Constituting Religion

Islam, Liberal Rights, and the Malaysian State

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Tamir Moustafa
Cambridge Studies in Law and Society
  • Cambridge, England: 
    Cambridge University Press
    , July
     2018.
     225 pages.
     $99.00.
     E-Book.
    ISBN
    9781108539296.
     For other formats: Link to Publisher's Website.

Review

Tamir Moustafa’s book, Constituting Religion: Islam, Liberal Rights, and the Malaysian State, examines the complex intertwining of law, religion, and politics in Malaysia, “one of the most tightly regulated religious spheres in the world” (4). Moustafa traces how a sharp rights-versus-religion binary emerged, first within the legal system, and subsequently radiating outward through political discourse and popular legal consciousness since 1957. Over seven chapters, the author deftly illustrates how attempts to regulate religion through law led to unintended consequences when contestation continued to occur in court and through public opinion. He writes eloquently about the “judicialization of religion,” which he defines as a circumstance wherein courts increasingly adjudicate questions and controversies over religion (2). Judicialization is exacerbated when religion is tightly regulated and when dual constitutional commitments are made to religion and liberal rights, which turns out to be a dangerous game.

Malaysia presents an extraordinary case amongst Muslim-majority nations not least because of the legal conflation of Malay, an ethnic category, with that of the religion of Islam. Although the equation was done as far back as the Malay Reservation Act of 1913 under British colonial rule, it carried over to the Malaysian constitution article 160(2) which defines a Malay as “a person who professes the religion of Islam, habitually speaks the Malay language, [and] conforms to Malay custom.” Malaysian legal and administrative infrastructure is designed to monopolize religious knowledge production—fatwas by state-sanctioned officials had the force of law, for example.

The book is based on interviews with “everyday Malaysians” to study popular understandings of court cases and legal controversies. It is also based on interviews with legal practitioners, including lawyers and judges. Moustafa assesses whether popular understandings of prominent cases matched the legal logics that are deployed in court, or if they matched the frames that political activists constructed for media consumption. He supplemented these semi-structured interviews with several structured focus groups and a nationwide, stratified survey of popular understandings of the Islamic legal tradition.

A direct legacy of the colonial legal regime is that state-level shariah courts administer Anglo-Muslim law for Muslims on family law, whereas the federal civil courts administer the common law. Moustafa effectively shows how this clear division of jurisdiction between federal civil courts and state-level shariah courts did not play out in the multiracial and multireligious society even after the amendment of Article 121 in 1988. In fact, Malaysia’s legal dilemmas stemmed from the Malaysian state’s specific formalization of these two distinct fields of state law further entrenched by the new provision, Article 121(1A) in 1988. From then on, the article states, the high courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”  But the separation of jurisdictions was severely undermined by Prime Minister Mahathir Mohamad’s assertion of executive dominance over the judiciary. Moustafa goes into great detail on how this amendment provided a springboard for original Article 3 which states that “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation.” From that point forward, just as liberal rights discourse is laden with fear that individual rights face an imminent threat at the hands of religion, a deep anxiety also set in among those who wished to protect the collective rights of the Muslim community.

The book is a good example of how judicial actions continue to be explained, framed, and amplified by competing groups of political actors. The core of the book, chapters 5 and 6, showcase Moustafa’s claim that rights-versus-rites binary dominates discourse on religious laws in Malaysia. The immediate trigger that brought the Article 121(1A) cases into national consciousness was the custody battle in the case of Shamala Sathiyaseelan v. Dr. Jeyaganesh C. Mogarajah and Anor in 2004 when the article became even more politically salient according to Moustafa. The judge in this case determined that the Syariah Court is the qualified forum to determine the status of the two minors although only one parent was Muslim. Competing politicians and civil society groups came to the fore during and after the case, each rallying around the banner of “religious liberty.” 

Above all, race, rather than religion, is the governing framework in Malaysia. From 1957, Malaysian policies stemmed from racial discrimination rooted in social and economic marginalization of Malay communities in Malaya during the colonial period. British colonialism casts such a long shadow that courts continued to address its legacy at great length until the 21st century, a situation that is evident in Moustafa’s quotes from judges’ rulings. One cause of the mounting discontent among the majority Malay population is the perception of ongoing marginalization. This matters because over time, judicial rulings tilt towards Malay dominance rather than Muslim dominance. Both judicial rulings and public discourse regarding Islamic law reverberated with the will to preserve Malay power in Malaysia.

Although we might observe that the jurisdiction of Islamic law has both deepened and expanded, this was merely the corollary to Malay aims. Moustafa’s book shows this conflict, though not to pointed effect. Cases are almost a barometer for Malay political insecurity in the country rather than anxieties about Islamic law which should not be taken at face value. The logic of the strategy, according to Moustafa, lies in the wearing down of non-Muslims who endured the whittling down of their rights—but to what end, it is not clear.

The unusual translation of the book title from the English Constituting Religion: Islam, Liberal Rights, and the Malaysian State to the Malay Mengkanunkan Agama: Islam, Hak-hak Liberal, dan Kenegaraan Malaysia (published in October 2020) reflects these two unresolved tensions in the book. The first striking phrase is “Kenegaraan Malaysia” which is rarely seen. It alludes to the making of the state of Malaysia as opposed to simply just Malaysia, perhaps in order to highlight that it is indeed an ongoing process. The inflection on Malay in the term “Malay-Muslim” (111) that recur in Malaysian political discourse is highlighted by the verb “mengkanunkan” the root of which is “kanun” derived from Arabic qānūn that refers to administrative, economic, and criminal law passed and established by political sovereigns and sometimes glossed as “state law.” Indeed, Islamic law is an imposing edifice in the case of Malaysia, which Moustafa has shown, although it is primarily in the service of Malay racial dominance.

About the Reviewer(s): 

Nurfadzilah Yahaya is Assistant Professor of History at National University of Singapore.

Date of Review: 
November 19, 2020
About the Author(s)/Editor(s)/Translator(s): 

Tamir Moustafa is Professor of International Studies at Simon Fraser University.

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