April 22, 2012
Malaysia's Muddled Experience with Islamic Law
Guest Writer: Rusman
We all know which Malaysia has turn some-more as good as some-more 'Islamic' over a final twenty years. By 'Islamic' we meant not which people have turn some-more inclined towards personal piety, to strive for establishing justice as good as forgiveness upon a Earth, etc. Rather we have been referring to a external dimension of Islam whereby we see institutionalized sacrament crystallized in a form of an official bureaucracy which seeks to legitimize itself by exerting social, cultural as good as domestic influence upon Malaysia.
There have been various reasons for this. Certainly there has been a tellurian resurgence of Islamic temperament brought upon in opposite countries for opposite reasons as a response to modernity, secularism, crass consumerism, colonialism as good as neocolonialism, export of Saudi beliefs saved by Saudi petrodollars. we could go on.
In Malaysia a little of these factors have been additionally relevant. But we can additionally attribute a increase to a concerted bid by a supervision as good as statute party to create as good as make firm a array of executive institutions written in partial to be during home Malaysia's muscles as a complicated though very Islamic country. And during a back of these evidently unbiased public policy decisions was certainly a little domestic motives driven by a foe in between UMNO as good as PAS to attract a conservative Malay Muslim voter by being seen as a loyal defender of a faith.
As of late a tongue around Malaysia's so-called Muslim temperament has reached a turn of a irrationality. Over a final few years we have seen rulings such as a banning of yoga, a banning of non-Muslims regulating a ! word All ah, a enlistment of neighborhood Imams as practical eremite police with a energy to arrest. In Kedah, a state governed by PAS underneath a banner of Pakatan Rakyat, a statute which creates Islamic fatwas unchallengeable in a court of law is nonetheless another e.g. of a light encroachment of Islamic law into a space of Malaysia's physical authorised system.
As an outside observer of Malaysian ruling body a officious confusing. Where does eremite management distortion in Malaysia? With a sovereign supervision as good as a most agencies as good as bureaus of religion? With a sultan? With a state governments? With imams? What have been a authorised implications of a fatwa in Malaysia?
Tamir Moustafa, Associate Professor during Simon Fraser University in Canada has a stirring essay inLaw as good as Social Inquiry entitled "Islamic Law, Women's Rights as good as Popular Legal Consciousness in Malaysia. [Tamir Moustafa: Islamic Law in Malaysia]
His essay raises a little valuable insights about a history as good as growth of Islamic law in Malaysia to improved assimilate a little of a questions we raise above. Moustafa's design is to assimilate if there is a disconnect in between "fundamental unpractical principles in Islamic authorised theory as good as how those concepts have been understood among lay Muslims in Malaysia."
It is critical to appreciate a fanciful horizon of Moustafa's argument- which is to differentiate in between sharia as good as fiqh. Sharia is a Divine Law as suggested by God. Fiqh is a man done laws as good as regulations formed upon lawful sources of Divine Law: 1) a Quran 2) traditions of a Prophet Muhammed 3) qiyas (analogical reasoning) as good as 4) ijma' (scholarly consensus). [In tangible actuality a methodology is some-more complex which this as good as takes into comment most some-more including local custom am! ong alte rnative things; however for a purposes of this blog we'll keep things simple].
Moustafa aims to find out how good do Malaysian Muslims assimilate a difference in between a Sharia as good as a laws which they follow in Malaysia which have been pronounced to be Sharia, though which have been in tangible actuality fiqh, by definition, because, as he demonstrates, they have been neither formed upon any approach fashion from a Quran or a Sunnah.
Citing William Roff's 1967The Origins of Malay Nationalism
A approach outcome of colonial order was to illustrate to encourage a concentration of doctrinal as good as executive eremite management in a hands of a hierarchy of officials directly contingent upon a sultans for their position as good as power. . . . By a second decade of a twentieth century Malaysia was equipped with endless machine for ruling Islam. (pg 72-73)
Moustafa explains which in a span of less than 100 years there emerged in Malaysia a vast eremite bureaucracy intended to centrally carry out control of a a eremite hold up of Malaysia (as opposed to leaving it decentralized as good as autonomous).
Furthermore what is truly shocking about this institutionalization as good as codification of a laws ruling a Islamic sacrament is which theShari'a Criminal Procedure Act (1997) as good as a Shari'a Civil Procedure Act (1997) borrow during length from a horizon of a polite courts in Malaysia. Moustafa says which "[t]he drafting cabinet literally copied a codes of procession wholesale, making usually minor changes where needed."
Citing Abdul Hamid Mohamed, former Chief Justice of a Federal Court, who was upon a drafting cabinet for various sovereign as good as state shari'a procedures acts in a 1980s as good as 1990s:
We motionless to take a existing laws which were right away in use in a usual law courts as a basement to work on, mislay or substitute a disgusting parts, supplement whateve! r indisp ensable to be added, make them Shari'ah-compliance [sic] as good as have them enacted as laws. In fact, a process as good as which "methodology," if it can be so called, continue until today.
The supplies of a Shari'ah rapist as good as polite procession enactments/act are, to a vast extent, a same as those used in a usual law courts. A graduate in law from any usual law country celebration of a mass a "Shari'ah" law of procession in Malaysia would find which he already knows during least 80% of them . . . a usual law lawyer celebration of a mass them for a initial time will find which he is celebration of a mass something familiar, territory by section, even word for word. Yet they have been "Islamic law." (Mohamed 2008, 12, 10)27
Moustafa adds which Abdul Hamid Mohamed himself, as good as most alternative authorised personnel concerned in a codification of Islamic authorised procedures in Malaysia DO NOT have any grave preparation in Islamic jurisprudence. Let me repeat. The laws which oversee Islam in Malaysia were codified by most people who have no grave training in Islamic Jurisprudence.
I'm starting to assimilate a single of a reasons because a issue of management as good as Islamic law in Malaysia is so confusing. It's because a people who set up a complement in a initial place were themselves expected confused as good as had no genuine idea what they were during from a standpoint of Islamic jurisprudence. Whether intentionally or unknowingly, their lack of familiarity with a topics they were opposed was a single reason because Islamic authorised theory was subverted or ignored even though these individuals probably felt they were operative for a consequence of Islam.
Moustafa's conclusion is:
The eremite councils, a shari'a courts, as good as a entire executive apparatus have been "Islamic" in name, though in function they bear little resemblance to anything which existed prior to a British arrived. A deep paradox is th! erefore during play: a legitimacy of a eremite administration rests upon a emotive energy of Islamic symbolism, but a principal mode of organization as good as operation is fundamentally secure in a Weberian state [i.e which state which wishes to have a monopoly of [violent] carry out over a people].
We'll examination a formula of a survey Moustafa conducted in Malaysia upon a later post. For right away we consider it's inestimable to discuss what these contribution meant for Islam as good as Muslims in Malaysia.
Politics aside (and ruling body fool around an critical purpose no doubt), when Malaysians fastener with a trials as good as tribulations of how to be a good, practicing Muslim in a complicated world, they have been not usually opposed a formidable adversary in a prevailing materialistic, secular, consumer-driven culture of expenditure as good as present benefit which is encroaching upon every open society.
In addition they have to confront incredibly aggressive and, a single might argue, ill-conceived bureaucracy of Islamic affairs which exists via Malaysia. Given which most of a laws enshrined in this bureaucracy have been not even remotely formed upon derivations from normal Islamic sources though have been some-more expected vestiges of British colonial law "adapted" to an Islamic language, what kind of Islam have been Malaysians supposed to be following? Furthermore if a people entrusted with a controls of these organizations have been themselves sick qualified to carry out their tasks, then where have been Malaysian Muslims to turn as good as what chance do they have when a complement (inevitably) fails to operate in a only as good as truly Islamic manner?
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