Superdiversity and Legal Pluralism in Malaysia: Brief Background
The long-existing diversity of the people, religion and law (customs) has marked Malaysia’s legal system: according to constitutionalist Harding, this diversity,
has extended into the legal world;just as a street in Malacca houses a Buddhist temple, a Hindu Temple, a mosque and a Catholic church, so the Malaysian legal system caters very adequately, in a way which European legal systems clearly do not, for several varieties of law, even providing Special Courts in Sabah and Sarawak to administer ‘native’ law to the indigenous population.[780]
Muslims make up the majority of the Malaysian population (composed of four major categories: Malays, all of whom are by constitutional definition Muslims,1[781] Chinese, Indians, and others).
All Malays speak the Malay language and the majority identify themselves as Sunni Muslims belonging to the Shafii legal school of Islam. Malaysia is characterised by a very prominent expression of the Islamic identity in the public sphere: the headscarf is omnipresent - but purdah (the term used in Malaysia for a veil that conceals the face) and serban (Muslim headgear for men) are forbidden in public institutions - foods and goods for the Muslim market need to comply with specific requirements before they can be labelled as halal food?[782] Islamic (law) schools play an important role in the education system and there exist Islamic bank and insurance companies, Islamic hospitals, radio channels, and so on.1[783] During the last decades we have been able to observe considerable government efforts to introduce new Islamic legislation, including the upgrading and reorganising of the Syariah courts,[784] Islamic (law) schools and universities, and in general an increasingly prominent place of Islam in the public, political and legal arena. Simultaneously, Malaysia has developed itself into one of the most economically prosperous Muslim-majority countries, one of the so-called Asian tigers: Malaysia has evolved in the course of a single generation into a country with important middle classes and growing civil societies.[785] [786] [787] In the remainder of this chapter we will dig deeper into two issues, namely the constitutional relation between religions, especially Islam, and the state and how this relation is challenged by the Islamic resurgence movement since the 70s and the currently stronger Islamist demands.Against that backdrop, we will also very briefly discuss the reforms that have taken place in Islamic law since the 80s of the twentieth century in family and penal matters. Especially in the 80s and 90s, “a plethora of new legislation was issued at the state and federal levels that formalized substantive and procedural aspects of ‘Islamic law’”.22 These changes were carried out in a legal and technical manner recognisable to the West: as it happens, by means of a formal and systematic elaboration of legislation by parliaments and through jurisprudence by courts?3 To what extent contemporary legislative and jurisprudential evolutions are challenging the rule of law and the supremacy of the constitution and basic principles of Islamic usul-al-fiqh (see Moustafa, Asifah Quraishi-Landes etc.) is the nexus of our legal analysis. Finally, some reflections on the challenges and issues of developing Islamic law in Malaysia will be given.
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