Concluding Reflections

Tradition and modernity cannot be presented as binary opposites, and neither can Islamic law and Western law, or Islam and democracy. The experiences of diversity management in ‘alternative modernities’ can hold new perspectives for our thinking about the relation between religion and law, and religion and politics.

In discussing the issue of the accommodation of religious law, one should contextualise. Answering questions on the compatibility of Islamic law, legal pluralism and democratic constitutionalism with a plain ‘no’ misses out on a vital part of the real issue, overlooking the complexity and diversity of Islamic religion and Islamic legal practices. The contextual framing of the issue of Islamic law and legal pluralism is therefore absolutely necessary. In many countries such as Malaysia, legal pluralism is furthermore to be taken as an empirical reality (or as a fait accompli) in the same way as social diversity.^[826] Moreover, the increasing popular call for a return to shari^ta, “is one of the most significant developments” the Muslim world is facing and challenged by today^[827] ^{^[828] The important reforms of Malaysian Islamic family law in the 1980s and 1990s have shown that interesting and creative contextual institutional and legal ways can be found for the interaction, articulation, and compromise between religion and state, and between legal pluralism (involving the accommodation of Islamic rules and courts) and equality. Nevertheless, the subsequent negative developments in the Malaysian Islamic legal field have also shown that political compromises have to be principled: they should be constitutional compatible with the most minimal interpretations of religious freedoms and equality6⁴ - and democratic - in the broadest sense, which means also giving space to the voices of minorities and vulnerable minorities within minorities such as women, and, “not through legislation driven from above with no public support nor public discussion”.
There should be a combination of liberalism in a traditional sense, with emphasis on individual rights and freedoms, legal pluralism, the coexistence of different normative systems against the background of constitutional and international principles and deliberative liberalism - which also includes the right of minorities to participate into the shaping of public and political culture and into deliberations regarding the recognition of cultural diversity. Another aspect which usually drops out of the picture is, as underlined by, inter alia, Tamir Moustafa, Anver Emon and Asifah Quraishi-Landes, that the state incorporation of Islamic law, at least in the manner documented here, also subverts foundational concepts and principles of the Islamic legal tradition itself [up to a certain level], such as the qadi^,s hermeneutical autonomy and the legal diversity of Islamic legal schools and fiqh rules. Quraishi-Landes argues that by failing to take account of the important distinction between what is siyasa (laws made by temporal rulers which are not derivedjrom scripture) and what fiqh, many Muslim-majority countries have created near-theocratic rule. As a scholar of comparative constitutional theory, she looks for themes and recurring principles across systems: (1) a separation between state lawmaking (siyasa) and non-state lawmaking (fiqh); (2) a legitimation of state lawmaking based upon service of the public good; and (3) respect in the field of siyasa for the five general purposes of shari^ta (protection of religion, life, intellect, family and property). For her these three themes, updated for modern sensibilities, should form the core elements of modern Islamic constitutional theory today. However today we can observe that the Islamisation policies in many Muslim countries has collapsed shari^ta into just fiqh, and used state power (today's siyasa) to bring fiqh into the political realm. Moreover, she underlines that so-called “sharia legislation,” does not really legislate “sharia” at all, but it merely legislates one (or several) among many fiqh possibilities.^[829] ^{^[830] Moreover, as Moustafa stated in a recent article, for many lay Muslims, the state's selective codihcation of Islamic law is understood as the faithful implementation of divine command.*’*’ Islamic law is seen there, as in the Western world, as a codified, systemised system of law, strongly focused on criminal law, and denying the wealth of hermeneutical techniques and millennium-long questioning, searching and debating.
The extensive control over the public moral behaviour of Muslims, the legal problems they encounter when leaving their religion and especially the striking state’s monopoly on religious interpretation raises the question whether Malaysia is, or is not, a country marked by a strong state establishment of the Islamic religion. Following Bader, we are of the opinion that such a strong establishment of a specific religion by the state - through massive state interference and control of established religions, including the checking of the standard sermon and the monitoring of other activities in mosques - can be seen as incompatible with even a minimalist interpretation of democratic constitutionalism.^[831] Harding strikingly describes the syncretic legal system of Malaysia as an institutionally imperfect system. Not because it is a pluralistic legal system in which religious and other law is recognised and applied, but because the rule of law is seen as a competitive value system rather than as a basic condition^[832] ^{^[833] ^[834] ^[835] Neither Islamic or civil judges show an active commitment to the Constitution and to international human rights: the courts in cases concerning Muslim dissidents and their freedom of religion outside or inside Islam do not show any sensitivity towards the rule of law, nor do they make use of the possibility of constitutional review^⁹ or if they do, they apply that possibility very restrictively. 7° In the “apostasy cases”, they are even ruling against the core of a constitutional state upholding the rule of law/¹ where the right to leave one’s religion is a necessary and fundamental liberty.⁷² The absence of effective exit opportunities is a fundamental criticism of the system of separate personal laws for Muslims: a democratic constitutional state has the minimal positive duty to protect the right of dissidents to leave their own churches or mosques and courts?³ 2001: “[...] Returning to the current facts, as the plaintiffs are yet to be found guilty of the second charges of apostasy [...] for all intents and purposes I have to conclude that they still are Muslims.
[.] Indisputably [.] then by virtue of Article 121(1A) of the Federal Constitution, my powers are curtailed. That being so, the plaintiffs being legally Muslims will still remain within the jurisdiction of the Syariah Court, and thus outside my jurisdictional purview.' And ‘The act of exiting from a religion is not a religion, and hence could not be equated with the right to ‘profess and practice' their religion. To seriously accept that exiting from a religion may be equated to the latter two interpretations would stretch the scope of Article 11(1) to ridiculous heights and rebel against the canon of construction. On that score, I reject the contention of the plaintiffs that their rights pursuant to Article 11 (1) had been infringed.” LinaJoy 2004 (High Court 18 April, 2001); On 31 May, 2007, the Federal Court ruled in a 2-1 majority decision that only the Syariah Court has the power to determine whether a person is still a Muslim. In the 'Shamala case’, in which a non-Muslim mother sought a declaration that the conversion of her two children by her husband without her consent was void, the High Court held that the lack of legal remedy, ‘would not make the jurisdiction exercisable by the civil court', and that, ‘it was for the parliament to provide the remedy'. Kamariah case: a case concerning apostasy, in which the Court of Appeals stated that: “Article 11 of the Federal Constitution (in relation to Islam) cannot be interpreted so widely as to revoke all legislation requiring a person of the Muslim faith to perform a requirement under Islam or prohibit him or her from committing an act forbidden by Islam or that prescribes a system of committing an act related to Islam. This was because the standing of Islam in the Federal Constitution was different from that of other religions. Firstly, only the Islamic faith is mentioned by name in the Federal Constitution as the religion of the Federation. Secondly, the Constitution itself empowers State Legislative Bodies (for states) to codify Islamic Law in matters mentioned in List II, State List, Schedule Nine of the Federal Constitution (‘List ii').” 72 Constitutional provisions give also rise to different interpretations.
This is especially the case for article 121 A (1988 Amendment) and the equality provision. The article concerning equality before the law and non-discrimination on grounds of religion, gender, race, etc. explicitly exclude their application to the legislation concerning personal laws. The result is that a constitutional limitation to the principle of equality and non-discrimination is foreseen in an area in which gender discrimination has to be challenged and which poses the most serious threats to the individual rights of women. Since the constitution does not provide for cultural rights, it protects cultural diversity in family law via constitutional provisions concerning the legislative competences for the member states and via this exception to the anti-discrimination provision. This constitutional construction has however as negative consequence that it could be interpreted as protecting religious or native personal laws from invalidation on the ground of gender anti-discrimination. Family law is the site where the private and public spheres of life intersect. The federal constitution therefore can fail to protect vulnerable groups such as women against a legal system and social structures in which the equality between the sexes has an apparent place. 73 This statement is affirmed by Neoh's analysis of the majority judgment by the Federal court in the Lina Joy case. The author notes that the focus of the majority judgment was ‘not on public order arguments contemplating the trade-off between rights and social
This did not happen in Malaysia. It remains to be seen if this authoritarian evolution of Western-style codification will predominate in a nation known for its pluralism and diversity. The quest for power, and attached to that, the denial of a creative and more authentic tradition of applying and interpreting Islamic law, could well prove to be a painful, yet hopefully temporary experience for the Malaysian society.⁷⁴}}}

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Source: Oberauer Norbert, Prief Yvonne, Qubaja Ulrike (eds.). Legal Pluralism in Muslim Contexts. Brill,2019. — x, 258 p.. 2019

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