by Helen Ting
[ Published in Malaysiakini, 27 August 2007 ]
Recently, the Islamic credentials of our deputy prime minister have been bolstered by his declaration that Malaysia has always been an Islamic state, "with its own interpretation".
Najib Abdul Razak reportedly gave two arguments to substantiate his position. He stated that Malaysia has always been "driven by our adherence to the fundamentals of Islam" and that Islam is the official religion.
He found an unexpected ally on his position. Raja Petra Kamarudin, an influential blogger well known for his "anti-establishment" views, agrees with Najib.
Raja Petra affirms that "the Constitution clearly expressed the more elevated position of Islam over the other religions". This, for him, proves that Malaysia is not a secular state, but a Negara Islam. Raja Petra takes issue with MCA's claim that "Malaysia is historically a secular state". He asks how far back historically they want to take the statement.
It is clearly possible to take contrary positions on whether Malaysia is a "secular" or "Islamic" state, depending on the definition we apply to either word. It is just like arguing whether a half-filled glass of water is half-empty or half-full. Nevertheless, I disagree with Raja Petra that "all these noises are much ado over nothing."
At the beginning of the 1990s, Hussin Mutalib, an academician who made a study on this issue, concluded that it was unlikely that Malaysia became an Islamic state. It is remarkable that within less than two decades, the gravity of the debate seems to have shifted towards what type of Negara Islam or even Islamic state Malaysia is.
The ultimate question boils down to the practical implications of the constitutional status of Islam as the "religion of the federation" which undoubtedly have been expanding progressively. This trend lends its political legitimacy to the discourse that Malaysia is a Negara Islam. Some even go as far as claiming that Malaysia has, historically, always been a Negara Islam.
Half Truth
Those who argue in favour of Malaysia to be an Islamic state like to say as a matter of fact that after all, Islamic law was the law of the land before the coming of the British. This statement is at best a half-truth.
The late law professor Ahmad Ibrahim, the foremost Malaysian authority of Syariah reforms, stated that in early Malay states, neither the ruler nor any governmental organ could legislate on Syariah Law. When a new situation arose, the prerogative to re-interpret it rested on the learned fuqaha (jurists).
In the Constitution of Terengganu promulgated in 1911, Ahmad Ibrahim noted that Islamic laws and religious matters were considered a separate realm from the civil sphere of law making which concerned "matters for the advancement of the country and its welfare."
In addition, religion and Muslim laws were explicitly excluded from legislative activities, be it "making", "adjusting" or "adding to the laws and regulations."
On the other hand, Ahmad Ibrahim noted that the early Malay state constitutions "show traces of the traditional Islamic polity" and stipulated Islam clearly as the "religion of the state."
The paradoxical fact is that the British administrators could actually claim credit for having contributed to the establishment of a modern Islamic bureaucracy.
The establishment of modern state bureaucracy, infrastructure and resources for greater legal enforcement by the British laid the foundation for the establishment of more formal system of Islamic jurisdiction than hitherto existed in pre-colonial Malaya. In effect, the British legislative system of statutory enactment of law becomes the modern vehicle of further Islamisation under the premiership of Dr Mahathir Mohamad.
Legal Bureaucracy
Between 1880 and 1920, Islamic legislation regulating different facets of family lives of the Muslim community was enacted in different states. A legal bureaucracy was created to enforce Islamic legislation enacted in state councils and ensure the functioning of court regulation and the establishment of legal procedures. The first state kathi was appointed in Perak and Selangor in 1880 and 1884 respectively. Though many of the measures had existed haphazardly in the past, the unprecedented feature was their systematic application and the organisation behind it.
In fact, the conception and establishment of a centralised, state-level religious council (Majlis Agama) as an institution for the governance of Islam was first proposed in Kelantan as late as in December, 1915. It later became the model emulated by the other Malay states of the peninsula.
The state councils which enacted this Islamic legislation were presided over by their respective British adviser, though the consent of the Malay Ruler was nominally required for the validity of the laws. The organisation and supervision of the Kathis in matters such as their appointments, salaries, suspensions and dismissals were decided by the respective state council and required the final approval of the governor. By the second decade of the 20th century, extensive machinery for governing Islam was put in place with some sort of state level central organisation to oversee or deliberate on religious matters.
From the point of view of the British administration, statutory enactment of positive laws was meant to provide "Muhammadan law" a form which conformed to British judicial practice while circumscribing it to domains deem acceptable to them. On the part of the Malay ruling class, it was seen as a way for them to extend their influence on Islamic matters.
During the first half of 20th century, the British similarly formalised the application of "Buddhist law" in Burma according to Western legal system, without regards to underlying unwritten custom. A contemporary observer, JS Furnivall, described the situation as akin to a Western doctor looking on native medicine. He commented that, "Indigenous law or custom administered in a foreign court is no less foreign than law proceeding directly from a foreign ruler."
Similar dynamic is perhaps at work regarding the current application of Islamic law in Malaysia. This may explain the current problem of the subordination of Quranic values and principles to fiqh or Islamic jurisprudential tradition as mentioned by Chandra Muzaffar in his recent article on apostasy.
