Deepening the “zero-sum binary”

Tamir Moustafa’s book Constituting Religion: Islam, Liberal Rights, and the Malaysian State provides a historical and theoretical explanation for how a series of never-ending and endlessly written-about jurisdictional battles in Malaysia concerning religious conversion, custody, and “body snatching” came to be. (Decades old, some of these cases remain contemporary as the courts—and scholars—continue to revisit them.) Moustafa provides a comprehensive and, to my mind, definitive explanation for what he calls the “fault line down the middle of the Malaysia judiciary”—a crisis in jurisdiction brought about by “the judicialization of religion,” that is, when courts increasingly adjudicate questions and controversies over religion in a setting ripe for legal complexity. He speculates—and this is a key contribution of his book—why and where such fissures might happen. That they happen in Malaysia has “little to do with religion itself” and “everything to do with the regulation of religion (as a state project).” Tracing that project from the colonial era to Malaysian Independence and to a bifurcated legal regime and constitution that, in distinguishing Muslims from non-Muslims, “sowed the seeds for protracted legal battles later,” Moustafa describes the bitter fruit those seeds ultimately bore with the passage of Article 121(1A) in 1988.

This constitutional amendment, meant to clarify matters of jurisdiction between civil and syariah courts, had the opposite effect. It not only increased legal ambiguities, but also stirred up social and public discord as it produced a series of highly publicized, controversial, and emotionally fraught court cases dealing with personal status law for Muslims and those non-Muslims ensnared by it. At the same time, increasingly illiberal adjudications involving Muslim personal status law in Malaysia has widened the dichotomy between sharia and civil law, leaving the debates over these domains, and the dilemmas—often heartbreaking—of petitioners unresolved. These controversies and legal debates have made Malaysians more keenly aware of sharia’s legal machinery and status, and have generated heated debates over sharia’s reach and role, polarizing Islamist-leaning activists and their more or less more secular counterparts into what Moustafa calls a “zero-sum binary between rights and rites.” His book ends on a troubling note: “once this process starts, it tends to feed upon itself.”

Moustafa briefly mentions another space where judicialization of religion in Malaysia is taking place. He notes: “Recently, the civil courts have ceded jurisdiction in areas outside the domain of personal status law. A good example of this concerns the authority of the Sharia Advisory Council of the Central Bank of Malaysia vis-à-vis the civil courts.” This is where my own work on Malaysia’s Islamic economy and its religious/legal “gatekeepers” begins—and where, I argue, Islam’s “rites” increasingly—but with much less public drama and scrutiny than high-profile Article 121(1A) cases—become legally institutionalized Islamic rights. Some background is necessary on this point.

As Moustafa notes, sharia jurisdiction in much of the Muslim world concerns personal status law, that is, munakahat. Munakahat is merely one domain of sharia; there are four in total. Commercial law in Islam concerns the sharia domain known as muamalat. (The others are ibadat [the rituals and practices of worship and belief] and jinayat [rules that state penalties for crimes and offences]). Malaysian commerce officially entered the realm of muamalat when it ratified its first Islamic Banking Act in 1983. This paved the way for the development of Malaysian Islamic finance. It meant that certain banks and financial institutions were licensed to transact in sharia-compliant business and products, while somewhat perplexingly, Islamic commercial law remained in the jurisdiction of civil, not syariah, courts. However dissatisfying this was to the growing community of Islamic bankers, the reasons for maintaining civil jurisdiction over muamalat were manifold: syariah courts dealt with Muslim persons and the personal status of non-Muslim others connected to them, as the Article 121(1A) cases demonstrate, while Islamic banks theoretically could and in practice do transact business with non-Muslims. Many Islamic financial operations, although their financial practices were premised in sharia, thus still fell under civil laws pertaining to contracts, incorporation, and bankruptcy. Finally, syariah courts lacked the necessary procedural rules to engage with the complex nature of business cases. Therefore, when inevitable conflicts emerged between Islamic financial institutions and litigants, civil courts heard the cases, uniformly applied civil and common laws in settling them, and rendered secular, not Islamically-based, decisions.

But in 2009, after a series of problematic court cases involving customers of Islamic banks in which civil judges reversed or ignored fiqh al-muamalat principles that theoretically governed Islamic contracts in Malaysia, Parliament passed the Central Bank of Malaysia Act 701. The new law stated that the legal opinions or fatwas issued by the elite members of the Sharia Advisory Council (SAC) of the Central Bank were the final and sole authority concerning “the Islamic law on any financial matter” (Laws of Malaysia, Central Bank of Malaysia 2009, Act 701). Any court or arbitrator was then bound to apply sharia rulings made by the SAC or required to refer any question concerning Islamic business to it for a fatwa. Like the earlier move in 1988 when the Constitution of Malaysia was amended by Article 121(1A) to establish that civil courts had no jurisdiction over syariah courts, this act granted members of the SAC (all of them Islamic scholars)—and their sharia opinions—unprecedented legal status in Malaysia (even though the Sharia Advisory Council is not a judicial body).

Moreover, a further adjustment to federal law stated that members of the SAC would henceforth be appointed by the Yang Di Pertuan Agong (king), after consulting with the Conference of Rulers and the Prime Minister. This procedure not only meant that sharia advisors on the SAC were appointed via the same federal-level mechanism applied to civil court judges, it also distinguished them from sharia judges, who hear cases related to Islamic personal-status law and infractions of certain Islamic criminal laws in Malaysia’s individual states and, who are, by contrast, appointed by the sultans of their individual states. This meant many firsts for Malaysia’s judicial system—and by implication, a much greater binary between “rights and rites” than Malaysia has yet seen.

For the first time in Malaysia’s history, sharia interpretations made by sharia advisors regarding muamalat could have an impact in the realm of civil law. For the first time in Malaysia’s history, their sharia interpretations could be applied to non-Muslim persons who were litigants in cases concerning muamalat, thereby binding people, regardless of their religion (such as the Malaysian Chinese, who are the primary retail customers of Islamic finance), to Islamic law. For the first time in Malaysia’s history, sharia advisors’ precepts concerning sharia could be applied to legal entities—that is, corporate, public, and private institutions—which were not persons and therefore constitutionally did not have a religion. For the first time in Malaysia’s history, a constitutional premise was in doubt, as the Federal Constitution states that no other body can make a decision in a legal dispute except a court and that any law authorizing or conferring such power to any body other than a court of law to decide a legal dispute is unconstitutional.

But unlike Article 121(1A) which established that civil courts had no jurisdiction over syariah courts and generated decades of controversy about the personal statuses of Muslim and non-Muslim litigants in Malaysia, no Islamist or secular activists spoke out about this Act; no public alarms were raised. Not only were these parliamentary adjustments with significant constitutional implications made without public debate or knowledge, now sharia had enforceability in civil law sectors. The changes seemed largely to escape the notice of critics and NGOs concerned with the Malaysian government’s efforts to widen the scope of sharia over civil and federal law and the secular rights defended by the 1957 Malaysian Constitution. Finally, at the very moment I write this, sharia’s position concerning muamalat over civil law has been confirmed. On April 10, 2019, the nine-member Federal Court Bench handed down a landmark majority judgement stating that any decision by the SAC (again, comprised of a set of sharia experts but not a judicial body) is “constitutional and binding on civil courts” and supersedes them on sharia matters. Citing Sections 56 and 57 of the Central Bank of Malaysia Act 701, which granted total finality to the SAC’s decisions, the Federal Court determined that these sections were constitutional. Via Islamic finance, “rites” have increased their power over “rights” in Malaysia.

What are the possible outcomes of moves of this kind? Few critics of the Islamization of the Malaysian state have noticed these incremental but possibly monumental legal adjustments. It seems generally true that the advancement of sharia in Malaysia’s Islamic economy, where financial products focus on global commerce, market expansion, and profit, rarely implies the conservative, repressive, illiberal, and intrusive premises that sharia over persons does to critics in Malaysia and elsewhere who worry about its imposition. To many observers, Islamic economics is clearly the most acceptable of religious judicializations, allowing Muslims to operate adroitly within (and profit from) capitalism. Moustafa warns that when the “rights-versus-rites-binary” is seen as a zero-sum game, “it tends to feed upon itself.” To his statement I add the words of one of my interlocutors, who serves now in the role of “judge” on the Central Bank’s empowered and elite SAC, who told me that the ease with which Malaysians have accepted advancing the sharia of muamalat over civil law will pave the way for further and broader Islamic regulation; to him, it was the thin end of the wedge to advance the cause of sharia in all aspects of Malaysian life. To echo what Moustafa says about the legal consequence of such “zero-sum” polemics, “once the process starts” who knows where it will end.