With vivid and compelling writing, Tamir Moustafa in Constituting Religion takes us into the Malaysian state’s creation and management of law that is purportedly Islamic. Following in the line of Talal Asad, Hussein Agrama, and others, Moustafa reminds us that calling this law “Islamic law” is problematic on many levels. Such a naming also plays into the hand of the Malaysian state, which wants Malaysian citizens, and indeed Muslims worldwide, to believe that this state-created law is indeed “Islamic law” with all of the claims to authority that come with such a label. And as Moustafa shows, Malaysia has adopted a vast range of these so-called Islamic laws, covering just about every aspect of life. For readers interested in Islamic law and society, and especially for those who might not have thought that Malaysia is in the company of Iran and Saudi Arabia in terms of the state’s efforts to define and control Islam, Constituting Religion is essential reading.
The central character of Constituting Religion is a provision of the Malaysian Constitution, Article 121 (1A). Adopted as an amendment in 1988, it specifies that the High Courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” The amendment meant that “Muslims would henceforth be subject to the exclusive jurisdiction of the Syariah courts in matters of religion.”
Moustafa is the first to my knowledge to attempt to provide a history of the amendment, linking it to the lawyer Ahmad Mohamed Ibrahim. Ibrahim became an advocate for a greater place for Islamic law in the state after he represented a Muslim family in Singapore that was fighting for the return of their adopted daughter from her Dutch biological parents. Before 1988, civil courts rarely exercised jurisdiction in matters related to the syariah courts, and Moustafa provides some examples of those early cases. But Ibrahim and others sought a constitutional change to “prevent the federal civil courts from overturning state-level shariah court decisions.” Citing Prime Minister Mahatir Mohamed’s expressed need to address the feeling of dissatisfaction among Muslims when a civil court cancels a decision made by a syariah court, Moustafa shows that there was no evidence at the time for such a concern for the feelings of Malaysian Muslims. Rather, it seems fair to say that its advocates were anticipating that conflicts between the civil and syariah courts would develop and thus the amendment was a preemptive move, not a corrective one. And as a preemptive move, it had tremendous consequences.
Once in place, clause 1A served as the basis for significant decisions, and Moustafa carefully covers all or at least most of them in Chapter 4.1 Reading all of these cases together in Chapter 4 reveals an intriguing pattern: all of them involve conversion, either non-Muslims who convert to Islam and then they (or their relatives on behalf of deceased individuals) want to revert back to their prior religion or Muslims who want to convert out of Islam. These conversion cases are heartbreaking because the state refuses to recognize an individual’s ability to determine his or her own religion. What these cases indicate is that from the perspective of the Malaysian governing institutions, keeping these individuals on the Muslim tally is paramount. It is not even about actual behavior, since some of these individuals practice other religions (such as a man named Maniam who, while officially Muslim as a result of a conversion, continued to practice Hinduism but was not able to convert back to Hinduism and be recognized by the state as such).
The question that arises from all of these cases is why conversion? Why are conversions at the heart of all or most of the clause 1A cases? And why are other types of volatile legal issues, such as the implementation of the hadd criminal penalties, not appearing in clause 1A cases?
On one level, there has been a tension between states restricting conversion, or more specifically, conversion from Islam to another religion, and a general human rights principle of the freedom to change one’s religious belief, dating at least back to the formation of the Universal Declaration of Human Rights in 1948. But the Malaysian case has its own very specific reasons for treating conversion as a highly sensitive issue, and Moustafa provides some clues in the demographics he cites. “Malays, who constitute just over half of the country’s population of 31 million, are defined as Muslim by way of the Federal Constitution.” Chinese are about 25 percent of the population and Indian are about 8 percent of the population. “The overall breakdown of the population by religion is approximately 60 percent Muslim, 19 percent Buddhist, 9 percent Christian, 6 percent Hindu, and 4 percent other faiths.”
At the time of the adoption of the Malaysian constitution in 1958, Malays were also at best only 50 percent of the population, and were concerned about holding onto their power in a multiracial and multireligious federation. The constitution included privileges and benefits for ethnic Malays. It also included an establishment clause in Article 3, which reads in part, “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation.” Scholarly work has focused on the drafting history of this clause. As I have noted, “The ruling United Malays National Organization (UMNO) did not seek to include the establishment clause as an expression of the religion of the majority of the citizenry, but rather UMNO and Malays in general sought it so desperately because they were not the majority, at least not a comfortable majority, and feared what the democratic process might bring in the future.” Because constitutionally Malays are Muslim, a benefit for Muslims was basically also a benefit for Malays.
In the contemporary period, as Moustafa notes, “Religious cleavages have arguably eclipsed race, class, and other bases of political solidarity. In a broader sense, Islam has been instrumentalized in the service of the Malay ‘race’.” The concern for those holding onto power has shifted from seeking the highest percentage of Malays possible in the country to seeking the highest percentage of Muslims, all in the service of maintaining and expanding political power.
The seriousness with which the government takes the issue of conversion is reflected in the response to the famous Lina Joy decision, which saw the government adding “religion” to the national identity cards. Moustafa says that “additional regulations were introduced to shore up religious and racial compartmentalization.” If conversion is seen as a threat to the existence of the ruling party, then it is to be expected that additional measures were added to force Muslims to stay Muslims. And it is also to be expected that “most state enactments provide no viable avenue for official conversion out of Islam.”
Seeing the clause
1A cases through the lens of conversion amplifies all of Moustafa’s findings,
including in Chapter 5, where he traces these cases through the courts of
public opinion. Given that conversion cases by definition create the kind of
zero-sum result that Moustafa criticizes—either the state recognizes an
individual by the religion he or she (or his or her relatives) claims to be or
it does not—it is not surprising that “these cases became the focal points for
contestation over a great number of issues, including the appropriate place for
Islam in the legal and political order, the secular versus religious
foundations of the state, the rights of Muslim and non-Malay communities,
individual rights and duties rights in Islam, and perennial questions around
religious authority—that is, who has the right to speak for Islam.” The issue
of conversion and the legal jurisdiction created by clause 1A serve to mutually
reinforce one another and in doing so heighten the stakes for the individuals
involved in the case and the public’s reaction to the decision.
Note 16 on page 143 of Constituting Religion indicates that there are some additional types of clause 1A cases beyond the ones discussed in Chapter 4.↩