CIVIL LIBERTIES, INTERNATIONAL HUMAN RIGHTS, AND SHARIA
Although the Federal Constitution bestows jurisdiction on sharia courts to punish Muslim violators of the precepts of Islam, there has been a lively public debate over whether the state should be involved in these aspects of personal behavior.
Secular human rights organizations, SIS, and many liberal Muslim intellectuals in their networks have argued for the state to not interject itself into individual issues of morality. From their perspective, Muslims should have the liberty to decide on whether to adhere to Islamic ethical norms of their own free will, without any threats of coercion from the state. Moreover, they view these personal liberties for Muslims and non-Muslims to be a fundamental human right to exercise their freedom of conscience. Civil and human rights activists from secular NGOs use cultural models that construe religious ethical matters as personal affairs, not public affairs for legal and political authorities to enforce. Liberal Muslim reformers also share this view, adding that it is best for Muslim believers to have the opportunity to exercise their faith and to follow Islamic ethical norms of their own accord, based on their moral convictions rather than state compulsion. These secular and liberal Muslim organizations are major nodes in Malaysian society for the circulation of hegemonic global ideas about civil liberties and fundamental human rights. Rather than viewing transnational flows of ideas as if they are deterritorialized, we have seen local social forces here within the broader national field of Malaysian society. In contrast to comparable forces in many other societies, these groups are subordinate forces, offering alternative perspectives that contest hegemonic views. However, these local proponents of human rights have the authority of powerful international forces behind their discourses, a fact that contributes to local sharia dynamics. On the other hand, Malay political elites, government religious officials and ulama, Malay rights organizations, PAS, and Islamic NGOs, operating with a variety of pro-sharia cultural models, argue that it is the Muslim government’s responsibility to enforce the precepts of Islam, which are understood to be Allah’s laws sent via the Qur’an and the Traditions of His Final Messenger, Prophet Muhammad. Respondents to at-large sharia surveys also were overwhelmingly in favor of the state implementing sharia family and criminal laws.The Lina Joy case and others related to religious freedom have been the focus of many contentious debates between these social forces. SIS, IRF, and PKR leaders joined with secular human rights forces to support Lina Joy’s and other Muslims’ right to convert out of Islam without any form of sharia criminal punishment. Although there is much overlap in the ideas of these liberal Muslim reformist forces, there are some differences in their sharia cultural models and sociopolitical projects. SIS is a Muslim feminist organization that combines reinterpretations of sacred sources and liberal notions of the objectives of sharia with hegemonic Western conceptions of secular modernity and gender equality. Similarly, IRF is a Muslim reformist organization that intertwines liberal versions of Islamic ethics with conceptions of liberalism, pluralism, human rights, and a secular nation-state. Muslim PKR leaders draw on reformist notions of the objectives of sharia mixed with visions of an inclusive, multiethnic, multireligious liberal pluralist nation-state to unify a cross-communal coalition to contest the UMNO-led National Front. These Muslim human rights forces united with the social democratic DAP and secular human rights NGOs with whom they share a consensus on religious freedom for all Malaysians. In contrast, a broad array of conservative Muslim forces contend that Muslims must not be allowed to commit apostasy, moving from Islamic belief to non-Islamic belief.
UMNO and PERKASA, both operating with Malay sovereignty cultural models—the former mixed with a version of the Islamic notion of moderation and the latter with more explicitly chauvinistic attitudes—stress that Malays possess a special impediment to becoming apostates: the fact that they are defined as Muslims in the Federal Constitution. UMNO is generally in favor of civil liberties and international human rights, except in areas that clearly contradict traditional Islamic law and principles. Apostasy is one area in which they take a firm position for limiting individual liberties. PAS and Islamic NGOs, operating with less racialized Islamic sovereignty cultural models, argue that all Muslims must be punished according to the sacred sources—or, as Nik Aziz (2010, 27) put it, “the Constitution of the Sky”—and that the punishment should be death. Islamic NGOs generally promote more widespread education and dakwah before such a hudud penalty is implemented, but PAS is currently striving to operationalize a version of their 1993 hudud bill in Kelantan. Many sharia court officials and other government ulama are in favor of implementing hudud as well, but they are working under the auspices of secular nationalist Malay political elites that are committed to lesser discretionary punishments. Government think tanks have formulated an apostasy provision that distinguishes between Muslims and the variety of Malaysian citizens that have mistakenly become registered and/or recognized as Muslims. The former would be punished with discretionary punishment if they try to depart from Islam, while the latter would be able to apply for a declaration of their religious status as non-Muslims. Government ulama hope that this one modern Islamic law will eventually replace the three forms of laws pertaining to apostasy-related cases across the states of Malaysia.There has also been a series of telling disputes over underage marriage and child custody in conversion cases. Secular and Muslim human rights organizations have called for an end to sharia courts allowing youth under the age of eighteen to get married and permitting Muslim converts to unilaterally convert their non-Muslim children and subsequently to be given custody of them.
They consider the current sharia family laws that set the youngest age for marriage as eighteen for men and sixteen for women as discriminatory, arguing that young women need more time to develop and to seek education. These social forces are also opposed to the provisions that give sharia court judges the discretionary authority to permit marriages at even younger ages. Moreover, they invoke international human rights laws pertaining to the rights of children. Conservative Muslim forces assert that there is no minimum age of marriage according to sacred sources. However, propelled by continued public debates over underage marriage cases, the National Fatwa Council issued a ruling that maintained the current ages and authority of the judges to permit younger children to marry but argued for greater restrictions on allowing these underage marriages, citing research that indicates that such marriages are detrimental to the well-being and benefit of girls and society. In contrast, only the Perlis State Fatwa Committee issued a ruling responding to the widespread controversies over child custody in conversion cases within a marriage of two non-Muslims. Most state-level sharia courts continued to allow the Muslim parties to convert children of civil marriages and to be favored for custody. The exceptional Perlis state fatwa stresses the benefit of the children, rather than the Muslim religious status of one of the parents, to determine child custody. This contrasting treatment of underage marriage of girls and child custody in conversion cases is part of a broader pattern of greater interaction and interdependence between Muslim feminist and UMNO-led sociopolitical projects than between the latter and secular liberal rights projects.More on the topic CIVIL LIBERTIES, INTERNATIONAL HUMAN RIGHTS, AND SHARIA:
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