ISLAM IN MALAYSIA, CONSTITUTIONAL AND HUMAN RIGHTS PERSPECTIVESThe project seeks to examine the constitutional provisions in relation to Islam and Islamic law in the context of Malaysia as a modern nation state with a written constitution which spells the constitution as the supreme law of the land. The focus is on contentious issues that have arisen in relation to the chapter on fundamental liberties, more particularly freedom of religion, right to education, and equality (non-discrimination) before the law.
The question for the study is whether Islam is privileged such that civil law and the constitution itself are subject to Islamic law: what are the legal problems arising from this approach in the context of a multicultural society in Malaysia? Where do we go from here? And what are the approaches or framework to be developed for managing differences and the conflicts that arise in this situation? Against this background, the project will focus on the role of the civil superior courts in the adjudication of fundamental liberties.
Salbiah Ahmad – Interview
Describe your motivations for conducting this research project?
Malaysia has a parallel legal system of Islamic laws and Syariah courts on the one hand and the civil law and Civil courts on the other. In the early 80s, the government embarked on an islamisation of laws programme which attempts to develop the Islamic family law (personal law) of Muslims and upgrade the Syariah courts which has jurisdiction over Islamic laws. In this exercise, the Constitution was amended in 1988 providing for greater independence of the Syariah legal system. After 1988, a number of cases on religious freedom, conversions out of Islam, and conversions of minors to Islam, have arisem in the Civil courts in relation to family law and fundamental liberties. These cases show that the attempt to demarcate Islam and Civil laws and the islamisation of laws agenda have created more problems legally and politically. The Civil courts are in a conundrum in trying to interpret the 1988 constituional amendment. Most judges see this as “divesting” the Civil court of powers to hear any matter relating to Islamic law. This approach becomes problematic when the court has to adjudicate on fundamental liberties; while the Civil court has jurisdiction to hear these cases, judges are reluctant to adjudicate on Islamic law matters which arise in these cases like the freedom to convert out of Islam or whether Islamic apostasy laws or Islamic rehabilitation laws impinge upon religious freedoms. As an important institution of democracy and an institution to determine fundamental freedoms, the court’s reluctance has created a stalemate. Many view the impasse as one which politics has to address. I think the court has not understood its constitutional mandate and I think the court and the existing laws are capable of addressing the current impasse. Judges and lawyers require a re-orientation in their engagements with Islamic and Civil law. I think human rights may provide the basis for a fresh engagement.
If there is an immediate motivation as opposed to a major motivation, it is the fact that after Sept 1998 (when the deputy prime minister, Anwar Ibrahim was deposed and this led to street protests and major shifts in political alliances among the Malay-Muslim majority in Malaysia) and after the 1999 general elections (where the Islamic party retained one state and won another), Islam, Islamic law, and the notion of the Islamic state are very important political issues. I think this time is most opportune to develop new and agenda-setting discussions on these concerns.
What is your research plan for the project?
I propose to develop a sourcebook in relation to these issues and perhaps introduce a fresh element to engagements with the law and the Civil courts in constitutional adjudication with a principal focus on the chapter on fundamental liberties. In this light I would look at other systems on a comparative basis in terms of jurisprudence, laws, and litigation techniques including public interest litigation. In this light, the research is more legal than sociological and political but I would like to explore an interdisciplinary approach as well in the sourcebook with emphasis on the work of human rights groups.
What do you think might be the biggest challenges that you’ll face during your research?
I would think the biggest challenge would not be in the field research, but in the outcome of the advocacy project – the sourcebook. There are detractors to this approach which I will know for a fact from my experience as a human rights activist and a lawyer. There are Muslims who will denounce the approach as anti-Islam merely on the basis I choose to explore human rights as a basis for engagement. I have worked with Muslims from a religious framework that is operating exclusively within the discrete sources of Islamic law (the Syariah). I have since found this approach to be exclusive and while its importance is not negated, I have found the need to engage communities of other faiths, persuasions, and beliefs to be very necessary in the context of a multicultural society as in Malaysia and Singapore. My project is not meant to be exclusive. I hope to develop an approach that supports both human rights and Islamic law and whatever shared notions of justice in the communities I work with in helping to resolve or at least develop the framework from which contesting claims can be addressed or at least be better understood.
Along the way, how has your design or idea for research evolved?
I have been an activist with women’s rights since 1985 in Malaysia. I have worked on issues relating to women and Islam since 1992 and have been engaged with human rights issues regionally and globally from 1992. I have done lobbying for law reform and policy changes, human rights education, and legal literacy, drafted laws for human rights groups. These are too general in nature. I think these experiences have helped shaped the focus or direction of my current research in that a more focussed or specific approach – targeting the judiciary and lawyers- is one important way of trying to influence the whole.
What are your future-plans for the project or for work in the broad field of human rights?
I would like to develop training programs on the approach that I hope to develop under this fellowship with an emphasis on women’s rights – epistemology in relation to the sources of Islamic law.
What specific results do you expect to see at the conclusion or your research?
I hope that the work may help break myths of the ‘non-justiciability’ of Islamic law in our courts. I hope it wouold help dispel ambivalence of Malaysians as whole (not just Muslims) about dealing and challenging laws in our legal system.
How might your conceptual model and field research be implemented and communicated in various communities and contexts, and in your homeland?
I hope to introduce these ideas through lectures at the Bar and perhaps law schools and develop training modules with human rights groups and lawyers in practice.