Taking the Middle Road

IN CONTEMPORARY MALAYSIA, SHARIA CRIMINAL LAWS ARE IMPLEmented within the secular format inherited from the British colonial period. The distinction between “public” secular laws and “private” Islamic laws persists in postcolonial legal structures.

[the] creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List... the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom. (Abdul Aziz and Farid [2004] 2009, 405–6)

Sharia criminal laws are to be applied solely to Muslims, and only in areas not included on the Federal List. Killing or causing bodily harm to others without sufficient cause is against the precepts of Islam, but since these offenses are on the Federal List for civil courts they are outside the purview of sharia law. The Federal Constitution also provides for restrictions on non-Muslims propagating religion to Muslims, as an exception to the broad religious freedom it extends to non-Muslims.

Taking a cue from Foucault, Wael Hallaq (2009, 308), a scholar of Islamic law, notes the epistemological difference between modern European conceptions of “criminal law” or “penal law” and premodern Muslim jurists’ notions of “offenses against life, body, morality, public conduct and property,” and asserts that it is imprecise to use the terms “criminal” and “penal” in reference to sharia “offenses.” However, the epistemic transformation that overtook non-European legal and political structures and the inability to restore or institutionalize sharia laws under altered structural conditions are not as thoroughgoing as he contends (cf. Hallaq 2004, 2013). In fact, in Muslim-majority contexts, such as northern Nigeria, Pakistan, and Iran, “modern” concepts of the nation-state, citizenry, and criminal law articulate with traditional Islamic notions of an omniscient God, public morality, and an Islamic community (umma). In Malaysia, there is also a comparable articulation of these and related epistemes. Not only is the limited, state-level sharia criminal law structurally subordinate to the extensive, federal-level civil criminal law, but English common and civil law codification and procedures have also had a strong impact on sharia law. Nevertheless, the Malaysian judiciary and much of the Malaysian Muslim community consider the “substance” of sharia family and criminal laws to be Islamic.

As with sharia family laws, JAKIM, IKIM, and other government ulama and officials have been working to modernize and standardize sharia criminal laws. However, while some states have adopted many of the Federal Territories’ provisions, there remains more variation in sharia criminal laws across the states than in family laws. There are also heated debates and skirmishes between social forces—such as Muslim conservatives, reformers, and liberal rights activists—over the implementation of sharia criminal laws. These clashes are propelling a drive toward strengthening sharia laws; nonetheless, dominant Malay Muslims continue to grapple with notions of the nation and plural citizens within a worldview, constituted by sharia models, symbols, and metaphors, that increasingly challenges the secular format.