The plight of Indira Gandhi, a Hindu mother of three children whose estranged husband had converted from Hinduism to Islam and tried to “convert” the couple’s three children, plays a central role in Tamir Moustafa’s Constituting Religion. Whilst a number of legal challenges had been filed by Indira, the most far-reaching constitutional issues arose in a case challenging the conversion of her children. On January 29, 2018, a five-member all-Muslim panel of Malaysia’s apex court, the Federal Court, unanimously quashed the Certificates of Conversion to Islam issued by the Perak Islamic Religious Affairs Authority as evidence of the religious identity of the three children of Indira Gandhi. Two of the children were with Indira at the time of this decision, but the youngest, taken away when just eleven months old, was still with the father who had disappeared. At the time of writing, Indira has still not seen her youngest daughter. (A summary of the entire case, and the Federal Court decision, by Ida Lim of the Malay Mail, can be found here.)
The certificates of conversion, if left unchallenged, were by Malaysian law conclusive evidence that the children were Muslim for all time and thus subject to the Anglo-Muslim law that applies to Muslims in Malaysia. Thus, the children, despite professing themselves to be Hindus, would not have been able to marry a Hindu. They would commit criminal offenses for acts that were only criminal for Muslims in Malaysia, for example, if they ate in public during the Muslim fasting month of Ramadan.
The High Court had earlier ruled in Indira’s favor, but two of the three judges in the Court of Appeal had reversed the High Court. They neatly sidestepped the core constitutional issues by stating that the civil courts had no jurisdiction to hear any matter that touched on Islamic law. This was the state of the case at the time Constituting Religion was written.
The lead judgment in the Federal Court was authored by Justice Zainun Ali, the sole woman judge on the panel. She held that not only did the civil courts have exclusive jurisdiction to hear disputes of this nature, but that Malaysia’s Federal Constitution required both parents to consent before their minor children could be recognized by the state as having been converted to Islam. This had been a key concern of religious minorities in Malaysia, afraid of the increasingly politicized Muslim community using their control of most state institutions to convert their children by unethical means.
I was one of Indira’s lawyers, all of us acting for her pro bono except for some very limited funding to cover out-of-pocket expenses and court filing fees. Human rights lawyers in Malaysia are generally, like me, attorneys who do mostly corporate, commercial, or other fee-paying work and act for victims of human rights abuses on a pro bono basis. I also work with the Malaysian Centre for Constitutionalism and Human Rights, of which I am a founding director, to advance human rights through a mix of strategic litigation, blogging, and training other lawyers.
The decision by the Federal Court marked a sea change in the way the courts dealt with religion and religious freedom issues. To understand why, we must first backtrack a little.
Impact of Indira Gandhi
Practitioners in Malaysia rarely delve into academic texts, and hardly ever delve into research by non-lawyers on the impact of the law on society. Thus, “Anglo-Muslim law” is a term I first came across when reading Moustafa’s book, although it is clearly a term that has some history in academic literature. The term describes laws enacted by legislatures modeled on Britain’s Parliament, relics of colonial rule, but that are administered to regulate Muslims or the practice of Islam. Under Malaysia’s Federal Constitution, Islamic law and the personal law of persons professing the religion of Islam are matters to be legislated by the ordinary legislatures of the state (where both Muslim and non-Muslim members can participate in the law making).
Moustafa conducted research for the first time (to my knowledge) on the views and perceptions of ordinary Muslims in Malaysia on the “Islamic” or “Syariah” law that is administered by the state and that regulates them. His research finds that what is in fact Anglo-Muslim law was viewed by a majority of Muslims in Malaysia as the embodiment of the Syariah itself. Vast numbers of the persons surveyed consider that state Islamic laws derive exclusively from the Syariah (see Chapter 6 of Constituting Religion). This is despite the clear inconsistencies between the Syariah in its traditional form and as understood by most scholars of the religion, and Anglo-Muslim law as applied in Malaysia.
Until Indira Gandhi’s case appeared in the Federal Court, only a handful of lower court judges had recognized the reality that the Syariah courts were in fact merely applying Anglo-Muslim law through state-level legislation. Here, in the Federal Court, five Muslim judges unanimously held that it was in fact the civil courts who had jurisdiction to interpret the legality and constitutionality of state-level “Islamic” laws and the actions of state-level “Islamic” authorities.
In the drive to further the regulation of religion (as a state project), the “liberal” voices had apparently won a major victory. Or had they?
Apostasy Is a Different Matter
Just weeks after the Gandhi decision, however, two of the same judges were sitting in an appeal in the state of Sarawak, on the island of Borneo. This time, the appeal involved four adults classified as Muslim by the state who sought constitutional relief to recognize their professed faith of Christianity—a so-called apostasy case. (I say “so-called” because in many of these cases the person seeking relief has never really professed and practiced Islam, but converted to Islam or was deemed Muslim for a variety of reasons, not always as a result of a sincere belief in the faith.)
In that decision, the appeal was summarily dealt with and dismissed. The court ruled that the state Syariah courts had “implied” jurisdiction to determine if a person had left Islam, even though Sarawak state legislation did not expressly provide for apostasy applications to be made to the state Syariah courts. The apex court ruled therefore that the civil courts had no jurisdiction to deal with the applications.
The reasoning is clearly flawed—the Federal Court in Indira Gandhi had made it clear that the Syariah courts could not derive jurisdiction by implication. A clear and express provision was required in the law before the civil courts could say they had no jurisdiction to hear a particular dispute. A simple application of the law the court had set out in Indira Gandhi just weeks before would have given the four applicants relief.
Alas, no reasoned written grounds of judgment were ever given by the panel to explain this inconsistency. We are left with news reports about the decision, including these from the Borneo Post and Free Malaysia Today. And the applicants will continue to be dealt with as if they were Muslim, notwithstanding the religion they each actually profess.
A Rocky Path Ahead
In this contrast of judicial decisions, we see some of the problems faced when religion becomes entangled with the business of the state. This is set to continue despite the electoral tsunami in Malaysia after the Fourteenth General Elections on May 9, 2018, which saw Malaysia’s ruling coalition losing power at the federal level for the first time since independence in 1957.
The new government appointed non-Muslims to the powerful positions of attorney general and chief justice shortly after gaining power. This was lauded by proponents as a welcome move to meritocracy, but decried by opponents primarily on grounds of race and religion.
Tensions continued with a massive rally cosponsored by the opposition Islamist party PAS and its former rival, UMNO, calling for a defense of Malay rights and the position of Islam. This was in opposition to the new government expressing its intention to accede to the International Convention on the Elimination of Racial Discrimination (ICERD). Although many argued ICERD would not in any way detract from the role of Islam and the privileges ethnic Malays enjoyed in Malaysia, the government was embarrassingly forced to resile from their decision, succumbing to pressure not to appear to be against Islam.
These developments in the political sphere also saw reverberations in the legal fraternity. For the first time, in Bar Council elections held at the height of the tensions regarding ICERD, a record number of Muslim lawyers who advocate for a greater role for Islam in governance were elected into office. Many of them had campaigned as a group, echoing the fallacious arguments that ICERD was a threat to Malaysia’s constitutional protections of Islam and Malay “rights.”
Again, we see in action Moustafa’s acute observation of how pluralism, secularism, and liberalism are positioned in Malaysia as somehow inimical to Islam, when many would argue that this is not necessarily the case. These events show that the rights versus rites binary is set to continue for the time being, even in “new” Malaysia.
Constituting Religion is an immensely valuable work, as it shows the extent to which the Malaysian state apparatus has contributed to a warped conception of Islam amongst its adherents and places the court cases that have shaped the national discourse in its proper context. To me, it provides evidence for long-standing suspicions about how religion has been abused by an authoritarian state to impose control over its population.
The perceptive analysis by Moustafa on our work as lawyers, in particular on the unintended consequences of what we think is “strategic” litigation, is a valuable addition to scholarship on public interest or cause lawyering. I have no doubt that lawyers from both sides of the divide will be religiously studying this book and formulating new strategies in how to advance their respective views on the place of Islam in governance in Malaysia. I understand a Malay translation of the work is in the pipeline, and I am greatly encouraged by this. The lessons gleaned from this valuable book must be shared to a wider audience in Malaysia.
Well done, Shan! Fantastic article.