Sharia Transformations

Cultural Politics and the Rebranding of an Islamic Judiciary

Michael G. Peletz

• Publisher: University of California Press
• Year: 2020
• Print ISBN: 9780520339927
• eBook ISBN: 9780520974470
• Edition: 1
• Topic: Social Sciences
• Subtopic: Islamic Theology
• Index: Social Sciences

Few symbols in today’s world are as laden and fraught as sharia—an Arabic-origin term referring to the straight path, the path God revealed for humans, the norms and rules guiding Muslims on that path, and Islamic law and normativity as enshrined in sacred texts or formal statute. Yet the ways in which Muslim men and women experience the myriad dimensions of sharia often go unnoticed and unpublicized. So too do recent historical changes in sharia judiciaries and contemporary strategies on the part of political and religious elites, social engineers, and brand stewards to shape, solidify, and rebrand these institutions.

Sharia Transformations is an ethnographic, historical, and theoretical study of the practice and lived entailments of sharia in Malaysia, arguably the most economically successful Muslim-majority nation in the world. The book focuses on the routine everyday practices of Malaysia’s sharia courts and the changes that have occurred in the court discourses and practices in recent decades. Michael G. Peletz approaches Malaysia’s sharia judiciary as a global assemblage and addresses important issues in the humanistic and social-scientific literature concerning how Malays and other Muslims engage ethical norms and deal with law, social justice, and governance in a rapidly globalizing world.

 

1

Sharia Judiciary as Global Assemblage

Islamization, Corporatization, and Other Transformations in Context

You begin with assemblages that look vaguely familiar and you end up with completely foreign ones.

—BRUNO LATOUR (2005)

What is often described as ‘globalization’ involves competition in laws, approaches to law, and approaches to the state and governance.

—YVES DEZALAY AND BRYANT GARTH (2002)

Malaysia has been a model of success in the Muslim world and the Global South generally throughout much of its postcolonial history. There are a number of reasons for this. They include the rapid development since the 1970s of the nation’s middle classes; its stunning levels of urbanization and educational attainment; and the enviable rates of industrialization and overall economic growth it has sustained in recent decades, which are probably second to none in the Muslim world.¹ Malaysia also enjoys a reputation as the “crossroads of Asia.” This is due partly to its strategic location along the waterways connecting China, India, the Middle East, and points beyond (Map 1). Relevant as well is its rich ethnic and religious diversity that government slogans foreground in marketing the nation to foreign visitors as “Truly Asia—the Essence of Asia.” Ethnic Malays, nearly all of whom identify as Sunni Muslims, constitute 50–51 percent of Malaysia’s population of approximately 33,000,000 people.² According to state-sanctioned discourse, the two other major ethnic designations are the “Chinese,” who comprise roughly 23 percent of the nation’s citizens and are mostly Buddhist or Confucian/Taoist (though some are Christian); and the “Indians,” including Sri Lankans and most others of South Asian ancestry, who make up approximately 7 percent of the citizenry and are predominantly Hindu (others are Sikhs, Muslims, or Christians). “Others,” a rubric that encompasses the remaining 12 percent of the nation’s citizens, includes aboriginal groups, Eurasians, and others, who generally follow animist, Islamic, Christian, or other religious traditions. Non-citizens, who make up roughly 8 percent of the nation’s population, are of variable ethnicity and national origin, but hail mostly from Indonesia, Pakistan, Bangladesh, and other Muslim-majority nations, thus bringing the total percentage of Muslims in the country to approximately 60 percent.³

MAP 1. Malaysia and surrounding regions. Produced by Ellen L. Walker.

Once known for its moderate and relatively progressive Islam, Malaysia is also a place where state-sponsored Islamization and analytically distinct though culturally interlocked processes of bureaucratization, rationalization, and corporatization have proceeded apace. These processes have raised questions in some quarters of the nation, especially but not exclusively among non-Muslims, about the co-imbrication of law, politics, and religion and what the expansion of state power and its sanctification via symbols, idioms, and discourses of Islam means for current and future generations of its citizens. For reasons such as these, and because Malaysian political, economic, and religious elites have endeavored to position the nation as the global center of Islamic banking and finance, an inquiry into recent developments in Malaysian sharia should be of broad interest to scholars and policymakers alike.

I am an anthropologist by trade—more precisely, a historically-oriented anthropologist. My understanding of sharia in Malaysia is based on more than three years of ethnographic fieldwork and archival research that I have conducted since 1978. One of the research projects that I undertook in the late 1980s focused on the Islamic court in the small town of Rembau, Negeri Sembilan, one of eleven states in West Malaysia (Map 2). Partly because I was able to return to this same court in 2011, 2013, and 2018, continuities and transformations in its discourses and practices since the 1980s serve as my point of departure for this chapter and subsequent sections of the book. I hasten to add that I am ultimately concerned with national-level trends in Malaysia’s sharia judiciary and the juridical field as a whole, and with theorizing from them, not simply about them.

MAP 2. The states of West Malaysia. Produced by Ellen L. Walker.

This chapter provides an overview of continuities, transformations, and cultural politics in Malaysia’s sharia judiciary during the past few decades, and in the new millennium in particular, that I flesh out later in the book. Most of the chapter focuses on transformations, but there are important continuities that we need to also bear in mind lest we operate under the erroneous impression that virtually all aspects of the judiciary have changed in recent decades. In the following section I thus outline a range of important continuities. I then proceed to a discussion of Islamization, how the sharia judiciary has been transformed, and why it is usefully conceived as a global assemblage.

CONTINUITIES IN GENDER, POWER, PRESTIGE, AND LAWFARE

We might begin with brief consideration of what, by many criteria, is a sacred text for Malaysians of all religious orientations and from all walks of life: the Federal Constitution. The constitution of the Federation of Malaya, drafted by the Reid Commission on the eve of independence from the British in 1957, specifies that Malaya, which became Malaysia in 1963, is a parliamentary democracy with a constitutional monarchy, with both a prime minister and a king (the former by far the more powerful) at its helm. It also stipulates, in Article 3, that “Islam is the religion of the Federation.” This provision was apparently intended primarily to ensure that state ceremonies and pageantry, associated with celebrations of the nation’s independence and rituals of investiture and inauguration, for example, would be Islamic in character—featuring Islamic prayers (doa), (Malay) Muslim dress codes, and halal food, for example—in order to respect the nation’s Malay/Muslim majority (Fernando 2006, Harding 2012:233–236).

Importantly, albeit with one critical but partial exception noted below, the constitution does not go on to specify that sharia is or should be a basis for the nation’s legislation, let alone the main (or sole) basis for legislation, and it explicitly guarantees freedom of religion (Articles 3 and 11). Indeed, the constitution and the texts to which it refers make abundantly clear that the extant, British-derived system of secular law, based on the common law, is the law of the land, except within the narrowly delimited jurisdictional domains of the nation’s sharia courts, which are subject to state rather than federal control (and within “native” or “customary”/adat courts, which are not relevant here). According to the constitution, the sharia judiciary has no jurisdiction over the affairs of non-Muslims, who currently comprise nearly 40 percent of the nation’s citizenry. Its jurisdiction over Muslims, moreover, is confined largely to “family law” and other personal status law: matters of marriage, divorce, custody, child support, spousal maintenance, certain sexual transgressions, as well as consuming alcoholic beverages, observing Ramadan, “respecting Islam,” etc. Virtually all other offenses, including traffic violations, theft, assault, murder, treason, drug smuggling, and human trafficking, are dealt with in the nation’s far more powerful and prestigious secular courts, generally known as civil courts (mahkamah sivil), in accordance with secular/civil law, regardless of the plaintiff’s professed religion.⁴ These are critically important, and in some instances intensely contested and politicized, features of the national juridical landscape to bear in mind, especially as we proceed to a consideration of gendered themes.

As in times past, the vast majority of plaintiffs in Islamic courts both in Rembau and in Malaysia as a whole are women of modest or meager means, just as most defendants are men, from generally comparable socioeconomic backgrounds, typically plaintiffs’ husbands or former husbands (but not men in other kinship or social roles; see Peletz 2002). Noteworthy as well are continuities in the types of cases that women (and to a lesser extent men) bring to the courts, the vast majority of which concern civil rather than criminal matters.⁵ As in previous decades, female plaintiffs typically petition the courts to help them resolve problems associated with their husbands’ failure to provide spousal or child maintenance (nafkah) and/or to clarify the status of their marriages (or to seek either a taklik divorce, due to violation of a stipulation in the marriage contract, or a termination of marriage via fasakh, variably rendered as “divorce by judicial proceedings,” “judicial rescission/voiding of the marriage contract,” and “annulment”). The first two sets of issues are often inextricably linked insofar as women who have not received support from husbands who have left home to seek a living do not always know if their husbands have simply been delinquent in providing them with money or news of their whereabouts, or have divorced them via the talak/repudiation clause, which need not be recited in their presence or the court’s to effect a valid divorce (though failure to do so in the courthouse is illegal). Women seeking taklik or fasakh divorce are often in the courts for the same general kinds of reasons. Men, in contrast, usually approach the courts to obtain formal approval of their divorces or to seek the court’s permission for polygynous unions, but not for clarification of ambiguity or owing to financial hardship. In this too we see considerable continuity with times past as well as important changes that require men to obtain the court’s permission to effect a divorce or a polygynous marriage that is legal in the eyes of the state.

Relevant here are quantitative data on court use obtained by anthropologists in the late 1980s and early 1990s, and their congruence with material from the period 2005–10. Data I collected in the course of my study of the kadi’s (Islamic magistrate’s) office in Rembau, Negeri Sembilan during the period 1987–88 indicated that women were plaintiffs in 67 percent (22/33) of the cases (Peletz 2002, 156). Statistics from the District Religious Office in Kempas, Selangor and Kota Jati, Kedah obtained in 1990 and 1991 by Sharifah Zaleha Syed Hassan and Sven Cederroth (1997) indicate broadly comparable patterns; women were the plaintiffs in 79 percent (333/420) and 92 percent (423/459) of the cases, respectively (cited in Peletz 2002, 157–58). There are of course many dynamics that these data do not speak to; for instance, that women were buffeted about by the courts in ways that men were not. But I am primarily concerned with the fact that the vast majority of plaintiffs in all three of these settings (Negeri Sembilan, Selangor, and Kedah) were women.

Aggregate data collected by the Jabatan Kehakiman Syariah Malaysia (JKSM; the Malaysian Department of Syariah Judiciary) bearing on the period 2005–10 reveal profound continuities since the late 1980s. In Negeri Sembilan, women were plaintiffs in 73 percent (9,699/13,201) of the cases brought to the courts; the corresponding figures for Selangor and Kedah are 69 percent (35,693/51,566) and 72 percent (4,324/5,975), respectively.⁶ These statistics reveal that Malaysia’s Islamic courts are still very much “women’s courts” in the sense that women constitute the overwhelming majority of those who seek out the court’s services to help them resolve domestic (and certain other) problems. One set of reasons for this has to do with gender skewing in Islamic law, coupled with the way Islamic law is codified in Malaysia: women lack the legal prerogatives to resolve marital and related domestic problems without the help of the state-backed courts. Unlike men, in other words, women cannot divorce their spouses unless they have obtained the assistance and cooperation of the courts, hence the state. This is an exceedingly important historical continuity to bear in mind. So too is the fact that women continue to experience discrimination in the workplace and still bear the lion’s share of the responsibility for the socialization and care of infants and children. One consequence is that, compared to men, women enter and experience marriage with significantly fewer economic resources to fall back on, and are thus not only much more dependent on their spouses’ earnings than vice versa, but also far more likely than men to seek out the court’s assistance when their spouse’s financial contributions to the household are not forthcoming.

Other gendered continuities include the fact that in various kinds of legal proceedings, women’s appearances, bodies, and bodily functions (e.g., when they last menstruated, or whether they are pregnant) are the subject of much greater legal concern than men’s. Consider also the gendered composition of court staff, especially judges, and of the judicial hierarchy as a whole. Prior to 2010, all of Malaysia’s Islamic judges were men, a pattern in keeping with many other Muslim-majority nations, where the prevailing sentiment has it that classical Islamic texts prohibit women from serving in this capacity. The hegemonic view on this matter was virtually universal in Malaysia during my early fieldwork, but the years since then have seen a gradual loosening (though not a shattering) of the hegemony. This is due largely to the efforts of Muslim feminist activists such as Sisters in Islam (SIS) as well as female scholars working in prestigious universities such as the University of Malaya and the International Islamic University of Malaysia (IIUM) who do not consider themselves SIS-style feminists but nonetheless share SIS’s view that there is ample support for the appointment of women as sharia judges in classical Islamic texts such as the Quran and hadith (see, e.g., Ramizah Wan Muhammad 2008b).

In July 2010 the government announced amidst much fanfare that two women had been appointed to serve as judges in the Islamic judiciary for the Federal Territories of Kuala Lumpur and Putrajaya. The two women were Suraya Ramli, 31, originally from Sabah, and Rafidah Abdul Razak, 39, who was born in Penang. Suraya had been senior assistant director of the Training Division, JKSM; Rafidah had been assistant director in the same division. Both of them had obtained diplomas from the International Islamic University of Malaysia, a key feeder institution for those seeking appointments in the Islamic judiciary, Suraya having also received a degree at Al-Azhar in Cairo, and Rafidah a degree from the University of Malaya.

In a speech announcing the decision, then-Prime Minister Najib Tun Razak (r. 2009–18) declared that “The appointments were made to enhance justice in cases involving families and women’s righ...

Table of contents

• Title
• Copyright
• Dedication
• Contents
• List of Illustrations
• Acknowledgments
• Abbreviations and Acronyms
• Note on Spelling, Terminology, and Currency
• Glossary of Frequently Used Malay Terms
• Introduction: Sharia, Cultural Politics, Anthropology
• 1. Sharia Judiciary as Global Assemblage: Islamization, Corporatization, and Other Transformations in Context
• 2. A Tale of Two Courts: Judicial Transformation, Corporate Islamic Governmentality, and the New Punitiveness
• 3. What Are Sulh Sessions? After Ijtihad, Islamic ADR, and Pastoral Power
• 4. Discourse, Practice, and Rebranding in Kuala Lumpur’s Sharia Courthouse
• 5. Are Women Getting (More) Justice? Ethnographic, Historical, and Comparative Perspectives
• Conclusion
• Notes
• Bibliography
• Index