise
the sultans of each state on issues pertaining to the personal laws of Muslims. The
Sharia’s importance within the overall legal system of the country grew increas-
ingly inconsequential over the following decades, due to the colonial arrangement
and inattention by both the Muslim and colonial elites in the running of Muslim
affairs in general. The Sharia in Malaya was not only divorced from its ideal form
of being a comprehensive legal and ethical code and marginalized to apply only to
insignificant areas affecting Muslims in the colony. Under British colonialism up
until Malaya achieved independence in August 1957, there was no proper supervi-
sion of the Sharia courts which had been created to enforce the laws that remained
under Muslim purview. The legal scholar and activist Ahmad Ibrahim, who was to
play a major role in the reformation of the Sharia, described the Sharia courts in
the following manner:
In contrast to the [civil courts], the Sharia courts were for a long time neglected
and forgotten. There were no independent juridical and legal services for them
and the judges and officers belonged to the general admistrative service and
were subject to the control of the Religious Councils and the religious departments.
The judge of the Sharia High Courts did not have the independent statues,
remuneration and terms of service of the civil judges. The facilities for the Sharia
Courts were far below those provided for the civil courts. (Ibrahim 2000: 194)
The problems of neglect and the lack of adequate resources were just the most
obvious of a multitude of issues that would surface in later years. In constructing
the new constitution of Malaysia, postcolonial leaders in the likes of Tunku Abdul
Rahman upheld the colonial legal framework that ensured that the Sharia would not
be the law for all Malaysians, or even the whole law for Muslims. Such a stance
towards the Sharia in the immediate post-independence was, of course, not unique
to Malaysia. In his recent study titled The Impossible State, Wael Hallaq (2013: 2)
notes that postcolonial nationalist elites in many Muslim majority countries
maintained the structures of power they had inherited from the colonial
experience and that, as a rule and after gaining so-called independence for their
countries, they often aggressively pursue the very same colonial policies they had
fiercely fought against during the colonial period. (see also Hooker 1993)
Indeed, while Islam has always been entrenched in the constitution of independent
Malaysia, the place of Sharia within the country’s legal code and practice has been
ambiguous and contentious from the start.
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DEMARGINALIZING THE SHARIA 133
Such ambiguities are illustrated by the following examples. Article 3 (1) of the
Malaysian constitution states that Islam is the official state religion and that laws can
be created and enforced to punish Muslims who contravene Islamic precepts. Still,
an exception was made in regard to crimes which came under the jurisdiction of the
secular federal law. Article 11, in turn, provides for freedom of religion by stating,
“Every person has the right to profess and practice his religion, and subject to Clause
(4), to propagate it.” However, Clause (4) allows states to restrict the propagation of
non-Muslim religious doctrines and beliefs among Muslims. The maximum penalty
for a violation of this law is one year’s imprisonment and a RM3,000 fine.3
The ambiguous nature of the constitution and the relative autonomy of the
states also meant that every state in Malaysia could enact and revise its own Sharia
code, subject to approval by the federal government. As Constance Chevallier-
Govers (2010: 24) observes, Islamic laws
are different from State to State. This lack of uniformity in shari’ah [or Sharia] law
is a consequence of the constitutional framework. The rules of shari’ah are set by
various Sultans, who serve as head of the Islamic religion in the respective States.
Eid-ul-Fitr (a day that marks the end of the fasting month), for example, was cel-
ebrated on different days by different states in the 1980s. Also, religious preachers
who were outlawed, banned or suspended from preaching in one state could easily
find a safe haven in another state.
Hence, until the 1970s, the Sharia’s position remained marginal mainly because
such ambiguities were never resolved and because of the secularized environment
that existed in Malaysia then. Both the Malay Muslim elites and the society at large
saw the Sharia as largely symbolic, to be respected and held in high regard but not
to be privileged above and beyond the secular laws. To be sure, while Islam did
encroach into the public life of Malaysians in areas such as state ceremonies, gov-
ernment patronage of Islamic conferences and Quranic reading competitions, and
the use of public funds to set up Islamic institutions and propagate Islamic values
in society, these gestures by the state were seldom seen as intrusive by the non-
Muslims and were even taken as merely symbolic by many Muslims in the country.
The change came with the advent of the Islamic resurgence, or what is often referred
to as the da’wah (missionary) movement (Seda-Poulin 1993: 231).
The 1970s and 1980s witnessed the emergence of Muslim movements agitating
for the implementation of Sharia in Muslim countries. This was part of the global
Islamic resurgence that affected the Muslim World in general. During this period
of religious effervescence, several Muslim majority countries went so far as to
amend their constitutions so that Sharia norms would determine the substance of
state laws (Brown 1997; Lombardi 2006). One of the countries that would soon
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follow this trend of Sharia activism was Malaysia. Among the groups that advo-
cated for the demarginalization of Sharia in Malaysia was ABIM.
ABIM was founded in 1971, a crucial moment in Malaysian history in the wake
of the racial riots of 1969. A whole host of NGOs were created during this period,
ranging from those that agitated for women’s rights, freedom of speech, social
justice, environmental protection and religious pluralism (Ghee 1995). Most activ-
ists were well-educated. As a generation, many of these activists – especially those
from the Muslim community – all moved into prominent political, economic and
civil society positions in the decades that followed. The genesis of ABIM could
also be traced to the influence of the Ikhwanul Muslimin in Egypt and, to a lesser
extent, the Jamaat-e-Islami in Pakistan. However, these youth Muslim activists
were also sensitive to the exigencies of the Malaysian context, which led them to
avoid a blind adoption of the methods and modes of thought inherent in move-
ments outside Southeast Asia.
ABIM’s main thrusts were to disseminate a proper understanding of Islam to
the Malaysians, to bring about the creation of an Islamized society and to establish
a Muslim polity in Malaysia (Muzaffar 1987; Urwah 1989). By the late 1980s,
ABIM activism, along with other Muslim groups such as Darul Arqam, Jamaah
Islah Malaysia (JIM) and Jemaah Tabligh, made the spirit of dakwah (the Islamic
calling) a pervasive phenomenon in Singapore, Malaysia and Indonesia (Hefner
1997). And yet, ABIM stood out among other Muslim activist groups because it
made the implementation of the Sharia one of its core goals and as “a viable solu-
tion to structural Malay disadvantage as well as to communalism” (Nair 1997: 29).
The movement advocated for a democratic and contextualized Sharia. That is to
say, while regarding the Quran, the Sunnah of the Prophet, and the views of the
ulama as authoritative sources for any understanding and formulation of the
Sharia, ABIM however distanced itself from models that have been implemented
in Muslim countries in Africa, South Asia and the Middle East. A contextualized
Sharia is one that is sensitive to local Malay/Muslim practises while remaining
true to the spirit and demands of Islamic legal and ethical code. This interpretation
of the Sharia is very much in keeping with the findings of John Esposito and Dalia
Mogahed (2007) based on data derived from a Gallup World Poll. Like many
Islamic movements and dedicated Muslims in modern nation-states, ABIM mem-
bers expressed “strong support for Islam and democracy” (35) just as they also
“reveal widespread support for Sharia. ... they want neither a theocracy nor a secu-
lar democracy and would opt for a third model in which religious principles and
democratic values coexist” (63). Or, to put it in the words of a former ABIM
President Yusri Mohamad, “An Islamic Malaysia is not the anti-thesis to our
desire to be a successful modern state. On the contrary, it is one of the ingredients
that can successfully bind the various elements together” (“ABIM Says” 2007).
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DEMARGINALIZING THE SHARIA 135
The entry of one of ABIM’s founders, Anwar Ibrahim, into the ranks of UMNO
in 1982 during the premiership of Mahathir Mohamad supercharged the process of
introducing a contextualized Sharia in the country’s laws and courts and the rein-
terpretation of the Malaysian constitution to be in keeping with the spirit of Islam.
In 1988, for example, the Malaysian constitution was amended when a new clause
was added to Article 21. The new amendment specifies that the secular courts
shall not have jurisdiction over subjects within the competence of the Sharia courts
and that decisions made by the Sharia courts cannot be overturned by the secular
courts (Hamayotsu 2003: 61). During the same period and in the two decades that
followed, the Sharia court systems in Malaysia were thoroughly upgraded. New
buildings were built, more Sharia court judges were appointed, and their pay and
recognition were greatly enhanced (Phar 2009: 22).
As ABIM’s activism was soon replicated by other Islamic groups, the ruling
UMNO party was compelled to pursue its own Islamization programme to display
the government’s commitment towards making Malaysia a hub for “Sharia com-
pliant” products and institutions (Shamsul 1995). This was evidenced in the estab-
lishment of the International Islamic University, the Institute of Islamic
Understanding (IKIM), and the Islamic Missionary Foundation of Malaysia
(YADIM), and the founding of Islamic banks, Islamic pawnshops as well as other
financial institutions. So methodical and thorough was this programme of
Islamization that Malaysia was touted by many Muslim countries as a model by
which the demands of the Sharia could be harmonized with those of modernity
(Spiegel 2008: 228; Liow 2009: 55).
Together with these changes came more leeway for Sharia courts to make inde-
pendent decisions of their own in the light of the new provisions of the Malaysian
constitution. The increasing influence of the Sharia courts was seen in the case of
the Lina Joy controversy, which involved the conversion of a Muslim lady to
Christianity and her struggle to be registered as a non-Muslim, which was later
blocked by the Sharia courts. I will return to this case later. Suffice it to say here
that this case became the impetus for Muslim activists to agitate for further consti-
tutional amendments to ensure that Muslims would be prohibited by law from
converting out of Islam. In June 2013, it was proposed in parliament that the
Sharia High Court will be given expansive powers to establish whether or not a
given individual is a Muslim (Malaysian Bar Council, 2013).
Even so, there is a dissonance between what the Malaysian state and Muslim
activists have done to demarginalize the Sharia courts as opposed to what some
Malaysian Muslims feel should be the actual role of the Sharia in society. In an
opinion survey conducted in 2006, Patricia Martinez found that a majority of her
Muslim respondents felt “57% wanted hudud laws implemented” (The Sun Daily
2006). However, a majority, 63.3%, also opted for the Sharia to remain as it is
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under the Constitution in Malaysia (the other answer-option given to the question
was, “The Sharia to replace the Constitution in Malaysia”). Such findings are
revealing of two underlying developments. The first is that there is a growing
receptiveness towards the implementation of the Sharia on the part of ordinary
Muslims. This frame of mind may have been an upshot of decades of Islamization
sponsored by the state under the leadership of Mahathir Mohamad and Anwar
Ibrahim and driven by Muslim civil society groups such as ABIM. The second
issue that emerged from this opinion survey is that Muslims in Malaysia now feel
that there is still much to be done to ensure that the Sharia play a larger role that it
had previously. It is worthwhile then to examine how ABIM has contributed to
making ordinary Muslims more predisposed to the Sharia and the tactics Islamic
activists have employed to initiate changes in the legal framework and procedures
of Malaysia.
ABIM’s Tactical Repertoires
Institutional Subversion
One of the tactics that Muslim social movement activists employ to influence state
policies is to participate in government-linked bodies to bring about social change
and initiate reform in local societies. Muthiah Alagappa (2004: 37) has described
this as “the deep penetration and influence over the state by certain civil society
actors.” By this, he is referring to the creative ability of civil society actors to enter
into various arms of the state apparatus and take up strategic positions in state-
linked bodies, in order to gain access to a range of resources. Such tactics allow
social movement activists to push for mobilization efforts that were previously
impossible due to restrictions put in place by the state. Hank Johnston (2011: 66)
drives this point home by arguing that “it is not uncommon that movement activ-
ists become part of the political establishment, or are already institutionally well
connected.”
It is important to mention here that ABIM members did not immediately delve
into such tactics when the organization was founded; instead, they waited until the
movement had consolidated itself internally. This stance changed a decade later
when the ABIM leadership saw that Muslim movements overseas such as those in
Sudan and Egypt were successful in implementing aspects of the Sharia by sub-
verting state institutions. Another reason that propelled Muslim activists in
Malaysia to join state institutions has to do with strict amendments to Societies
Act that were introduced by Prime Minister Mahathir Mohamad to restrict the
growth of Muslim movements in the country (Crouch 1996: 172; Case 2002: 117-
33). ABIM members thus took several routes to realize institutional subversion.
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