Islam and Civilisational Renewal
A journal devoted to contemporary issues and policy research
Special Issue: Religion, Law, and Governance in Southeast Asia
Volume 2 • Number 1 • October 2010
Produced and distributed by
ISSN 2041–871X (Print) ISSN 2041–8728 (Online)
© INTERNATIONAL INSTITUTE OF ADVANCED ISLAMIC STUDIES 2010
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EDITOR-IN-CHIEF Professor Mohammad Hashim Kamali
EDITOR Professor Emeritus Datuk Osman Bakar
ASSOCIATE EDITOR Christoph Marcinkowski
ADVISORY BOARD Mahmood Zuhdi Hj Abdul Mostafa Mohaghegh Damad, Sachiko Murata, United States Majid, Malaysia Islamic Republic of Iran Chandra Muzaffar, Malaysia Ibrahim Abu Rabi‘, Canada Ahmet Davutoğlu, Turkey Seyyed Hossein Nasr, United Syed Farid Alatas, Singapore W. Cole Durham Jr, United States Syed Othman Al-Habshi, States Mohamed Fathi Osman, Canada Malaysia John Esposito, United States Tariq Ramadan, United Amin Abdullah, Indonesia Marcia Hermansen, United Kingdom Zafar Ishaq Ansari, Pakistan States Miroslav Volf, United States Azyumardi Azra, Indonesia Ekmeleddin Ihsanoğlu, Turkey John O. Voll, United States Azizan Baharuddin, Malaysia Anthony H. Johns, Australia Abdul Hadi Widji Muthari, Shamsul Amri Baharuddin, Yasushi Kosugi, Japan Indonesia Malaysia Khalid Masud, Pakistan Timothy Winter (alias Abdal Mustafa Cerić, Bosnia Ingrid Mattson, United States Hakim Murad), United Herzegovina Ali A. Mazrui, United States Kingdom Murat Çizakça, Turkey Khalijah Mohd Salleh, Malaysia
OBJECTIVES AND SCOPE
• Islam and Civilisational Renewal (ICR) is an international peer-reviewed journal published by Pluto Journals on behalf of the International Institute of Advanced Islamic Studies (IAIS). It carries articles, book reviews and viewpoints on civilisational renewal. • ICR seeks to advance critical research and original scholarship on theoretical, empirical, historical, inter-disciplinary and comparative studies, with a focus on policy research. • ICR aims at stimulating creative and original contributions within contemporary Muslim and non-Muslim scholarship to further civilisational renewal. • ICR promotes advanced research on the civilisational progress of Muslims and critical assessments of modernity, post-modernity and globalisation.
Contributions and Editorial Correspondence
Notes to contributors and details of submission can be found at: ICR.plutojournals.org Comments and suggestions as well as requests to contact one of the contributing authors can be emailed to the Managing Editor at: [email protected]
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Editorial 5 Mohammad Hashim Kamali
Overview The Legal Framework of Religion–State Relations in Southeast Asia 11 Tahir Mahmood
Articles Constitutionalism and Democracy: An Islamic Perspective 18 Mohammad Hashim Kamali The Ship and the Stranger: A Metaphorical Approach to Governance and Islam 46 Chaiwat Satha-Anand Religion, Law, and Governance in Malaysia 60 Abdul Aziz Bari A Malaysian Perspective on Qur’ānic Governance: Family Autonomy vs. State Intervention 78 Zaleha Kamaruddin The Rule of Law and Legal Pluralism in Malaysia 90 Constance Chevallier-Govers Islam, Corruption, Good Governance, and Civil Society: The Indonesian Experience 109 Azyumardi Azra Islam and the State in the Indonesian Experience 126 Bahtiar Effendy Filipino Muslims and Issues of Governance in the Philippines: Some Thoughts by a Local Practitioner 145 Datu Michael O. Mastura Uniquely Singapore: The Management of Islam in a Small Island Republic 156 Suzaina Kadir
Viewpoints What Makes a Muslim Leader 177 Mohammad Hashim Kamali Why Issues of Islamic Leadership are Important to ASEAN 180 Osman Bakar
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Islamic Affinities with New Sciences and Technologies 184 Eric Winkel Enhancing Civilisational Dialogue between Malaysia and the European Union 186 Christoph Marcinkowski The Significance of PropagatingIslam Hadhari in Japan 190 Kazunori Hamamoto Mandatory Rebate and Unearned Profit: The Latest BBA Decision 194 Idrus Ismail
Book Reviews ʿAbd al-Laṭīf al-Ḥusayn: Al-Amānah fī ’l-islām wa-āthāruhā fī ’l-mujtamaʿ 198 Nora S. Eggen Irfan A. Omar (ed.): A Muslim View of Christianity: Essays on Dialogue by Mahmoud Ayoub 201 Christoph Marcinkowski Christian W. Troll: Dialogue and Difference: Clarity in Christian–Muslim Relations 205 Christoph Marcinkowski Johan Fischer: Proper Islamic Consumption: Shopping Among the Malays in Modern Malaysia 208 Karim D. Crow Margaret J. Wheatley: Leadership and the New Science: Discovering Order in a Chaotic World 211 Eric Winkel
Events and Significant Developments Workshops in Djibouti Organised by the Constitution Commission of Somalia 214 Mohammad Hashim Kamali Round Table of the Perdana Leadership Foundation and the New Club of Paris and Public Dialogues on the Knowledge-Economy 217 Osman Bakar Common Ground between Islam and Buddhism 220 Eric Winkel Three Relationships 222 Eric Winkel
Notes on the Contributors 224 Aims of the Journal 230 Call for Papers 231 Guidelines for Contributors 232 Transliteration Table 233 Subscription Rates 234
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This issue of IAIS’s flagship-journal Islam and Civilisational Renewal (ICR) features, for the most part, the contributions by participants of the International Conference on Religion, Law, and Governance in Southeast Asia held in Kuala Lumpur 29–31 January 2010. The event was hosted by IAIS Malaysia and the Faculty of Law of the University of Malaya and was jointly organised by IAIS Malaysia and three other international sponsors, namely the International Center for Law and Religion at Brigham Young University (United States), the International Consortium for Law and Religion Studies of the Università degli Studi at Milan (Italy), and the Institute of Advanced Legal Studies at Amity University (India).1 The conference was officially opened with a speech by the Prime Minister of Malaysia Dato’ Sri Najib Tun Razak2 and featured 25 world-renowned speakers from 20 countries and 250 participants.
In this issue of ICR, we are pleased to present to our readers those of the conference papers which have a specific Southeast Asia-related content. We would, in the meantime, like to inform our readers about our forthcoming conference proceedings volume, which will also include additional papers of wider interest to the theme of the conference. Some of the contributions in this issue feature papers by leading scholars in their particular fields, while others are by local practitioners, even politicians, mainly in the form of an essay. This also accounts for the fact that the articles and essays in this volume are of uneven length, due mainly to the different approaches and backgrounds of our contributing authors.
The current issue of ICR starts with “The Legal Framework of Religion–State Relations in Southeast Asia”, an overview by Tahir Mahmood – the former Dean of the Delhi University Law Faculty, the current Chairman of the Institute of Advanced Legal Studies and Ambassador for Interfaith Harmony at Amity University, India, and an eminent legal scholar of that country. His paper expounds the main character- istics and interactive dimensions of law and religion in the Southeast Asian region.
Professor Mahmood’s overview is followed by a good number of articles with policy recommendations: The first one, entitled “Constitutionalism and Democracy: An Islamic Perspective”, is by myself. In it, I develop the theme that Islamic government is essentially civilian rather than theocratic, notwithstanding the common misper-
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ceptions to the contrary, by presenting a survey of the evidence in the Qur’ān and the Sunnah as well as views of scholars of a variety of adherences on the subject. I also explore issues over the freedom of religion and draw the following conclusions:
• that the normative teachings of the Qur’ān and Sunnah are more supportive of freedom of religion and pluralism than scholastic interpretations of the schools and scholars of the sharīʿah; • that evidence shows Islam’s substantive harmony with the principles of democracy; • that Islam is affirmative on religious and intellectual pluralism; • that there is substantive support in the theory and praxis of Islam for the democratic principle of separation of powers.
The next article, “The Ship and the Stranger: A Metaphorical Approach to Governance and Islam”, is by Chaiwat Satha-Anand, a prominent Thai-Muslim scholar who is Professor of Political Science at Thammasat University, Bangkok, and Director of the Thai Peace Information Centre at the Foundation for Democracy and Development Studies. Professor Chaiwat’s article addresses issues of governance from the Islamic perspective by applying the metaphors of ‘the ship’ and ‘the stranger’, arguing that both might be useful in illuminating the idea of ‘soft governance’ in Islam, which he sees as an attempt to “meaningfully connect a multiplicity of actors from different terrains with complex relationships among them in the process of governing with a much more pluralistic conceptualisation of power”. Two of his major conclusions are:
• the two metaphors point to highly limited governance in Islam, especially in terms of the power to punish, due to the limits which come from the cautious approach to penalties and the circumstance of being human; • ‘soft governance’ would influence a choice of punishment that would be judged within the limits of human reason and understanding, thereby opening up the possibility of a much larger space for the accused to redeem himself.
“Religion, Law, and Governance in Malaysia” is by Abdul Aziz Bari, Professor of Law at the International Islamic University Malaysia (IIUM). The author argues that the Malaysian experience could serve as an example of how a modern system of governance could coexist with traditional Islamic values and systems within the context of Malaysia’s ‘dual’ legal system. Some of the points he makes may
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be considered as preconditions toward achieving that harmony. Thus he proposes the following:
• In future, any kind of ‘Islamisation policies’ should proceed within the existing framework of the Malaysian Constitution. • Malaysians in general – especially the non-Muslims – are more aware of their rights, particularly those enshrined in the Constitution. This should not be seen as a threat by the authorities and the Muslim community at large, but rather as a change for true nation-building.
“A Malaysian Perspective on Qur’ānic Governance: Family Autonomy vs. State Intervention”, by Zaleha Kamaruddin, Professor at the Kulliyah of Law at the International Islamic University Malaysia (IIUM), considers ‘good governance’ a crucial element for peace and development of societies. The main argument of her article is that the notion of ‘good governance’ is also of central importance to the family, which she sees as the nucleus of human civilisation. Within this line of thought, she explores the concept of ‘qur’ānic governance’ and its influence on the family institution. She argues that
• a proper understanding of the role of the sharīʿah, its unique approach, and the ways in which statements of the sharīʿah are codified into contemporary law, and how best courts interpret the law, would pose important questions requiring careful articulation. • The state, therefore, must be extra careful when intervening in family matters since it has to ensure equilibrium and reasonable balance between the autonomy of the family and the state and also to understand the extent of the role that religion plays in public life.
“The Rule of Law and Legal Pluralism in Malaysia” is an article by Constance Chevallier-Govers, who is Associate Professor at the Faculty of Law in the University of Grenoble, France, as well as Associate Research Fellow at Asia-Europe Institute in the University of Malaya, Kuala Lumpur. It is the only article in this issue that has not been presented at our conference, but which we have, nevertheless, taken ‘on board’ due to its relevance. Dr Chevallier-Govers investigates some of the detailed issues of ‘legal pluralism’ in Malaysia and the extent to which such pluralism may pose a challenge to the supremacy of the Constitution. In order to address pressing current issues more effectively, she suggests
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• the creation of a distribution body to allocate sensitive cases either to sharīʿah or to civil courts; • the insertion of a basic structure provision in the Constitution; • joining the International Covenant on Civil and Political Rights (ICCRP) (albeit with certain reservations concerning sharīʿah law); • the adoption of a federal law on apostasy, taking as model Negeri Sembilan’s Enactment that is currently in force.
“Islam, Corruption, Good Governance, and Civil Society: The Indonesian Experience” is by the renowned Indonesian scholar Azyumardi Azra, Professor of History and Director of the Graduate School at Jakarta’s Syarif Hidayatullah State Islamic University and former Rector of that University. His article identifies corruption as one of the most serious problems faced by many Muslim countries, including Indonesia. He addresses the role of Islamic teachings against this vice and the recent experiences of Indonesia in this regard, especially the role of Islamic civil society. One of his salient recommendations is that
• Indonesia’s KPK or ‘Anti-Corruption Commission’ should be strengthened, so that the efforts to combat corruption can be more effectively pursued.
“Islam and the State in the Indonesian Experience” is an article by Bahtiar Effendy, who is Professor of Politics at Syarif Hidayatullah State Islamic University in Indonesia’s capital, Jakarta. Based on his observations, he states that not all Indonesian Muslims appear to support the politicisation of Islam. In his article, he tries to analyse the source and nature of Islam–state relations in contemporary Indonesia, while, at the same time, looking for solutions. He argues in favour of
• partial accommodation as a viable option for a more enduring relationship between Islam and the state; • open articulation and expression of Muslim concerns, while safeguarding the construct of Indonesia as a nation-state.
“Filipino Muslims and Issues of Governance in the Philippines: Some Thoughts by a Local Practitioner” is an article by Datu Michael O. Mastura, an eminent Muslim lawyer and writer from the southern part of the Philippines, as well as a former member of Congress. The author takes up the general theme of governance to provide an institutional framework for law reform and constitutional regime in
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the Philippines and the areas inhabited by Muslims in the south of that country. His two most important conclusions are:
• There are manifold reasons for continuing political ties with Manila. • The transitive process leading toward autonomy should first and foremost lead to a stop to political violence. He argues that the interest in outright independence would be substantially lessened and could eventually bring about an end to the conflict through some form of perpetual autonomy or self-governance.
The last article in this issue, “Uniquely Singapore: The Management of Islam in a Small Island Republic” is by Suzaina Kadir, an award-winning Singaporean sociologist, who is Senior Lecturer at the Lee Kuan Yew School of Public Policy in Singapore. In her article, she explores the dynamics of Singapore’s administra- tion and management of its minority Muslim population, while also tracing the evolution of the state’s administration of Islam in the island republic. In order to enhance relations between the Singaporean state and the Muslim minority, she recommends the following:
• The state should allow a new set of Muslim elites to emerge. • Muslim politics in Singapore require a careful balance between the admin- istration of Islam and allowing space for Islamic society to reform itself from within. This may entail lesser centralisation and more space for greater pluralism within Islam.
This time ICR also features six viewpoints, which cover a variety of topics – from Islamic affinities to new sciences and technology, to an Islamic perspective on leadership, to novel approaches towards Malaysia–European Union relations, and the significance of propagatingIslam Hadhari (Civilisational Islam) in Japan.
This issue also presents five book reviews and four event and significant development reports, one of them reporting on an important opening between Islam and Buddhism marked by the publication of a book forwarded by the Dalai Lama, Prince Ghazi and myself. There is also a report by myself of a workshop that I attended in Djibouti on a proposed new constitution for Somalia. Another event report is presented by Osman Bakar on the Round Table of the Perdana Leadership Foundation and the New Club of Paris, which was staged recently in Kuala Lumpur.
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In closing, I would like to express my gratitude to all of our distinguished contributors as well as the IAIS Malaysia editorial committee and staff for their efforts and I look forward to their continued support.
Mohammad Hashim Kamali Editor-in-Chief
Notes
1. See the brief conference report by Christoph Marcinkowski in Islam and Civilisational Renewal 1, no. 4 (July 2010). 2. Presented by Deputy Prime Minister Tan Sri Dato’ Muhyiddin Mohd Yassin.
Corrigendum
Islam and Civilisational Renewal published in its April 2010 issue an article entitled “Implementing Islamic Law within a Modern Constitutional Framework: Challenges and Problems in Contemporary Malaysia”, which mentioned erroneously Salah El-Sheikh as its author. The author, however, is Dr Ahmad Fauzi Abdul Hamid, whose article was anonymously sent for a review to ICR by Abdurrahman Salleh, editor of Islamic Studies, that featured Dr A. Fauzi’s article, as we subsequently learned, in one of its 2009 issues. We regret and apologise for the unfortunate error. Dr Fauzi’s article was not meant to be carried by ICR. Subsequently, it also came to our attention that an earlier version of this article had appeared in Islamic Studies (Islamabad, Pakistan) in 2009.
Islam and Civilisational Renewal
ICR 2-1 00 prelims 10 28/09/2010 11:06 OVERVIEW THE LEGAL FRAMEWORK OF RELIGION–STATE RELATIONS IN SOUTHEAST ASIA
Tahir Mahmood*
Abstract: According to a general consensus among geographers and political scientists Southeast Asia includes eleven major countries. Though in terms of headcount Islam is the largest religion of Southeast Asia, it is the faith of the majority only in three states in the region – of the remaining eight six are dominated by the Buddhists and two by the Christians. The legal framework of religion–state relations is not uniform either in Southeast Asia as a whole or within any of these three religion-based groups of countries. The wide diversity of religion–state relations in Southeast Asia is indeed fascinating.
Introduction
The interaction of law and religion in the Asian continent is one of my major areas of study. In recent years, I have been involved in academic partnership in this field with the International Center for Law and Religion Studies at America’s Brigham Young University and have been in the company of its distinguished director, Professor Cole Durham in many different countries. Between 2008 and 2009, we organised together two conferences on this theme in South Asia, and I have now come here to look into the Southeast Asian experiences. I have been coming to Malaysia again and again for the past 15 years and I have had the privilege of working with some of the country’s leading law brains, including the legendary scholar, the late Ahmad bin Mohammad Ibrahim, former Chief Justice Tun Abdul Hamid, and Islamic law specialist Professor Mohammad Hashim Kamali. At this preliminary session of the conference, I am presenting a very brief overview of the legal framework of religion–state relations in Southeast Asia. To the scholars from Malaysia and other Southeast Asian nations present here, my
* Professor Tahir Mahmood is Chairman of the Institute of Advanced Legal Studies at Amity Univer- sity, India. This paper features the author’s speech as delivered at the conference on Religion, Law and Governance in Southeast Asia’s inaugural session.
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presentation would sound very elementary; but it would probably set the ball rolling for discussions in our forthcoming business sessions. According to a general consensus among geographers, Southeast Asia includes eleven major countries which I am mentioning here in the descending order of their population. With its 230 million-strong citizenry, Indonesia is on the top of this list, and Brunei with its half a million nationals at the bottom. Malaysia, with a population of around 28 million, stands at no. 6 on this list – above it being, apart from Indonesia, the Philippines (92 million), Vietnam (85 million), Thailand (63 million) and Myanmar (50 million) – and below it Cambodia (15 million), Laos (6.5 million), Singapore (5 million) and East Timor (1 million). Though in terms of headcount, Islam is the largest religion of Southeast Asia, it is the faith of the majority only in three states in the region – of the remaining eight six are dominated by Buddhists and two by Christians. The legal framework of religion–state relations is not uniform either in Southeast Asia as a whole or within any of these three religion-based groups of countries. What follows is a brief overview.
Muslim-Dominated Countries
With its largest Muslim population on the globe, Indonesia has no legally proclaimed state religion, but the Islamic tenet of monotheism has a place of pride in its Constitution.1 Beginning with the words “By the grace of God Almighty”, the Constitution declares that the state is built on “belief in the One and Only God”. It contains a separate Chapter on Religion which substantially reiterates this prefatory affirmation before assuring that everybody shall have “freedom of worship, each according to his or her own religion or belief”, and freedom “to choose and practise the religion of his or her choice”. Moreover, a law relating to the administration of justice mandates the judges to act “with full responsibility to Almighty God”.2 The Indonesian judiciary comprises of secular and Muslim religious courts – the former applying general laws of the country and the latter administering Islamic law to the Muslims in matters of personal status and family relations. While the general laws of the country remain secular, in the Aceh Darussalam territory attempts have been made to bring more aspects of life under Islamic law. With regard to Malaysia,3 the Federal Constitution here declares that “Islam is the religion of the Federation but other religions may be practised in peace and harmony in any part of the Federation.” Guaranteeing to all citizens the right to “profess, practise and propagate” religion, and to all communities to manage their religious affairs, establish and maintain institutions for religious or charitable purposes, and acquire and own property in accordance with law – empowering the state however to regulate all these rights in the interest of health or morality. It further says that
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no person will be forced to receive instruction in or take part in any ceremony or act of worship belonging to a religion other than his own, or to pay a tax fully or partly allocated for any other religion. There are special provisions in the Malaysian Constitution for the state religion and its followers. The King of Malaysia is “Head of the religion of Islam” in the Federal Territories and in the states of Malacca, Penang, Sabah and Sarawak – while everywhere else this position is held by the respective heads of states. The most conspicuous Islamic provision in the Constitution is the one empowering the state to control propagation of other religion among the Muslims, in terms of which laws called Non-Islamic Religions (Control of Propagation among Muslims) Enactments have been locally enacted.4 A National Council for Islamic Affairs works under the Constitution at the federal level and has its counterparts in most of the states. Further, the state is authorised to establish or maintain institutions for Islamic religious instruction, or provide active assistance for this purpose. Of course other religious groups also are assured the right to establish and maintain institutions for the education of children in religion and the state cannot discriminate against such institutions in respect of financial support and administrative regulation. The judiciary in Malaysia consists of general courts and Muslim religious courts, both having civil and criminal jurisdiction. A Syariah Courts (Criminal Jurisdiction) Act was enacted by the Federal Government in 1965 and an Islamic Family Law Reform Act in 1984. Parallel civil laws are in force in almost all the states, and parallel penal laws in six of them.5 In the states of Kelantan and Terengganu there have been moves to bring more aspects of life under the traditional Islamic law. On the other hand, national-level Malaysian rulers of the recent past propounded the liberal concept of Islam Hadhari (Civilisational Islam) focusing on the civilisational aspects of the Islamic faith. In the neighbouring Brunei – the smallest but richest state of Southeast Asia – the Constitution proclaims Islam according to its Shāfiʿī interpretation to be the state religion.6 Like in Malaysia, in Brunei, too, the Head of the State is head of the Islamic religion, and there are Islamic councils and courts regulated by the Religious Councils, Kathis Courts and State Customs Act of 1955.
Buddhist-Dominated Countries
In four of the six Buddhist-dominated countries of Southeast Asia the Constitutions accord to Buddhism the status of state religion or an otherwise privileged tradition. In Thailand,7 the Constitution declares the King to be a “Buddhist and Upholder of Religions” (note the plural!) and mandates the state “to patronise and protect Buddhism as the religion observed by most Thais for a long period of time”. A Constitutional body called the Sangha Supreme Council controls Buddhist religious
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affairs, currently as per the new Sangha Act of 1962. The Constitution, however, directs the state also to “patronise and protect other religions, promote good understanding and harmony among followers of all religions, and encourage the application of religious principles to create virtue and develop the quality of life”. In terms of this provision a Religious Organisations Act was enacted in 1969 and the Administration of Islamic Organisation Act in 1997 for the Muslim minority which provides for the appointment of an official traditionally known to the Muslims by the Arabic expression shaykh al-islām and within the Thai administrative framework as chularajmontri, by the King and regulates of statutory Central and Provincial Islamic Committees. The Thai Constitution also prohibits religion-based discrimi- nation by the state and guarantees everybody “full liberty to profess a religion, a religious denomination or creed, and observe religious precepts or commandments or exercise a form of worship in accordance with his belief; provided that it is not contrary to his civic duties, public order or good morals”. Islamic law and sharīʿah courts operative in the Muslim-dominated regions have state sanction. In Cambodia,8 where religion is included in the triple ‘motto of the State’, along with Nation and King, the Constitution declares Buddhism to be the state religion, mandating the state to “disseminate and develop Pali9 schools and Buddhist institutions”. Freedom of religious belief and worship is however guaranteed “on the condition that such freedom does not affect other religious beliefs or violate public order and security”, and religion-based discrimination is prohibited. A Ministry of Cults and Religious Affairs regulates religious affairs of all communities. In Myanmar,10 without formally proclaiming Buddhism to be the state religion, the Constitution recognises its “special position as the faith professed by the great majority of the citizens of the State” – adding that the state also recognises Christianity, Islam, Hinduism and Animism. Promising possible state assistance to all recognised religions, it assures non-discrimination on religious grounds and – subject to public order, morality, health and other provisions of the Constitution – guarantees freedom of conscience right to freely profess and practise religion. Religious communities are given the right to develop their respective religions and customs subject to “laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality” and “without prejudice to relations between one national race and another, or among national races and to other faiths”. The Myanmar Constitution borrows from its Indian counterpart the provision that the right to religious freedom does not preclude the state from enacting laws to regulate “any economic, financial, political or other secular activities that may be associated with religious practice” or for “social welfare and reform”. It also specifically forbids “abuse of religion for political purposes” and acts “intended or likely to provoke feelings of hatred, enmity or discord between racial or religious communities or sects is contrary”. Religion-
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based family laws inherited from the British colonial era remain in force with some later reforms. In Laos11 the Constitution says that the “State respects and protects all lawful activities of the Buddhists and of followers of other religions, and mobilises and encourages the Buddhist monks, and novices and priests of other faiths, to participate in those activities which are beneficial to the country and its people” – adding that “all acts of fomenting division among religions and among the people are prohibited”. At the same time it recognises “right and freedom to believe or not to believe in religions” and assures equality of all citizens irrespective of their faith and ethnicity. A Decree on Management and Protection of Religious Activities issued in 2002 allows religious communities to manage their affairs under state control. Although all religions are recognised, the dominant Buddhist faith reportedly enjoys relatively more freedom under its provisions. In Singapore12 there is no state religion and the Constitution guarantees equality and non-discrimination on religious grounds. Individuals’ right to profess, practise and propagate religion is protected; and so is that of religious groups to manage their religious affairs, establish and maintain institutions for religious or charitable purposes, and acquire and own property in accordance with law. In respect of religious education and taxation the Singapore Constitution dittoes parallel provisions of the Malaysian Constitution noted above. Further, there is a Presidential Council for Minority Rights acting under the Constitution, and a Presidential Council for Religious Harmony working under the Maintenance of Religious Harmony Act 1992. The Constitution mandates the Legislature to make provision for regulating Muslim religious affairs and for constituting a Council to advise the President in matters relating to the Muslim religion. An Administration of Muslim Law Act was accordingly enacted in 1966 governing the Singapore Islamic Council and regulating application of Islamic law to the Muslims and working of Islamic religious courts. Vietnam, too, has no state religion and the national Constitution recognises legal equality of all citizens.13 Declaring that all religions are equal before the law, it adds that every citizen has a right to “practise or not practise any religion” and that no one can use religious freedom to “violate state laws and policies”. Speaking explicitly of a “multi-ethnic Vietnamese civilisation”, the Constitution also prohibits ethnic discrimination. Of late, a liberal regime of religious freedom has been established under the Belief and Religion Ordinance of 2004, followed by its Implementation Decree of 2005.
Christian-Dominated Countries
In the Philippines,14 the Constitution is based on the United States model and declares that the separation of Church and State shall be inviolable; no law shall
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be made respecting an establishment of religion or prohibiting free exercise thereof; free exercise and enjoyment of religious profession and worship without discrimination or preference shall for ever be allowed; and no religious test shall be required for the exercise of civil or political rights. In a leading case, the Supreme Court of Philippines, interpreting the Constitution, has propounded what it called “doctrine of benevolent neutrality-accommodation” is virtually laying down that – unlike in the US where legislative exemptions of religion had to be upheld by the Supreme Court as constituting permissive accommodations – in the Philippines such exemptions for religion are mandatory. Islamic law and sharīʿah courts remain operative in the constitutionally recognised Muslim autonomous regions. Muslim family law was codified in 1977 and a semi-official muftī is authorised to issue religio-legal edicts. In East Timor,15 although acknowledging that the Catholic Church “has always been able to take on the suffering of all the People with dignity, placing itself on their side in the defence of their most fundamental rights”, the Constitution declares that there shall be no official religion and the state shall “respect different religious denominations” and promote “cooperation with different religious denominations that contribute to the well-being of the people of East Timor”. Individuals are assured freedom of conscience, religion, worship, non-discrimination on religious grounds and non-persecution for being a “conscientious objector”. Religious denominations – “separated from the State” – have the freedom to “organise and exercise their own activities in due observance of the Constitution and the law”, possess and acquire assets for the achievement of their objectives, and teach religion “in the framework of respective religious denominations”. Customary laws are to be recognised by the state subject to the Constitution and state legislation, but “women and men shall have the same rights and duties in all areas of political, economic, social, cultural and family life”.
Concluding Remarks
The wide diversity of religion–state relations in Southeast Asia is indeed fascinating. I have laid here only the basic legal framework relating to the theme of this conference operative in various countries of this region. “Easier said than done”, they say, and in respect of religious rights of the people the practice is certainly not as rosy as the theory anywhere in the world. Southeast Asia is no exception and there certainly are problems of multifarious nature and different dimensions in almost all countries of the region – like in most other countries of the world. I have deliberately not touched upon them as we will have ample opportunity to talk of them in our forthcoming business sessions.
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Notes
1. Constitution of Indonesia 1945, Arts 28–29. 2. Law no. 14 of 1970. 3. Constitution of Malaysia 1960, Arts 3, 11–13. 4. Johor, Kedah, Kelantan, Melaka, Negeri Sembilan, Pahang, Perak, Selangor, and Terengganu. 5. Pahang, Perak, Melaka, Sabah, Terengganu and Kelantan. 6. Constitution of Brunei Darussalam 1959, Art. 3. 7. Constitution of Thailand, 2007, Arts 5, 9, 37 and 79. 8. Constitution of Cambodia 1993, Arts 43, 68. 9. Pali is the language of many of the earliest extant Buddhist scriptures, as collected in the Pali Canon or Tipitaka, and as the liturgical language of Theravada Buddhism. 10. Constitution of Myanmar, Arts 4, 10, 16–22, cf. Constitution of India 1950, Art. 25. 11. Constitution of Laos 1991, Arts 9, 22, 30, 43. 12. Constitution of Singapore, Arts 12, 15–16, 68–92 and 153. 13. Constitution of Vietnam 1992, Arts 5, 30, 52 and 70. 14. Constitution of Philippines, Art. III Section 5; Art. II Section 6. 15. Constitution of East Timor, Preamble Arts 12, 17.
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ICR 2-1 01 text 17 28/09/2010 11:06 CONSTITUTIONALISM AND DEMOCRACY: AN ISLAMIC PERSPECTIVE
Mohammad Hashim Kamali*
Abstract: The long history of Islamic scholarship on caliphate, sharīʿah-oriented policy (siyāsah sharʿiyyah) and system of government (niz.ām al-h.ukm) has yielded a rich legacy which is, nevertheless, beset with uncertainties in conjunction with modern developments on government and constitutional law. Uncertainties have persisted over the basic concept and definition of an Islamic polity and the existence or otherwise of a valid precedent and model for an Islamic state. This is partially caused by a tendency in modern writings to apply the nation-state ideas of eighteenth-century Europe to the events of early Islam some twelve centuries earlier and doubtful parallels that have been attempted to be drawn between them. This article attempts first to identify the causes of the problem and then proceeds with an overview of the evidence in the Qur’ān and Sunnah and contributions of a cross-section of schools and scholars on the subject. This is followed by a general characterisation of an Islamic system of rule under five sub-headings, the first of which describing Islamic government whether Islamic state, and Iran in particular, is a theocracy, whether Islam stands for a qualified democracy, and whether it also upholds separation of powers. The last section discusses freedom of religion and religious pluralism in an Islamic polity followed by a conclusion and recom- mendations.
Introduction
Islamic government is essentially civilian rather than theocratic, notwithstanding the common misperceptions to the contrary. The theocratic image of Islamic state and government was in many ways portrayed by the post-revolutionary Islamic Republic of Iran, as I shall elaborate below. We shall also examine whether the Islamic system of rule can be described as a ‘qualified democracy’, one which also stands for freedom of religion and religious pluralism. Toward the end of this article we shall have a look at the recognition or otherwise of separation of powers, and to this effect examine two opposing theories on the subject. It is submitted that certain
* Professor Mohammad Hashim Kamali is the Chairman and CEO of IAIS Malaysia.
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functional lines of division between the various organs of state had always existed, and had subsequently been adopted – although not from the Islamic sources – by many of the twentieth-century constitutions of Muslim countries. My examination of the evidence in the sources supports the existence in principle of a strong and independent judiciary, and also of lines of separation between the executive and legislative branches of an Islamic government. Accountability under the rule of law and constitutional separation of powers thus bear essential harmony with the Islamic system of rule.
Constitutionalism and Democracy Distinguished
The twin concepts of constitutionalism and democracy normally nurture and endorse one another, yet they are not the same and can, under certain circumstances, stand in a state of tension. Whereas democracy is focused on majority rule, constitu- tionalism demands commitment to the rule of law. One also notes a tendency, on the part of the international community, to see the drafting of a constitution as a way toward a negotiated peace – especially in post-conflict situations. This may, theoretically, seem appealing, yet it could also run counter to its desired objectives and cause greater instability by accentuating the wishes of the majority of citizens over a suppressed minority. It may be relatively easy to impose elections on a given country, but it is more difficult to establish legality, commitment to basic rights, and a constitutional order of checks and balances within the organs of power. If democracy can be defined as “popular political self-government”, a simple definition of constitutionalism could be “the containment of popular decision-making by a basic law”.1 At the heart of constitutionalism lies the deliberate choice of a rep- resentative government to constitute its political life in terms of commitment to a binding agreement by the ruler and ruled, structured so as to be difficult to change.2 As American legal philosopher Ronald Dworkin (b. 1931) put it, “the constitution, and particularly the Bill of Rights, is designed to protect individual citizens and groups against certain decisions that a majority might want to make, even when that majority acts in what it takes to be the general or common interest”.3 Apart from its obvious relevance in all societies, this aspect is particularly relevant in politically polarised and ethnically divided societies. Constitutions are drafted either at the end of a conflict to seal its outcome or prior to the eruption of conflict in an attempt to stave it off. In Iraq, for example, the occupation powers attempted to forge a national and political reconstruction through the medium of a constitutional drafting. Through an inordinate amount of cajoling a document was drafted and ratified but the process of arriving there severely exacerbated existing divisions and yielded a document feared to ultimately lead to the disintegration of the state.4 Afghanistan could also be cited
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as a similar example, although different in some ways. However, the constitution that was drafted and ratified in January 2004 under the auspices of UNAMA (United Nations Assistance Mission for Afghanistan) has fallen short not only of its desired objective of facilitating a negotiated peace between the rival factions; it may have actually exacerbated factional rivalry and political instability in the country. In the midst of an on-going conflict, and against the background especially of a humiliating foreign occupation, it is questionable whether the process could live up to the expectations made of it. The same holds true for external attempts at mediation which sometimes pre-empt the emergence of a stable social consensus. This seems to be the case with external constitutional support given to political and military actors in the Sudanese and Somali civil wars.5 Commitment to justice, constitutionalism and judicial review can ultimately provide the necessary protection against the ‘tyranny of the majority.’ There is strong empirical evidence that constitutional legality will in time nurture democracy, but that democracy on its own will not necessarily bring a constitutionally committed government. Democracy and constitutionalism are not only different concepts but can exist in a state of tension, as the former advocates majoritarian preferences, whereas the latter imposes pre-existing restraints on the range of choices available to governing majorities.6 The Western experience since 1945 has largely embodied both democracy and constitutional government, making it thus difficult to imagine the two apart. Yet evidence shows that only in the late 1940s did most western countries become actually democratic, but that importantly, already a century earlier most of them had put in place significant constitutional elements such as the rule of law, private property rights, free speech and assembly and increasingly also constitutional separation of powers, without being democratic. Government in North America and Western Europe was not characterised by democracy but by constitutional legality. “The western model is best symbolised not by the mass plebiscite but the impartial judge.”7 Some agreement seems to have developed over time that the best realisable form of government is a mixed – or constitutional – government in which freedom is constrained by the rule of law and popular sovereignty is tempered by state institutions that produce order and stability.8 Even if we do not conclude that democracy is simply not viable in an environment of intense ethnic preferences, it seems evident that merely holding elections is insufficient and that additional institutional mechanisms and constitutional restraints are necessary to make it work. The combined or mixed approach seems to show lines of convergence with the Islamic conception of a constitutional government that derives legitimacy from popular electoral mandate, commitment to justice and the rule of law – as discussed in the following pages.
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Islamic Constitutional Law: An Overview of the Discipline
Constitutional law is one of the most under-developed areas of Islamic jurisprudence and stands in this respect at the opposite pole of ʿibādāt (worship matters) on which juristic literature is exceedingly elaborate. A great deal of what has been written in the past concentrates on the early caliphate and pays but little attention to subsequent developments. The literature that has come about as a result is still wanting of critical evaluation and review. The prevailing uncertainties are also not entirely new as problems began to set in at an early stage. The nascent caliphate of the early decades of Islam had barely realised its potential when military conflict and irregularities of dynastic rule exposed it to intolerable disruptions. The originally republican features of the caliphate (khilāfah), especially consultation (shūrā)9 and oath of allegiance (bayʿah),10 were only nominally kept but were subjugated to the vagaries of a totalitarian system, which characterised the many centuries of rule under the Umayyads, the Abbasids and others. ʿAbd al-Razzāq Aḥmad al-Sanhūrī observed in 1926 that in the field of con- stitutional law and government, the fiqh (Islamic law) had remained in a state of infancy. ʿAbd al-Ḥamīd al-Mutawallī quoted him 50 years later to say that “the infant is still in the cradle. It can barely crawl and was never able to stand on its feet.”11 Ḥassan al-Ṭurābī (b. c.1932), a Sudanese religious and political leader, similarly noted that due to stagnation of constitutional law over the greater part of the Islamic history, comprehensive research and ijtihād (independent reasoning) in this area are wanting.12 A former Grand Mufti of Egypt, Shaykh Aḥmad Ḥuraydī, considered the political order that prevailed in the Muslim lands over the greater stretch of history from the Umayyads to the end of the Ottomans did not, on the whole, comply with the principles of Islam, and those who wrote on Islamic government remained focused on dynastic practices that did not reflect normative guidelines but expounded the history of government in those times, and there is “a big difference between the two”.13 The Iranian Shiʿite scholar Shaykh Jaʿfar Subḥānī (b. 1922) concurred to say that al-Māwardī’s renowned treatise al-Ahkām al-sulṭāniyyah pays more attention to the realities of the Abbasid state of his time rather than the foundational guidelines of the Qur’ān and the sunnah. What needs to be done is to take a fresh recourse to those guidelines and avoid tainting them with the precedent of dynastic rule.14 P.J. Vatikiotis (d. 1997), the late Emeritus Professor of Politics at the School of Oriental and African Studies (SOAS) in the University of London, alluded to the Islamic resurgence of recent decades by saying that Muslims were critical of the prevailing “alien order which many consider unsuitable and inadequate for their societies […]. One observes that neither in Iran so far nor among any of the militant
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Islamic movements elsewhere is there a clear idea of the nature of the Islamic state or government they wish to establish.”15 The contemporary Egyptian scholar, Muḥammad Salīm al-ʿAwwā, Secretary- General of the International Union for Muslim Scholars, noted that the Islamic revolution of Iran stimulated scholarship and research on constitutional themes, yet “many issues of interest to Islamic political thought and constitutional law remain shrouded in ambiguity”. It is perhaps the present generation of researchers whose contributions may “suit the requirements of our age and address issues of concern to us at present”.16 Juristic works on the caliphate are on the whole concerned with the methods of designation of the caliph, his rights and duties and a certain institutional blueprint on the judiciary, vizierate, and departmental structures for the army, taxation, police duties and so forth. This literature on the whole is scanty on modern developments, including the nation-state itself, and constitutional themes on democracy, separation of powers and so forth. The remainder of this article will highlight the characteristic features of an Islamic polity.
Characteristic Features
Islam advocates a civilian polity which is neither theocratic nor totally secular but has characteristics of its own. It is a limited and a constitutional form of government whose powers are constrained by reference to the clear injunctions of the sharīʿah on accountability and justice. It is also rooted in the notions of trust (amānah) and vicegerency (khilāfah) committed to administer justice and secure people’s welfare (maṣlaḥah). Thus according to an Islamic legal maxim, “the imām’s (head of state) performance is judged by reference to people’s welfare”.17 This is the single most important criterion, in other words, by which to evaluate success or failure of a government in Islam. Is it also accidental, one might ask, to find that governments in Islamic history have been labelled by such names as caliphate, imāmate, sultanate, emirate etc., but not as ‘Islamic State’, a nomenclature which most likely appeared first in the writing of Muḥammad Rashīd Riḍā (d. 1935)? This is because the Qur’ān and ḥadīth are silent on political nomenclature, and Muslim scholars have also shown sensitivity not to amalgamate state and religion together. The state represents the community to which it is accountable. It is a qualified electoral democracy that conducts its affairs through consultation and consensus. These are elaborated as follows.
Government as a trust (Amānat al-Ḥukm) Government in Islam is a trust (amānah) and an extension as such of the general qur’ānic concept expounded in a passage known as the āyat al-umarā’ (the ‘rulers’ verse’), where we read:
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God commands you to render the trusts (al-amānāt) to whom they are due, and when you judge among people, you judge with justice. (4:58)
The immediately succeeding passage is on the subject of obedience where the text urges the faithful to “obey God and obey the Messenger and those in charge of the affairs among you” (4:59). Muslims are thus enjoined to fulfil their trusts, to render impartial justice, and obey their lawful rulers. The renowned Qur’ān exegete al-Ṭabarī (d. 923) wrote that “the command over the fulfilment of trusts in this verse is addressed to community leaders […] and those whom the community has entrusted with leadership, those who administer justice and manage the community’s financial affairs”.18 Al-Qurṭubī (d. 1273), however, maintains that it is “addressed to all strata of society – especially the government leaders – regarding their duties in the distribution of assets as well as the administration of justice”.19 Al-amānāt, in the above qur’ānic text, thus characterises the Islamic system of rule as a trust borne by its leaders and officials, which renders them accountable before God and the community. According to a ḥadīth:
Each of you is a custodian and responsible for that which is in his custody. The imām is a custodian and he is responsible for his subjects; a man is a custodian and he is responsible for his family, a woman is a custodian and she is responsible […]. All of you are custodians of what is in their charge.20
It was on this basis that “the Righteous Caliphs understood their positions analogous to guardians and executors […]. They saw it as their duty to personally supervise community affairs, protect their interests and their rights.”21 Ibn Taymiyyah’s (d. 1328) renowned book, al-Siyāsah al-sharʿiyyah (sharīʿah- oriented policy), which is a commentary on the ‘rulers’ verse’, highlights two themes in his elaboration of ‘trusts’: selection and appointment of officials, which must strictly be based on qualification and merit, and fair distribution of wealth. The reference to justice occurs immediately after ‘al-amānāt’, indicating that impartial justice is the most important of all amānāt.22 On distributive justice, Ibn Taymiyyah quoted the second Caliph, ʿUmar b. al-Khaṭṭāb’s (r. 634–644) statement on the assets of public treasury (bayt al-māl): “No one has a greater claim to these assets in preference to anyone else, and everyone’s entitlement would be judged by his record (of service), his financial condition, his burdens and his personal needs.”23 Government as a trust is also manifested in the concept of khilāfah, which has two meanings, one being qur’ānic and refers to the vicegerency of man on earth (cf. 2:30; 24:55), and the other as a system of rule, which does not occur in the Qur’ān.24
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Amānah, or trust, in government is also manifested in the notion of represen- tation. The head of state is a representative (wakīl) of the community by virtue of wakālah which is a fiduciary contract and a wakīl is simultaneously a trustee in charge of the trust he bears on behalf of his principal. The wakīl derives his authority from the principal (muwakkil) and exercises it on the latter’s behalf. It is a restricted form of wakālah, manifested in the requirements that the Imām enforces the sharīʿah and consults the community in the conduct of government.25 Account- ability (muḥāsabah) continues down the command chain in that all government officials are accountable to the head of state by virtue of delegated authority (wilāyah or tawliyah) entrusted in them. No one has immunity and everyone, including the head of state, is accountable for their conduct. All are, in turn, subject to the authority of the courts of justice.
Limited government Islam advocates a limited government in which the individual enjoys considerable autonomy. Restrictions are thus imposed on the state’s legislative capacities, which may not introduce a law contrary to the injunctions of Islam. The state is also bound by the requirements of consultation and consensus, and enforcement also of the sharīʿah, which the state has no authority to overrule or abrogate. In the event where the government issues a command contrary to the injunctions of Islam, the individual is not bound to obey it. For according to a renowned ḥadīth, “There is no obedience in transgression; obedience is due only in righteous conduct.”26 The head of state represents the community that elects him in the first place and has authority to depose him when he violates the law.27 Islam does not advocate a totalitarian system as many aspects of civilian life remain outside the domain of law and government. Muslim jurists have thus distinguished the religious (dīnī) from juridical (qaḍā’ī) obligations and maintained that only the latter are enforceable before the courts. Most of the religious aspects of the individual’s life are private and non-justiciable. Even some of the religious duties such as prayer, fasting, the ḥajj, and almost all of what is classified as recommendable, reprehensible and permissible (mandūb, makrūh, mubāḥ) are not legally enforceable. The private and civil rights of individuals are immune – by the express injunctions of the sharīʿah – against encroachment by others, including the state. No government agency – not even the sharīʿah courts – has the power to grant discretionary changes in the private rights and properties of individuals without their consent.28 The head of state as well as the judge enjoy but limited powers to grant a pardon to a convicted offender and may not order discretionary punishment for unstipulated violations. The deterrent (taʿzīr) punishments are open to court discretion in respect only of determining the quantitative aspect of the punishment for a conduct which
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is proscribed by the sharīʿah. Judges have no power to create offences without valid evidence. There is, moreover, no recognition in the sharīʿah of any privileged individual or group and no one, including the head of state, enjoys special immunity or status before the courts.29 Thus it is noted that “the solutions provided by Islamic law go decisively and consistently in favour of the rights of the individual, of the sanctity of contracts, of private property, and they put severe limits to the action of the state in these matters”.30 In response to a question whether constitution-making was acceptable to Islam, Rashīd Riḍā issued the following fatwā which argued that since a constitution is designed to delineate the limits of the state power and clarify the state’s commitment to rights of the people, it is acceptable to Islam. If enacting a formal constitution operates as a check on despotism, there is no question over its compatibility with the sharīʿah. In the event where the constitution contains rules that are repugnant to Islam, only the part that is so repugnant may be set aside but not the whole of it. Riḍā elaborated that in the writings of Muslim jurists one finds instances where they made errors in their ijtihād and in the books they have authored. One ought to isolate and reject the errors but not the whole of their endeavour. Errors must be corrected at an early opportunity so that the community is protected against deviation. The contemporary Egyptian scholar Maḥmud Ḥilmī Muṣṭafā has concurred with this fatwā and commented that there is nothing in the sharīʿah against enacting a written constitution.31 Government powers in Islam are also limited in respect of taxation. The sharīʿah thus lays down the following:
1. taxation must be just and proportionate to the ability of the taxpayer; 2. it must apply equally to all without discrimination; 3. it must aim at the minimum of what is deemed necessary; 4. the well-being of the taxpayer must be observed in the determination of quantity and methods of collection; and 5. taxation must observe the time-limit of one calendar year for the yield or profit to materialise.32 Both the early Muslim jurist Abū Yūsuf (d. 798) and later on al-Māwardī (d. 1058) have emphasised moderation in taxation by stating that it must in no case deprive the taxpayer of the necessities of life.33
Theocracy or civilian rule? If theocracy means government by religious leaders who exercise spiritual authority, such as that of the pope in the Middle Ages, then the Islamic system of rule does not qualify. In a theocracy the leaders claim to represent God and exercise powers such as the pardoning of sins. Islamic government is simply not vested with such authority,34 for “Islam does not recognise a religious authority of the kind which
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is known in Christianity.”35 Islam also encouraged the people to access the source evidence directly, and vested no one with the exclusive authority to interpret the Qur’ān nor to issue binding opinions in the name of religion.36 “The Islamic State”, writes the contemporary Egyptian scholar Yūsuf al-Qaraḍāwī (b. 1926), “is not a theocracy: it is a civilian state (dawlah madaniyyah)”, simply because it comes into being by election, pledge of allegiance (bayʿah) and consultation, and the head of state is also accountable to the people. Citizens are entitled to advise the leader and alert him to his error.37 “It should be clearly understood”, he writes, “that an Islamic state is not a theocracy”; it is not the government of the ʿulamā’ nor is it a government by men only to the exclusion of women. Women played a considerable role in public life during the time of the Prophet, just as they also took part in the election of the third Caliph ʿUthmān (r. 644–656).38 In Islam, the government is committed to administer justice, protect the rights and liberties of the people and enable them to lead an honourable life.39 The state may take any form or model, provided that it enforces the sharīʿah. But that alone does not make the state a theocracy simply because the sharīʿah itself does not approve of theocratic government.40 Normative precedent on this is found in what is usually known as the ‘Constitution of Medina’ (c. 622) which laid the foundations of the new community under the Prophet’s leadership. This document founded the bases of cooperation between the Emigrants (al-Muhājirūn), the Helpers (al-Anṣār) and the Jews. Issues of leadership and establishing the authority of the new state, equality and justice, freedom of religion, right of ownership, freedom of movement, war and peace, and combating crime were among the major preoccupations of this document. Thus we can see that the ‘Constitution of Medina’ did have pronounced civilian characteristics.41 The sharīʿah is not all concerned with religious and worship matters; this is admittedly one aspect of it, but it is also concerned with issues of justice, rights and liberties, all with a degree of objectivity and inclusiveness that is not confined to Muslims but extends to all citizens.42 Theocracy demands unquestioning obedience – unlike the sharīʿah which recognises the individual’s right to disobey an unlawful command, just as it also restrains the government from issuing one.43 Islamic government is thus described as a people’s government (ḥukūmah shaʿbiyyah) wherein the ruler is under a mandate to administer justice and uphold people’s basic rights in accordance with a set of objective rules.44 Al-Qaraḍāwī is of the view that the Islamic system is neither a theocracy nor is it totally secular (ʿulmāniyyah). It has a duty to protect the religion and enable the people to observe it. The lawful and unlawful (ḥalāl, ḥarām), as are expounded in the sharīʿah, are observed, and the state upholds religious values, yet it is not
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a theocratic state. All community members, men and women alike, are entitled to give sincere advice to the ruler and criticise the government.45 Two historical statements have, however, been cited, side by side with Iran’s revolutionary experience, in support of the claim that Islam does actually advocate some sort of theocracy, one by the third caliph ʿUthman and the other by the Abbasid caliph al-Manṣūr (754–775). These are as follows:
1. Prior to assassinating the caliph ʿUthmān (656), his assailants asked him to relinquish his position as caliph, which he declined and said “I shall not remove the garment God Almighty has adorned me with.” Some commentators saw this as an affirmation, by the deceased caliph, of the religious character of the caliphal office, and the view somehow reverberated that the caliph was the chosen of God.46 The Muʿtazilah rationalist school maintained that the caliph was an elected community representative who had no claim to holiness, a view that is now generally accepted: the slain caliph had said nothing during his 13 years in office to change the basic position that the caliph was accountable to the people, and his statement could simply be a pious acknowledgement of God’s favour on him.47 2. The Abbasid caliph al-Manṣūr (r. 754–775) is quoted to have said in a sermon:
O people! I am God’s appointed authority in His earth (sulṭān Allāh fī arḍihi), and I rule with His divine help and endorsement. I am guardian of His property and I act in accordance with His will and what I give, I do so by His permission.
The Egyptian scholar ʿAbd al-Ḥamīd al-Mutawallī has commented that most people had taken this statement from the literary work of an Andalusian author who was not a jurist and the quotation was also less than accurate.48 Al-Qaraḍāwī concurred and added: even if al-Manṣūr’s statement were accurate, it is best to treat it as an isolated incident. “We are not bound by al-Manṣūr’s precedent on this.” Al-Qaraḍāwī then recounts an incident where al-Manṣūr had issued an order to the then judge of Basra, Sawwār b. ʿAbd-Allāh, in a land dispute between a merchant and an army commander – that the land should be given to the latter. The judge wrote back to say “the evidence I have before me shows that the land belongs to the merchant”. The caliph wrote again: “You shall give it to the army commander.” And when the judge retorted repeating his earlier message, al-Manṣūr conceded and even praised God for the firm stand the judge had taken in the cause of justice. Al-Qaraḍāwī further recounted two other cases to show that al-Mansur did not see himself as someone above the law and he was in fact a learned man who knew the limits of his authority vis-à-vis the sharīʿah. Is it credible then to hear the same caliph arrogating divine authority
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to himself? Claims of theocratic rule are thus unacceptable and Islamic thought hardly leaves the matter open to doubt.49
Whether Iran is a theocracy Commentators who characterised the Islamic Republic of Iran as a theocratic state have also noted that Iran itself has made no claim to theocracy. Ayatollah Khomeini’s theory of the guardianship of the jurist (Arab. wilāyat al-faqīh; Pers. velāyat-e faqīh) and his own religious personality evidently lent support to the current theocratic image of Iran. But Iran, under President Khatami, became a keen supporter of civil society, civilian rule, and people’s rights. Al-Qaraḍāwī who addressed this issue in his 1997 publication maintained that the impression of a theocratic state was less than accurate. The leading offices of state in Iran, including those of the President, the Supreme Leader, and the Iranian Parliament (the Majlis) were all elective. Ministers and government officials did not cease to be taken to task by the Majlis. On one occasion, in 1984, for instance, the Majlis removed no less than seven ministers by a vote of no-confidence in accordance with the constitution.50 Whereas the Sunnites maintain that caliphate and government are elective and civilian, the Shiʿites consider the Imāmate as part of their theology wherein the Imām receives his title through hereditary succession from the Prophet. The Imām is thus a theocratic figure who is also held to be infallible and removed from the ability to err and to commit sin (maʿṣūm).51 Notwithstanding this, however, Shiʿite clerics and commentators have maintained that “government as a time and place-bound phenomenon is human and has a worldly origin”. No one can thus claim to be representing God or the Prophet in the exercise of political power […]. Government and the exercise of political power thus fall into the realm of people’s voluntary and chosen acts, and essentially cannot be otherwise.”52 Twelver Shiʿites believe their last Imām – Muhammad b. al-Ḥasan al-Mahdī, who was born in 869, over a thousand years ago! – to be still alive, albeit in a state of ‘occultation’ (ghaybah).53 As Marcinkowski54 writes:
[H]e is believed to have been hidden by God from his enemies by entering into subsequent kinds of ‘occultation’ or ‘concealment’ (ghaybah).55 The first of them is referred to as ‘minor occultation’ during which he is said to have communicated with the faithful only through his representatives who alone knew about his whereabouts.56 After several years, he is believed to have entered into a ‘major occultation’ that is supposed to have taken place in either 939 or 941 (depending on the sources). During this ‘major occultation’, which is believed to continue until this very day, he is not accessible to anyone.57 The main contention against this made by Sunnites is that it would be against the laws of nature that he is still alive – after more than 1,000 years in concealment. Shiʿites used
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to counter by stating that some of the prophets mentioned in the Qur’ān, too – such as Jesus Christ and Elijah –, are considered to be still alive by all Muslims.58
Twelver Shiʿites also believe that the mantle of Imāmate was ever since carried by his general deputies (sing. nā’ib-i Imām) who led the Shiʿite community but who were not infallible. In the absence of Prophet and Imām, the affairs of state are determined in accordance with the will and consent of the community through consultation. This comes close to the Sunnite doctrine of khilāfah, a position reflected in the views of the late President of the Shiʿite Supreme Council of Lebanon, Muḥammad Mahdī Shams al-Dīn (d. 2001) as discussed below.59 Furthermore, government in both the Sunnite and Shiʿite doctrines is a contract which gives rise to mutual rights and obligations. The fourth caliph ʿAlī b. Abī Ṭālib (r. 656–661), has explicitly referred to these rights and obligations in Sermon 207 of Nahj al-balāghah. Political leaders are consequently bound, under both doctrines, to conduct government affairs through consultation with the community.60 Some of the leading Iranian clerics, including Muḥammad Kāẓim Khurasānī (d. 1911), issued fatwās during the period of the Iranian Constitutional Revolution (1905–11) to say that “It is a [Shiʿite] religious requirement that during the Era of Absence [ghaybah] the government of the Muslims rests with the majority of the people.”61 Ayatollah Khomeini’s (d. 1989) idea of ‘Guardianship of the Jurist’ (wilāyat al-faqīh) entrusted the leading jurist to assume leadership and act as a Deputy (nā’ib) of the Imām. Khomeini’s notion effectively adjusted the Shiʿite doctrine which had postponed the establishment of an Islamic state until the return of the last Imām. Wilāyat al-faqīh thus enabled the jurist to establish an Islamic government during the Imām’s absence, and Shams al-Dīn’s concept of people’s authority (wilāyat al-ummah) transferred the authority from the jurist back to the wider community, thus constructing a common doctrinal position on Islamic government among all Muslims.62 But the question of the ‘Hidden Imām’ still remained problematic. Muḥammad Mahdī Shams al-Dīn’s concept of wilāyat al-ummah restored to the community itself the authority which Khomeini had entrusted in the leading jurist. Shams al-Dīn explained that following the Prophet’s demise, the ummah became the locus of political authority, according to the Ashʿarites and the Sunnites, but only the Imām had title to leadership, according to the Shiʿite doctrine. ʿAlī b. Abī Ṭālib was the firstImām to inherit that authority and the succeeding Imāms carried the title after him. The Twelfth Imām has remained absent, in which case the umma assumes his authority during his absence, and the ummah exercises it through elective and consultative methods.63 Salīm al-ʿAwwā and Tawfīq al-Shāwī regarded Shams al-Dīn’s wilāyat al-ummah as a logical extension of Khomeini’s doctrine of velāyat-e faqīh, which was basically an elective office; the Sunnis only differed with it in that they did not stipulate that
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the candidate must be a faqīh. Shams al-Dīn effectively restored that choice back to the community.64 Islam advocates, not a theocracy, but a people’s government. Note also that at no time has the Iranian state arrogated divinity to itself due to the absence of a living Imām. Iran has in fact a more consistent record of democratic governance compared to many other Muslim countries. In sum, neither the Shiʿite doctrine nor the post revolutionary experience of Iran provide an argument by which to characterise the Islamic state as a theocracy, even among the Shiʿite community, let alone the wider majority of Sunnites.
A ‘qualified democracy’? Democracy is predicated in a set of principles most important among which are a recognition of the inherent worth of every human being, a representative and participatory government, acceptance of the rule of law, equality of all citizens before the law, and a high level of tolerance of unconventional views and beliefs. Islam contains a set of principles which “make it highly responsive towards many of the moral and legal prerequisites of democracy”.65 If democracy means a system of government that is the opposite of dictatorship, Islam is compatible with democracy “because there is no place in it for arbitrary rule by one man or a group of men”.66 A whole generation of Muslim scholars have tried to redefine concepts such as bayʿah, shūrā and ijmāʿ in ways that may deviate from their traditional usage, but they are “no more removed from their original meanings than modern European models of democracy are from the ancient Greek demes”.67 Among the differences commentators have noted in comparing democracy to an Islamic system of rule, one is the attribution of sovereignty to God in Islam, but to the people in a democratic state. In a democracy the people may bring any legal order or system they wish for themselves whereas an Islamic government is bound by implementing the sharīʿah. Furthermore, democratic aims are generally material aims whereas Islam seeks both material and spiritual values. Democracy may not regulate personal morality whereas this too is of concern to an Islamic order.68 Ṭaha Ḥusayn (d. 1973), one of the most influential twentieth-century Egyptian writers and intellectuals and a figurehead for the modernist movement in Egypt, observed that the political system in early Islam was neither democratic nor did it rest on absolutism as understood by the Greeks and Romans; it was a purely Arab system of government to which Islam added its own requirements. Muḥammad Ḥusayn Haykal (d. 1956), the Egyptian writer, journalist, politician and former Minister of Education, who penned also a biography of the Prophet, noted that the system of shūrā in early Islam did not constitute a check on the powers of the caliph. Even though the caliph had to consult the community, he was not answerable to it.69 The contemporary scholar Ḍiyā al-Dīn al-Rīs has responded with some reservations. First,
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if by ‘purely Arab’ it is suggested that the Islamic state is ethnocentric, then it must be said that Islam does not advocate ethnicity at all. Second, to say that the Islamic state was not democratic also does not reflect the fact that the people’s consent, homage and welfare lay at the foundation of the state of Medina. The commitment of that state to justice, equality and people’s rights also went a long way toward democracy as a government of the people, by the people, for the people. Al-Rīs adds, however, that while the Islamic system subscribed to these principles, it was not identical with democracy. The will of the people is sovereign in a democracy but in Islam the sharīʿah, although generally supportive of it, also introduces limitations to it. In a western democracy, the people’s sovereignty admits no limitation whereas in an Islamic system the qur’ānic injunctions on equality and justice may not be violated in the name of people’s sovereignty. Al-Rīs concludes that Islamic governance and democracy have aspects in common just as they also differ in certain respects. It is in this way sui generis as it has characteristics of its own.70 In Ḥassan al-Ṭurābī’s assessment, an Islamic government is not exactly a direct government of the people by the people: it is rather a government of the sharīʿah. But in “a substantial sense, it is a popular government since the sharīʿah approves the convictions of the people and, therefore, their direct will”.71 Al-ʿAwwā is critical of the view some jurists have taken that consultation (shūrā) was only recommended and not an obligatory requirement. This is indefensible in view of the qur’ānic command (3:159) addressing the Prophet to consult the community, and also the Prophet’s own practice of frequent recourse to shūrā, followed by the precedent of the Pious Caliphs and the Companions after him. Thus “I find it strange to see that some have considered shūrā only advisable but not obligatory.”72 Al-ʿAwwā then cites al-Qurṭubī in support of the position that shūrā is one of the cardinal principles of Islamic government and an obligation to be implemented.73 Islamic government is a qualified democracy in that it holds the community as the locus of authority that can take the government to account and may ultimately depose it. The sharīʿah also vests the people’s representatives with the authority to pass consensus-based legislation through ijmāʿ.74 This is the basic premise of a minority view among Muslim scholars that sovereignty in the Islamic polity belongs to the ummah. Others have qualified this to say that the ummah is vested with “executive sovereignty (al-sultān al-tanfidhī)”.75 Still others maintain that the state exercises a composite sovereignty (al-siyādah al-muzdāwijah) of the ummah and the sharīʿah, which are intertwined and cannot be meaningfully separated.76 According to a legal maxim of the sharīʿah earlier quoted, it is the people’s welfare on which the success and failure of an Islamic government is to be judged. A government that makes decisions independently of people’s welfare thus deviates from its basic terms of reference.77 This may explain why al-Qaraḍāwī characterises
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the state in Islam as “a state of rights and liberties (dawlat al-ḥuqūq wa ’l-ḥurriyyāt) which is committed to protection of the rights of life, ownership, personal security and honour, and right to basic necessities. These are the essential values (al- ḍarūriyyāt) which the sharīʿah seeks to protect.”78 Muhammad Asad observed that a state may be described ‘Islamic’ if it incorporates in its constitution the clear and unambiguous ordinances of Islam which have a direct bearing on the community’s socio-political and economic life.79 Al-Qaraḍāwī has also spoken forcefully against the detractors of democracy in the name of Islam, “for Islam advocates the people’s government […] and there is essential harmony between Islam and democracy”. Islam has resolutely denounced oppressive and arrogant rulers, the Pharaoh and the Kora, who sought to enslave and humiliate their people. The Prophet expressed this vividly in a ḥadīth: “When you see my community afraid of calling a tyrant ‘tyrant’ then take leave of it.” The ruler in Islam is “agent and employee of the community” who is accountable to it. This was amply shown in the statements of both the first and second caliphs, Abū Bakr and ʿUmar (d. 634 and 644, respectively). Al-Qaraḍāwī adds that democracy is the fruit of a long-standing struggle in which the people successfully subjugated despotism. It is humanity’s shared achievement and “we are entitled […] to take from others ideas and methods that benefit us and do not, in the meantime, clash with a clear and unequivocal text”.80 Election according to al-Qaraḍāwī, and many others, is a form of testimony (shahādah) by which the electorate testifies to the suitability of the candidate. The electorate is under an obligation to give testimony and “discharge his electoral duty” to ensure only the strong and trustworthy are elected.81 The Shiʿite doctrine concurs with its Sunni counterpart to say that Islam and democracy are compatible. Hasan Yousefi Eshkevari (b. 1950) is even more emphatic in saying that despotism, authoritarianism and, more specifically, ruling people without their consent are in contradiction with the essence of religion, human free will, and Islamic texts and guidelines.82 “In our view,” Eshkevari observed, “in the present state of the world, the democratic method is the most religiously correct way of social administration for Muslims.” If the ideal of religion is to uphold truth and justice and the ideal of democracy is to do the same based on people’s will and consent, then without doubt democracy is the most suitable method for implementation of justice.83 Political parties are an important feature of modern democracy. On this too, al-Qaraḍāwī dismisses the argument that Islam rejects political parties. The sharīʿah principles of ḥisbah (promotion of good and prevention of evil), and naṣīḥah (sincere advice) as well as the people’s right to criticise their government leaders can be given a meaningful role within a multi-party system. Political parties are therefore acceptable in an Islamic system. To curb oppressive rule is normally not within the capacity of individuals acting in isolation. But when they join together in large
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numbers, they can influence government policy, in which case there should be no need for acts of rebellion and uprising against oppressive rulers as often happened in the past.84 In its broad outline, the sharīʿah also supports the people. It was due probably to its strong advocacy of people’s rights that totalitarian regimes of the past had difficulty in the implementation of sharīʿah. The ʿulamā’ have acted, more often than not, as protectors of the people’s rights and resisted oppressive rule. Ameer Ali (d. 1929) commented that the sharīʿah gave the people a code which consecrated the principle of self-rule, made men equal in the eyes of the law, and made the government subordinate to the law. An examination of the precedent of the early caliphs depicts a popular government administered by an elective chief with limited powers. At a time of history when everywhere “the masses were in hopeless subjugation, Islam elaborated a political system fundamentally republican in character, stressing the duties of the sovereign towards their subjects, and the freedom and equality of people”.85 Muhammad Iqbal (d. 1938) spoke affirmatively of the democratic impulse of Islam but said that the Muslims did not effectively develop the elective principle. This was due partly to the Persians and the Mongols, the two great races which embraced Islam and formed governments; they were not only strangers to the elective principle, but actively opposed to it. The Persians worshipped their monarchs as manifestations of divine power, whereas the Mongols were given to tribalist methods.86 Iqbal added: “The republican form of government is not only thoroughly consistent with the spirit of Islam, but has also become a necessity in view of the new forces that are set free in the world of Islam.” The position of the ruler in the eyes of the sharīʿah is the same as that of an ordinary Muslim. The basis of legislation, after the clear injunctions of the sharīʿah, is the agreement of the Muslim community.87 Iqbal’s commentator, Khalifa Abdul Hakim, characterised “Iqbal’s conception of Islamic democracy” as closely aligned with what Islam experienced during its early period. In this “there was no ruling class, freedom reigned everywhere. The state was a welfare state.” The rulers were elected on the merit of their moral and intellectual excellence.88 Muhammad Asad (d. 1992) described the Islamic government as democratic and noted that democracy, as conceived by the West, was infinitely nearer to the Islamic system than to its Greek parallel. For Islam maintains that all human beings are equal and must be given the same opportunities for development and self-expression. Islam essentially envisaged an elective government. A government that comes to power by “non-elective means becomes automatically illegal”.89 The evidence I have examined suggests obviously that there are some differences between the Islamic system of rule and a modern democratic state. Yet there is enough
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in common between them to justify the characterisation of Islamic government as a qualified democracy.
Separation of Powers
If the historical caliphate is taken as a basis of assessment, then it would appear that separation of powers does not find a place in an Islamic polity. Many commentators have thus held that separation of powers is alien to Islamic political thought. There is a basis for this opinion as I shall explain, although I believe that this conclusion is less than accurate and calls for a review. The historical caliphate subscribed to administrative centralism and concentration of powers under the combined effect of wilāyah (public authority) and wakālah (rep- resentation). The caliph in his capacity as wakīl and representative of the community was accordingly vested with political authority by the community. He delegated in turn his powers to other government office holders, ministers, governors, judges, etc., who are entrusted with delegated authority which they exercise on the caliph’s behalf. With the exception of the judges whose position in respect of enforcing the sharīʿah is parallel to that of the caliph himself, all other officials act, in effect, as delegates and assistants to the head of state.90 A unitarian approach to governance is also the conclusion often drawn from the Islamic doctrine of Divine Oneness (tawḥīd) which has deeply impacted Islamic religious and political thought. Thus it is understood that Islam takes a holistic and unitarian approach to governance and it is averse therefore to the notion of separation of powers. Such was deemed to bear greater harmony with the inte- grationist outlook of tawḥīd and territorial unity of the caliphate. This was also seen to be in line with the precedent of the Prophet-cum-head of state and the Rightly-Guided caliphs after him who acted as the repositories of political power. This unitarian approach also seems to be manifested in the postulate that Islam does not admit of separation between religion and state. This is evidently very different from the western nation-state model that bore the philosophical vestiges of Enlightenment, which separates religion from politics and regards religion as a concern only of personal conscience of the individual. Under the Islamic caliphate model, the state is deemed as the patron and protector of religion, and under mandate also to implement the sharīʿah. Hence an organic unity, not separation, between religion and state is suggested. The theoretical blueprint of caliphate visualised two categories of government officials, those who exercised political authority, orḥukm , and those who only acted in the capacity of assistants (muʿāwinūn) to the head of state. The leading officers were in turn assisted by deputies and assistants who acted as administrative officers but did not partake in the exercise of ḥukm. In his capacity as the centre of political
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and executive authority that originated in the community’s pledge of allegiance (bayʿah) and representation, the head of state acted on behalf of the community but remained accountable to it. Hence the caliphate model did not recognise autonomous individuals and organs in the government hierarchy; everyone exercised delegated authority that emanated from the office of the head of state.91 Muslim commentators are reluctant, however, to extend the implications of this administrative centralism to anything more than an organisational approach that need not interfere with the essence of accountability, nor of a functional separation of powers in the various organs of state. The head of state – although the supreme political figure – could not be an absolute ruler, for he is subjected to the overarching authority of the ummah and that of the sharīʿah.92 It would appear upon scrutiny that the centralised pattern of administration originated in a derivative logic and a persuasive precedent, which were taken up and subsequently reflected, somewhat unquestioningly perhaps, in the juristic works of the ʿulamā’. The unity (waḥdah) of government in the territorial domain of the historical caliphate was reflected, as al-Sanhūrī observed, in a unified central authority (sulṭah markaziyyah islāmiyyah) which was personified by the caliph.93 Al-Sanhūrī added, however, that a centralised state was not an inflexible rule and the historical pattern may be changed in the light of prevailing conditions. There is nothing in the sources of the sharīʿah to impose a mandate in regards to the administrative structure of government.94 Speaking of the legislative function of the Islamic system and its independence from the executive, Wahbah al-Zuhaylī similarly went on record to compare the Islamic system with its western counterpart and say that both
[v]alidate the principle of separation of powers. For legislation in Islam emanates from the Qur’ān and sunnah, consensus (ijmāʿ) of the ummah, and ijtihād. All of these are independent of the Imām, nay but he is bound by them and by the conclusions drawn from them. The principle of ijmāʿ in Islam manifests the will of the people […]. Both [democracies] reject despotism and consider the people as the locus of authority in political and government affairs.95
The head of state has thus little control over legislation in an Islamic polity. The whole structure of law-making in the Islamic jurisprudential theory is controlled by lay jurists and mujtahids who act independently of the head of state. As for the judiciary, here too the ʿulamā’ dominated the judicial branch as judges were traditionally selected from among those learned in the sharīʿah. Since the sharīʿah was not enacted by the state, and the state had in effect only an administra- tive role with regard to it, the ʿulamā’ and judges regarded themselves as custodians of the sharīʿah almost independently of the state hierarchy.
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Zaydān thus wrote categorically: “No one whatsoever is permitted to interfere in the work of the Muslim judge or qāḍī with a view to influence him away from the course of justice. Anyone who violates this guideline is violating the sharīʿah.”96 This is because the duty to administer justice, although primarily borne by the head of state, with the judge acting as his deputy, the latter shares that function with him by virtue of a direct sharīʿah mandate. Furthermore, in his task to administer the sharīʿah, the judge basically plays a declaratory role. He ascertains the ruling of the sharīʿah and declares its application to a dispute before him. The judge does not, in other words, create a ruling (ḥukm) in the absence of evidence in the sharīʿah. Then for a judge to fulfil that role, he must act independently of extraneous influences; for he alone is accountable for any error or miscarriage of justice. He is within his rights also to reject all interference, even from the head of state, in the conduct of his duty.97 In the present writer’s opinion, the implications of tawḥīd need not be extended to the organisational structure of power in the state. One can believe in One God without necessarily extending this to the structure of state hierarchy. The centralist model would appear to have taken hold in the early years of the advent of Islam when the nascent state of Medina found itself in continuous warfare with the pagans of Mecca. A rapid pace of territorial expansion in the succeeding decades also extended the geographical domain of Islam far beyond the Arabia peninsula and brought it in close contact with other cultural traditions. Administrative centralism was thus most likely seen to be in keeping with the objective of political unity of the state, a position that may have in turn influenced Muslim jurists and commentators to advocate a centralist model. Furthermore, if a centralist model is deemed to be congenial to the territorial unity of the state, that logic would still fail to sustain the view that internal separation of powers would necessarily jeopardise political unity. The matter thus remains open to considerations of public interest and consultation (maṣlaḥah and shūrā). It is through these methods that necessary adaptation and adjustment in the administrative structure of the state could be devised and implemented.
Freedom of Religion and Religious Pluralism
Historical accounts indicate that Muslims have maintained a track record of peaceful coexistence with other religious communities in their midst. Starting with accounts of the Prophet Muḥammad’s engagement with the Jews and Christians of Medina and recognition of their freedom of religion, as documented in the renowned ‘Constitution of Medina’, peaceful coexistence is also endorsed by many of his sayings and ḥadīths. This pattern continued during the dynastic periods of the Umayyad, Abbasid, Ottoman, and Mogul empires where people of different
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religions, race and language lived as neighbours and compatriots. The overall picture is one of recognition and mutual respect, notwithstanding isolated incidents and episodes to the contrary. Islam recognises religious pluralism in its postures with other religions, as I shall presently elaborate. It is also internally pluralistic in its recognition of diversity of thought and doctrine among its various schools and sects from the Shiʿite and Sunnite to the Ḥanafī, Shāfiʿī, Mālikī and Hanbalī schools that are prevalent throughout the Muslim world to this day. Numerous passages in the Qur’ān advocate freedom of religion:
Let there be no compulsion in religion. (2:256)
Whoever wishes to believe, let him believe, and whoever wishes to disbelieve, let him disbelieve. (18:29)
The Qur’ān also provides in an address to the Prophet Muḥammad:
If God had willed everyone on the face of the earth would have been believers. Are you then compelling the people to become believers? (10:99; see also 11:18)
The question in this last verse begs the reply that God the Most High has Himself willed that people should be free to decide for themselves; and that no one should try to change that. Religious pluralism has no uniform definition and is seen differently by different commentators. But if one takes the more simplified characterisation of religious pluralism, then religious pluralism would mean that “different religions co-exist within the same society”.98 In that sense, Islam too is certainly pluralist, because, as some might argue, “no civilisation in history has demonstrated a more resolute commitment to pluralism than Islam”. For not only the Qur’ān itself but also the ‘Constitution of Medina’ and the acts and deeds of the Prophet himself attest to Islam’s affirmative stance on pluralism.99 Space does not permit a detailed enquiry, which I have attempted elsewhere. Here it will suffice to outline the basic qur’ānic evidence:100
He it is Who created you; some from among you are disbelievers and some of you are believers. (64:2)
This is a clear affirmation that people are bound to differ in respect of the religion they wish to follow. To quote the Qur’ān on religious pluralism:
Say: We have faith in God, and in that which has been sent down to Abraham, Ishmael, Isaac and Jacob and the tribes, and in that which was given to Moses and Jesus, and in that which was given to all the prophets from the Lord. We do not make any distinction between any of them and to Him do we submit. (2:136)
For each of you We have appointed a right way and an open road. (5:48)
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Pluralism in the qur’ānic language is more than a mere superficial acknowledge- ment of the religious:
Verily, those who believe and those who are Jews, and the Sabeans and the Christians, all those who believe in God and the last day and do righteous deeds, they shall have their recompense with God. They shall not fear nor shall they sorrow. (2:62; also 5:69)
While speaking of freedom of religion as a qur’ānic mandate, al-Qaraḍāwī observes that anyone who violates this freedom and compels people into embracing any religion commits an act of fitnah (sedition) that must be avoided.101 Islam’s commitment to freedom of religion and religious pluralism was put to the test at a time when the Prophet was still in Mecca. A group of the Meccan pagans proposed to the Prophet that they would be prepared to worship Allah for a year if he would also reciprocate by worshiping their deities; in this way both sides would gain insight into each other’s religions. A short qur’ānic sūrah was then revealed ordering the Prophet to tell the unbelievers: “I do not worship those that you worship, nor do you worship He Whom I worship […]. To you is your religion, and to me, my religion” (Q, sura 109). This is a clear acceptance of religious pluralism in Islam. The universality of the qur’ānic message is often suppressed, however, by some of the orthodox exegetes who diluted the essence of religious freedom in the Qur’ān through doubtful interpretations, especially of these two verses: “Verily the religion with God is Islam – inna al-dīn ʿind Allāh al-Islām” (3:19); and “Who seeks other than Islam as a religion, it will not be accepted from him – wa man yabtaghī ghayr al-Islām dīnan fa-lan yuqbal minhu” (3:85). These are often cited as incontrovert- ible evidence that only those who follow Islam shall be saved. Here we note that Islām has two meanings, one which names the religion revealed to the Prophet Muḥammad. But Islām (lit. ‘submission’) is also the primal religion of submission preached by Adam to all his posterity, who accepted God as their Lord, as in the divine invocation: alastu bi-rabbikum? Qālū balā shahidnā (Am I not your Lord? They said: Yes, we do testify; 7:172). All humankind then, before time began, professed Islām in its widest sense of submission. Understood in this way the two verses (3:19 and 385) recognise the validity of every religion that entails submission to the divine will. The essence of submission as a common denominator of all religions is featured frequently in the Qur’ān: “And We have sent to every people a messenger that they may worship God” (16:32); and (10:47): “And for every people there is a messenger. When their messenger comes, they are judged with equity and are not wronged.” But instead of taking these verses as affirmation of the validity of all religions prior to Islam, they are presented as declarations in support of Islam’s finality that override and abrogate other religions. The universalist verses of the Qur’ān are thus rarely allowed to stand alone as the unencumbered words of God.102
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The spirit of openness and religious pluralism in Islam has also been constrained by the demands of nationalism and the Muslim world’s post-colonial experience in constitution making. Constitutions after constitutions were introduced by the countries of Middle East and Asia, which singled out Islam as the state religion, while some also declared Islamic law as the basic source of legislation. This experience is still with us and is not likely to change in the foreseeable future. Notwithstanding the guarantee of freedom of religion to non-Muslims under these constitutions, their clauses on state religion could be said to be ahistorical, and a response to colonialist aggression that impinged on the self-identity of Muslims. Prior to the era of constitutionalism, which is of western origin, scholastic teachings and praxis in Muslim lands aimed at upholding religious symbols and observances (al-shaʿā’ir), such as the call to prayers (adhān) in public mosques, Friday congregational prayers, and also closure of restaurants in Muslim residential areas during Ramadan. The imām would also recite, toward the end of his Friday sermon, the name of the head of state and invoke God’s protection for him and the Muslim community. One can perhaps envisage the possibility of taking these rather than formal constitutional declarations on state religion as the index of Islamic identity of states in highly pluralistic Muslim societies – if this would indeed serve the desired purpose of genuine religious pluralism within the given conditions of each country.
Conclusion and Recommendations
To conclude, Islamic government may be said to be profoundly committed to justice, people’s welfare and the rule of law. It is a government that aspires to people’s trust and exhibits a high level of receptivity to their legitimate wishes. Contemporary writings on the nature and composition of an Islamic polity are generally cognisant of the absence of a particular model or prototype for an Islamic state and lay emphasis instead on conformity to a set of principles. Therefore:
• A state may consequently take a variety of forms, and be internally organised in different ways, yet qualify as Islamic if it complies with those principles. Salient among these are consultation, freedom, equality and justice, commitment to the rule of law and to people’s welfare. Government power in an Islamic polity is also limited by virtue of its commitment to the implementation of the sharīʿah. An Islamic government bears essential harmony with democracy and its concomitant principles of accountability, commitment to basic rights and liberties, and a system of checks and balances that curb arbitrariness and abuse. Islam advocates a participatory and civilian system of rule and
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its powers are limited by reference to the sharīʿah and accountability to the people. • A formal constitution is acceptable in an Islamic polity if it serves to articulate these principles and the modalities of their implementation. Any government that is committed to these principles, defends the country against aggression and inspires people’s trust qualifies as Islamic. It may be similar to the historical caliphate or may be different and combine new features in response to its own particular requirements.103
Emerging democracies and Muslim jurisdictions in Southeast Asia do perhaps fare better on accountability and the rule of law compared with many of their counterparts elsewhere in Asia and Africa. On a broader note, however, Muslim countries have not been all that successful in making constitutionalism and democracy a reality in their governments. The general picture one has is rather a poor record of achievement on commitment to democratic principles. Many present-day Muslim countries have impressive constitutions but tend to be falling short on implementation. Therefore:
• Accountability and good governance are not simply a question of having a constitution but more importantly of an unwavering commitment to good practice. • A similar picture obtains unfortunately with regard to a gap which exists between the theory and practice of freedom of religion and pluralism – and what it takes to translate these into reality. In this regard, it may be said that the normative teachings of Qur’ān and Sunnah are more supportive of freedom of religion and pluralism than scholastic interpretations of the schools and scholars of the sharīʿah. • The evidence reviewed in this essay shows Islam’s substantive harmony with the principles of democracy, yet it is felt that Muslim scholars and ʿulamā’ have not been sufficiently expressive of this. This aspect of harmony between the Islamic and modern laws merits, in the present writer’s opinion, greater exposure and recognition simply because of the common misperceptions that prevail purporting Islam to be opposed to democracy. A case can therefore be made that Muslim scholars and experts in the field should address the gap that currently exists between the negative yet commonly held perceptions of Islam on religious freedom. Islam is affirmative on religious and intellectual pluralism as our review of the source evidence has shown. • Our analysis also shows substantive support in the theory and praxis of Islam for the democratic principle of separation of powers. If this is deemed to offer a better prospect for accountability and healthy checks and balances in the exercise of power, then separation of powers merits recognition and support
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from the Islamic viewpoint. An acknowledgement of this aspect of the Islamic teachings may also help to improve the prospects of a more refined approach to separation of powers in Muslim countries and their respective constitutions.
Notes
1. Cf., Frank I. Michelman, Brennan and Democracy (Princeton: Princeton University Press, 1999), 5–6. 2. Lawrence H. Tribe, American Constitutional Law (New York: Foundation Press, 2000, 3rd ed.), 20. 3. Ronald Dworkin, Taking Rights Seriously (Cambridge MA: Harvard University Press, 1978), 133. 4. Zeid al-Ali, “Iraq: A Constitution or an Epitaph?”, OpenDemocracy, 15 August 2005, available online at http://www.opendemocracy.net/conflict-iraq/constitution_2757.jsp (accessed on 15 February 2010). 5. Cf. L.B. Deng, “The Sudan Comprehensive Peace Agreement: Will It Be Sustained?”, Civil Wars 7, no. 3 (2005), 244. 6. Cf., Samuel Issacharoff, “Constitutionalising Democracy in Fractures Societies”, Texas Law Review 82 (2004), 1861. 7. Fareed Zakaria, “The Rise of Illiberal Democracy”, Foreign Affairs 76 (November 1997), 35; Edward J. Mansfield and Jack Snyder, “Prone to Violence: The Paradox of the Democratic Peace”, National Interest 82 (Winter 2005–06), 39–45. 8. Larry Diamond, Developing Democracy: Towards Consolidation (Baltimore: Johns Hopkins University Press), 199. 9. The ruler’s duty to consult the community – clearly stated in Qur’ān 3:156 and 42:36 and also manifested in the precedent and Sunnah of the Prophet Muḥammad – was ignored and subjected to the vagaries of power politics under the founder of the Umayyad dynasty, Mu’āwiyah b. Abī Sufyān (r. 661–680) and his son and successor, the notorious Yazīd (r. 680–683). 10. Bayʿah is an act by which individual A informs individual B that A supports B’s assumption of the leadership position in question and gives B his or her allegiance. 11. ʿAbd al-Razzāq al-Sanhūrī, Fiqh al-khilāfah wa tatawwuruhā, Arab. trans. and comm. Nadia al-Sanhūrī and Tawfīq al-Shāwī (Cairo: al-Hay’ah al-Miṣriyyah al-ʿĀmmah li ’l-Kitāb, 1989), 62–4; ʿAbd al-Ḥamīd Mutawallī, al-Sharīʿah al-islāmiyyah ka-maṣdar asasī li ’l-dustūr (Alexandria: Mu’assasah Shabāb al-Jāmiʿah, 1990, 3rd ed.), 214. 12. Ḥasan al-Turābī, Tajdīd uṣūl al-fiqh al-islāmī (Jeddah: Dār al-Saʿūdiyyah li ’l-Nashr, 1404AH/1984), 20. 13. Lecture series by Shaykh Aḥmad Ḥuraydī held at the University of Cairo – as quoted by Fu’ād A. Aḥmad, Uṣūl niẓām al-ḥukm fī ’l-islām, 15–16. 14. Jaʿfar al-Subḥānī, Maʿālim al-ḥukūmah al-islāmiyyah, lecture series compiled by Jaʿfar al-Hādī (Beirut: Dār al-Adwā’, 1405AH/1984), 76–7. 15. P.J. Vatikiotis, “Islamic Resurgence: A Critical Review”, in: Alexander S. Cudsi and Ali E. Hillal Dessouki (eds), Islam and Power (Baltimore and London: John Hopkins University Press, 1981), 193 and 196. 16. Muḥammad Salīm al-ʿAwwa, al-Fiqh al-islāmī fī ṭarīq al-tajdīd (Beirut: al-Maktab al-Islāmī, 1419 AH/1998, 2nd ed.), 44. 17. Tawfīq al-Shāwī, al-Mawṣūʿah al-ʿaṣriyyah fī ’l-fiqh al-jinā’ī al-islāmī (Cairo: Dār al-Shurūq, 1421AH/2001), 1:106. 18. Muḥammad b. Jarīr al-Ṭabarī, Tafsīr al-Ṭabarī (Cairo: Dār al-Maʿrifah, 1374AH/1995), 5:87; also quoted in Muḥammad Ḍiyā’ al-Dīn al-Rīs, al-Naẓariyyāt al-siyāsiyyah al-islāmiyyah (Cairo: Dār al-Maʿārif, 1967), 326 n. 20.
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19. AbūʿAbd-Allāh Muḥammad b. Aḥmad al-Qurṭubī, al-Jāmiʿ li-aḥkām al-Qur’ān (Cairo: Dār al-Kutub al-ʿArabiyyah, 1387AH/1967, 3rd ed.), 5:255. 20. Muḥammad b. Ismāʿīl al-Bukhārī, Ṣaḥīḥ al-Bukhārī, Eng. tr. Muhammad Muhsin Khan (Lahore: Kazi Publications, 1979), vol. 9, ḥadīth no. 252. 21. Ismāʿīl a-Badawī, Tawliyah ra’īs al-dawlah fī ’l-sharīʿah (Cairo: Dār al-Fikr al-ʿArabī, 1986), 220. 22. Taqī al-Dīn Ibn Taymiyyah, al-Siyāsah al-sharʿiyya fī iṣlāḥ al-ra’y wa ’l-ra’iyyah (Cairo: Dār al-Kitāb al-ʿArabī, 1951, 2nd ed.), 18. 23. Ibid., 43. 24. Cf. Mohammad Hashim Kamali, “Characteristics of the Islamic State”, Islamic Studies 32 (1993), 24; Anwar Ahmad Qadri, Islamic Jurisprudence in the Modern World (Lahore: Ashraf Press, 1981, 2nd ed.), 270. 25. Fatḥī ʿUthmān, al-Fikr al-qānūnī al-islāmī (Cairo: Maṭbaʿah Mukhaymar, n.d.), 119; Bāqir Sharīf al-Qurshī, Niẓām al-ḥukm wa ’l-idārah fī ’l-Islām (Najaf: Maṭbaʿah al-Ādāb, 1386AH/1966), 27. 26. ʿAbd-Allāh Khaṭīb al-Tabrīzī, Mishkāt al-maṣābīḥ, ed. Muḥammad Nāṣir al-Dīn al-Albānī (Beirut: al-Maktab al-Islāmī, 1399AH/1979, 2nd ed.). 27. Cf. Kamali, “Characteristics”, 32 n. 29; al-Shāwī, al-Mawṣūʿah, 2:286; Muṣṭafā Kamāl Waṣfī, al-Niẓām al-dustūrī fī ’l-Islām muqarinan bi ’l-nuẓūm al-ʿaṣriyyah (Cairo: Maktabah Wahbah, 1414AH/1994, 2nd ed,), 14–15; Yūsuf al-Qaraḍāwī, Min fiqh al-dawlah fī ’l-Islām (Cairo: Dār al-Shurūq, 1417AH/1997), 58; Manzuruddin Ahmed, “The Classical Muslim State”, Islamic Studies 1 (1962), 90. 28. Cf. Kamali, “Characteristics”, 32. 29. Ibid., 33; ʿAwwa, al-Fiqh, 6:170–1. 30. Joseph Schacht, “Islamic Law in Contemporary States”, The American Journal of Comparative Law 8 (1959), 19. 31. Muḥammad Rashīd Riḍā, Fatāwa Imām Muḥammad Rashīd Ridā, comp. Ṣalāḥ al-Dīn Munjid and Yūsuf Khurī (Beirut: Dār al-Kitāb al-Jadīd, 1390AH/1970), 805–8; Maḥmūd Ḥilmī Muṣṭafā, Niẓām al-ḥukm al-islāmī (Cairo: n. publ., 1401AH/1981, 6th ed.), 122. 32. Cf. ʿAbd al-Wahhāb Khallāf, al-Siyāsah al-sharʿiyyah (Cairo: al-Maṭbaʿah al-Salafiyyah, 1350AH/1970), 59; Umar Chapra, The Economic System of Islam (Karachi: University of Karachi Press, 1971), 63; Kamali, “Characteristics”, 33. 33. Abū Yūsuf Yaʿqūb b. Ibrāhīm, Kitāb al-kharāj (Cairo: al-Maṭbaʿah al-Salafiyyah, 1352AH/1933, 2nd ed.), 152; Abū ’l-Ḥasan al-Māwardī, Kitāb al-aḥkām al-sulṭāniyyah (Cairo: al-Babi al-Halabi, 1386AH/1966, 2nd ed.), 194. 34. Cf. Kamali, “Characteristics”, 37; al-Rīs, al-Naẓariyyāt, 377. 35. Muḥammad ʿAbduh, al-Islām wa ’l-naṣrāniyyah (Cairo: Dār al-Manār, n.d., 8th ed.), 57–58; see also Mutawallī, al-Sharīʿah, 208–10. 36. Maḥmūd Shalṭūṭ, al-Islām: ʿAqīdah wa sharīʿah (Kuwait: Dār al-Qalam, 1965), 476. 37. al-Qaraḍāwī, Min fiqh al-dawlah, 57–8; See also Qadri, Islamic Jurisprudence, 270 n. 29. 38. Hasan Turabi, “The Islamic State”, in: John Esposito (ed.), Voices of Resurgent Islam (New York: Oxford University Press, 1983), 243. 39. Salem Azzam (ed.), Islam in Contemporary Society (London: Longman, 1982), 258. 40. Sayyid Quṭb, al-ʿAdālah al-ijtimāʿiyyah fī ’l-Islām (Cairo: ʿĪsā al-Bābī al-Ḥalabī, 1373AH/1954, 2nd ed.), 98. 41. See for the text (in 47 articles) and analysis of the main features of the ‘Constitution of Medina’, Fu’ād ʿAbd al-Munʿim Aḥmad, Uṣūl niẓām al-ḥukm fī ’l-Islām (Alexandria: Mu’assasah Shabāb al-Jāmiʿah, 1411AH/1991), 92–7; Munīr Ḥāmid al-Bayāṭī, al-Niẓām al-siyāsī al-islāmī muqārinan bi-’l-dawlat al-qānūniyyah (Baghdad: Dār al-Bashīr li’l-Nashr wa-’l-Tawzīʿ, n.d.), 46. 42. Cf. ʿAbd al-Karīm Zaydān, al-Fard wa ’l-dawlah fī ’l-sharīʿah al-islāmiyyah (Gray IN: International Islamic Federation of Student Organisations, 1390AH/1970, 2nd ed.), 7. 43. Cf. ʿAbd al-Ḥamid Mutawallī, Mabādī niẓām al-ḥukm fī ’l-Islām (Alexandria: Munsha’āt al-Maʿārif, 1974), 92f.
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44. ʿUthmān, al-Fikr, 30, 119. 45. al-Qaraḍāwī, Min fiqh al-dawlah, 31, 34. 46. Cf. Ibn al-Athīr, al-Bidāyah wa ’l-nihāyah (Beirut: Maktabat al-Maʿārif, n.d.), 17:180. 47. al-Qaraḍāwī, Min fiqh al-dawlah, 60, 66; Fahmī Huwaydī, “Akdhūbat al-ḥukm al-ilāhī”, Al-Ahrām [Cairo], 14 October 1986, as quoted by al-Qaraḍāwī, Min fiqh al-dawlah. 48. Mutawallī, Mabādī, 190. 49. al-Qaraḍāwī, Min fiqh al-dawlah, 68–70 (therein also referring to Jalāl al-Dīn al-Suyūṭī, Ta’rīkh al-khulafā’ (Beirut: Dār al-Fikr, n.d.), 241). 50. Ibid., 72. 51. Cf. Ẓāfir al-Qāsimī,Niẓām al-ḥukm fī ’l-sharīʿah wa ’l-ta’rīkh (Beirut: Dār al-Nafā’s, 1977, 2nd ed.), 297; Ann K.S. Lambton, State and Government in Medieval Islam (Oxford: Oxford University Press, 1981), 298. 52. Ziba Mir-Hosseini and Richard Tapper, Islam and Democracy in Iran: Eshkevari and the Quest for Reform (London: I.B. Tauris, 2006), 89. 53. For a recent survey of Twelver Shiʿite beliefs and practices see Christoph Marcinkowski, Shiʿite Identities: Community and Culture in Changing Social Contexts (Freiburg Studies in Social Anthropology 27 (Zurich: LIT Verlag, 2010), 19–48. See also Christoph Marcinkowski, “Twelver Shiʿite Islam: Conceptual and Practical Aspects”, IDSS Working Paper 113 [Institute of Defence and Strategic Studies, S. Rajaratnam School of International Studies, Singapore], July 2006, available online at http://www.rsis.edu.sg/publications/WorkingPapers/WP114.pdf (accessed on 2 April 2010). 54. Marcinkowski, Shiʿite Identities, 26. 55. See Said Amir Arjomand, “Crisis of the Imamate and the Institution of Occultation in Twelver Shi’ism: A Sociohistorical Perspective”, International Journal of Middle East Studies 28, no. 4 (1996), 491–515, idem, “The Consolation of Theology. The Shiʿite Doctrine of Occultation and the Transition from Chiliasm to Law”, Journal of Religion 76, no. 4 (1996), 548–71, and idem, “Imam Absconditus and the Beginnings of a Theology of Occultation: Imami Shi’ism around 900 CE/280–290 AH”, Journal of the American Oriental Society 117, no. 1 (1997), 1–13. 56. V. Klemm, “Die vier sufarā’ des Zwölften Imam. Zur formativen Periode der Zwölferšī‘a”, Die Welt des Orients 15 (1984), 126–43. 57. For an early Twelver Shiʿite source see Abdulaziz Sachedina, “A Treatise on the Occultation of the Twelfth Imamite Imam”, Studia Islamica 48 (1978), 108–24. 58. Already in 944, only three years after the beginning of the ‘major occultation’, a tomb with a mosque (later known as al-ʿAskariyyah) was erected on the burial site of the eleventh Imām. In the further course of history, a magnificent golden dome was constructed above the tomb which was destroyed by Sunnite extremists in February 2006. This event has subsequently led to the outbreak of widespread sectarian violence throughout Iraq. 59. al-Shāwī, al-Mawṣūʿah, 2:105, n. 31. 60. Cf., Mir-Hosseini and Tapper, Islam, 89. 61. As quoted in ibid., 91. 62. al-ʿAwwā, al-Fiqh, 71–2. 63. Muḥammad Mahdī Shams al-Dīn’s views are conveyed in his two works Niẓām al-ḥukm wa ’l-idārah fī ’l-Islām (Beirut: al-Mu’assasah al-Dawliyyah, 1995) and Fī ’l-Ijtimāʿ al-siyāsī al-islāmī (Beirut: al-Mu’assasah al-Jāmiʿiyyah li’-Dirāsāt wa’l-Tawzīʿ, 1992) – cited by both al-ʿAwwā and al-Shāwī, as in the following notes. 64. al-Shāwī, al-Mawṣūʿah, 1:106. 65. Hamid Enayat, Modern Islamic Political Thought (London: Macmillan, 1982), 126. 66. Ibid., 128. 67. Ibid., 135. 68. al-Qurshī, Niẓām al-ḥukm, 104f.
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69. Both Taha Ḥusayn and Muḥammad Ḥusayn Haykal’s views are quoted in Mazheruddin Siddiqi, Modern Reformist Thought in the Muslim World (Islamabad: Islamic Research Institute, 1982), 132–3. 70. al-Rīs, al-Naẓariyyāt, 372–85. 71. Ṭurābī, “The Islamic State”, 244. 72. al-ʿAwwā, al-Fiqh, 60. 73. Ibid., 61; al-Qurṭubī, Tafsīr al-Qurṭubī (Beirut: Dār al-Kitāb al-ʿArabī, 1997), 4:249. 74. For details on ijmāʿ see Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: The Islamic Texts Society, 2003), 228f. 75. Zaydān, al-Fard, 25. For further detail on sovereignty see Mohammad Hashim Kamali, “The Limits of Power in an Islamic State”, Islamic Studies 28 (1989), 324; Waṣfī, al-Niẓām, 17. 76. al-Rīs, al-Naẓariyyāt, 385. 77. Cf. Waṣfī, al-Niẓām, 97–8; al-Shāwī, al-Mawṣūʿah, 1:106 and 2:452. 78. al-Qaraḍāwī, Min fiqh al-dawlah, 48–9. 79. Muhammad Asad, The Principles of State and Government in Islam (Berkeley CA: University of California Press, 1961), 17. 80. al-Qaraḍāwī, Min fiqh al-dawlah, 130–47. 81. Ibid., 138. See also Mahmud Ahmad Ghazi, State and Legislation in Islam (Islamabad: Shariah Academy, 2006), 53. 82. Eshkevari, as quoted in Mir-Hosseini and Tapper, Islam, 86. 83. Ibid., 85. 84. Ibid., 147–61. 85. Syed Ameer Ali, quoted in Siddiqi, Modern Reformist Thought, 119. 86. Quoted by Siddiqi, Modern Reformist Thought, 127. 87. Muhammad Iqbal, The Reconstruction of Religious Thought in Islam (Lahore: Ashraf Press, 1982, repr.), 157; see also Siddiqi, Modern Reformist Thought, 127. 88. Siddiqi, Modern Reformist Thought, 128 (quoting Khalīfah ʿAbd al-Ḥakīm, Fikr-i Iqbāl, 266). 89. Asad, Principles, 36. 90. Cf., Mohammad Hashim Kamali, “Characteristics of the Islamic State”, Islamic Studies 32 (1993), 31. 91. Cf., Saʿdī Abū Ḥabīb, Dirasah fī manhaj al-Islām al-siyāsī (Beirut: Mu’assasah al-Risālah, 1406AH/1985), 72; Taqī al-Dīn al-Nabhānī, Muqaddimāt al-dustūr (Kuwait: Dār al-Qalam, 1964), 89–90. 92. Cf., Ghazi, State, 107f. 93. al-Sanhūrī, Fiqh al-khilāfah, 174–5. 94. Ibid., 179. 95. Wahbah al-Zuhaylī, Qaḍāyā al-fiqh wa ’l-fikr al-islāmī (Damascus: Dār al-Fikr, 2006), 466ff. 96. ʿAbd al-Karīm Zaydān, Niẓām al-qaḍā fī ’l-sharīʿah al-islāmiyyah (Beirut: Mu’assasah al-Risālah, 2002, 3rd rev. ed.), 59. 97. Ibid., 59–60. 98. Chandra Muzaffar, “What Pluralism Means to Islam”, Sunday Star [Kuala Lumpur], 18 June 2006, 28. 99. Ibid. 100. Mohammad Hashim Kamali, Freedom of Expression in Islam (Cambridge: Islamic Texts Society, 1997), contains a chapter each on ‘freedom of religion’ (87–106) and ‘blasphemy and apostasy’ (212–50), respectively. See also my “Diversity and Pluralism: A Qur’ānic Perspective”, Islam and Civilisational Renewal l, no.1 (2009), 27–55. 101. Yūsuf al-Qaraḍāwī, “al-Taʿaddudiyyah fī naẓar al-Islām”, in the conference proceedings volume Niẓām al-ḥukm al-islāmī wa ’l-dīmūqrātiyyah: al-furūq wa imkāniyyāt al-taʿāyush (Amman: Mu’assasat Āl al-Bayt li’ l-Fikr al-Islāmī, 1424 AH/2004), 8. 102. Cf., Joseph Lumbard, “Qur’anic Inclusivism in an Age of Globalisation”, in: Muhammad Suheyl Umar (ed.), The Religious Other: Towards a Muslim Theology of Other Religions in a Post-
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Prophetic Age (Lahore: Iqbal Academy Pakistan, 2008), 154. Lumbard also quotes Jane Dammen McAuliffe, Qur’anic Christians: An Analysis of Classical and Modern Exegesis (Cambridge: Cambridge University Press, 1992), and Yohanan Friedmann, Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition (Cambridge: Cambridge University Press, 2003). See also Anthony H. Johns and Abdullah Saeed, “Nurcholish Madjid and the Interpretation of the Qur’an: Religious Pluralism and Tolerance”, in: Suha Taji-Farouki (ed.), Modern Muslim Intellectuals and the Qur’an (Oxford: Oxford University Press, 2004), 86–7. 103. Cf., ʿAbd al-Wahhāb Khallāf, as quoted in Mutawallī, al-Sharīʿah, 224 n. 1. See also al-Rīs, al-Naẓariyyāt, 210; for further details on some of these principles see Mohammad Hashim Kamali, Freedom, Equality and Justice in Islam (Cambridge: The Islamic Texts Society, 2002).
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ICR 2-1 01 text 45 28/09/2010 11:06 THE SHIP AND THE STRANGER: A METAPHORICAL APPROACH TO GOVERNANCE AND ISLAM
Chaiwat Satha-Anand*
Abstract: Relying on a metaphorical approach aiming to produce effects which could change the ways the world is seen and conducive to freeing the Muslims from restrictive and conventional religious understanding, this article chooses to discuss the issues of governance and Islam by using the metaphors of ‘the ship’ and ‘the stranger’. It argues that both help illuminate the idea of ‘soft governance’ in Islam, understood as an attempt to meaningfully connect a multiplicity of actors from different terrains with complex relationships among them in the process of governing with a much more pluralistic conceptualisation of power.
Introduction
Back in March 2006, a two-day seminar on ‘Islam and Peace’ was held at Bangkok’s Thammasat University. It was organised by the Muslim Students Association and the National Reconciliation Commission, an independent body set up by the former Thai Prime Minister Thaksin Shinawatra to find ways to put an end to violence and bring about lasting peace in predominantly Muslim Southern Thailand. During that event, the chairperson of the National Economic and Social Advisory Council (NESAC) – himself a human-rights advocate – asked how Muslims would feel about the death sentence passed on those who commit apostasy from Islam. From among the audience – Muslim students from all over the country – a young man (dressed in white, with a skull-cap and a full beard) answered: “Such a punishment could not be considered to be violent.” The NESAC chair persisted by saying that as – a non-Muslim – he could not understand this because there are different Muslim countries which deal with this issue differently. Some people might even consider the abandonment of one’s faith as a form of freedom of religion and as such a purely personal matter. There were two reactions from the audience. The young man replied
* Chaiwat Satha-Anand is Professor of Political Science at Thammasat University, Bangkok. This contribution is a revised version of a paper that was published under the same title in the American Journal of Islamic Social Sciences 25, no. 4 (Fall 2008), 90–107.
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to the effect that the punishment in this world would be considered ‘light’ compared to what lies in the hereafter, and that those who suffer in this life will fare better in the next. He serenely added that the carrying out of such a punishment would depend on the strength of faith in Islam in different countries. Those with weak faith might not be prepared to pass such a judgment. At this point, a man standing in the back – and obviously frustrated by the question – suggested that this is ‘too complicated an issue’ and that Muslims should better listen to the learned. The above-mentioned case is important for four related reasons. First, it points directly to the issue of Islam and governance, specifically in terms of a clash between a belief in the totality of life and the space for freedom of religion – generally understood as including a freedom to leave the faith. Second, and perhaps more importantly, it points to a highly contentious problem of governance: that of the power of the state and its limits to use punishment to uphold its desirable political society. Third, it also points to the way in which many Muslims might choose to ask ‘religious experts’ when facing a difficult problem on the road of Islamic governance. A choice, no doubt, is justified by a particular reading of Islamic traditions. Fourth, I do not think that this is unique to the Thai scene. I am rather certain that something similar to this has already happened elsewhere. Although state persecution for conversion away from Islam is rare in many parts of the Muslim world, there are, however, at least 14 Muslim countries – among them Afghanistan, Iran, Pakistan and Saudi Arabia – which consider apostasy a crime punishable by death.1 Scholars have recently shown that there are a number of ways by which the relationship between Islam and governance can be studied. In Southeast Asia, the main discourse on Islam centres on various models for an Islamic state, often based on the sharīʿah as the one and only source of reference. Such an orientation on the sharīʿah, for instance, had been proposed by many in Malaysia’s oppositional Pan-Malaysian Islamic Party (Parti Islam SeMalaysia or PAS). Others – such as Malaysia’s former Mahathir administration, the Malaysian social movement ABIM or the Indonesian mass organisations Muhammadiyah or Nahdatul Ulama – opted for a gradual ‘Islamisation’ of society.2 On the other hand, a Malaysian Islamic movement inspired by a rare mix of ‘global Sufism’ and strict adherence to the sharīʿah – Al-Arqam – which is based on local residential communities and institutions while promoting economic independence, mutual support, social service and extensive missionary activities through the use of their own schools, clinics, farms and factories, could also be seen as an experiment in alternative development and non-state governance.3 Using in the following a metaphorical approach with a special emphasis on the state and its monopoly of violence – notably its power to punish – I shall argue that the kind of governance that is needed for Muslims to maintain their Islamic
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inspirations should be ‘soft governance’. I shall begin with a discussion of the need for such a metaphorical approach in examining the issue of governance and Islam. This will be followed by two particular metaphors that were chosen to reflect the issue of governance vis-à-vis Islam: ‘the ship(s)’ and ‘the stranger(s)’, as well as the reasons for choosing them shall be examined. Finally – situating this discussion in the context of a recent debate on how the future of religion is to be understood from a contested philosophical perspective – the ways in which these two metaphors illuminate the notion of ‘soft governance’ will be explored.
The Metaphorical Approach
Islamic ḥudūd 4 laws – containing contentious provisions for punishments of different crimes such as flogging, amputation of limbs, stoning to death – appear to be favoured by the governments of the two northern Malaysian states of Kelantan and Terengganu (ruled by the opposition). Zainah Anwar (a prominent Malaysian non-governmental organisation leader and activist) raises the question as to the reason behind the apparent tendency among certain religious authorities to codify “the most conservative opinion” into laws, although within Islam there exist different juristic positions on this issue. For instance, the most rigid view is the death sentence to all apostates. However, some Islamic jurists hold that the death sentence will be prescribed only when apostasy is accompanied by ‘rebellion’ against the Muslim community and its ‘legitimate’ leadership (whatever might be meant by that). Yet other Islamic jurists – including the Grand Shaykh of Al-Azhar in Cairo – maintain that, although apostasy is to be considered a great sin, a personal change of faith is not a capital offence and therefore merits no punishment whatsoever. It seems that whenever there is a contest for political power, ‘Islamic credentials’ are measured on the ground of severity of punishments imposed on those who supposedly transgress Islamic teachings that are understood by some as a “mindset frozen in seventh century Arabia and medieval jurisprudence”.5 For ordinary Muslims (or at least the ignorant ones among them), on the other hand, these severe judgments were either accepted or tolerated due to their own fear or wrongly understood ‘respect’ for ‘religious authorities’ and a genuine sense from their part that they – the ‘lay’ men and women – are lacking the required knowledge on religious matters, thus choosing to remain silent.6 If this is indeed the case then there is a real need to find an approach that is conducive to freeing the Muslims from restrictive and conventional religious understanding, especially when exploring subjects such as Islam and governance. These are two very distinctive concepts, one with a sense of totality of life, while the other connotes a sense of governing process. Both originated from different times that are centuries apart from each other. The usual approaches of doctrinal exegesis
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of the term ‘governance’ from an Islamic perspective, or a historical exploration of this relationship will deepen one’s understanding of the subject. However, it will probably not open up a space that would be necessary for innovative readings that are important for the contributions from the part of Muslims to the subject of governance which could be shared with others with different beliefs in the future. In examining the issues of Islam and governance, an alternative suggested here is the metaphorical approach. In the original Classical Greek, μεταφορά, metaphorá, means ‘transfer’. Contrary to the conventional belief according to which metaphors are used mainly in artistic or literary leanings, they are actually indispensable elements in the thought process of human beings because they serve as mechanisms through which abstract notions – such as ‘Islam and governance’ in this case – can be grasped, described, and shared.7 In fact, the late American philosopher Richard Rorty (1931–2007) once argued that the history of the arts, sciences, and morality, as well as the whole intellectual history of mankind could all be seen as the history of metaphor since they are connected to the history of language.8 It goes without saying that different theories of metaphors do exist. There are those who believe that metaphors are but ornaments of language. When used with verbal skill, they merely beautify language, but they do not add any content of knowledge. Some view metaphors as providing emotive values that could affect the moods of texts or conversations. Others, however, maintain that metaphors contain added values, because they create new contextual meanings which bring connotations of words to life while making thoughts of two different things interactive while supporting those thought by a single word.9 But what exactly does a metaphor do? In Rorty’s opinion, tossing a metaphor into a conversation is like suddenly breaking off the conversation long enough to slap the interlocutor’s face or to kiss him. Throwing it into a text is like using italics, illustrations or punctuations. In this sense, metaphors are used not to convey messages, but are ways to produce effects on the readers or interlocutors.10 If the effects are polemical, using metaphors could sensitise those involved to the politicising implications of discursive selection. Such a politicisation of figuration could either be in the direction of mystification and legitimation serving prevailing structures of authority, or in the direction of resistance especially towards the domain which has been naturalised by a familiar figuration which renders the issue unproblematic.11 If a metaphor is construed as the use of a familiar word in an unfamiliar setting, or an unfamiliar word in a familiar context, to produce effects which could change the ways one sees or understands the world by giving time to pause and open up enough space to think before a decision can be made, then it is not uncommon to find metaphors frequently used in different traditions where religious knowledge is regarded as sacred and the human minds, though intelligent, do have limits.
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Metaphorical language with all its power is frequently found in both the Qur’ān and the Prophetic traditions to produce different effects. Some scholars have even argued that Islamic political language is “full of metaphor”; though some of it may be dead, buried, or forgotten, quite a few are alive and used in everyday life.12 However, if this approach is to be used, what would be the metaphors for Islam and governance? And why?
The Ship(s) and the Stranger(s) as Metaphors for Governance and Islam
It should be noted that the term ‘governance’ was not new. It was used by King Henry IV (r. 1399–1413) to justify his usurpation of the English throne in 1399, declaring that his predecessors’ failures resulted from “default of governance” and “undoying of good laws”.13 In the twenty-first century, however, the notion of ‘governance’ originates from the need of economics and political science for a concept broad enough to accommodate diverse meanings in terms of the overall exercise of power not covered by the term ‘government’. The idea of ‘European governance’ was initiated as the first priority of the European Commission’s strategic objectives for the period 2000–05. In order to realise such objectives, the notion of ‘governance’ was suggested as a shift in focus from politics as ‘who governs?’ – especially about half a century ago by Robert Dahl (b. 1915), one of today’s most distinguished political scientists – to ‘the how of governing’, namely the ways in which decisions and policies are made and implemented. More importantly, ‘European governance’ as envisioned by the European Commission is not merely an account on how governing is, but on how governing for the new Europe with its contemporary problems affecting democracy such as alienation of citizens and loss of confidence in institutions and politicsshould be. The idea of ‘good governance’ with its five basic principles – openness, participation, accountability, effectiveness and coherence – is therefore suggested as a meaningful way to “connect Europe with its citizens”.14 If the new Europe marks the shape of politics to come, then perhaps – as argued by the Swedish political scientist Jon Pierre, a leading author on governance – the world has entered “the era of economic globalisation, hollowing out of the state, decreasing legitimacy for collective solutions, and a marketisation of the state itself”.15 Seen in this way, governing in a seemingly ‘centre-less’ society where there are many centres of power, linking numerous state actors at different levels – local, regional, national, or supranational – involves questioning legitimacy and account- ability of existing structures. At a time when the power of sovereignty has become increasingly suspect, the magic of the nation-state is declining and the nature of the state itself is changing. The problem of governance is thus the question of how different peoples in various locations of power can be ‘connected’.
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Though the meanings of the concept of governance are highly contested, they all point to the multiplicity of actors, terrains and different relationships among them in the process of governing, characterised by a much more pluralistic con- ceptualisation of power.16 When the state becomes a collection of networks with numerous actors, “with no sovereign actor being able to ‘steer or regulate’”, the main challenge for government is “to enable these networks and to seek out new forms of co-operation”.17 This is one of the reasons why the problem of how to ‘connect peoples of differences’ in this new reality cannot be approached in terms of the ‘command of a bureaucratic state’ with its unitary concept of state and power, but more as ‘control’. In discussing the problem of governance in terms of ‘control’, construed as connecting people with a more pluralistic conceptualisation of power, some commentators use metaphors associated with ‘ship’. They argue that the role of government should be to ‘steer not row’ because the Weberian model of bureaucracy has become bankrupted and should be replaced by ‘entrepreneurial government’. The essence of such a government is that the state withdraws from government – less rowing – and moves towards governance – more steering.18 There is a perfectly good reason why the ‘ship’ metaphor has been used time and again in discussing politics. Since politics is primarily about speaking and the use of language, it must dramatise itself. Most political expression is therefore metaphorical. In fact, the state, understood as the ‘body politic’, has been usually expressed as a ship because this metaphor lies behind the very word ‘government’ which comes from the Latin gubernaculum, referring to a rudder.19 This word can also be traced to an ancient Greek verb meaning to steer.20 In this sense, politics could be seen as the art of navigating or steering the ship of state. In the sixth book of Plato’s Republic, Glaucon asked Socrates: “How can it be good to say that the cities will have no rest from evils before the philosophers […] rule in them?” (487e).21 Socrates replied that the question needs an answer given through an image. He also apologised to his interlocutor because his images came “from many sources, as the painters paint goatstags and such things by making mixtures” (488a). Then he said something peculiar: “Listen to the image so you may see […]” (488a).22 For Plato, this is how a metaphor works as figurative language. Through words, the image is to be heard. But from hearing, it can then be seen. More importantly, the image Socrates used is that of a ship where the ship owner is “deaf, short-sighted” and with little knowledge of seamanship. The sailors, without knowledge of the sea and the ship, were doing everything to have the owner turn the rudder to them. If they fail at persuasion, and others succeeded, they would either kill the others or throw them out. After successfully enchaining the ship owner, they rule the ship, “using what’s in it; and drinking and feasting, they sail as such men would be thought likely to sail. Besides this, they praise and call ‘skilled sailor,’
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‘pilot’, and ‘knower of the ship’s business’ the man who is clever at figuring out how they will get the rule, either by persuading or by forcing the ship owner, while the man who is not of this sort they blame as useless” (488b–d).23 If politics is seen as conducting the ‘ship of state’, then steering is a proper metaphor for governance understood as how to navigate this ship. A crucial question would then be: what signs should be used to guide the steering? Socrates points out that the true captain who could sail the ship properly is someone who “pay[s] careful attention to year, seasons, heaven, stars, winds, and everything that’s proper to the art, if he is really going to be skilled at ruling a ship” (488d).24 But here steering the ship as a metaphor leads to others: the year, seasons, heaven, stars and winds. There are at least two important elements in reading these metaphors that are related to the act of navigating the ship of state. They are changes and guides. The stars and heavens are high up above and they appear to be fixed in the sky which serve to guide seamen from times immemorial. The winds blow in accordance with seasons, which, in turn, change throughout the year. Could it mean that in navigating the ‘ship of state’, the steersman steers under the guidance of ideals, distant beacons of excellence which most people aim at, and yet need to be aware of the changing realities which will be responsible for success or failures in reaching those ideals? Although the ‘ship’ metaphor clearly reflects the notion of governance discussed above, in what ways is it connected to the Islamic imagination, if at all? Given the context of the desert, it should be noted that the metaphor used for politics in Arabic is not sailing or steering the ship, but training a horse. In those languages of the Muslim world that have some footing in Arabic, it is siyāsah which denotes ‘politics’. Deriving from Classical Arabic, the respective verb means ‘to groom’ or ‘to train a horse’.25 But the ship metaphor has also been used in Islam, both in the Qur’ān and the ḥadīth. It is often found in the story of Noah and the Flood.26 For example, in the Qur’ān (23:27–8) we read:
So We inspired him (with this message): “Construct the Ark within Our sight and under Our guidance: then when comes Our Command, and the fountains of the earth gush forth, take thou on board pairs of every species, male and female, and thy family – except those of them against whom the Word has already gone forth: And address Me not in favour of the wrong-doers; for they shall be drowned (in the Flood). And when thou hast embarked on the Ark – thou and those with thee, – say: ‘Praise be to Allah, Who has saved us from the people who do wrong.’”
The words ‘ship’ or ‘Ark’ used above are literal and not metaphorical. Unless the whole story of Noah and the Flood is understood as a metaphor, the ‘ship’ or the ‘Ark’ in these verses denote the vessel God commands Noah to build to save living beings from the great Flood. The people saw what Noah did and they laughed
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at him.27 But during the Flood, Noah did not need to “steer the ship” because the whole world was under water and there was no place to go, no need to go anywhere. But ‘the ship(s)’ which appear in the Qur’ān elsewhere and which are not directly related to the story of Noah are different. As metaphors, they lead the readers into an unfamiliar space. For example, in the Qur’ān (42:32–3) we read:
And among His Signs are the ships, smooth-running through the ocean, (tall) as mountains. If it be His Will He can still the Wind: then would they become motionless on the back of the (ocean). Verily in this are Signs for everyone who patiently perseveres and is grateful.
That the ship(s) appears in this verse as signs is clear. But there are other signs in the verses which immediately precede it. These signs are: “the creation of the heavens and earth”, and “all the living creatures” (Qur’ān 42:29–30). Compared to other signs, the ship(s) is most human since it is manmade. This manmade sign then signifies God’s Mercy because ships are used to “plough their courses” so that humans can enjoy the fruits of the sea in order to eat and to preserve life and to use some as ornaments to adorn themselves. The Qur’ān (35:12) says:
Nor are the two bodies of flowing water alike – the one palatable, sweet, and pleasant to drink, and the other, salt and bitter. Yet from each (kind of water) do ye eat flesh fresh and tender, and ye extract ornaments to wear; and thou seest the ships therein that plough the waves, that ye may seek (thus) of the Bounty of Allah that ye may be grateful.
Yet, this man-made artefact is not entirely under human command. They depend on the winds and God can make the wind stay still and therefore render the ship(s) motionless. The Qur’ān (10:22) says:
He it is Who enableth you to traverse through land and sea; so that ye even board ships; they sail with them with a favourable wind, and they rejoice thereat; then comes a stormy wind and the waves come to them from all sides, and they think they are being overwhelmed: they cry unto Allah, sincerely offering (their) duty unto Him saying, “If thou dost deliver us from this, we shall truly show our gratitude!”
The Qur’ān (17:66) also states:
Your Lord is He That maketh the Ship go smoothly for you through the sea, in order that ye may seek of his Bounty. For he is unto you most Merciful.
Steering the ship(s) – from an Islamic perspective – requires that humans not only gaze at the stars and listen to the winds, as Socrates explained in The Republic, but also to be humble before God, knowing that the clear night sky can turn cloudy and that a breeze can easily become a fierce storm. The conflation of the metaphorical and the real of the ship(s) finds expression in the early Muslims’ practice in Southeast Asia. In the fifteenth century, the Malacca
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sultanate used a form of sharīʿah-based law, called the Undang undang Laut Melaka (the Maritime Laws of Malacca), as their laws of the sea. These laws entirely consisted of rules, regulations, procedures and codes of conduct to be used at sea. Among other things, these laws considered the captain of a ship, the imām (leader), and his subjects as followers (ma’mūm).28 The ship as a metaphor for governance is therefore relevant from an Islamic perspective. Tossing ‘the ship’ into a set of signs God created which include heavens, earth and all the living creatures is clearly juxtaposing something worldly and less abstract amidst something magical and cosmic. By throwing in the ‘familiar’ with the ‘unfamiliar’, the ship metaphor opens up space for a rethinking of what it means to govern, and how to govern with all its limitations. It does not take away from the original meanings which constitute governance but enriches it with a strong sense of the limitations of governance. If ‘the ship’ could be used as a metaphor for governance both from political science scholarship as well as from an Islamic perspective, what could possibly be a metaphor to be used for Islam? According to ʿAlī b. Abī Ṭālib (d. 661), the fourth of the early caliphs, Prophet Muḥammad’s guidance in life could be summed up as follows: “Do for this world as if to live forever and for the next as if to die upon tomorrow.”29 This teaching can be divided into two parts. First, believing in the next world as an article of faith and yet living this life as a gift from God, a Muslim has ‘to do’ something for both worlds. Second, doing for both worlds takes a radical form when the attitude towards living and dying is reversed. A Muslim knows he/she would not live forever and death comes to everyone. Such an attitude is also in line with the Qur’ān (21:34). Yet here the Prophet teaches a Muslim to do his/her utmost for this world, knowing that with every moment everyone lives under the shadow of death and therefore needs to prepare for the hereafter to the best of his/her ability. The advice ‘to do for this world and the next’ is contingent upon an understanding of what it means ‘to be in this world’. The Prophet once said: “Be in this world as a stranger or a passer-by” (al-Bukhārī, ḥadīth no. 8,425).30 It was also narrated by Abū Hurayrah that the Prophet once said: “Islam began as something strange and it will revert to its [old position] of being strange; so, good tidings for the strangers” (Muslim, ḥadīth no. 270).31 Islam will be seen as strange in this world and a Muslim will always be a stranger in it. As a result, Muslims and Islam will be subjected to misunder- standing, appearing suspect and often feared. More importantly, for the Muslims themselves, the metaphor of a perpetual stranger reflects a sense of unfamiliarity with the surrounding world. A stranger will be in a state of awakening in walking through unfamiliar terrains. It is the sense of wonder at the marvels of the world that dominates the stranger at the moment of encountering the unfamiliar – rather
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than fixed judgments of them. Without such a fixation, a stranger might be in a position to choose from a number of alternatives that are normally curtailed by the chain of familiarity. Perhaps this is why in the Laws – one of Plato’s most significant works, which is much more than a legal theory of state, but embraces the cosmic order, governance as well as cultural forms – Socrates’ direct existential appeal has been withdrawn. Written towards the end of Plato’s life, arguably with more experiences with the life of the spirit as a fine-tuning of the soul with the divine Measure, Plato replaced the familiar Socrates with ‘an Athenian stranger’. It is this stranger with his knowledge who develops a plan and the motivations for political institutions inspired by the Divine that will be “bearable to men as they are”.32 Thinking through the issues of governance and Islam, where would the metaphors of the ship(s) and the stranger lead to? In what ways would these metaphors contribute to governance which would be “bearable to men as they are”?
Conclusion: Metaphorical Illuminations and ‘Soft Governance?’
In a dialogue between Richard Rorty and Gianni Vattimo on ‘The Future of Religion’, held in Paris on 16 December 2002, the two philosophers agreed that humanity has entered “the age of interpretation” where there are no more strong reasons either to be an atheist refusing religion or to be a theist refusing science. Faith has arrived at a point where it could accommodate these dualisms without recognising any reason for conflict. Motivated by the notion of ‘the death of God’, the secularisation of the sacred has signified the rebirth of religion in the third millennium. It is secularisation which renders philosophical questions about the nature of God useless. Because of the weakness of human reason it is not clear what it actually means to affirm or deny His existence, thus placing God’s existence outside of history.33 I am curious as to the place of Islam in such a ‘future’. Is this portrait of ‘the future of religion’ also ‘the future of Islam’? Towards the end of their dialogue, Vattimo asked Rorty: “What can we do with people who apparently do not share civic responsibility either inside our society or outside? What happens when we arrive at a place which refuses us, like some parts of the Islamic world; what do you think we should preach to them?” Rorty, the eminent philosopher of postmodernity, replied: “[…I]t seems to me that the idea of a dialogue with Islam is pointless […]. With luck, the educated middle class of the Islamic countries will bring about an Islamic enlightenment, but this enlightenment will not have anything to do with a ‘dialogue with Islam’”.34 Rorty’s argument can be easily called into question in the age of diversity of interpretations and contested identities. For example, what does it mean to engage in a ‘dialogue with Islam’? Since when in our century does someone speak on behalf
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of ‘Islam’? Or can there be anyone who represents ‘Islam’ with authority and who is accepted by Muslims all over the world? Is there only one ‘Islam’ or are there many ‘Islams’ out there in different contexts? More importantly, these two philosophers were discussing the future of Christianity in ‘the West’ with its particular historical context and not the future(s) of all religions.35 It is therefore safe to assume that the future of religions in their plurality could take many forms, resulting from each one’s particular history and the ways in which these histories shape and reshape one another. As a result, the routes through which people from various religious traditions enter ‘the age of interpretations’ have been different. From basic Islamic belief where the world is divided between the Creator and the created, the weakness of human reason is well understood. Faith may be rejuvenated not by accommodating dualisms but by reaffirming a set of religious identities alongside, as well as over and above, other sets including the national or the professional spheres. Moreover, it is not the ‘secularisa- tion of the sacred’ which marks the future of Islam, but the finding of ways in which both the secular and the sacred could exist side by side. What takes place at present is that the movement into sacred space by the secular co-exists with the ways in which the secular has also become sacred. Fast-food outlets in modern Muslim societies, therefore, have to display a ‘ḥalāl’ sign, indicating that properly slaughtered meat is offered to the believers/consumers. Modern banking and insurance institutions have to provide services that are in line with Islamic injunctions. But how is it possible that someone such as Rorty would arrive at the surprising conclusion that dialogue with ‘Islam’ is ‘pointless’? In addition to a critique of Rorty’s perspective, I would argue that it is also important to look at how some extremist Muslims tend to focus on the most rigid form of governance – for example in terms of punishment – which is partly responsible for the way Islam is seen today by many non-Muslims. In the work Fiqh al-sunnah – when dealing with ḥudūd and after having gone through juristic opinions substantiated by doctrinal readings on what to do with apostates – the author arrives at the conclusion that apostasy is supposed to be punishable by death. The reasons given are much more interesting, however. First, the author argues a person has attained perfection by having ‘accepted’ Islam. However, if he/she returns to the ‘lowest’ level, then such a life is ‘not worth living’ since it would be a life without honour and purpose, and therefore the death penalty would be appropriate. Second, he argues that since Islam is a ‘total system’, there would be a need to protect this ‘totality’ by forbidding anyone from leaving the ‘faith’ – read: ‘community’, since this would undermine or dissolve it. In this sense, ‘leaving the faith’ is seen as a cancellation of the system, a betrayal of the community which is not unlike treason in a nation-state which too is generally punishable by death (well, at least in some more totalitarian settings).36
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In opposition to this, however, I argue that using the metaphors of the ‘ship’ and ‘the stranger’, governance as seen from Islamic perspective and metaphori- cally informed, cannot be restrictive nor harsh, supposedly ‘orthodox’ traditional juristic opinions notwithstanding. Certainly, it is ‘soft governance’, understood as an attempt to meaningfully connect a multiplicity of actors from different terrains with complex relationships among them in the process of governing with a much more pluralistic conceptualisation of power, which should be explored. The metaphors of the ‘ship’ and the ‘stranger’ may help to illuminate the notion of ‘soft governance’ for the following reasons. First, it was said that using metaphors means introducing the unfamiliar to the familiar, or vice versa, in order to produce effects on the readers/interlocutors. But more importantly, the effects produced by metaphors create a space that is necessary for any dialogue among peoples with differences and that is conducive to efforts in creating meaningful connections between them. Second, the metaphors point to highly limited governance, especially in terms of the power to punish, due to the limits which come from the circumstance of being human. The most skilful captain and his sailors on a ship are those who know the capacity of their ship and their own limitations. For example, soft governance will influence a choice of punishment that will be judged within the limits of human reason and understanding and thereby opens up the possibility of a much larger space for the accused to redeem oneself. Third, a ship is made to sail at sea. Though predictable, the rhythms of the sea, the blow of the winds, and the brightness of the night sky can all change quickly and thus upset any certainty. Facing such a volatility of reality, soft governance allows for the realistic changes in policies and practices to take place with the possibility of accommodating genuine differences. Fourth, ships continue to sail the seas. Their captains steer their ships. The sailors continue to perform their functions and passengers continue to travel on them. All this happens not because they do not know that humans do have limits in controlling the ships, nor are they certain about the oceans, but because, in some ways, they hope that everything will proceed on its proper course. For Muslims, it is the belief in God’s infinite mercy which makes life with all its human limitations and uncertainties bearable – and therefore the engaging with others in dialogue possible and even desirable.
Notes
1. See a more recent case of Abdul Rahman, an Afghan who converted to Christianity and had to move to Italy after a furore over his trial under Islamic sharīʿah law, as reported in Bangkok Post on 10 April 2006. See also a useful discussion on this very issue in Zainah Anwar, “Law-Making in the Name of Islam: Implications for Democratic Governance”, in: K.S. Nathan and Mohammad
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Hashim Kamali (eds), Islam in Southeast Asia: Political, Social and Strategic Challenges for the 21st Century (Singapore: Institute of Southeast Asian Studies, 2005), 129–30. 2. Jan Stark, “Contesting Models of Islamic Governance in Malaysia and Indonesia”, Global Change, Peace and Security 16, no. 2 (June 2004), 115–31. 3. Judith Nagata, “Alternative Models of Islamic Governance in Southeast Asia: Neo-Sufism and the Arqam Experiment in Malaysia”, Global Change, Peace and Security 16, no. 2 (June 2004), 99–114. 4. Literally meaning ‘limits’, or ‘restrictions’, a term often used in Islamic literature for the limits of acceptable behaviour and the punishments for serious crimes. In Islamic law, ḥudūd usually refers to the class of punishments that are fixed for certain crimes that are considered to be ‘claims of God’. They include theft, fornication, consumption of alcohol, and apostasy. 5. Anwar, “Law-Making”, 129, 124, and 128. The quoted passage is on p. 128. 6. Ibid., “Law-Making”, 124–32. 7. Guy Deutscher, The Unfolding of Language: An Evolutionary Tour of Mankind’s Greatest Invention (New York: Metropolitan Books, 2005), 117. 8. Richard Rorty, Contingency, Irony and Solidarity (Cambridge and New York: Cambridge University Press, 1990), 16. 9. For a discussion of different theories of metaphors see Janet Martin Soskice, Metaphor and Religious Language (Oxford: Clarendon Press, 1987), 24–53. 10. Rorty, Contingency, 18. 11. Michael J. Shapiro, “Literary Production as Politicizing Practice”, in: Michael J. Shapiro (ed.), Language and Politics (New York: New York University Press, 1984), 231. 12. See, for example, Bernard Lewis, The Political Language of Islam (Chicago and London: The University of Chicago Press, 1991), 11. 13. David Richards and Martin J. Smith, Governance and Public Policy in the United Kingdom (Oxford: Oxford University Press, 2002), 14. 14. Angela Liberatore, “Governance and Democracy: Reflections on the European Debate”, in: Surendra Munshi and Biju Paul Abraham (eds), Good Governance, Democratic Societies and Globalisation (New Delhi, Thousand Oaks, and London: Sage Publications, 2004), 71–4. The quoted passage is on p. 74. 15. Cited in Richards and Smith, Governance, 14. 16. Ibid., 19. 17. Ibid. 18. Ibid., 18. 19. Kenneth Minogue, Politics: A Very Short Introduction (Oxford and New York: Oxford University Press, 1995), 83. 20. Lewis, The Political Language of Islam, 11. 21. Plato, The Republic of Plato, transl. Allan Bloom (New York and London: Basic Books Inc., 1968), 167. 22. Ibid., 167–8. 23. Ibid., 168. 24. Ibid. 25. Lewis, The Political Language of Islam, 11. 26. Translations from the Qur’ān throughout my article are from Abdullah Yusuf Ali, The Meaning of the Holy Qur’an (new edition with revised translation and commentary) (Brentwood MA: Amana Corporation, 1991). 27. Qur’ān 11:38–9. 28. A.B. Shamsul, “Islam Embedded: Moderate Political Islam and Governance in the Malay World”, in: Nathan and Kamali (eds), Islam in Southeast Asia, 112. 29. Martin Lings, Muhammad: His Life Based on the Earliest Sources (Rochester VT: Inner Traditions International, Ltd, 1983), 325. 30. Ibid., 325.
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31. Imām Muslim, Ṣaḥīḥ Muslim, transl. Abdul Hamid Siddiqi (Lahore: Sh.Muhammad Ashraf, 1978), 1:86. 32. Eric Voegelin, Plato (Baton Rouge: Louisiana State University Press, 1966), 227. 33. Santiago Zabala, “Introduction: A Religion Without Theists or Atheists”, in: Richard Rorty and Gianni Vattimo, The Future of Religion, ed. Santiago Zabala (New York: Columbia University Press, 2005), 1–27. 34. Ibid., 72–3. 35. It should be pointed out that both ‘the future’ and ‘religion’ in the title of the book, edited by Zabala and cited above, on these philosophers’ dialogue are all in singular. 36. Sayyid Sabik, Fiqh-us-Sunnah (Bangkok: Arab Universities Alumni Association, 2002), 4:158–9 (Thai transl. from Arabic).
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Abdul Aziz Bari*
Abstract: Although the number of provisions pertaining to Islam in the Federal Constitution of Malaysia is small, the substance of the religion practically permeates various aspects of governance in Malaysia. This seems to be quite natural given that Islam stands at the very heart of Malay civilisation and culture. Apart from this, the Malays form the majority of the country’s population. This would explain why – despite the fact that Malaysia belongs to the Westminster and Common Law systems of government and law – the Islamic character and essence of the polity remain visible. This is indeed interesting given that the country was governed by Europeans for several centuries – starting with the Portuguese who defeated the Sultanate of Malacca in 1511. As of now, the author argues that it would be possible to have a full-fledged Islamic system within the existing constitutional framework. According to him, the Malaysian experience could serve as an example of how a modern system of governance could co-exist with traditional Islamic values and systems. In recent years, the country has made significant progress in the field of Islamic banking and finance, as well as the systemisation of Islamic courts and education. Even the civil courts have eventually been able to strike a balance between the modern idea of liberty and Islamic notions of rights; something that was evident even in cases involving the question of apostasy. Interestingly enough, all of these achievements have been accomplished within the existing framework of the Constitution.
Introduction
The Federal Constitution of Malaysia only provides a handful of provisions1 that directly deal with Islam. These include the one which declares Islam as “the religion of the Federation”2 as well as those protecting the position of Islam and Muslims; such as those prohibiting the propagation of non-Islamic religions to Muslims3 as well as the provision that allows the use of taxpayers’ money to assist Islam.4 However, as Muslims are in the majority and as the country’s life and history have always been closely-linked with Islam it is not easy to disentangle that religion
* Abdul Aziz Bari is Professor of Law at the International Islamic University Malaysia (IIUM).
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from public life in Malaysia. Hence the place and influence of Islam in government policies, parliamentary debates and so on. In recent years debates and controversies about the role and place of Islam in modern Malaysia have given rise to questions about the true character of the nation. Some have put forward the view that given the substantial numerical proportion of non-Muslims in the population – around 40 per cent – the country should emphasise the alleged secular nature of the federation; something that is quite at odds with the provisions of the Constitution cited above. Whatever the case one wonders whether the secular character is the pre-requisite for the prevalence of religious freedom in the country. For one thing such has been upheld throughout Islamic history. Indeed such a right is quite central in Islam. The intricate relationship between religion, law and governance in Malaysia needs to be seen within the complex structure of the Malaysian Constitution and its history. Part of the reasons for this complexity is reflected in the character of the Constitution as a document that seeks to accommodate various interests and conflicting demands involving that of the centre and the states, royalty and commoners, the indigenous and the immigrant communities, Muslims and non-Muslims and so on.
The Roots and Evolution of the Existing System
As it stands Malaysia is a federation of 13 states and belongs to what is known as the Westminster system of government whereby the offices of head of state and head of government are separate. The head of state is a generally a figurehead and although the holder is vested with the discretionary power to appoint the head of government the latter is essentially there due to the support he or she has in parliament, the legislature. Here lies the reason why the government of the day is called the responsible government; something that underlines the fact that the government actually belongs to parliament. Like the United Kingdom Malaysia is a monarchy. However it is interesting to note that the Malaysian Constitution shares some characteristics with that of the Indian republic; such as the federal system, provisions on fundamental liberties and emergency. In fact some of the prevailing laws such as the Penal Code, the Criminal Code, Contract Act 1950 and Evidence Act 1951 – which are the codifications of English common law principles – came to Malaysia via the republic which became a British colony much earlier.5 Despite the Westminster character there are several features that underline not only the uniqueness but more importantly the indigenous character of the Malaysian federation.6 These include the existence of Conference of Rulers, the assembly of constitutional heads, which have some significant powers including those concerning constitutional amendments and law-making process. Malaysia also has two parallel
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systems of court; namely the civil judiciary as well as the Islamic or the sharīʿah courts.7 Although the latter system of court has less power and jurisdiction they are not amenable to review by the civil courts. This is one feature that makes the Malaysian judiciary quite different from the rest in the Commonwealth. But one must remember that the sharīʿah courts were already in place when the British came sometime in the late seventeenth century. It is interesting to note that although the head of state – namely the Yang di-Pertuan Agong (HM the King) is a hereditary ruler – he is in office through an election conducted by the Conference of Rulers.8 And although the nine rulers are constitutional monarchs and thus subject to the ordinary constraints similar to other constitutional monarchies the rulers in Malaysia have some discretionary powers, especially those pertaining to religion which may, at times, become significant and crucial. Be that as it may the land that is now known as Federation of Malaysia, both the states in the peninsula and Borneo, used to be under the suzerainty and control of fifteenth-century Malacca Sultanate. When the empire fell, following the attack by Portuguese forces in 1511, smaller sultanates emerged; beginning with the one in Perak around 1528. By the end of the nineteenth century there were nine sultanates throughout the peninsula. What these smaller sultanates have in common is that they continue the legacy and traditions of the Malacca Sultanate. All those nine sultanates survived, and it might be argued that had it not been for them Malaysia could have been a unitary today. Although Malacca was not the first kingdom in the peninsula her role was important in strengthening the position and influence of Islam in the Malay life and culture. The Malacca Code – the sultanate’s constitution – was also an Islamic criminal code which contained the provisions on ḥudūd (punishments for certain serious crimes) and qiṣāṣ (retaliation) based on the Shāfiʿī legal ‘school’. This was one of the examples that underline the centrality of Islam in the life and culture of the Malays. Scholars such as Syed Muhammad Naquib al-Attas, for example, have argued that the conversion of Malays to Islam – led by the sultans – has had the crucial impact of transforming their worldview and culture.9 It is important to note that although the Portuguese ruled Malacca for more than a century they did not leave significant traces as they spent the time fending off the attacks put up by the neighbouring sultanates. Thus when the Portuguese were eventually defeated by the Dutch in 1641 what was left were basically just some churches and secular buildings. The same was the case with the Dutch occupation. In any case, the reason why they attacked the Portuguese in Malacca was essentially to undermine the former sultanate’s position as the rival to their commercial interests in Batavia. This explains why the Dutch eventually handed over Malacca to the English, following the signing of the Anglo-Dutch Treaty of 1824.
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As far as the British were concerned, the handing over of Malacca was not the beginning of British rule in the peninsula. In fact, by then they had already acquired Penang from the Sultanate of Kedah, an act which took place in 1786. This was later followed by the acquisition of Singapore in 1819. The three Settlements put the British in a position to interfere in the affairs of the Malay states. This began with the conclusion of the Pangkor Treaty with the Sultanate of Perak in 1874 which was soon followed by three more similar treaties with Selangor, Negeri Sembilan and Pahang. The process was completed with the signing of a treaty with the Sultanate of Johor in 1905. Part of the reasons that have given the British the upper hand in those dealings was the prevalent succession disputes and wars in those states. That notwithstanding it has to be emphasised that under those treaties the Malay states did not surrender their sovereignty. Indeed – as has been affirmed by some court decisions in London10 – the Malay rulers remained sovereign in their own right. In law, the Malay states were just protectorates, not colonies like the Straits Settlements of Penang, Singapore and Malacca, all of which were administered directly by the Colonial Office in London. As far as the Malay states were concerned, the British put in place what was known as indirect rule whereby the indigenous system and structures were retained though the actual running of the states was done by the British officers.11 Under the treaties the sultans were required to act on the officers’ advice. It was during the British administration that the councils to advise the rulers in matters pertaining to Islam and Malay custom were established. The administrative framework continued until World War II. It is to be noted that during their brief though brutal occupation of the Malay Peninsula, the Japanese also chose not to interfere with the indigenous system. Like the British, they also used it to carry out their policies and programmes. However, the British tried to change the status quo when they resumed control of the Peninsula after the Japanese defeat. They sought to implement the idea by putting pressure on the Malay rulers to surrender their sovereignty and their states, together with the three settlements, to form the Malayan Union of 1946. This was a complete departure from the pre-War arrangement whereby the Malay states, legally speaking, were sovereigns despite being British protectorates. The 1946 proposal included, among other things, common citizenship for all, irrespective of race, something that could not be accepted by the Malays. The Malay opposition was instrumental in the non-implementation of the Union proposal. Eventually, it was repealed and the British came forward with the Federation of Malaya of 1948 as the compromise. The agreement for the purpose was signed by all the nine rulers, and it was basically the structure that laid down the foundation for many things, including the Independent Constitution 1957 which strengthened the federation structure. Unlike the loose Federated Malay States of
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1895, formed by the four states that first came under British protection, the 1948 deal was indeed closer to the modern concept of a true federation. Under this arrangement, the jurisdictions of federal and states authorities were clearly spelt out. It is interesting to note, however, that while the status and position of the rulers as sovereign monarchs remain the federation created by the 1948 agreement was central-biased – something which arguably maintained the central idea of the Malayan Union in the newly-created federation. Governance-wise the highest authority under the 1948 federation was the British High Commissioner who was essentially there to represent and exercise the authority and powers of the British Sovereign and the nine Malay rulers. It was under the 1948 arrangement, too, that the Conference of Rulers was formalised; prior to that the rulers had meetings with the British officers under what was known as durbars which started in 1897. When the Reid Commission12 was appointed to prepare the draft constitution sometime in 1956 they did not alter the framework and structure laid down by the Federation of Malaya Agreement of 1948. By and large they merely changed those structures and provisions that were at odds with democracy. These include the introduction of a paramount constitutional monarchy, the putting in place of an elected government and the insertion into the Constitution of a chapter on fundamental liberties. It is to be noted that the draft that was adopted as the Constitution of the Federation of Malaya was not the one submitted by commission. Instead it was the amended and revised version of the Reid Commission’s draft prepared by a committee whose recommendations formed what was known as the White Paper.13 Be that as it may, the Constitution that stands today is different from the one that was adopted at Independence in 1957. Over the years many amendments have been made. These include the amendments made to accommodate the entry of Singapore, Sabah and Sarawak into the Federation in 1963. Singapore, however, was ‘asked’ to leave in 1965. Both Sabah and Sarawak enjoy a certain amount of special position not available to the original eleven states in the Peninsula. While some of the post-independence amendments were quite routine and inevitable, some were indeed fundamental as they deal with some critical issues such as those concerning emergency provision and the judiciary. The Emergency provision14 could have a far-reaching implication on democracy and constitutionalism as the Constitution is essentially suspended and most of the powers, including the legislative one, are placed at the hands of the federal executive. The Constitution also provides a provision to combat subversion which may go against the provision on fundamental liberties;15 something that has been used to enact controversial laws including the Internal Security Act (or ISA) of 1960 which allows detention without trial.
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The Constitution as the Supreme Law
The Constitution states that it is the supreme law of the federation. Article 4(1) of the Federal Constitution emphasises, inter alia, that the Constitution is the supreme law of the Federation and that any law that is inconsistent with it shall be declared null and void to the extent of inconsistency. What the provision essentially seeks to establish here is to make the Constitution the benchmark of everything; from the laws passed by parliament to the policies of the government as well as the relationships between individuals and governments. One must remember, however, that despite the supreme character of the Constitution it all depends on what the courts have to say about it. As it stands, the Federal Court is essentially the consti- tutional court of the country.16 One also needs to bear in mind that the Constitution is not explicit on everything. Details and routines of state governing are virtually left at the hands of the executive. Which is why the executive is influential, and one often finds its tentacles virtually everywhere in the system. One must also remember that in a Westminster system the government virtually controls the legislature, and this means that even law-making is very much within the hands of the executive. As in other countries, the executive has an enormous say in the appointment of judges. Thus although the Constitution has provided safeguards for the independence of the judiciary it is not always easy for the judges to assert their independence, especially when it comes to adjudicating matters involving federal authorities, such as the executive. As shall be shown later, the court has been inconsistent in its rulings, and it appears that when it comes to the crunch, the judges tend to avoid a direct conflict with the government of the day. And this seems to be the trend even before the judiciary crisis in 1988, which ended with the dismissal of Lord President Salleh Abas, the then head of the judiciary.17 As in other countries, the making of the Constitution signified a new beginning. However, as shown above, the Constitution is also, in a way, a continuation of the past regimes; some of the characteristics are rooted in the Malacca days and the subsequent period before the advent of British administration. These include the position and role of the rulers, especially with respect to Islam and Malay customs. It is interesting to note that the provision which provides the ‘special position’ for the Malays under the Constitution today is exactly similar with the corresponding provision under the 1948 constitutional regime. Meanwhile, the British administration has left quite an indelible mark in the system which includes the application of English common law. One must note, however, that this source of law can only be resorted to in situations whereby there is a lacuna. As far as the Malaysian legal system is concerned, the hierarchy of the sources of law has put the Constitution as the major and highest law. Next to
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the Constitution are statutes, namely the legislations passed by federal and state legislatures. Other sources in the order of precedence are judicial decisions, English common law and customary laws. With regard to Islamic law, the Constitution and ordinary laws are silent on the matter. However, that does not mean that Islamic law has no place in the legal system. This is because some of the provisions in the Constitution, especially in the states, are either Islamic or Islam-friendly. These include the provisions which regulate the succession to the throne as well as the protection given to Islam as mentioned earlier. Apart from these provisions, some of the statutes, such as those on Islamic banking and Muslim matrimonial matters, are nothing but Islamic law codified and passed by the legislatures at the federal and state levels. It is not incorrect to say that Islam assumes quite a major influence in law-making process in Malaysia – something that is particularly evident in the area of Islamic criminal laws. These are some of the dimensions that have been overlooked by the proponents of view which asserts that Art. 4(1) of the Federal Constitution of Malaysia marginalises Islam in the system. One of the unique characters of the Malaysian Constitution is that it has no preamble. Other modern constitutions such as the American one asserted the democratic nature of the instrument. Some others, such as the Constitution of India, declared the socialist and secular nature of the document. The accompanying document of the Malaysian Constitution, on the other hand, was quite unclear about the character of the Constitution. That notwithstanding it is not quite right to say that it is secular. This is in view of the fact that it has a provision declaring Islam as the religion of the Federation, a kind of state ideology, and that the rulers assume the position of the heads of religion in their respective states. Islam has effectively been given a special status when the Constitution says that it may receive state assistance.
Democracy and the Constitution
Like other modern constitutions, the Malaysian Constitution seeks to put a democratic polity in place. This was made clear by the Reid Commission in their report as well as in the Draft Constitution which they prepared. That notwithstand- ing, the commission was aware that such has to be done within the prevailing circumstances as well as the historical setting of the country. Hence the retention of traditional institutions and elements such as Islam, monarchical institution, Malay as official language,18 and the ‘special position’ of the Malays.19 But all these have been put in such a way that they are compatible with democracy. Hence the creation of a constitutional monarchy and the framework for responsible government. While Islam has been declared as “religion of the federation” other religions are allowed to be practised in peace and harmony throughout the federation. Similarly, the
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privileges given to the Malays and the indigenous peoples of Borneo need to be reconciled with the legitimate interests of other communities. One of the means to nurture and sustain democracy in the polity is the incorporation of provisions under the chapter on fundamental liberties, something that can be said as the bill of rights of the nation. Under this part certain rights such as personal liberty, religious freedom, right to freedom of speech and expression as well as right to property have been provided for. Although the provisions may be said to be quite outdated they seem to be capable of expansion; covering new issues and problems. Certain decisions of the court as well as the creation of the National Human Rights Commission in 2000 seem to be moving in this direction. But there seems to be no or less consistency on the part of the court here. While one may find the court is following the current trend in Sagong Tasi20 – where the court upheld the proprietary rights of aborigines – it refused to acknowledge the right to religious freedom to a group of Muslim pupils who put on a turban in Meor Atiqulrahman21 – something that is quite within the scope of the constitutional provision. In the meantime, the NGOs have been vocal to raise the issues critical in pushing the frontiers of Malaysian democracy further. It has to be admitted that while the Constitution has provided various provisions that sustain the fundamentals of democracy, their true contribution has been rather limited. This has been largely due to the lack of commitment from the part of the government as well as the courts when it comes to making the ideals of the Constitution a reality. This is evident in the various laws made by parliament, the policies pursued by the executive, as well as the way the court dealt with them over the years. Needless to say, democracy and democratisation require more than just a constitution: while the constitution provides the foundation and framework other factors, including the surrounding political culture, provide the flesh for the space created by the Constitution. Given the prevalence of such a scenario, the significance of the Constitution as the supreme law has been reduced. To make matters worse, the ruling coalition has always been able to amend the Constitution to suit their political priorities since 1957. Such was possible as they never failed to retain the two-thirds majority- control in parliament. However, the coalition failed to maintain that control for the first time in the 12th General Elections in March 2008. At one point, the coalition was even on the brink of losing grip on federal power when the federal opposition almost managed to stage a floor-crossing in parliament. It is to be noted, however, that unlike in other countries, such as the recent general elections of 2010 in Britain and the formation of a coalition government there between the Conservatives and Liberals, the system in Malaysia is such that the opposition has been put under severe constraints and the ruling coalition, having been in power since independence, seems to have their tentacles everywhere in the system.
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Indigenous Roots of the Constitution
As it has been alluded above, despite the democratic character the Constitution contains provisions that underline its local and indigenous roots and origin. These refer to the monarchy, Islam, Malay as the national language and the ‘special position’ of the Malays and natives of the Borneo states of Sabah and Sarawak. It is difficult to deny that the incorporation of the above provisions has reduced the democratic character of the Constitution. As it stands the Constitution has excluded the above provisions from being subject to the equality provision,22 something that was obviously there to serve as the foundation for democracy. Some of the examples for the exceptions are the enlistment of only Malays in the Royal Malay regiment (the premier unit in the Malaysian armed forces),23 the application of Islam in the area of personal laws24 and the reservation of positions in the administration of the nine Malay states, such as the menteri besar (chief minister) and the state secretary, for the Malays.25 Be that as it may the retention of indigenous character does not necessarily mean preserving absolutism. This is quite clear in the case of what is often described as the creation of constitutional monarchy in 1957. It has to be said that the Malay sultanates – as exemplified by the fifteenth-century Malacca Code – have never been absolute monarchies in the true sense of the word. Indeed, given the position of Islam in Malay society, it is quite a contradiction in terms to say that the pre- independence monarchy was an absolute one. While the sultans may not have been subject to limitations similar to those prevalent in the modern constitutions the fact remains that they were subject to the laws and limitations imposed by the religious doctrine. A few words need to be said about the Conference of Rulers under the Constitution today.26 Despite its roots in early British rule as well as the Federation of Malaya of 1948, its membership now has been extended to include the non-royal heads of state, namely the Yang di-Pertua Negeri of the states without rulers. As a matter of law, non-Muslims and non-Malays may be appointed to hold these posts. One needs to remember that apart from appointing the Yang di-Pertuan Agong (HM the King, Malaysia’s paramount ruler), the Conference of Rulers also has some legislative powers including those concerning the amendments to the Constitution. In a way it may also influence state governing as the Constitution allows the Conference to discuss any matter it thinks fit as well as taking part in the appointment of key posts including the judges and the election commission. And as the federation does not have a head of religion like the states, the Conference of Rulers is essentially the guardian of the Islamic religion at the federal level. On several occasions the Conference has shown its ability to carry out the role of checks and balances.
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With regard to the position of Malay as the national language, the Constitution has made it clear that such is not meant to deny the use and learning of other languages.27 The Constitution even allows the use of public funds for these pursuits. What is required by the provision concerned is that when it comes to official use it has to be in Malay. Nonetheless both the government and the court seem to have failed to observe these provisions. Thus in Merdeka University Berhad28 the court ruled that the government was right in rejecting the application to set up a private university as the proposed medium of instruction was Mandarin. This is obviously not in line with the provision which only required the use of Malay for official purpose. But strangely enough, when the government changed the language of instruction for mathematics and science in public schools, the court, in Mohammad Syawwal bin Mohammad Nizar and Others,29 did not find it unconstitutional.
Islam as the Religion of the Federation30
Although Art. 3(1) of the Federal Constitution and the similar provisions in the state constitutions declare that Islam is the religion of the federation, it has also been stated that this declaration would not derogate from other provisions of the Constitution. This is apparently perplexing; on the one hand the Constitution seems to declare Islam as the ideology or the faith of the nation but at the same time it has put restraint on the provision. But perhaps one should bear in mind the circumstances that prevailed during the constitutional negotiations way back in 1956–57. It is a pity that the court – who has the role of clarifying the law that includes the provisions of the Constitution – has not been able to state clearly the scope of the provision concerned. In fact, the existing cases are not only conflicting but also do not display a clear and consistent stand on the provision on the part of the judiciary. As in the United States, the role to make rulings on constitutional issues is placed in the Federal Court – the highest court of the land – which virtually stands as the constitutional tribunal. Despite the unclear impact of the provision, it is generally acceptable to say that Art. 3(1) provides the Federation with an identity; e.g. it is plausible to argue that by virtue of the provision it is not legal to conduct official functions in a manner contrary to Islamic teachings. The provision may also be cited as ground for the Islamic rites conducted to start the daily routines in parliament. In short, the scope of Art. 3(1) is enough to debunk argument that Malaysia or the Constitution is secular. As a matter of law, one needs to go beyond Art. 3 when it comes to the position of Islam in the Constitution. Some of the relevant provisions include those concerning religious freedom, permissibility of using public funds for Islamic causes, the position of the sharīʿah courts,31 the non-application of emergency powers to Islamic matters32 as well as the state powers on religion within the federal framework
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provided for by the Constitution.33 One may also cite the constitutional provision which provides for the definition of what is a ‘Malay’, something which underlines the permissibility of acquiring the Malay or indigenous character that provides the qualification for certain privileges under the Constitution. Issues pertaining to Islam are very much entangled in the issues involving the position of the rulers as well as the federal arrangement adopted by the Constitution. It can be recalled that the proposal to insert the declaration of Islam as the religion of the federation was met with apprehension by the rulers who feared that this would erode their position and powers with regard to Islam. Be that as it may, Islam and Malay custom were excluded from the purview of treaties between the rulers and the British during the nineteenth century. It has to be said, however, that although Islam has been put under the jurisdiction of the states they have not been able to really assert their powers due to lack of expertise and financial resources. And this is quite inevitable given the central-biased nature of the federation that has put most of the resources and powers at the hands of the central authorities. Some of the states, namely the states which used to be part of Federated Malay States, even depend on the federal bureaucracy to carry out their routine state administration.
Islamic Institutions
Although Islam is a matter for the states, over the years the federal government has come to virtually take over the jurisdiction. While some of the institutions were created out of political expediency, some have come into being due to certain inherent problems within the federal set-up. The phenomenon may also allude to a certain amount of inability on the part of the rulers to assert their authority in matters pertaining to religion. The most visible religious agency is obviously the Department of Religious Development (JAKIM), which is an agency under the purview of the Prime Minister. As it stands, the department is more of the religious wing of the ruling party. This is quite contrary to the recommendation of the White Paper which said that it should be put under the control of the Conference of Rulers. Apart from JAKIM, there is also the National Council of Religious Affairs chaired by the Prime Minister. Then, there is a National Fatwa Committee. Although this has no legal or constitutional basis, it has been able to influence public opinion when it comes to religious issues and controversies. Apart from those department and councils, there are statutory bodies that have been created through parliament and ordinary laws. These include the Pilgrimage Board, the Islamic Foundation, the International Islamic University (IIUM) and so on. The Federal Government has also initiated the incorporation of Bank Islam and
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an Islamic insurance company. Meanwhile, the government has set up religious schools throughout the country. Moreover, although the Constitution has prevented the interference from the civil courts on the jurisdiction of the sharīʿah courts the former actually are not barred from dealing with Islamic matters. This is due to the fact they have exclusive jurisdiction on the Constitution which are deeply immersed in Islam. It is to be noted that matters pertaining to Islamic banking have been put under the civil courts. As it has been alluded above, matters pertaining to Islam under the Constitution fall under the jurisdiction of the civil court – something which explains why cases dealing with apostasy and the right of Catholic Christians in the country to use the term ‘Allāh’ for ‘God’ in their publications have been dealt with by such courts.
The Position of Non-Muslims
The Constitution does not offer specific provisions pertaining to the position and rights of the non-Muslims. What the Constitution does provide are just provisions guaranteeing equality and non-discrimination. It also makes clear that religion and ‘race’ would not be used as the criteria for appointments to jobs and positions etc. When it comes to public service, the Constitution also guarantees impartial treatment.34 However, unlike Islam, other religions are not entitled to government assistance. While there has been occasional assistance from the government, it is basically given on an ad hoc basis. Unlike the Islamic religion, non-Muslim clergy and priests do not receive salaries from the government. Having stated this, however, this does not mean that non-Muslims are not entitled to receive assistance. Indeed, from both the Islamic and democratic perspectives there are some good reasons to argue that the non-Muslims – who pay taxes, after all – should also receive state assistance. For one thing, the Constitution is silent and does not prohibit it. The Constitution allows a non-Muslim Malay to be appointed as Prime Minister or a chief minister in the four states of Malacca, Penang, Sabah and Sarawak. Indeed they may also be appointed menteri besar (chief minister) in those nine Malay states if the rulers decided so.35 As the law stands, there is no bar for non-Malays and non-Muslims from being appointed as the heads of state in the four states without rulers. That notwithstanding, it is not going to be easy for non-Muslims and non-Malays to become Prime Minister, for example. For one thing, it is difficult for them to win elections as their population has shrunk over the years. As it stands, the non-Muslim and non-Malay population stands at around 40 per cent. When the country attained independence in 1957 their population constituted slightly more than half of the entire population.
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Given that, it seems quite difficult for the non-Muslims to assert equality. Furthermore, the Constitution has apparently put the Malays in a more commanding position. This includes the position of the Malays in the military which in turn dominates the composition of the public service. It has to be said however that the non-Muslims have been sensible and street wise over the years. They have never challenged the position of the indigenous elements. The cases they have taken to court were essentially those concerning their legitimate rights under the Constitution; such as the right to set up an educational institution funded by the private sector. It is heartening to note that in recent months there have been changes towards a more inclusive interpretation of Islam; both inside and outside the court.
State Bureaucracy
While it is the government of the day that has the final say over the routine governance the actual process is actually more complex than that. As in other Westminster systems government come and go but the polity remains. Whatever the shape and colour of the party or parties that form the government of the day, the nation – as symbolised by the monarchy and managed by the bureaucracy – remains. In order to allow that to take place, the Constitution has provided for the creation of a neutral and competent public service. Instead of pledging their loyalty to the government of the day the Constitution expects them to be loyal to the nation as symbolised by HM the King, the Yang di-Pertuan Agong.36 At the moment the number of public servants stands at around 1.3 million, and this includes members of the military and police force. Some of the mechanisms provided for by the Constitution are the service commission to deal with matters of appointment, promotion and discipline as well as the provisions which guarantee the security of tenure. But whatever the Constitution has to say, the fact remains that the huge majority of public servants are Malays and Muslims. There are various reasons for this state of affairs, such as the operation of certain constitutional provisions, particularly the one that reserves posts in the public service for the Malays. As far as the religious establishment is concerned, it is put under the jurisdiction of the rulers. Included under this establishment are the mosques, religious departments, bayt al-māl (Muslim treasury), office of themuftī and so on. In the performance of their religious functions the rulers are assisted by the religious councils. Constitu- tionally speaking, the rulers, despite being constitutional monarchs, are not bound by the advice of the government of the day. Unlike the situation in the United States, whereby the Constitution put fundamentals of democracy – the right to freedom of speech and expression, the
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right to peaceful assembly and to form associations – beyond the reach of the legislature, the Malaysian Constitution has somehow allowed parliament to curb those rights. This has had quite a negative impact on democracy and governance in Malaysia. This underlines the reason why the demands for the abolition of certain restrictive laws, such as the Printing and Presses Act, the University and University College Act (UUCA), the Police Act, as well as the Society Act, are increasing. At the same time, there have been calls for the enactment of laws, such as the Freedom of Information Act and the repeal of the Official Secrets Act. Generally speaking, people are more aware to have a more transparent and accountable administration which stands at the very heart of the modern concept of governance. How does Islam contribute to these issues? As a matter of fact, Islam stands at the very heart of all those issues – something which was unmistakably clear from the precedents laid down by the Prophet and his successors. Given the nature of Islam which encompasses all aspects of life, it is not quite possible to confine Islamic teachings to matters of rituals alone. This is perhaps something that could explain why the federal authorities – despite the federal division of powers – have somewhat encroached into matters pertaining to Islam which have been reserved for the states. As the Muslims are in the majority, they would like their banking, education or even internal security being conducted in the Islamic manner. It is interesting to note that in a recent decision the court declared it was wrong for the federal government to detain a blogger, who – they claimed – had insulted Islam. The court ruled that as Islam has been put under the rulers’ jurisdiction, the federal police were wrong to detain him. The decision was, however, an exception.
Islam and Governance in Malaysia
One of the standard remarks made about Islam and public governance in Malaysia in recent years is that it is worrying; i.e. that it has had the impact of secularising the Constitution and this would have an adverse impact on the position of the non-Muslims in the country. One also finds assertions which contend that the increased tendency towards ‘Islamisation’ in the country has been due to the UMNO–PAS rivalry and their attempt to ‘reach out’ to their mostly rural Malay Muslim constituencies. Given the position of Islam in the Constitution, which is essentially the recognition of both history as well as the socio-political realities in the country, such remarks are obviously quite inaccurate. Whatever one has to say about the alleged rise of ‘Islamisation’, the fact remains that efforts and policies favouring Islam were actually beginning under the adminis- tration of Malaysia’s first Prime Minister, Tunku Abdul Rahman. This includes the annual Qur’ān recitation competition, the setting up of the Pilgrimage Fund Board,
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as well as the Religious Division under the Prime Minister’s Department, which is now known as JAKIM. These efforts were later continued by the succeeding admin- istrations. Thus when the policy of infusing ‘Islamic values’ in public governance was put in place by the former Mahathir administration in the early 1980s, it was virtually just another version of commitment on the part of the government to ‘promote Islam’. The same could be said about the policy of Islam Hadhari, pursued by the Abdullah Ahmad Badawi administration between 2003 and 2008. From the Constitution’s point of view, what is important is that all these efforts should be within the framework of the legal provisions. The position of the sharīʿah courts is another issue that has been cited to show that the Islamic fundamentalism in on the rise. It has to be pointed out that the enhanced position of the court has been done through a proper constitutional amendment in 1988. In any case, it was just a clarification of a position that has been in existence even before independence. In the meantime, the systemisation of such courts – culminating with the creation of the federal-sponsored Islamic Court of Appeals (JKSM) – actually started with the setting-up of various committees during the mid 1980s. Another issue that has attracted wide international attention is the issue of apostasy among Muslims. One must bear in mind that whatever be one’s position, elsewhere the Constitution has provided – right from 1957 – the framework that can be used to criminalise it. As the law now stands, apostasy is a crime according to Islamic law which is penalised under the Malaysian legal system. While this position may not be compatible with international public opinion (and with the United Nations Charter of Human Rights, for that matter, of which Malaysia is a signatory), one needs to bear in mind the position of the Malaysian Constitution: the definition and concept of ‘Malayness’ has been closely linked with the Islamic faith. This, in turn, is crucial when it comes to provisions pertaining to the ‘privileges’ accorded to the Malays, as well as the right to succeed for the heirs to the throne in the Malay states. Interestingly enough, the National Human Rights Act 1999 has made it clear that reference to the Universal Declaration of Human Rights of 1948 can only be made if such is consistent with the Constitution of Malaysia. Perhaps it is necessary to state that the system is also not always favourable to the Muslims. Court decisions, such as Meor Atiqulrahman, Hajah Halimaton Saadiah,37 and Jamaluddin bin Othman,38 are some of the examples whereby Islam and Muslims have taken quite a backseat. These cases show that Lina Joy39 – whereby apostasy was not upheld as a matter of right – is not quite the general trend. One should also bear in mind that the recent High Court decision40 in the Catholic Herald issue – on the use of Allāh among the non-Muslims – was not quite warmly received by the majority of the country’s Muslims.
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Concluding Remarks and Recommendations
Contrary to public perception, the issue of Islam is obviously quite central to the Constitution. Indeed, it may be said that Islam forms part of the essence and foundation of the constitutional framework.
• Therefore, in future, any kind of ‘Islamisation policies’ should proceed within the existing framework of the Constitution. • That being the position, there is thus no question of ‘Islamisation through the back door’ or that Islamic programmes and policies should be the result of rivalry between Malay-Muslim parties to put up more ‘Islamic credentials’ (although I am well aware of the fact that a very large number of people of all faiths in and outside the country will arrive at a different conclusion). As such it is plausible to say that given the nature of the provisions in the Constitution most of the Islamic programmes and policies have been carried out within those limitations and framework. And the good news is that in the aftermath of the 2008 General Elections it is no longer possible to amend the Constitution the way it was done before. • Of no less importance is the fact that the people – especially the non-Muslims – are more aware of their rights, particularly those enshrined in the Malaysian Constitution. This should not be seen as a threat by the authorities and the Muslim community at large, but rather as a change for true nation-building. This writer would even argue that the recent controversial decision pertaining to the Catholic Herald permit shows that the Constitution has actually provided enough space for the non-Muslims to assert their rights. • However, it remains to be seen whether those rights will actually be granted in practice by the relevant authorities, as the Lina Joy court decision – and its aftermath, i.e. the public criticism of that decision in the media and elsewhere – has also shown.
In closing then, this author would argue that the Catholic Herald controversy, for example, has also underlined that a substantial section within the Muslim community understands and is willing to adopt a more inclusive interpretation of Islam to accommodate their non-Muslim fellow citizens.
Notes
1. For the provisions and cases on the Federal Constitution of Malaysia see Abdul Aziz Bari and Farid Sufian Shuaib,Constitution of Malaysia: Text and Commentary (Kuala Lumpur: Pearson-Prentice Hall, 2009, 3rd ed.). For an overview of the Constitution see, e.g., Abdul Aziz Bari, Malaysian Constitution: A Critical Introduction (Kuala Lumpur: The Other Press, 2003).
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2. Federal Constitution, Art. 3(1). See Abdul Aziz Bari, Islam dalam Perlembagaan Malaysia (Petaling Jaya: iMAP, 2005). See also Shamrahayu A. Aziz, “Islam as the Religion of the Federation: Its Scope and Implication” (2006) 14 IIUMLJ 33. 3. Federal Constitution, Art. 11(4). 4. Ibid., Art. 12(2). 5. See Ahmad Ibrahim and Ahilemah Joned, The Malaysian Legal System (Kuala Lumpur: Dewan Bahasa dan Pustaka, 1987). 6. See Abdul Aziz Bari, “Westminster System in Asia: The Malaysian Variation”, US-China Law Review 4, no.1 (2007), 1–8 and 16. 7. For more on this see, e.g., Farid Sufian Shuaib, Syariah Courts in Malaysia: Power and Jurisdiction (Kuala Lumpur: LexisNexis, 2007, 2nd ed.). 8. For more on this see, e.g, Visu Sinnadurai, “Yang di-Pertuan Agong: The Appointment Process under the Federal Constitution” [1989] 1 SCJ 65. See also, Tunku Sofeah Jewa, Salleh Buang and Yaacob Hussain Marican (eds), Tun Mohamed Suffian. An Introduction to the Constitution of Malaysia (Petaling Jaya: Pacifica Publications, 2007, 3rd ed.), 28–37. 9. See Syed Muhammad Naquib al-Attas, Islam dalam Sejarah dan Kebudayaan Melayu (Kuala Lumpur: Penerbit UKM, 1972). See also his Islam and Secularism (Kuala Lumpur: ABIM, 1978), 161–75. 10. See cases such as Mighell v Sultan of Johore [1894] AC 194, Duff Development [1924] AC 797 and Pahang Consolidated Company [1932] MLJ 47. 11. For more on this see Rupert Emerson, Malaysia: A Study in Direct and Indirect Rule (Kuala Lumpur: University of Malaya Press, 1970). 12. See Colonial Office,Report of the Federation of Malaya Constitutional Commission 1957 (London: HMSO, 1957), Cmnd. no. 330. 13. See Colonial Office,Constitutional Proposals for the Federation of Malaya (London: HMSO, 1957) Cmnd. no. 210. 14. Federal Constitution, Art. 150. 15. Ibid., Art. 149. 16. Ibid, Arts 128 and 130. 17. For some insights, see e.g. H.P. Lee, Constitutional Conflicts in Contemporary Malaysia (Kuala Lumpur: Oxford University Press, 1995), 43–85. 18. Federal Constitution, Art. 152. 19. Ibid., Art. 153. 20. Sagong bin Tasi and Ors v Kerajaan Negeri Selangor [2002] 2 MLJ 59 and [2005] 6 MLJ 28. 21. Meor Atiqulrahman bin Ishak v Fatimah bte Sihi [2006] 4 MLJ 605. 22. Federal Constitution, Art. 8. 23. Ibid., Art. 8(5)(f). 24. Ibid., Art. 8(5)(a). 25. Ibid., Art. 8(5)(e). 26. Ibid., Art. 38. See also Abdul Aziz Bari, Majlis Raja-Raja: Kedudukan dan Peranan dalam Perlembagaan (Kuala Lumpur: Dewan Bahasa dan Pustaka, 2002). 27. Federal Constitution, Art. 152(1). 28. Merdeka University Berhad v Government of Malaysia [1981] 2 MLJ 356. 29. Mohammad Syawwaal bin Mohammad Nizar and Ors v Kerajaan Malaysia (Ref: Mahkamah Tinggi Kuala Lumpur Saman Pemula No. R2-24-05-06). 30. For some insights, see e.g. Shamrahayu A. Aziz, “Islam as the Religion of Malaysian Federation: Its Scope and Implications” (2006) 14 IIUMLJ 33. 31. Federal Constitution, Art. 121(1)(a). 32. Ibid., Art. 150(6)(a). 33. Ibid., Ninth Schedule, List II – State List. 34. Ibid., Art. 136. 35. See, e.g., Laws of the Constitution of Johor, Art. 4(4).
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36. See Abdul Aziz Bari, “The Monarchy and State Governing”, in: Abdul Razak Baginda (ed.), Governing Malaysia (Kuala Lumpur: MSRC, 2009), 75–90. 37. Hjh Halimatussaadiah bte Hj Kamaruddin v Public Service Commission, Malaysia and Anor [1994] 3 MLJ 61. 38. Jamaluddin bin Othman v Menteri Hal Ehwal Dalam Negeri, Malaysia and Anor [1989] 1 MLJ 368. 39. Lina Joy v Majlis Agama Islam Wilayah Persekutuan and Ors [2007] 4 MLJ 585. 40. Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri and Anor (No.2) [2010] 2 CLJ 258.
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ICR 2-1 01 text 77 28/09/2010 11:06 A MALAYSIAN PERSPECTIVE ON QUR’ĀNIC GOVERNANCE: FAMILY AUTONOMY vs. STATE INTERVENTION
Zaleha Kamaruddin*
Abstract: ‘Good governance’ is considered a crucial element for peace and development of societies, because it implies good order and good policies. In the context of the family institution, this is a must in order to ensure that the basic unit of society is protected from destruction. In relation to this, most scholars have acknowledged that all over the world, the family has undergone radical transfor- mations in response to the changing socio-economic environment. However, the breadth and depth of this change in the realm of good governance has often been neglected. This article begins by examining contemporary challenges confronting the family institution. Justifications for state intervention through the existing family laws in Malaysia as one of the mechanisms in protecting the family will also be analysed. To ensure that family stability can be maintained and developed, ‘qur’ānic governance’ is proposed as a mechanism for social transformation.
Introduction
The main argument in this preliminary study is that the notion of ‘good governance’ should not be excluded from the area of family, since the family institution is very important for the growth and continuity of human civilisation at large. To ensure that family stability can be maintained and developed, a framework based on ‘qur’ānic governance’ is proposed as a mechanism for social transformation. This article is divided into three parts. The first part discusses current challenges facing the family institution which includes various changes in the family structure, norms, values and behaviour. It suggests answers to one important question: to what extent does Malay custom (adat) which is seen by many Malays as based on the religion of Islam, but which also has strong pre-Islamic currents,1 influence the structure of the applied Family law? This social transformation is the basis for the proposal of an alternative framework that is based on religion and appropriately named as ‘qur’ānic governance’. The second part is an exploration of the role of
* Zaleha Kamaruddin is Professor at the Kulliyah of Law at the International Islamic University Malaysia (IIUM).
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the individual as khalīfah ([God’s] vicegerent) and the duty of man as head of the family. The discussion is based on governance at the individual level and its relation with the family, community, and State level. The third part highlights the extent of state intervention in family matters in the context of marriage. Some relevant principles of Islamic jurisprudence are briefly addressed to justify the discretionary power of the state (in the name of ‘good governance’) to intervene for the purpose of preserving the family institution.
Current Challenges to the Family
‘Good governance’ is a necessary requirement for the family institution which is a very important component for the growth and continuity of human civilisation. In the Malaysian context, informal governance is made through the primary social unit of Malay-Muslim society, that is, of the family. Prior to the country’s independence from Britain in 1957, this was often the extended family rather than the nuclear family as found in the West. Malay-Muslim society is ‘unusual’ in that there is almost a complete lack of a formal structure binding the Malays together. The only substantial social organisation is that of the village (kampong), often made up of closely related individuals on an extended family basis. The manifested interaction is that of small close-knit communities in which organisation, administration and other social and cultural activities are regulated on a communal basis. To the Malay-Muslim community, the family is a basic component of a loosely- structured kinship system. A complex series of linkages based on blood, marriage, and other putative relationships brings together a number of individuals into a common universe of kinship containing various categories and groups of kinsmen. Malay kinship is governed by two sets of adat (custom): Adat Temenggung2 and Adat Perpatih.3 Both represent Malay conceptions of law, and the legitimacy of these traditions can be said to derive from moral principles as well as from custom and long usage.4 The tradition of the Temenggung has been described as more autocratic and less democratic because it places power and authority solely in the hands of the ruler. The latter tradition centres on the principle of collective responsibility; the ruler is sovereign but the authority and power of the ruler is within the limits that have been laid down in its code. Family structure under the Adat Perpatih is explained in the following sayings:
The world has its kings, the luak (civet) has its chief; the tribe has its headman, the family has its elders.
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The matrilineal system is composed of traditionally corporate groups of increasing inclusiveness viewed from the smallest unit, the family. A group of families interlinked by descent from a common ancestor constitute the group, called perut. A group of perut, affiliated to each other by actual or putative descent, constitutes a suku (clan). District and state traditional political and administrative organisation was based on this larger kinship structure. These factors, therefore, have varying normative and moral influences on the behaviour and organisation of a family group, being a small unit within a whole corporate system, without, however, impinging on the basic autonomy of the family. More often than not, the extended family type exerts greater influence on the running of its component family units, thus affecting the internal process of decision-making. It is, therefore, useful to be aware of the larger frame of kinship structure in any evaluation of a family system to understand fully some of the background factors affecting its organisation and function. The Malay family has a reciprocal kinship or moral obligation with other groups of kinsmen. This network affects the family in varying degrees depending very much on various factors of closeness or remoteness, in terms of descent, residence and generation status. The closer the link, the greater the degree of influence. In the context of the marriage system under the Adat Perpatih, it is a system of exogamy within their tribes. This means that the preference is for a person to marry outside the clan but within the tribes. It is also ‘matrilocal’, that is, it is compulsory for a husband to live in the wife’s place, if not with the wife’s family.5 The Perpatih tradition has made marriage an institution through which the whole host of relations and tribal organisations are bound into a cohesive whole. An example of family governance is the following:
Warder of the wife is the husband, Warder of the husband, his wife’s family.6
In both Malay societies that practise Adat Perpatih and Adat Temenggung, the position of primary authority in a family falls on the man. The father is head of the household, but the woman may manage the actual running of the household. The Malays’ image of their society is such that the husband is regarded as the primary authority. The traditional Malay family conformed more to the norm of an extended family whereby two or more family units, together with other kin members, lived together as a domestic or household unit. However, internal developments within the family, economic ability, conflict of interests and optimum residential capacity have split the family and thus a new domestic, autonomous and independent family unit has developed. After independence, urbanisation, industrialisation and educational developments have pushed and attracted younger families into urban areas.
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These factors have exposed young men and women to wider sections of the population as a ‘field of choice’. According to traditional norms of close agricultural societies, spouse selection was more or less set within the general organisation of the family, kinship or community at large. Marriage was regulated by religious teachings. While this remains true now, the field of choice depends on individual contacts and preference. At the present time, marriage is increasingly based on romantic love and customs are not fully adhered to in every case. The traditional function of marriage brokers in the arrangement of marriages has almost died out. While no general data are available on the current general pattern of spouse selection, the present situation has affected the mean age at first marriage for women, which has risen from 17 to 23 years. The delay in marriage is closely related to the current family structure. High mobility and higher cost of maintenance have encouraged the formation of nuclear families, living away from parents and free from kinship constraints. This will eventually force households to be founded more on conjugal relations through law than on kinship linkages, especially when the married partners are strangers to each other prior to marriage. The urban setting greatly stresses the need for greater social mobility, higher attainment and comfortable living. The strong family constraint which was once highly regarded does not operate anymore. As a response to the general pattern of development, the erosion of traditional values and the radical changes occurring in the family, a kind of socio-cultural reaction has emerged. Materialistic affluence has led to the breakdown of a more familiar pattern of social relations, aspirations, and beliefs. Specifically, the emergence of the industrial era, the assertions of individualism, the passion for freedom and liberty, the change in the cultural and social climate, and the women’s liberation movement, have all contributed in moulding the attitudes of the Malay-Muslim society towards marriage. These changes in Malaysian Muslim family life over the past 53 years after independence are profound and dramatic. For example, after the Second World War, the states of Kelantan and Terengganu recorded some of the highest rates of divorce in the world (seven out of ten marriages ended in divorce).7 However, this has declined over the last two decades to only 10–16 per cent. Researchers have shown that divorce amongst Malays is culturally rather than religiously determined.8 The age of Muslim couples at their first marriage has increased from 17 to 25 for men and 15 to 23 for women. Due to social changes, more women are petitioning for divorce compared to men. Changes in the values and perceptions of the spouses in relation to the family institution are based on varieties of social, cultural, political and economic factors.
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The increasing enthusiasm for higher education (professional education) and the employment of women played a vital role in influencing the values of men and women thus changing their attitude towards marriage and divorce.9 These changes have not only contributed considerably to the breaking of traditional structure of Malaysian marriages but also to the increase in the rate of divorce in Malaysian society. The development of urban living has led to uprooting and greater social isolation. Marriage has changed from being institutional to companionate. Freeman describes this as “two individuals rather than two lineages, on the child-centred household, on the quasi emancipation of women, and on the structural isolation of the nuclear family from the kinship system and the community”.10 The revolution that has taken place in the recent past in relation to the family which is considered at one time a holy matrimony from the sharīʿah point of view and this branch of the law is a striking example of how the law is keeping pace with the needs and aspirations of modern society. These factors justify the alternative method, i.e. using the legal mechanism – Islamic Family Law – to govern Malay-Muslim society. Reasons for doing so are as follows: first, as many scholars have argued, families are not really private or autonomous institutions. Families exercise authority over an important set of functions with relatively minor supervision from the state, but the boundaries of family membership and the boundaries of family jurisdiction are defined by Islamic law. This was true even before the introduction of the Islamic Family Law Act in 1984. Second, times have changed. The traditional conception no longer corresponds with contemporary views of the family as a social institution with a particular structure and function. The tradition that families should be autonomous, self-governing, and independent still has emotional force, but it is based on an increasingly outdated and inaccurate depiction of family life.
Qur’ānic Governance
How do we develop a model of good family governance appropriate for contemporary families? There are a range of approaches but a reliance on qur’ānic based theories holds a number of advantages. One of the reasons for that is, practically, it will be more acceptable by the States in determining family governance. Another basis would be that the distribution of power and resources within the family will shape those of the larger community. The family serves as one of society’s primary sources of moral education. It is in the family that we first encounter issues involving power and justice. Because of the primacy of family life as the determinant of social structure, individual values are crucial to the formulation of family governance. As pointed out above, in both Malay societies through the practice of Adat Perpatih and Adat Temenggung, the position of primary authority in a family is
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put on the man as head of the household. The Malays’ image of their society is such that the husband is regarded as the primary authority. This concept is actually based on the Qur’ān where Allāh has created man as His representative (vicegerent; khalīfah). He has endowed man with reason, physical and intellectual capabilities and knowledge. These potentials are given to man as a trust (amānah). Ibrahim Zein has rightly pointed out that as khalīfah, they are supposed to have acquired better judgment and self control to understand Divine guidance. He highlights the concept of trust (amānah) which determines the individual’s relationship with the family, society, state, and government and the humanity at large. Man is said to be attached to these institutions both materially and spiritually. He further elaborates that amānah establishes man’s responsibility toward his kin, other human beings and socio-political institutions. This concept resolves the issues pertaining to the rights and responsibilities of individuals in every facet of his life. He summed it up as “someone’s right is someone’s responsibility”.11 Applying the same concept of amānah as stated by the Qur’ān as the cornerstone to the establishment of institutions to govern society, the family as the smallest unit of society would be the first institution to practise it. This idea is founded on the fact that the fourth chapter of the Qur’ān (known as al-Nisā’, ‘The Women’), which deals with ‘good governance’, describes the idea of absolute human equality in the context of the family. In the family, legally married man and wife are entrusted with the amānah of raising their children by providing maintenance, care, and education. The Qur’ān reminds mankind that when amānah are fulfilled, it would bring good to himself. The concept of khalīfah which is governance at the individual level encompasses the concept of amānah (trust), and ʿadālah (justice) as the essence of qur’ānic guidance on ‘good governance’. The Qur’ān revealed that amānah must be fulfilled with ʿadālah (justice).12 Another important component for good family governance is shūrā – consultation among family members. The Qur’ān emphasises this in various issues of governance.13 The concept of shūrā underlines the participation of all members of the family. Extending these explanations in the context of the family, the man as head of the household has a ‘contract’ with his family through the trust given to him by his family members to fulfil that trust. This responsibility is heavy and would necessitate cooperation from his family members through shūrā. The community as a whole also becomes responsible for the accomplishment of the trust. However, no meaningful, extensive and long lasting cooperation is possible without effective governance. Extension of this would be another alternative mechanism for effective governance, i.e. through law. Figure 1 shows this relationship and its connectivity to qur’ānic guidance.
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Universal (4) Values
State Responsibilities State (3)
State Intervention vs. Family (2) Individual Rights
(1) Individual as Khalīfah
Social Institutions with Marriage as the Basis for Rights and Responsibilities
Figure 1 ‘Qur’ānic governance’ on the family
Islamic Family Law
The sharīʿah has instituted a just, sound and sublime rule for the regulation and functioning of the family. The most important principle underlying any legislation for the family should consist in consolidating the bonds of marriage and kinship. It has been one of the most important objectives of the sharīʿah to give special attention to marriage, because it constitutes the basic principle of the family.14 In Malaysia, a significant shift in legal authority over family life has ushered in the transformation of Islamic family law. Family law is the province of state governance, and the states are evidently sovereign in this area. The federal government played a major role over the past three decades in transforming and codifying the sharīʿah in relation to Islamic family law. The Technical Committee in Civil and Sharīʿah Laws under the Department of Islamic Development, Prime Minister’s Department has drafted extensive legislative family laws since the 1980s. These laws which are based on the sharīʿah are readily adopted by the states as model laws. A focus on family governance will enable us to highlight the relations between certain areas of the family law. All these areas derive their sources from the Qur’ān. However, as part of a larger set of changes in family law, an emphasis on individuals as khalīfahs as pointed out earlier is significant as it highlights the concept of responsibility. All these reforms have been characterised as ‘proto-responsibility’,
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because responsibilities and rights coexist with one another. The law based on the sharīʿah is that the husband as the ruler of the household has the right to be obeyed by his wife and children. The obligation of his wife and children were contingent on the proper exercise of his authority. For a successful implementation of family governance, having adequate laws relating to marriage is pertinent. In the next section, the legal provisions relating to marriage under the present Islamic Family Law are outlined before commentaries are made. From a liberal approach, there is a movement to introduce stricter laws which have affected marriage patterns in Malaysia. Below are regulations relating to marriage.
Marriage (a) Void marriages: Section 11 of the Act provides that a marriage shall be void unless all the conditions necessary according to a ruling of the sharīʿah (ḥukm sharʿī) for the validity thereof are satisfied. The Federal Territories Act does not detail the conditions for a valid marriage. These are however given in the Kelantan Islamic Family Law Enactment of 1983. The details of these various conditions are also set out in the Schedule to the Enactment. Ḥukm sharʿī is defined in the Federal Territories Act as the laws of Islam in the Shāfiʿī, Ḥanbalī, Ḥanafī and Mālikī ‘schools’ of Islamic jurisprudence, but this definition is not included in the Kelantan Enactment, which seems to follow more closely the laws of the Shāfiʿīs.
(b) Marriage in contravention of the Act: Initially, Section 12 of the Act provides that a marriage in contravention shall not be registered under the Act, but later amended it to provide that a marriage which has been solemnised contrary to any provision of Part II of the Act, but is otherwise valid according to a ḥukm sharʿī, may be registered under the Act with an order from the court and payment of the penalty provided by the Act. Section 40(2) of the Act provides that any person who marries or purports to marry or goes through a form of marriage with, any person contrary to any of the provisions of Part 11 of the Act (dealing with marriage) commits an offence and shall be punishable with a fine not exceeding RM 1,000 or with imprisonment not exceeding six months or with both such fine and imprisonment.
(c) Consent: Section 13 of the Act provides that a marriage shall not be recognised and shall not be registered under the Act unless both parties to the marriage have consented thereto and either:
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(i) The wālī or legal guardian of the woman has consented thereto in accordance with the ḥukm sharʿī, or (ii) The sharīʿah judge having jurisdiction in the place where the woman resides or any person generally or specially authorised in that behalf by the sharīʿah judge has after due inquiry in the presence of all parties concerned, granted his consent thereto as wali raja in accordance with the ḥukm sharʿī. Such consent may be given wherever there is no wālī by nasab (blood relationship) in accordance with the ḥukm sharʿī available to act or if the wālī cannot be found or the wālī refuses his consent without sufficient reason.
(d) Persons ascribing to religions other than Islam: Section 10 of the Act provides that no Muslim man shall marry a non-Muslim except from what is referred to as kitābiyyah (in usual parlance a Christian or Jew), while no Muslim woman shall marry a non-Muslim. Strangely, the Shāfiʿī ‘school’ of law has adopted a rather restrictive and narrow definition ofkitābiyyah (and which is not shared by the followers of the Ḥanafī ‘school’, numerically the strongest ‘school’ among the Sunnites): (i) a woman whose ancestors were from Bani Ya ‘qub (that is, a Jewess); (ii) a Christian woman whose ancestors were Christians before the ‘call to prophethood’ of Muḥammad (one remembers, an event that is believed to have taken place in the 7th century CE, i.e. about 1,400 years ago!); or (iii) a Jew whose ancestors were Jews before the prophethood of Jesus Christ.
(e) Persons by whom marriages may be solemnised: Section 7 of the Act provides that a marriage in the Federal Territories shall be in accordance with the Act and shall be solemnised in accordance with Hukum Syaraʿ by: (i) the wālī in the presence of the Registrar of Muslim Marriages; (ii) the representative of the wālī in the presence of and with the permission of the Registrar; or (iii) the Registrar as the representative of the wālī. Where a marriage involves a woman who has no wālī (guardian) in accordance with the ḥukm sharʿī, the marriage shall be solemnised only with the wali raja, i.e. guardian delegated by the Sultan.
(f) Minimum age of marriage: The current provision, i.e. Section 8, discourages marriage between parties where either one or both are below the age of 18, except where the sharīʿah judge has granted his permission in writing in special circumstances. In the Federal Territories, it is provided that a marriage in contravention of the Section, if nevertheless valid
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under Muslim law, can be registered with the permission of the court, subject to the imposition of the penalty provided by the Act. The policy of the law in discouraging teenage marriages will in effect reduce the number of divorces which are brought by young people who do not understand the heavy commitments a marriage entails.
(g) Permissions to marry: Section 27 of the Act provides that the Registrar, on being satisfied of the truth of the matters in the application for permission to marry and where the man is already married that the permission of the sharīʿah judge required by Section 23 has been granted shall at any time after the application issue to the applicants his permission to marry in the prescribed form. (i) Polygamous marriage: Islamic law allows a restricted form of polygamy. In Malaysia, polygamy is controlled through Family Legislations in the States. No man who has already married may marry again, except with the prior permission of the sharīʿah judge. The court may only grant permission if satisfied that: a. the proposed marriage is just and necessary, having regard to such circumstances, as among others, the following, that is to say, sterility, physical infirmity, physical unfitness for conjugal relations, wilful avoidance of an order for the restitution of conjugal rights or insanity on the part of the existing wife or wives; b. the applicant has such means as to enable him to support as required by the Muslim law all his wives and dependants, including persons who would be his dependants as a result of the proposed marriage; c. the applicant would be able to accord equal treatment to all his wives as required by the Muslim law; d. the proposed marriage would not cause harm affecting the existing wife or wives in respect of religion, life, body, mind or property.
In all these interventions, often the legislation seeks to codify the law, but for its interpretation, the sharīʿah court will refer to the sources of Islamic law, including the Qur’ān, the Sunnah and the views of the jurists. For example, Section 11 of the Islamic Family Law (Federal Territories) Act provides that a marriage shall be void unless all the conditions necessary, according to the stipulations of the sharīʿah, for the validity thereof are satisfied. This provision shows the necessity to refer to the sources of Islamic law to ascertain the conditions necessary for the validity of marriage. The provisions outlined above show the extent of intervention by the State on family matters relating to marriage. However, this intervention is considered valid
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as its authority is authorised by the sharīʿah. The principles of siyāsah sharʿiyyah, maṣlaḥah and sadd al-dharāʿī are used interchangeably to denote discretionary power of the state. The balance of interests in family matters and the spirit of the sharīʿah must be maintained, and for this reason the role and intervention of the state becomes more important.
Concluding Remarks and Recommendations
This article is an exploration on the concept of ‘qur’ānic governance’ on the family institution. It is not a conclusive document, because
• understanding the role of the sharīʿah, its unique approach, and the ways in which statements of the sharīʿah are codified into contemporary law, and how best courts interpret the law, pose important questions requiring careful articulation.
This is especially true in cases where justifying the autonomy of the family, we could no longer rely on the tradition of the past where it is said that the Muslim government had a very limited function. Reason for this is simply because the Muslims were spread out over such a wide territory that the State then could not reach them. Others also opined that Islamic government is a very limited one. First, not every aspect of Islam is entrusted to the government to enforce. It is assumed that it is the nature of a unitarian religious order of society that the individual should enjoy a wide degree of autonomy. Moreover, not everything is practically capable of enforcement through government law.15 The present Malaysian Islamic Family Law Act of 1984 – a federal law for the Federal Territories – is a codified law containing provisions which are sharīʿah- compliant in the sense that their sources are derived from the Qur’ān and the Sunnah. Because of this, the sharīʿah attaches great importance to fulfilment of Muslims’ obligation towards their legal government. There is a ḥadīth, related by Nāfiʿ, according to which ʿAbd-Allāh b. ʿUmar has heard from the Prophet:
He who withdraws his hand from obedience [to the amīr; i.e. the ruler] will have nothing in his favour when he meets Allāh on the Day of Resurrection.
The sharīʿah attaches great importance to fulfilment of the Muslims’ obligation towards their legal government and considers it as a religious obligation. However, ʿAbd al-Raḥmān Tāj has rightly pointed out that no policy can be called siyāsah sharʿiyyah unless it observes the limits of moderation, which errs neither toward severity nor to laxity, for both will lead to injustice and the loss of rights.16
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• The state, therefore, must be extra careful in its intervention because it has to ensure equilibrium of reasonable balance between the autonomy of the family and the state and also to understand the extent of the role that religion plays in public life.
Notes
1. Adat Bersendi Huku, Hukum Bersendi Kitabullah; see Mohamed Abdul Rahman, Dasar-Dasar Adat Pepatih (Kuala Lumpur: Pustaka Antara, 1964), 39. 2. Adat or custom is an indispensable institution in Malay sociological analysis. It represents the formal and conscious beliefs of the Malays which often predate their conversion to Islam and from which one could trace cultural and social production of ideas and relations in the wider society. 3. The matriarchal Adat Perpatih in its traditional statement which is known as perbilangan or customary saying. It has been handed down from generation to generation and governs land tenure, lineage and the election of various traditional chiefs. As far as rules relating to marriage are concerned, this community follows Islamic law. 4. Richard James Wilkinson, “Law: Introductory Sketch and the Ninety-Nine Laws of Perak”, in: Richard James Wilkinson et al. (eds), Papers on Malay Subjects (Kuala Lumpur: Federated Malay States Government Press, 1908), 2. 5. Mohamed Abdul Rahman, Dasar-Dasar Adat Pepatih, 39. 6. “Kunci bini laki; Kunci Semenda tempat semenda”; the translation quoted is that of A. Caldecott, “Jelebu Customary Songs and Sayings”, Journal of the Malayan Branch of the Royal Asiatic Society 78 (1918), 3–41. 7. Yoshihiro Tsubouchi, “Islam and Divorce Among Malay Peasants”, in: Shinichi Ichimura (ed.), Southeast Asia in Nature, Society and Development (Honolulu HI: University of Press of Hawaii, 1977), 28. 8. Zaleha Kamaruddin, “Divorce Laws in Malaysia (Civil and Shari’ah)”, Malayan Law Journal (2005), 21–2. 9. Ibid. 10. M.D.A. Freeman, “Legal Responses to Marriage Breakdown”, Current Legal Problems 31 (1978), 121. 11. Ibrahim M. Zein et al., “Qur’anic Guidance on Good Governance”, in: Abdullah al Ahsan and Stephen B. Young (eds), Guidance for Good Governance: Explorations in Qur’anic, Scientific and Cross-Cultural Approaches [jointly published in 2008 by the International Islamic University (IIUM) Malaysia and the Caux Round Table], available online at http://csis.org/event/quranic- guidance-good-governance (accessed on 7 July 2010), 9–37. 12. Qur’ān 4:58. 13. Qur’ān 3:159; 42:38. 14. For a detailed discussion, see Ibn ʿAshūr, Maqāṣid al-sharīʿah al-islāmiyyah (Amman: Dār al-Nufays, 1999), 189–95. 15. Hasan Turabi, “Principles of Governance, Freedom, and Responsibilities in Islam”, The American Journal of Islamic Social Sciences 4, no. 1 (1987), 6. 16. Mohammad Yusuf Abdul Kadir, “State Intervention in Marriage: Does It Infringe Human Rights”, in: Zaleha Kamaruddin (ed.), Islamic Family Law: New Challenges in the 21st Century (Kuala Lumpur: International Islamic University (IIUM) Malaysia, 2004), quoting ʿAbd al-Raḥmān Tāj, Al-Siyāsah al-sharʿīyyah wa-’l-fiqh al-islāmī(Cairo: Maṭbaʿah Dār al-Ta’līf, 1953), 34.
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Constance Chevallier-Govers*
Abstract: In Malaysia, Islam is the religion of the state, although other religions may be practised in peace and harmony. Having inherited the English common law tradition at its independence in 1957, Malaysia is neither a secular state nor an Islamic theocracy. As a matter of fact, the Malaysian Constitution has brought Islamic law under the legislative powers of the federal States. Historical developments have thus led to the existence of two sets of law: common law and sharīʿah law. Legal pluralism in Malaysia applies foremost to personal status, but also to some aspects of criminal law. The sharīʿah as well as legal pluralism seem to question the rule of law in Malaysia. This two-fold aspect of the rule of law will be analysed in this article. The formal definition of the ‘rule of law’ implies the respect for the hierarchical principle and the Constitution’s supremacy. It will be explained to what extent legal pluralism in Malaysia is challenging the supremacy of the Constitution. Nevertheless, the hierarchical principle is not a goal in itself, and the material definition of the ‘rule of law’ will also be discussed. The second part of this article will focus on potential human rights issues that are implied by the notion of legal pluralism and by sharīʿah law in Malaysia.
Introduction
In Malaysia, two sets of law coexist: common law and sharīʿah law. The Malaysian legal pluralism is rooted in colonial legacies: the coexistence of different normative or legal orders and a dual system of courts are the result of the country’s colonial experience.1 Prior to British rule, Islamic law was of great importance.2 The earliest record of Islamic law in what is now Malaysia is to be found on the Terengganu stone inscription, which dates back to 1303 CE. It mentions the punishments for certain offences, following the various provisions given in the Qur’ān and the Sunnah.3 In pre-colonial Malaysia, the Sultans in each of their respective States were not only the heads of the religion of Islam but also the political leaders in their respective realms. In this sense they were ‘Islamic states’ with courts staffed with qāḍīs (Islamic judges) and enforcing the sharīʿah. Under the treaties made by the
* Constance Chevallier-Govers is Associate Professor of Public Law at the University of Grenoble.
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Malay Sultans with the British, the Sultans agreed to receive British Residents or Advisers and to follow their ‘advice’ in all matters of administration – except in matters pertaining to Islamic religion and Malay custom (adat). Also upon British ‘advice’, the Malay Sultans set up civil courts, which were chaired by British judges. In the absence of legislation applicable to the matter, those judges tended to refer to the law prevalent in England. In this way, the English law of torts and the English rules of equity were introduced into the Malay states. As a constitutional state, the contemporary Federation of Malaysia – comprising 13 states and three federal territories – is formally endorsing the principles of a democratic constitutional state – namely democracy, checks and balances, rights and liberties and the rule of law.4 The Constitution adopted in 1957 used the Western liberal constitutional model – especially the British Westminster model of parliamentary democracy – but it took into account the existence of collective identities within Malaysian society. Besides a bill of rights, containing an enumeration of the classical individual rights and liberties (Articles 5 to 13), the Malaysian Constitution also accepts group-specific rights and foresees the possibility for positive action policies for Malays. According to Article 3 of the Constitution, Islam is the official religion of the Federation, although other religions may be practised in peace and harmony anywhere in the country. In this way, Malaysia is neither a secular nor an Islamic state.5 In the Che Omar ruling of 1988, the Federal Court has asserted that the sharīʿah was not the supreme law of the land.6 Furthermore, the Constitution accommodates legal pluralism regarding family and personal matters and, to a certain extent, regarding criminal law. Malaysia inherited the English common law tradition at its independence. However, the Constitution has brought Islamic law under the legislative powers of the States. As a matter of fact, the historical developments in Malaysia have led to the existence of two sets of law, which are recognised by the Constitution: one for non-Muslims and one for Muslims. Non-Muslims (Malaysian and foreign) are subject only to secular law and secular courts. Muslims (both Malaysian and foreign), on the other hand, are subject to both secular law and sharīʿah law. In this manner, Muslim Malaysians are thus subject to two sets of laws. Sharīʿah law in Malaysia is under the jurisdiction of 13 separate states with their own interpretations. The organisation and procedure of the Islamic courts are a power attributed to the 13 State legislators.7 Legal pluralism in Malaysia will be apprehended only through the prism of sharīʿah law. Indigenous customary law (adat) will not be mentioned, even if it constitutes one aspect of legal pluralism in Malaysia. The sharīʿah as well as legal pluralism question the rule of law in Malaysia.8 In the following study, two definitions of the rule of law will be discussed.9 Forged in the late nineteenth century within German legal doctrine, the rule of law in the
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twentieth century has seen appreciable inflections. The totalitarian challenge led beyond the purely formal definition, based on the idea of hierarchy, in favour of a substantial emphasis in order to guarantee legal certainty and fundamental rights. The formal definition refers to the hierarchical principle, according to which all inferior law should conform to the superior law. The material definition takes into account the content of the law and implies that the law should not only conform to the superior law but it should also conform to human rights.
The Formal Definition of the Rule of Law
In Malaysia, Islamic law is subject to the supremacy of the Constitution and the federal law. Article 4 of the Constitution declares that the Constitution is the supreme law of the land, such that incompatible legislation is void.10 Article 75 of the Constitution stipulates that in case of conflict between the federal law and state law, federal law shall be applicable. The supremacy of the Constitution means that native law, received law and religious legal practice are subject to the constitutional- ity test. Two issues are related to the hierarchical principle, namely the distribution of legislative power between States and Federal legislatures and the distribution of jurisdiction between sharīʿah and civil courts.
Distribution of legislative power between state and federal legislatures The constitutional framework of distribution of power between State and Federal legislatures seems to be quite clear: sharīʿah law is under the responsibility of the States (1). There are nevertheless some discrepancies between the Federal Constitution and States sharīʿah Laws (2). Judicial review should be a remedy but it is more notional than real (3).
(1) Constitutional framework: Article 74 of the Constitution regulates the distribution of legislative powers between the Federation and the States and refers to the lists of the Ninth Schedule.11 This Ninth Schedule of the Federal Constitution sets out the Federal and States lists containing subjects on which the Federal (List I) and States (List II) government can legislate. In addition, there is a concurrent list of subjects (List II) on which both the Federation and the States can legislate. The State List (List II) enumerates 13 areas for which State Assemblies have exclusive power.12 The first paragraph foresees that except with respect to the Federal Territories of Kuala Lumpur and Labuan, this is the jurisdiction of the States:
• Islamic Law and personal and family law of persons professing the religion of Islam come under State competences including Islamic law relating to succession, marriage, adoption, divorce;
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• creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion, except in regards to matters included in the Federal list; • organisation and procedure of sharīʿah courts, which shall have jurisdiction only over a person 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 to offences except in so far as conferred by federal law; control of propagating doctrines and beliefs among Muslims.
The term ‘Islamic law’ in Schedule 9 List II, Paragraph 1 does not refer to Islamic law in its entirety but only to such areas of Islamic law as are explicitly enumerated in that paragraph.13 As Islamic law is administered by the respective States, there is thus a lack of uniformity in the administration of Islamic law in Malaysia.14
(2) Discrepancies between the Federal Constitution and criminal sharīʿah laws of the States: Individual States can create sharīʿah criminal offences, provided four conditions are met: it is an act against the precepts of Islam and it is not already a criminal offence according to federal law. It can only apply to a person professing the religion of Islam, and the punishment is limited according to the 1965 Act, often referred to as the ‘3/5/6 formula’ (3 years jail, a fine of 5,000 Malaysian Ringgit (RM), 6 strikes with the rotan stick). The Malaysian States have, nevertheless, adopted criminal offences enactments which are to some extent unconstitutional because of overlapping federal powers.15 Some of the offences appear to overlap with offences already existing in the Penal Code and other federal laws. Liwāt (the homosexual version of sodomy), for example, overlaps with “sexual intercourse against the order of nature” and “outrages on decency” (sections 377A and 377D of the Penal Code, respectively). Muncikari (procuring) and “indecent acts in a public place” overlaps with “outrages on decency” (section 377D of the Penal Code which includes “procures or attempts to procure”) and “gambling” with “gaming in a common gaming house” and “gaming in public” (sections 6 and 7, respectively, of the Common Gaming Houses Act 1953 (Act 289)). Sharīʿah law differentiates two kinds of offences: ḥudūd and taʿzīr.16 Ḥudūd crimes, which are considered the most serious ones, are those which are punishable by a pre-established punishment found in the Qur’ān. These crimes are found by an exact reference in the Qur’ān to a specific act and a specific punishment for that act. Taʿzīr crimes are less serious than the ḥudūd and are not found in the Qur’ān so the Islamic judges are free to determine an appropriate punishment. In Kelantan and Terengganu, on top of these Criminal Offences Enactments they have adopted ḥudūd laws: the Kelantan Shariah Criminal Code Enactment of 1993 and the Terengganu
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Sharīʿah Criminal Offence Enactment (ḥudūd and qiṣāṣ) of 2002. These strict ḥudūd laws adopted by Kelantan and Terengganu States are not implemented. But if they were, they would be in breach with federal law in so far as the punishments foreseen in these laws are more than the ‘3/5/6 formula’ imposed by the Sharīʿah Courts Act of 1965. For example, the punishment for sodomy, illicit sex between unmarried persons (zinā) or apostasy is death. Article 75 of the Federal Constitution clearly provides that “If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.” It should be the responsibility of the courts to declare some provisions of these laws void.
(3) Lack of judicial review: The Federal Court has the power to review federal and state legislation on the ground of unconstitutionality. In Article 4(1), the Federal Constitution declares itself to be the supreme law of the federation. According to Article 128(1),17 the Federal Court is conferred the exclusive jurisdiction to settle disputes “on any question” between the States or between the Federation and any States, and also, more specifically, on the question as to whether a law passed by parliament or the legislature of a State is invalid on the ground that it makes provisions with respect to a matter regarding which parliament or the legislature of a State has not power to make laws. Article 128(2) also gives the Federal Court a referral jurisdiction. In any proceedings before another court, if a question arises as to the effect of any provisions of the Constitution, the Federal Court shall determine that question and remit the case back to the Court to be disposed of in accordance with such determination. The Yang di-Pertuan Agong, Malaysia’s paramount ruler and Head of State,18 may also refer to the Federal Court for its position on any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise.19 The courts have the constitutional duty to enforce compliance and observance by the State and the Federal Governments of all the supremacy of the Constitution by virtue of the power conferred by Articles 4(3) and 4(4). But as they renounce this power, judicial review seems to be “more notional than real”.20 One can identify two causes for the judges’ reluctance to exercise judicial review. The first explanation can be found in the British tradition of parliamentary supremacy. Judges seem to be steeped in the British tradition of parliamentary supremacy which has no legal basis in so far as Malaysia has a written constitution unlike in the United Kingdom.21 For example, in the case of Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187, it was stated by the court that “the question of whether the impugned Act is harsh and unjust is a question of policy to be debated and decided by Parliament and therefore not fit for judicial determination”. In a way, the rule by law has ruined the rule of law.
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The second explanation to the judges’ reluctance is the lack of independence of the judiciary resulting from the 1988 crisis. Before 1988, there had been a growing freedom of the judiciary, and a short period of judicial renaissance. Following a string of judicial rulings against the Government in the 1987–88 period, the Government moved to strip the judiciary of its power of judicial review. Former Prime Minister Tun Dr Mahathir Mohamad, during his term in office, eventually sacked Chief Justice Salleh Abas and two other Supreme Court judges. Ever since the attack on the judiciary in 1988, the judiciary has repeatedly failed to uphold the rule of law and to rule with the independence of all powers, notably the executive.
Distribution of jurisdiction between sharīʿah and civil courts The sharīʿah court system pre-dates the civil court system. Indeed, there was a court system prior to the British intervention, which was a system of one set of courts, the qāḍī courts. Today, Malaysia has a dual court system comprising the civil courts and the sharīʿah courts.22 The latter have jurisdiction to apply sharīʿah law to Muslims and civil courts have jurisdiction to apply civil law to Muslims and non-Muslims (1). The Constitution was amended in 1988 to clarify the distribution of jurisdiction (2) but it has not solved all the problems raised by the existence of a dual court system (3). Some ways ahead are suggested to avoid tussle situations (4).
(1) Constitutional framework: Originally the Constitution referred only to the composition of civil courts in Article 121. Though sharīʿah courts were mentioned in Schedule 9 of article 74 which prescribes that the States are responsible for the “organisation and procedure of sharīʿah 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”. Secular courts used to be in a position of more authority until the 1988 amendment to the Constitution which redefined the relationship between secular courts and sharīʿah courts. The amendment 121(1A) provided that the High Courts were to “have no jurisdiction in respect of any matter within the jurisdiction of the sharīʿah courts”.23 It was a very simple amendment. It merely says that where the sharīʿah courts have jurisdiction over a matter, the common law courts do not have jurisdiction over it. The aim of this change was to prevent litigants from appealing sharīʿah court decisions to the High Court.24 However, different interpretations of this amendment emerged.25
(2) Different interpretations of the 1988 Amendment: Two different interpretations of Article 121(1A) resulting from the 1988 amendment can be identified: the parallel
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and the hierarchical interpretations. According to the parallel interpretation, sharīʿah courts and civil courts form two separate courts systems. Salbiah Ahmad asserts that
State Shariah courts are not courts inferior to the federal courts as the term ‘inferior court’ is understood in terms of appeal and judicial review by superior courts over inferior courts. The State Shariah courts are in a separate hierarchy to that of the federal civil courts. There is no right of appeal from the State Shariah courts to the federal civil courts. There is no power of judicial review by the federal high court over the State Shariah court.26
This interpretation is commonly adopted and reflects the state of the case law today. On any issue that is connected to Islamic law whether it is within or outside the jurisdiction of the sharīʿah courts, the civil courts are extremely reluctant to pronounce a judgment even if issues of jurisdiction, constitutionality and human rights are involved. In doing so they are subordinating human rights in Article 5 to 13 to the power of the States to legislate on Islam under 9th Schedule. The implication of such an interpretation is that Schedule 9 to Article 74 and Article 121(1A) are given priority over Article 4 asserting the supremacy of the Constitution and over Articles 5 to 13 on fundamental rights. According to the hierarchical interpretation, sharīʿah courts, as State courts, are submitted to civil courts, as federal courts. Some authors, like Rasamani Kandiah, consider that
the amendment does not purport to oust the jurisdiction of the High Court to review decisions of the Shariah Courts. It merely says, in effect, that the ordinary courts cannot exercise the Shariah court’s jurisdiction a position which, it should be noted, applies to any inferior jurisdiction: it is indeed a cardinal principle of judicial review that the court cannot substitute its decision for that of the inferior jurisdiction whose decision is reviewed. It does not therefore seem possible that the Shariah courts, by this small amendment, have been converted into a totally separate legal system […]. As things stand the civil courts exercise the power of judicial review and this is of course part of the judicial power. Nothing in clause 1A attempts to interfere with this proposition.27
This is also the opinion of Mohammad Hashim Kamali, according to whom
Article 121 was to address problems arising out of conflicting jurisdiction and not to create a new jurisdiction or introduce any basic changes in the status of the civil courts as of general jurisdiction in the country. Sharīʿah courts are not integrated into federal legal system but belong to State jurisdiction.28
The implication of this interpretation is that Article 4, asserting the supremacy of the Constitution, and Articles 5 to 13 on fundamental rights are given priority over Schedule 9 to Article 74 and over Article 121(1A).
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In the Malaysian Constitution, there is no provision on the basic structure of provisions which cannot be modified because they are more important than the other ones. For example, in France the provision which prescribes that France is a republic is part of the basic structure, as in Germany, and the provisions on federalism and human rights cannot be amended. Such provisions on basic structure are lacking and all the provisions of the Malaysia Constitution are considered to be of the same importance.
(3) Remaining issues regarding the distribution of jurisdiction between sharīʿah and civil courts: When the subject matter falls within the jurisdiction of the sharīʿah court but one of the parties is a non-Muslim, which court is to hear the case? Civil courts have no jurisdiction over sharīʿah law, but sharīʿah courts, in turn, have no jurisdiction over non-Muslims. Indeed according to Schedule 9 list 2, “Shariah courts shall have jurisdiction only over persons professing the religion of Islam”. Many cases raise the question of the effects of conversion to Islam on civil marriages. According to sharīʿah law, a Muslim cannot marry a non-Muslim.29 Marriages between non-Muslims in Malaysia are registered under the civil law known as the Law Reform (Marriage and Divorce) Act 1976 (Act 164) (known as ‘LRA’). Section 3 of the LRA provides that the Act shall not apply to “a Muslim” or to “any person who is married under Islamic law”. The exception to this rule lies in section 3(3) which provides that the court may still grant a decree of divorce under section 51 “where one party to the marriage has subsequently converted to Islam and such decree shall be valid and binding against the party to the marriage of who has converted to Islam”. Nevertheless, section 51 does not allow the converted spouse to file for a divorce in front of the civil court. According to Islamic law, the marriage is terminated three months after the conversion if the other spouse does not also convert to Islam. The converted spouse is thus free to marry according to Islamic law. Most often it is the man who converts to Islam leaving his wife without any ancillary relief or maintenance. Sometimes the converted spouse even files for a divorce in the sharīʿah court resulting in two divorce settlements, one from the sharīʿah court and one from the civil court.30 The Federal Court has recently asserted that the converted husband could still seek divorce in the sharīʿah court albeit the rulings made by the sharīʿah court would not bind the civil court.31 A draft amendment of section 51 of the LRA is being discussed in the federal parliament to make sure that the converting spouse has fulfilled all his obligations under the civil law before converting to Islam (ancillary relief, maintenance of the spouse and children, custody of the children).32 When one of the spouses converts to Islam, it happens that he or she tries to unilaterally convert his children. A few cases have raised the question whether only one of the parents could convert children under the age of 18. The Administration
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of Islamic Law (Federal Territories) Act 1993 gives the right to a converted parent to convert his or her children from a civil marriage without the knowledge and consent of the other parent. The Federal Court was recently seized and ruled that any parent has a right to convert the child of marriage to Islam. It held that the word “parent” in Article 12(4) of the Federal Constitution which states that the religion of a person under the age of 18 shall be decided by his parent or guardian, means a single parent.33 Concerning apostasy, an issue has emerged as to determining which court should have jurisdiction to authorise a Muslim to conversion away from Islam.34 Every Malaysian has an identity card which contains his personal information and for Muslims their religion is also mentioned. The National Registration Administration (NRD) is responsible for issuing these cards. In 2007, the Supreme Court held – in the Lina Joy case35 – that the NRD policy of requiring a certificate of apostasy from the sharīʿah court was lawful. The question whether Lina Joy was a Muslim or not was a decision exclusively for the Islamic courts. Thus a Muslim who wishes to declare apostasy must first get thesharīʿah court to confirm that he or she has left the religion of Islam. Until the act of renunciation is validated by the sharīʿah court, a Muslim is deemed to be a person of the Muslim faith. The problem is that sharīʿah courts do not easily hand out these certificates because in some States apostasy is a criminal offence and where it is not a criminal offence there is no provision giving them this power. Apostasy is therefore practically impossible. This ruling raises also two other questions. Why should the sharīʿah court be competent concerning the faith of a non-Muslim? Finally, professing is a matter of inner feeling. It is not something that can be decided by a court either sharīʿah or civil. This goes far beyond the problem of distribution of jurisdiction.
(4) Possible remedies to solve conflict of jurisdiction: Without any constitutional amendment it should be possible to invoke the advisory jurisdiction of the Federal Court under Articles 128 and 130 of the Constitution to address conflicts of jurisdiction.36 However, these provisions are very seldom used. Some academics have therefore suggested introducing more important changes in the constitutional framework in order to solve these problems of distribution of jurisdiction between sharīʿah and civil courts. The first solution would be to unify the civil and thesharīʿah courts at all levels which also would mean federalising the sharīʿah courts. Persons qualified in civil law as well as persons qualified in Islamic law would be appointed judges of the same court at all levels. Islamic law cases, civil or criminal, would be heard by judges qualified in Islamic law. Non-Islamic law cases would be heard by judges qualified in civil law. If, in a case there would be issues involving both laws, two judges would sit, one from each discipline. The judge with Islamic law qualification
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would decide issues of Islamic law. The judge with civil law qualification would decide the other issues. The final judgment of the court would be given by both of them, jointly.37 This would require a constitutional amendment and it would be a very sensitive issue. Even if the question of jurisdiction would be thus settled, it would not address the question of conflicting laws. Another proposition is to create a body responsible in cases of conflict of jurisdiction. There should be a mechanism put in place where a distribution body manned by judges familiar with both civil and sharīʿah laws adjudicate on this matter.38 This distribution body would have as its only power the allocation of difficult cases. The sharīʿah as well as legal pluralism question the formal definition of the rule of law by challenging the Constitution’s supremacy. In a democracy it is important that this hierarchical principle be respected but it is not a goal in itself. Another major aspect is that the law respects some fundamental values, called human rights.
Material Definition of the Rule of Law
The material definition of the rule of law is a definition according to the content of the law which has to conform to human rights. Some human rights are protected by the Malaysian Constitution (Articles 5 to 13)39 and in this way the material and formal definitions of rule of law converge. Nevertheless one also has to confront Malaysia’s legal pluralism to international standards of human rights and to analyse potential collisions between sharīʿah law in Malaysia and human rights. Malaysia is not party to the main United Nations Conventions on human rights such as the International Covenant on Civil and Political Rights (ICCPR). The only binding obligations of Malaysia are regarding two international treaties: the Convention on Elimination of Discrimination against Women (CEDAW) of 1979 ratified with reservations in 199540 and Convention on the Rights of the Child (CRC) of 1989 ratified with reservations by Malaysia in 1995.41 In order to promote and protect human rights in Malaysia, the Government has established an independent Commission on Human Rights under the Human Rights Commission of Malaysia Act 1999.42 Section 2 of this Act defines ‘human rights’ as referring to the “fundamental liberties as enshrined in Part II of the Federal Constitution”. Furthermore, section 4(4) of the Act provides that regard shall be had to the Universal Declaration of Human Rights 1948 (UDHR) to the extent that is not inconsistent with the Federal Constitution.43 This means that whatever rights and liberties not mentioned in Part II but referred to in the UDHR must be considered provided that there is no conflict with the Constitution. Legal pluralism and sharīʿah in Malaysia raise many issues concerning human rights. Actually it is not itself legal pluralism which is concerned but more specifically
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sharīʿah law applied in Malaysia. This study will focus on potential breaches to freedom of religion and to women’s rights resulting from the implementation of sharīʿah law.
Freedom of religion Article 11 of the Constitution provides for freedom of religion: “Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it”44. Clause 4 empowers the State legislatures to enact anti-propagation laws to regulate the propagation of other religions amongst the Muslims. Hence there is a constitutionally backed prohibition to proselytise among the Muslims. Three threats to freedom of religion can be identified: apostasy (1), interreligious marriages (2) and special status of Malays (3).
(1) Apostasy: Some States have created penal offences to punish apostasy. Kelantan and Terengganu have adopted ḥudūd laws punishing by death apostates. These laws are not yet implemented. Some other States like Malacca, Perak and Sabah have also criminalised apostasy by imposing fines not exceeding RM 3,000 and/ or imprisonment of not more than two years. The penal punishment of apostasy raises difficult constitutional issues. It is a breach to Article 11 of the Constitution on freedom of religion, which should be interpreted as broad enough to permit change of faith. Article 11 does not explicitly forbid apostasy.45 The right to convert away from one’s religion is alluded to in Article 18 of the Universal Declaration of Human Rights (UDHR) 1948. It declares that “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom […].” The UDHR has been given partial recognition by section 4(4) of Malaysia’s Human Rights Commission Act 1999 but only to the extent that is not inconsistent with the Federal Constitution. The UDHR is a declaration adopted by the General Assembly of the United Nations without binding effect but most of its content has been integrated within the two International Covenants of 1966. Article 18 of the International Covenant on Civil and Political Rights 1966 (ICCPR) does not mention explicitly the right to change religion; it only mentions the right to adopt one’s religion.46 Nevertheless according to United Nations Human Rights Committee, this should be interpreted as including the right to change religion.47 Malaysia is not party to the ICCPR. So except by admitting that the UDHR is binding as an international customary law, no provision of international human right law is applicable to Malaysia and the only reference is therefore the Malaysian Constitution. Some States do not criminalise apostasy but impose a forced rehabilitation to the apostate. This is an interference with personal liberty guaranteed by Article 5(1) of the Constitution. A murtad (apostate) may also claim that the rehabilitation
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law violates his or her right of freedom of speech provided for by Article 10 of the Constitution but also Article 12(3) which says that no person shall be forced to receive instruction or take part in any ceremony or act of worship of a religion other than his own.
(2) Interreligious marriage: The fact that, according to sharīʿah law implemented in Malaysia, Muslims cannot marry non-Muslims results in a ban of interreligious marriage for Muslims. This can be analysed as a violation of freedom of religion as guaranteed by Article 11 of the Constitution. It is also a breach to Article 10 of the Constitution on freedom of speech and association. Finally, it encroaches an internationally recognised right to marry and to found a family cited in Article 23 of the ICCPR. This specific right is not mentioned in the Malaysian Constitution and Malaysia is not party to the ICCPR. This right to marry is also guaranteed by Article 16 of the UDHR.
(3) Constitutional status of the Malays: The status of Malays is determined by the Constitution.48 Article 160 defines a ‘Malay’ as a person who is a Malaysian citizen, born to a Malaysian citizen, who professes to be a Muslim, habitually speaks the Malay language, adheres to Malay customs, and is domiciled in Malaysia or Singapore.49 Malays can theoretically convert out of Islam, but in practice this is very difficult, as shown above.50 The question remains whether a Malay apostate would lose his or her identity or lose the ‘status’ of being a ‘Malay’. It seems, until now this issue has never been taken to the court.51 Here we have two conflicting constitutional provisions: Article 11 on freedom of religion and Article 160 on Malay identity. It is in these kinds of cases that a provision on the basic structure would be of great help.
Women’s rights according to sharīʿah law as implemented in Malaysia Article 8 of the Constitution states that, “all persons are equal before the law and entitled to the equal protection of the law”. It did not first identify gender as a ground for discrimination. On 1 August 2001, Article 8(2) was amended to include the word ‘gender’. Clause 5 of Article 8 provides that constitutional provisions concerning equality before the law and non-discrimination on grounds of religion, gender, race, etc. explicitly exclude their application to the legislation concerning personal laws. This is an important limit to the non-discrimination principle. Malaysia has ratified the CEDAW in 1995 but with reservations.52 Malaysia’s accession to CEDAW is ultimately subject to the understanding that its provisions do not conflict with the provisions of the sharīʿah law and the Constitution. Concerning discrimination towards women, Malaysia is therefore submitted to the review by the Committee created by the CEDAW. It is mainly regarding marriage that Muslim women suffer
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injustices under sharīʿah law implemented in Malaysia (1) but there are also some other issues to be mentioned concerning States’ criminal enactments (2).
(1) Status of Muslim women regarding marriage: Muslim family law falls under the legislative power of the Malaysian States. This construction entails that there are many different versions of Islamic law enactments in the different member States. The Islamic Family Law Act (IFLA) of 1984 adopted by the Federal Parliament for the Federal Territories was designed to serve as a model for the other Malaysian States.53 However, family law in some States deviates from the federal model in several important respects. Here we shall not put the emphasis on the discrepancies between the IFLA and States’ sharīʿah laws in family matters but only take the IFLA as reference illustrating the trends of Islamic family law in Malaysia. According to the IFLA and all the Family States laws, Muslim women do not benefit from equal rights to enter into marriage as the approval of the wālī (the woman’s guardian for marriage) is needed, even if the consent of the wife is now required. Section 13 of IFLA states that a marriage shall not be recognised or registered under this Act unless both parties freely consent to the marriage and either the wālī or in the absence of wālī the sharīʿah judge has also consented.54 Furthermore women do not have equal right to dissolve marriage. Ṭalāq, which is the unilateral repudiation of women, is still implemented in Malaysia.55 The IFLA seeks to limit arbitrary unilateral repudiation (ṭalāq) by requiring the husband to apply to the court for permission to pronounce the ṭalāq in court. Extra-judicial ṭalāq is subject to punishment by fine and/or imprisonment. So by paying a fine a man can unilaterally repudiate his wife. But even a judicial ṭalāq is discriminatory towards Muslim women as they cannot unilaterally end marriage and can obtain a divorce only on limited grounds (not receiving maintenance, being abused, and cruelty). Muslim women do not have equal rights regarding guardianship: the father is the only legal guardian but the mother can have custody. A woman (but not a man) can lose custody on several grounds, including ‘immorality’. Finally, polygamy is only permitted for Muslim men. According to Section 23 of IFLA, the right to practise polygamy may only be exercised with the court’s permission and if four conditions are met: such marriage is just and necessary, the husband has financial means to support more than one wife, he is to treat the co-wives equally and not to cause harm to the existing wife, and finally the consent of the existing wife is needed. This practice is still discriminatory towards women as such right is not recognised for them. All these issues concerning the status of Muslim women regarding marriage have been pointed out by the CEDAW Committee in its 2006 Report.56 A new bill amending the IFLA has been finalised and awaits submission to Parliament.
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(2) Issues concerning women in the States’ sharīʿah criminal offences enactments: In the sharīʿah criminal offences enactments of the States there is no distinction between zinā (illicit sex between unmarried persons) and rape. For example, while the Criminal Offences Enactment of Kelantan57 addresses the subject of zinā it does not mention rape at all. Zinā has been given a broad definition consisting of sexual intercourse between a man and a woman who are not married. In case of zinā, pregnancy or delivery of a baby by an unmarried woman shall constitute evidence on which to find her guilty ofzinā . This constitutes discrimination towards women in so far as if a woman is raped and gets subsequently pregnant, she will be guilty of zinā. Some offences are addressed only to women, which is discriminatory. For example, according to section 48 of Terengganu Criminal Offences Enactment,58 it is an offence for a virgin woman to abscond from the custody of her parents or legal guardian. Or according to section 35, “any woman who in any public place exposes any part of her body that arouses passion” is liable for a fine of RM 1,000 or a jail term of up to six months. The non-governmental organisation Sisters in Islam has analysed Kartika’s caning sentence59 as a further discrimination towards Muslim women compared to other women who cannot be caned as civil law does not prescribe caning for women but only for men under 50 years old.60 Whipping of women under sharīʿah criminal offences legislation contradicts civil law where women are not punishable by caning under section 289 of the Criminal Procedure Code. Moreover caning could be considered as a form of cruel, inhuman and degrading punishment prohibited by ICCPR. Nevertheless Malaysia is not part either of this treaty or of the United Nations Convention against torture and other cruel, inhuman or degrading treatment or punishment of 1984 and there is no provision in the Constitution on the prohibition of torture or cruel, inhuman and degrading punishment. The constitutional provisions on human rights are in some ways incomplete. Concerning the discrimination against women, clause 5 of Article 8 authorises discrimination regarding personal law, which means regarding all issues important to women. The Constitution lacks some fundamental rights, like the ban of torture or cruel, inhuman and degrading punishment. As Malaysia is not submitted to the major legally binding instruments on human rights, sharīʿah law is therefore not confronted by international human right standards.
Conclusions and Recommendations
The dual legal system in Malaysia is a very interesting way of enabling a multicultural society to peacefully coexist. However there are some faults in the system such as a lack of effective means to guarantee the Constitution’s supremacy. If such
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mechanisms were installed, the Malaysian legal system could be seen to some extent as a model of pluralism. Malaysia is an original example of hybridising and syncretism. The issues on the compliance to human rights are more intrinsically related to sharīʿah law than to legal pluralism in itself. Some Muslim countries such as Morocco have managed to reform their Islamic family law to make it compliant to international human right standards, which should also be possible in Malaysia. Some suggestions on the functioning of legal pluralism and the sharīʿah are proposed as tracks of reflection:
• The creation of a distribution body to allocate sensitive cases either to sharīʿah or to civil courts. There should be a mechanism put in place with a distribution body manned by judges familiar with both civil and sharīʿah laws.61 This distribution body would have as its only power the allocation of difficult cases. In the case of a tie, the chief Justice would allocate the case either to civil or to sharīʿah courts. • The insertion of a basic structure provision in the Constitution. Articles 5 to 13 of the Constitution protecting human rights should be declared as being part of the basic structure of the Constitution. Thereby other articles of the Constitution would have to be interpreted in accordance with the latter. • Joining the ICCPR. Malaysia should join the International Covenant on Civil and Political Rights (ICCPR), most probably with reservations concerning sharīʿah law. But at least a dialogue would emerge between Malaysia and the United Nations Human Rights Committee at the occasion of the periodical review. • The adoption of a federal law on apostasy, taking as model Negeri Sembilan’s enactment. On the basis of Article 76 of the Constitution, allowing the Federal Parliament to make laws with respect to any matter enumerated in the State List for the purpose of promoting uniformity of the States’ laws, the Federal Parliament should pass a law on apostasy. It would take as example the Administration of Islamic Law Enactment of 2003 in Negeri Sembilan.
Notes
1. J. Vanderlinden, “Le pluralisme juridique”, in: J. Gilissen (ed.), Le pluralisme juridique: Etudes (Etudes d’histoire et d’ethnologie juridiques 11) (Brussels: Centre d’histoire et d’ethnologie juridiques, Institut de sociologie, Université Libre de Bruxelles, 1972), 19. 2. Virginia Matheson Hooker, A Short History of Malaysia: Linking East and West (Crows Nest NSW [Australia]: Allen and Unwin, 2003), 345; Cheah Boon Kheng, Malaysia: The Making of a Nation (Singapore: Institute of Southeast Asian Studies, 2002), 263. 3. This is the law relating to the punishment for zinā. 4. Shad Saleem Faruqi, Document of Destiny: The Constitution of the Federation of Malaysia (Petaling Jaya, Selangor [Malaysia]: Star Publications Berhad, 2008), 125; J.C. Fong, Constitutional Federalism in Malaysia (Petaling Jaya, Selangor [Malaysia]: Sweet and Maxwell Asia, 2008), 7.
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5. Shamrahayau A. Aziz, “Some Thoughts on the Relationship Between Law and Religion in Malaysia”, Current Law Journal 4 (2009), xxii. 6. Che Omar [1988] 2 Malayan Law Journal, 55. 7. Fong, Constitutional Federalism, 91. 8. Ahmad Masum, “The Rule of Law under the Malaysian Federal Constitution”, Malayan Law Journal 6 (2009), cxii. 9. Jacques Chevallier, L’état de droit (Paris: Montchréstien, 2010, 5th ed.), 158. 10. Art. 4(1) of the Constitution says: “This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall, to the extent of inconsistency, be void”. 11. Article 74 Constitution: (1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List of the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule). (2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List. (3) The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution. (4) Where general as well as specific expressions are used in describing any of the matters enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter. 12. Ninth Schedule (List II) of Article 74 of the Constitution: 1. Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs. Zakat, Fitrah and Baitulmal or similar Islamic religious revenue, mosques or any Islamic public places of worship, 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, organization and procedure of Syariah courts, which shall have jurisdiction only over person 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 Malay custom. 13. Shad Saleem Faruqi, “Jurisdiction of State Authorities to Punish Offences Against the Precepts of Islam: A Constitutional Perspective”, 28 September 2005, available online at http://www. malaysianbar.org.my/constitutional_law/jurisdiction_of_state_authorities_to_punish_offences_ against_the_precepts_of_islam_a_constitutional_perspective.html (accessed on 1 July 2010). 14. Hamid Jusoh, The Position of Islamic Law in the Malaysian Constitution with Special Reference to the Conversion Case in Family Law (Kuala Lumpur: Dewan Bahasa dan Pustaka, 1991), 4–5; see also http://www.docstoc.com/docs/3776377/The-posiiton-of-Islamic-law-in-Malaysia (accessed on 1 July 2010). 15. Shariah Criminal Offences Enactment of Perlis, No.4/1993; Shariah Criminal Offences Enactment of Pulau Pinang, No.3/1996; Shariah Criminal Offences Enactment of Perak, No.3/1992; Shariah Criminal Offences Enactment of Selangor, No.9/1995; Shariah Criminal Offences Act of Federal Territory 1997; Shariah Criminal Offences Enactment of Negeri Sembilan, No.4/1992; Shariah Criminal Offences Enactment of Johor, No.4/1997; Shariah Criminal Offences Enactment of Kelantan, No.2/1985; Shariah Criminal Offences Enactment of Sabah, No.3/1995; Shariah Criminal
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Offences Enactment of Terengganu 2001; Shariah Criminal Offences Ordinance of Sarawak, No.6/1991. 16. Ahmad Mohamed Ibrahim, The Administration of Islamic Law in Malaysia (Kuala Lumpur: Institute of Islamic Understanding Malaysia (IKIM), 2000), 583. 17. Article 128 of the Constitution: (1) The Supreme Court shall, to the exclusion of any other court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jurisdiction – (a) any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter over which Parliament or, as the case may be, the Legislature of the State has no power to make laws; and (b) disputes on any other question between States or between the Federation and any State. (2) Without prejudice to any appellate jurisdiction of the Supreme Court, where in any proceedings before another court a question arises as to the effect of any provision of this Constitution, the Supreme Court shall have jurisdiction (subject to any rules of court regulating the exercise of that jurisdiction) to determine the question and remit the case to the other court to be disposed of in accordance with the determination. (3) The jurisdiction of the Supreme Court to determine appeals from a High Court or a judge thereof shall be such as may be provided by federal law. 18. Malaysia is a constitutional monarchy with an elected monarch as head of state. The position of the Yang di-Pertuan Agong (Malaysia’s paramount ruler, HM the King) de facto rotates every five years among the nine Rulers of the Malay states. 19. Article 130 of the Constitution: “The Yang di-Pertuan Agong may refer to the Supreme Court for its opinion on any question as to the effect of any provision of the Constitution which has arisen or appears to him likely to arise, and the Supreme Court shall pronounce in open court its opinion on any question so referred to it.” 20. Masum, “The Rule of Law”, cxii. 21. Ibid. 22. Farid Sufian Shuaib, “Powers and Jurisdiction of Shariah Courts in Malaysia”,Malayan Law Journal (2003), 32. 23. Introduced by the Act No. A704 of 10/06/1988. 24. Ahmad Ibrahim, “The Amendment to Article 121 of the Federal Constitution: Its Effect on Admin- istration of Islamic Law, Malayan Law Journal 2 (1989), xvii. 25. Shuaib, “Powers”, 145. 26. Salbiah Ahmad, “Islam in Malaysia: Constitutional and Human Rights Perspectives”, Muslim World Journal of Human Rights 2, no. 1 (2005), available online at http://www.bepress.com/mwjhr/vol2/ iss1/art7 (accessed on 1 July 2010). 27. Rasamani Kandiah, Marriage and Dissolution Handbook (Kelana Jaya, Selangor [Malaysia]: LexisNexis 2007, 2nd ed.), 156. 28. Ibrahim, Administration, 56. 29. Section 10 of the Islamic Family Law (Federal Territories) Act 1984. 30. A divorced Muslim woman is entitled to reasonable maintenance from her husband. She is entitled to be maintained by her husband during the ʿiddah period, during which husband and wife are considered rujūʿ i.e. resuming the conjugal relationship, which is approximately a period of three months. Three months is a very short period compared with the maintenance given by civil courts. The wife loses the right to maintenance if she is deemed to have denied the ‘lawful wishes’ of her husband. 31. Subashini Rajasingam v Saravanan Thangathoray, 27 December 2007, Federal Court [2008] Malayan Law Journal, 1. 32. Zaleha Kamaruddin, “Divorce Laws in Malaysia (Civil and Shariah)”, Malayan Law Journal (2005), 227. 33. Subashini Rajasingam v Saravanan Thangathoray.
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34. Thio Li-ann, “Apostasy and Religious Freedom: Constitutional Issues Arising from the Lina Joy Litigation”, Malayan Law Journal (2006). 35. Lina Joy, Federal Court [case report] Malayan Law Journal (2007), 620. 36. Ahmad Masum, “Freedom of Religion Under the Malaysian Federal Constitution”, Current Law Journal 2 (2009), xiii. 37. Dato’ Abdul Hamid bin Haji Mohamad, “Civil and Syariah Courts in Malaysia: Conflict of Jurisdictions”, paper presented at the International Seminar on Islamic Law in the Contemporary World, organised by the Institute of Islamic Understanding Malaysia (IKIM), Kuala Lumpur, 24–25 October 2000. 38. Masum, “Freedom”, xiii. 39. - Liberty of the person (Article 5); - Prohibition of slavery and forced labour (Article 6); - Protection against retrospective criminal laws and repeated trials (Article 7); - Equality before the law (Article 8); - Prohibition of banishment and the right to freedom of movement (Article 9); - Freedom of speech, assembly and association (Article 10); - Freedom of religion (Article 11); - Rights in respect of education (Article 12); - Rights to property (Article 13). 40. Reservations to Articles 5(a), 7(b), 9(2), 16(1)(a), (c), (f) and (g) and 16(2). 41. Reservations to Article 2, 7, 13, 14, 15, 28(1)(a). 42. Human Rights Commission of Malaysia Act 1999, Act 597. 43. 4(4): “For the purpose of this Act, regard shall be had to the Universal Declaration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution.” 44. Article 11 of the Constitution: (1) Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it. (2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own. (3) Every religious group has the right: (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; (c) to acquire and own property and hold and administer it in accordance with law. (4) State law and in respect of the Federal Territories of Kuala Lumpur and Labuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. (5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality. 45. Mohamed Azam Mohamed Adil, “Restrictions in Freedom of Religion in Malaysia: A Conceptual Analysis with Special Reference to the Law of Apostasy”, Muslim World Journal of Human Rights 4 (2007). 46. “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.” 47. The UN Human Rights Committee in 1993 issued an authoritative General Comment on Article 18 of the ICCPR, making the following points: “The freedom to ‘have or to adopt’ a religion includes ‘the right to replace one’s current religion or belief with another […]”. 48. Lee Hock Guan, “Affirmative Action in Malaysia”,Southeast Asian Affairs (2005), 211–28.
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49. Article 160 §2: “‘Malay’ means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and: (a) was before Merdeka Day born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or is on that day domiciled in the Federation or in Singapore; or (b) is the issue of such a person. 50. In the Lina Joy case, the Federal Court has adopted a controversial interpretation of Article 160§2 asserting that a Malay remains within the Islamic faith until his dying days. 51. According to Professor Kamali, during an interview in April 2010. The opposite, too, is quite clear: a non-Muslim Malaysian who converts to Islam does not become a Malay. 52. Malaysia, like other Muslim-majority countries, has made reservations inter alia on Art. 16 CEDAW, which concerns equality between men and women in all matters relating to marriage and family relations. 53. Suad Joseph Afsaneh Najmabadi (eds), Encyclopedia of Women and Islamic Cultures, vol. 2: “Family, Law, and Politics” (Leiden: Brill, 2005), 394; Nik Noriani Nik Badli Shah, Marriage and Divorce: Law Reform Within Islamic Framework (Kuala Lumpur: International Law Book Services, 2000), 47; Sayed Sikandar Shah Haneef, “Modern State-Enacted Islamic Laws: Towards a Purposive Legal Codification”,Shariah Law Report 1 (2008), 39–64. 54. The guardian’s unreasonable refusal to consent to his ward’s marriage may be considered either as an abuse of a right or a failing in duty. If the walī withholds the consent unreasonably, the sharīʿah court may act on his behalf as walī ḥākim to give the consent. 55. According to Islamic family law, a marriage can be dissolved in four ways: ṭalāq (repudiation by the husband), khulʿ (redemption by the wife), taʿlīq (delegated repudiation by the wife as stipulated in the marriage contract) and faskh (judicial dissolution of marriage). 56. CEDAW/C/MYS/CO/2: “The Committee is concerned about the existence of the dual legal system of civil law and multiple versions of Syariah law, which results in continuing discrimination against women, particularly in the field of marriage and family relations. The Committee is also concerned about the State party’s restrictive interpretation of Syariah law, including in the recent Islamic Family Law (Federal Territories) Amendment Act 2005, which adversely affects the rights of Muslim women. The Committee is further concerned about the lack of clarity in the legal system, particularly as to whether civil or Syariah law applies to the marriages of non-Muslim women whose husbands convert to Islam.” 57. Shariah Criminal Offences Enactment of Kelantan, No. 1/1985. 58. Shariah Criminal Offences Enactment (Tazir) of Terengganu No. 7/2001. 59. In December 2007, Kartika Sari Dewi Shukarno, a Malaysian who lives in Singapore, was caught drinking beer at a hotel in Kuantan, the capital of the Malaysian State of Pahang. The Sharīʿah High Court in Pahang sentenced her to six strokes of the cane and fined her RM 5,000 after she had pleaded guilty. She declined to appeal and came back to Malaysia for the punishment. The appeals panel of the Sharīʿah High Court in Kuantan upheld the sentence. She finally obtained the Sultan’s pardon. He commuted the caning sentence to community work. 60. Press statement, “Sisters in Islam Condemns Caning of Three Muslim Women Under Syariah Law”, 17 February 2010, available online at http://www.sistersinislam.org.my/index.php?option=com_con tent&task=view&id=986&Itemid=1 (accessed on 1 July 2010). 61. Masum, “Freedom”, xiii.
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Azyumardi Azra*
Abstract: Corruption is no doubt one of the most serious problems faced by many countries, including Muslim countries such as Indonesia. Sometimes it might seem that the teachings of Islam – a religion which prohibits corruption – alone do not work to prevent Muslims from conducting such harmful acts. The author of this article therefore looks at other factors that influence Muslims in their daily lives and reviews the status of governance. In his view, one way to address the problem of corruption would be the fostering of good governance. However, at the same time Muslims would need a vibrant and dynamic civil society that can play a crucial role in the creation and empowerment of good governance. In Indonesia, a majority Muslim country – in fact the largest Muslim country in the world – a large number of Islam-based civil societies exist. The author discusses the role of Islamic teachings against corruption, and the recent experiences of Indonesia in combating this vice, particularly the role of an Islamic civil society sphere.
The Teachings of Islam against Corruption
One of the ways to address the problem of corruption in Muslim societies is through the creation of good governance. However, at the same time a vibrant and dynamic civil society could play a crucial role in the creation and empowerment of good governance. Indonesia is blessed with the existence of a good number of Islam-based organisations. Religion – Islam in particular – clearly opposes any form of corruption. The ethical teachings of Islam obviously do support the efforts to eradicate corruption as well as to create good governance. Islam puts very strong emphasis on morality and ethics (al-akhāq al-karīmah) both at the levels of personal as well as communal life. In fact, according to Islam, the Prophet Muḥammad was sent in order for human beings to achieve noble morality and ethics. In a well-known ḥadīth he is reported to have said: “I was only sent for perfecting morality” (innamā buʿithtu li-utammima
* Azyumardi Azra is Professor of History and Director of the Graduate School at Syarif Hidayatullah State Islamic University, Jakarta, Indonesia.
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makārim al-akhlāq).1 Therefore, Islam is opposed to any kind of transgression of noble ethics, such as corruption and other injustices. Islam unequivocally prohibits bribery, stealing, and robbery. Islam also forbids Muslims to steal private and public funds and wealth. Moreover, Islam empathically prohibits corruption which is considered as illicit or illegal activities for private or group material gain, and/ or as abuse of trust, power, and public office/position in the interest of private or group gain. Islam teaches that power and public positions held by leaders are an amānah (trusteeship) endowed by God to human beings. Holders of public offices are accountable to both God and the community. As khalīfah, representatives of God on earth, they are also responsible for the enforcement of justice (ʿadālah), not only towards the people but also towards themselves. Otherwise they will be responsible for corruption (fasād). Islam prohibits Muslims to practise any excessive attitude and act (isrāf) in any aspect of life. Therefore, Islam is against the excessive accumulation of wealth by way of unlawful or illegal means, such as corruption. The accumulation of wealth is allowed only through ḥalāl (lawful) and ṭayyib (good) means. A certain amount of the ḥalāl wealth should be donated to the poor and the weak and other disadvantaged people as almsgiving (zakāh, infāq, ṣadaqah). Islam is also opposed to ‘greed’. Those Muslims who fail to control their greed – especially to material things – are regarded as having downgraded their own humanity even to the level of animals. Therefore, Muslims are obliged to conduct severe efforts (jihād) against their greed. This is in fact the ‘greater jihād’ as opposed to the ‘lesser jihād’, that is the waging of war in defence of Islam. Islam urges Muslims to live in a modest and middle way (wasaṭ). Islam also encourages Muslims to feel satisfaction (qanāʿah) with what they have gained through ḥalāl, permissible or lawful, means. These teachings are in fact part and parcel of Islamic spirituality (Sufism) that is commonly practised by independent Muslim mystics as well as those who are affiliated with aṭarīqah or Sufi brotherhood. Furthermore, Islam urges the leaders to be ‘good exemplars’ (uswah ḥasanah) for all people; giving real example, not simply by talking. The religion also appeals to the believers to continually give reminders to others (tawṣiyyah) to refrain themselves from any wrongdoing in a wise way (bi-’l-ḥikmah), good example (mawʿizah ḥasanah), and civilised discussion (mujādalah). Moreover, if necessary, Islam exhorts Muslims to enforce Islamic prohibitions of corruption in a vigorous manner based on the principle of al-amr bi-’l-maʿrūf wa-’l-nahy ʿan al-munkar, enjoining good and forbidding evil Similarly, local cultures in Indonesia in general regard corruption as a shameful act that must be avoided. Various cultural systems and groups emphasise that people should live in a modest way, not being misled by uncontrollable lust and
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greed. However, with the penetration and intrusion of materialistic and hedonistic lifestyles, these local cultural values have eroded significantly. More and more people think and act in pragmatic ways to accumulate wealth by abusing their power and public positions.
What is Corruption?
Before proceeding too fast towards the remedies for the evil of corruption, it is necessary to define the kind of ‘corruption’ that is currently referred to in Indonesia as KKN (korupsi, kolusi, nepotisme, i.e. corruption, collusion, and nepotism). Conventionally, the term ‘corruption’ refers to any illicit and illegal activities for personal or collective gains. In more recent discussion, there is a general emphasis that ‘corruption’ is “the use and abuse of power or public position for individual and collective gains”. Based on this definition, Philip2 identifies three general definitions that are mostly used in various discussions on corruption:
• Corruption that is centred in public office (public office-centred corruption), which is defined as the “acts and policies of particular public official that is not in accord with his/her official position in order to get personal gains, or gains for certain people who have close relationship with him/her such as family, relatives, and friends”. This definition, as one might observe, includes corruption and nepotism, i.e. establishing patronage based on familial relationship (ascriptive) rather than on merit. • There is the definition of corruption that centres on the effect of corruption on public interest (public interest-centred). In this respect, corruption can be said to have taken place when a power holder or public official conducted certain acts and policies on the basis of the will of other individuals who have provided money or other kinds of material ‘rewards’. In line with this definition, corruption can be said to have taken place when a holder of public office conducted certain acts or policies in favour of certain people who have given him/her material rewards that in turn corrupted his/her official position and public interests. • Finally, we come across a definition of corruption that centres on the market (market-centred). This definition is based on analyses of corruption that employ various theories of social and public choices as well as of economic approaches within the framework of political analysis. In this respect, corruption is an ‘extra-legal’ institution that is used by individuals of groups of people in order to influence policies and practices of bureaucracy. Therefore, this kind of corruption indicates that individuals and groups of people who
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are involved in the process of decision making are more prone to corruption than any other individuals or groups.
Within this framework still, corruption also means the abuse of power by public servants, government or public officials in order to gain extra income from public resources. Thus, public position or office is used (or abused) as business venture that should be exploited to get the maximum possible gains. Based on the three groups of definitions above, a number of academic forums, international organisations – such as the Asian Development Bank (ADB), the World Bank, Transparency International and others – and also government officials that have been allegedly involved in corruption, propose a minimalist definition that would include almost all forms of corruption. This ‘minimalist’ definition was in the end formulated by Leiken,3 according to whom “corruption is the use and abuse of public power for personal material gains as well as political benefits”. Elaborating that kind of ‘minimalist’ definition, the World Bank gives a detailed elaboration of acts that are included in corruption:
Public office is abused for private gain when an official accepts, solicits, or extorts a bribe. It is also abused when private agents actively offer bribes to circumvent public policies and processes for competitive advantage and profit. Public office can also be abused for personal benefit even if no bribery occurs, through patronage and nepotism, the theft of state assets, or the diversion of state revenues.4
A similar minimalist definition is also put forward by Syed Hussein Alatas.5 In his opinion, “corruption is the abuse of trust in the interest of private gain”. Based on this minimalist definition, Alatas proposes typologies of corruption:
• ‘transactive corruption’, that is corruption that takes place on some kind of agreement between a donor and recipient for mutual gains; • ‘extortive corruption’, that is corruption which involves extortion to avoid possible legal consequences for those who are involved and close to the actor of corruption; • ‘investive corruption’, that is corruption which begins with promises – a kind of investment – to anticipate certain gains in the future; • ‘nepotist corruption’, that is corruption which takes place because of certain favourable treatment in job promotion in public office and in projects for close relatives; • ‘autogenic corruption’, that is corruption which takes place when a public official gains certain benefits for his/her knowledge as insider (insider’s information) on public policies that he/she must otherwise keep secret;
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• ‘supportive corruption’, that is protection or even support certain acts of corruption which takes place within power struggle.
Thus, from the minimalist definition, corruption in the end can be divided into a number of typologies and categories. Furthermore, corruption can also be categorised based on its place; in public sector and private; or based on its intensity, isolative or systematic; national or local, personal or institutional, traditional or modern kind of corruption.
Combating Corruption
All of these categories, typologies and the kinds of corruption would be very helpful not only for a better knowledge of corruption, its causes and consequences, but also for finding the ways to solve it. They would help to formulate strategies to combat corruption; to develop political will against it as well as to mobilise an anti-corruption movement within the public in general. Corruption then can be eliminated by recognising various categories, typologies and kinds of corruption in certain contexts. Briefly, the anti-corruption movement includes two-stage processes: first, the stage of policy formulation to address the main root-causes of corruption; and, second, the stage of creating and enhancing political will which is crucial for the implementation of anti-corruption programmes. The two-stage processes reflect the crucial role of government and bureaucracy in the war against corruption. This is, of course, only one of the first steps towards the creation of a democratic, credible, accountable government in the management of the public sector. Therefore, the first crucial step in the eradication of corruption is to accelerate the demands and pressures for reforms at the level of government, then at the level of business sector, and finally at the level of the public in general. One of the most important determining factors in the success of anti-corruption efforts is the political will at the highest level of government. Having conducted a number of studies on corruption, Morgan points out that one conclusion which often emerges is that a sincere commitment by high level leadership to counter-corruption efforts is a crucial component of successful campaigns.6 Therefore, the failure of anti-corruption programmes in many countries is not to be blamed on ‘incomplete’ or ‘insufficient’ laws and regulations or lack of anti- corruption bodies, but more on the absence or lack of commitment, seriousness, and sincerity on the part of the highest government officials. In most cases, they rarely even talk about corruption eradication. As a result, there is a strong impression that if they do talk about corruption then it is only for political publicity or for additional legitimacy. In fact, there is a strong tendency among them to apply political cost-benefit analysis in deciding whether
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or not to implement anti-corruption policies and programmes. Therefore, it is the duty of anti-corruption agencies and the public in general to continually pressure them to ensure that they have the political will to carry out the necessary corruption eradication policies and programmes. Basically, there are four kinds of policies that can be taken by government policy makers in order to effectively minimise – if not wholly eradicate – various kinds of corruption:
• reforming policies that in one way or another could be abused by public officials; • reforming the structure of salary and other material incentives that apply in bureaucracy and other public institutions; • reforming law enforcement agencies and expanding their capacity to enforce law and order; • lastly, strengthening the rule of law.
There is little doubt that the success of corruption eradication depends on the ability to carry out the four reforms in a simultaneous, comprehensive and consistent way. In the next stage, the four kinds of reforms mentioned above can be integrated with the recommendations that have been issued by the World Bank7 on the strategies to eradicate corruption. There are several main components that should be included in any strategy to comprehensively eradicate corruption:
• Developing a bureaucracy that is based on the rule of law with a salary structure that honours employees for their honesty. There should be an empowerment of a merit system in the process of recruitment and job promotion, so that it will be able to prevent the political interference in both. There should also be an empowerment of financial control in order to prevent misuse of public funding in an arbitrary manner. • Preventing employees from conducting corrupt acts by limiting their authority in the formulation of policies as well as in the management of funding. • Enhancing the accountability of government employees by strengthening monitoring; anti-corruption agencies and the public in general should also enhance their control and monitoring.
The empowerment of control and monitoring functions of such institutions also needs strategies; so that the eradication of corruption can be conducted compre- hensively. There are at least three strategies in this respect:
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• Strengthening the official institutional and mechanism control in order to supervise and monitor employees, officials, and other holders of public office. • Enhancing public pressures for these institutions to function in a more effective way; this can be done through free press, decentralisation of administra- tion, and greater transparency on the part of government in decision-making processes. • Educating the public to put moral and political pressures for the eradication of corruption. The public should also be taught on such concepts as ‘public office’, ‘public service’ as well as on the social, economic, political and religious consequences of corruption for public life.
The Creation of Good Governance
Corruption, no doubt, is still one of the most serious and acute problems Indonesia faces today and, of course, one of the biggest constraints in the efforts to create good governance. In spite of this, in the last several years the efforts to combat corruption have continued to gain momentum. However, there is not much convincing evidence that this rampant and acute problem could be solved in the near future. Despite accelerated efforts to bring corrupt individuals to justice, Indonesia remains one of the most corrupt nations of the world. The fight against such a scenario is clearly not easy. The difficulties are even becoming more complicated, for corruption seems to have become a ‘culture’ at every level of Indonesian society, having even stronger roots in public and societal lives. Serious and concerted efforts must be conducted, however, so that corruption can be reduced, if not eliminated altogether. Therefore, we would also like to suggest a number of steps that can be taken in the fight against corruption, a fight that is so instrumental when embarking on the creation of good governance. The eradication of KKN and – by the same token – the creation of good governance has been a central issue in Indonesian public debate since the fall of President Soeharto in 1998. There have been increasing demands from many sectors of Indonesian society that the government should establish a special programme for combating KKN. One of the results towards that end is the formation of the Anti-Corruption Commission (Komisi Pemberantasan Korupsi/KPK). Despite some scepticism among the wider public over whether or not the KPK will eventually be able to combat corruption effectively, it is also clear that the KPK has recently become an increasingly powerful means to investigate cases of corruption among high-ranking public officials and to bring them ultimately to justice. On the other hand, civil society organisations have also been trying to play a greater role towards that end, by forming, for instance, a number of ‘watchdog bodies’ – among them the powerful Indonesian Corruption Watch (ICW) – in
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an attempt to monitor the working of government institutions and other public offices. Since then several policies and programmes have been implemented by the government. However, one has to admit that so far not much progress has been achieved.8 There are several inhibiting factors that seem to make the efforts to create good governance in Indonesia a very difficult task. One of the biggest hurdles towards the creation of good governance is the fact that Indonesia, as far as the political culture is concerned, has long been a ‘soft state’ in the Weberian sense. There are some important features of Indonesian political culture within this framework:
• The existence of a culture of ‘patron–client’ relationships among state officials and many segments of society, particularly the business sector. This kind of relationship gave rise to strong ‘patrimonialism’ on almost all levels of society that, in turn, manifested itself, among other ways, in the culture of what is colloquially known a ‘ABS’ (Asal Bapak/Ibu Senang, or ‘yes men’). • Unclear and inappropriate practices in government and bureaucracy. There seem to be no clear boundaries, for instance, between things that are official and those that are personal in nature. • Weakness in social and public ethics. • Weakness in law enforcement, as well as low ethics, credibility, accountability and morale of law enforcement agencies.
Furthermore, as far as Indonesia’s ‘Partnership for Governance Reform’ is concerned, there is only very little understanding among state officials, as well as society at large, of the concept and practice of good governance. This is not surprising, since the executive branch of government has been the most dominant and unchallenged – and in many cases very arbitrary – institution at the expense of society in general – from the period of the ‘Old Order’ under President Soekarno and into the era of the ‘New Order’ (since the late 1960s under President Soeharto). The executive branch of the government was almost without control. Therefore, when the ideas of good governance gained momentum in post-Soeharto Indonesia, there had been no fertile ground to implant them. The government is of course only one of the actors in governance. There are many other actors outside the executive branch of government, including the legislative and judicative branches which play an important role in the decision- making process. Even in a wider sense, other ‘non-governmental’ actors that also play a role in decision-making or in influencing the decision-making process, can be referred to as ‘actors’ of governance. They are, for instance, civil society organisations and groups, NGOs, research institutes, political parties, the military, religious leaders, public intellectuals, and others. Above all, however, ultimately
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it is again the government which is central in creating good governance. We shall discuss later the role of civil society in the eradication of corruption. The creation of good governance, no doubt, needs an accurate understanding of the very concept and practice of governance. According to the concept of ‘participatory governance’, governance basically is good governance and good order of public life for a better shared life. Therefore, good governance is an order that makes it possible for the public to share a better life and at the same time is free from any kind of disorder and imbalance. Good governance includes eight major characteristics. It is
• participatory, • consensus-oriented, • accountable, • transparent, • responsive, • effective and efficient, • equitable and inclusive, • and follows the rule of law.
With these characteristics, good governance assures that corruption, for instance, is minimised. There is a great deal of very complex constraints in the creation of good governance; among others, are:
• lack of understanding of the concept and the necessity of good governance; • lack of trust and cooperation between government bodies and agencies on the one hand and civil society on the other; • absence of precedence and experience in Indonesia of the implementation and development of good governance.
Good governance, in many ways, is identical with governance that is free from KKN (korupsi, kolusi, nepotisme). The creation of good governance – in essence clean and capable government – can be achieved by reforming bureaucracy and public service. The aim of such reforms is to create transparency in bureaucratic processes and public service. To achieve this, it is necessary to improve the quality of human resources in the bureaucracy. Human resources development in bureaucracy should be more professional – from the recruitment of employees, through their conduct of public service, to their job promotion. The reform of governance can also be referred to as ‘reinventing of government’. Using the framework of Osborne and Gaebler,9 ‘reinventing government’ has an orientation towards the creation of ten kinds of ‘governance models’:
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• catalyst government, which leads rather than dictates; • society-owned government, which gives authority rather than being served; • government with a mission, which transforms organisation of bureaucracy from simply works by regulations to missions; • competitive government, which emphasises competitiveness in public service; • result-oriented government, which has an orientation to results rather than simply the presence of employees; • society-oriented government, which aims at fulfilling the needs of society rather than those of the bureaucracy; • entrepreneurship government, which produces revenues rather than simply spends; • anticipative government, which prevents rather than cures mistakes and failures; • decentralised government; • ‘market-oriented’ government, which encourages changes through market and public.
It is clear that the creation of good governance needs the participation of civil society and public as a whole. Indonesia’s first Vice-President, Mohammad Hatta, once stated that corruption has been a ‘part of culture’ for many Indonesians. Bung Hatta, the other proclaimer of Indonesian independence besides Soekarno, is to a great degree right. Particularly now, corruption is so rampant, as if it is part and parcel of Indonesian culture. It appears that Indonesians in general – willingly or unwillingly – are now permissive of almost all kinds of corruption. Therefore, by the same token, rampant practices of power arrogance and KKN in Indonesia have also been caused by public apathy. This originates from the public’s unawareness of their rights as both citizens and subjects of public service and government bureaucracy. Often, the public does not even know how to file complaints or does not want to be bothered by complications resulting from their complaints of bad practices of bureaucracy. Therefore, dissemination of the ideas and practices of good governance is absolutely necessary: on what good governance is all about; on the benefits that the public can derive from good governance and, in reverse, on public disadvantages or even loss, resulting from bad governance.
Civil Society and the War against Corruption
A number of studies on civil society in Indonesia, such as those by Hefner10 and Nakamura, Siddique and Bajunid,11 have concluded that Muslim or Islamic-based civil societies and their leaders played a major and crucial role not only in the ‘better ordering’ of Indonesian Muslim society at large, but also in the eventual fall of
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President Soeharto’s regime in 1998. Many leaders of Muslim or Islamic-based civil society organisations – the most prominent among them were Abdurrahman Wahid, also well-known as ‘Gus Dur’ (then the national leader of the Nahdlatul Ulama/ NU), Mohamad Amien Rais (then the national chief leader of Muhammadiyah), and Nurcholish Madjid (the former national leader of the Muslim University Students Association/HMI) – were among the most outspoken critics of the Soeharto regime and took the leading role in the increased prominence of civil society opposition to autocratic rule in Indonesia since the 1990s. Indonesian religious-based civil society has a long and rich history. As has been shown by many scholars, the earliest form of nationwide civil society in the country were Muslim social-religious organisations such as Muhammadiyah (established in 1926), Nahdlatul Ulama or NU (founded in 1912), and many other national and local organisations. Muhammadiyah and NU were (and still are) the largest Muslim organisations in Indonesia, each of which now claims membership of some 35 million and 40 million, respectively. Voluntary, independent from the state, self-funded, self-sufficient, and self-regulating, the Muhammadiyah, NU, and many other Muslim organisations operate as mediating and bridging forces between state and society since their foundation up until today. From the colonial period up to now, these Islamic-based civil society organisations have been conducting a variety of programmes and activities, ranging from religious activities to social, cultural, educational, health, and economic ones. The second kind of civil society organisations in Indonesia mostly appeared during the economic modernisation period of President Soeharto, roughly from the early 1970s to the second half of the 1990s. They are non-governmental organisations (NGOs), known in Indonesia initially as Lembaga Pengembangan Swadaya Masyarakat (LPSM, or organisations, or more precisely, ‘Society Self-Development Groups’) which in the current usage are popularly known as Lembaga Swadaya Masyarakat (LSM, or literally ‘Institutions for Social Empowerment’). Most of these LSMs (NGOs) are non-religiously based, even though their activists by and large happen to be Muslims. However, an increasing number of Islamic-based NGOs have also made their appearance. These NGOs could also be regarded as advocacy NGOs working for the empowerment of society in such fields as democracy, human rights, gender equality, environmental preservation and others. The third group of civil society organisations in Indonesia are professional associations, such as associations of teachers, medical doctors, and journalists, as well as labour movements and the like. Some of these associations are Islamic- based, like the All-Indonesian Association of Muslim Intellectuals (ICMI, or Ikatan Cendekiawan Muslim se-Indonesia), the United Muslim Labour Movement, etc. Even though these associations have increasingly become more vocal in furthering
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their own interests, they are rarely involved in much wider social, political and cultural issues. The first two groups of civil society organisations have been directly or indirectly involved in many political, social, cultural and economic issues. That is why many leaders of civil society organisations during the last years of the Soeharto government tended to be heavily politicised. Moreover, soon enough they became politicians in the period following the downfall of President Soeharto, in May 1998, from his long-held grip of power of more than three decades. The question was whether or not they would be able to live up to the expectations of the public in general. This can be clearly seen in the case of Abdurrahman Wahid, the national chairperson of the NU, who founded the Nation Awakening Party (Partai Kebangkitan Bangsa/ PKB), or Amien Rais, the national chief of Muhammadiyah, who established the National Mandate Party (Partai Amanat Nasional/PAN) in the period after President B.J. Habibie, who had replaced Soeharto and had introduced the liberalisation of Indonesian politics as well as a multiparty political system. Later, following the first democratic general elections of 1999, Rais was elected as the Speaker of the Indonesian People’s Consultative Assembly (Majelis Permusyaratan Rakyat/ MPR) – Indonesia’s parliament – and Wahid was elected President of the Republic of Indonesia. President Wahid, the former civil society leader, however, failed to meet public expectations. He was impeached by the MPR in 2001 following his controversial policies and statements as well as his erratic attitude and mismanagement. He was replaced by his vice-president, Megawati Soekarnoputri, the national chairperson of the Indonesian Democratic Party-Struggle (PDI-P) and one of the daughters of Soekarno, the first president of the Republic of Indonesia. Despite the failure of Abdurrahman Wahid, many other civil society figures and public intellectuals continued to be tempted by power politics. The most striking example is Nurcholish Madjid, one of Indonesia’s most prominent independent public intellectuals in contemporary times, who in the end could not resist political temptation: in 2003, he joined the presidential bid through the convention of the Golkar Party. However, he soon withdrew from power politics after he had understood the complexities of power politics within the Golkar Party. Other public intellectuals, such as Sjahrir and Ryaas Rasyid, founded their own party, which, nevertheless, fared poorly in the 2004 general elections. This tendency continued during the 2004 general elections. A number of figures, known mainly as civil society leaders, such as Hasyim Muzadi, the national chairman of the NU, and Shalahuddin Wahid, Vice Chief of the Indonesian Human Rights Commission, joined the political battlefield. Muzadi became vice-presidential candidate of Megawati Soekarnoputri in her bid to win another term of presidency. In addition, Shalahuddin Wahid, the younger brother of Abdurrahman Wahid, was
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the vice-presidential candidate of the retired General Wiranto. They all failed in their bid. The winners of the direct presidential elections were Susilo Bambang Yudhoyono and Muhammad Jusuf Kalla, the current president and vice-president, respectively, of the Republic of Indonesia. Therefore, as discussed by this writer elsewhere,12 the involvement of civil society figures and public intellectuals in Indonesian power politics during the so-called ‘Reforms Period’ (Masa Reformasi) has resulted not only in their failure, but also in the unmaking of civil society in Indonesia in general. The involvement and eventual failure of civil society leaders in Indonesian politics has resulted in a kind of frustration and disorientation of civil society organisations and groups. This is true not only in the case of religious-based civil society organisations like NU and Muhammadiyah, but also of advocacy NGOs, since many figures of the latter have also been pulled into politics. The implication has been far-reaching down to the grass-root level. There are cases where members of NU and Muhammadiyah were involved in mass-brawls during the period of President Abdurrahman Wahid. The fanatic NU supporters of President Wahid – on the edge of imminent impeachment – accused Muhammadiyah (to which the Speaker of the MPR happens to belong) and launched an anti-Wahid campaign. The political situation, of course, has become more stable since the last years of President Megawati Soekarnoputri’s term of office, and was even more conducive with the completion of the 2004 general elections. Since then, there are some good signs that civil society organisations and groups have been trying to reconsolidate themselves. Hasyim Muzadi, the chief leader of NU, for instance, has promised publicly that he would never again be involved in power politics. At the same time, Ahmad Syafii Maarif, the national chief of the Muhammadiyah continues to be firm that his organisation must hold fast to the idea of civil society. Muhammadiyah must continue not to be involved in practical, day-to-day and power politics. With the continued stabilisation of Indonesian politics under the current President Yudhoyono and Vice-President Kalla, some crucial agendas have been put forward not only by the President, but also by Indonesian society in general. Among the foremost that have already been mentioned above are the creation of good governance, the eradication of rampant corruption, the continued recovery of the Indonesian economy, and the improvement of the enforcement of law and order. There is much hope that besides those government efforts civil society organisations and groups should play a greater role in all of these urgent agendas.
Cultural and Political Constraints
The noble ethical religious and cultural values and norms against the abuse of power and corruption have largely failed to eradicate this evil in Indonesia not
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only because of cultural and social disorientation among people, but also because of unfavourable political realities. Political liberalisation and the introduction of democracy following the fall of President Soeharto from power in 1998 have in fact resulted in an increase of the abuse of public positions. With the implementation programme of decentralisation and local autonomy, corruption and other kinds of KKN practices, for instance, have become even more rampant than ever before. The erosion of the power and authority of the central government, the lack or near absence of law enforcement, and the demoralisation of the law enforcement agencies are some of the contributing factors responsible for the more rapid spread of corruption in present-day Indonesia. Even though Indonesia has a number of laws and regulations that could be used to combat corruption, the country has largely failed to address this issue. This has a lot to do also with the realities of Indonesian political culture and leadership. The current realities of both are not really conducive for anti-corruption efforts. Although Indonesia is now the third largest democracy – after India and the United States – its political culture is still dominated by a certain patrimonial culture, which is characterised by a patron–client relationship between the ruling elite and their subjects. This patrimonial political culture – as has been shown by such scholars as Max Weber, Benedict Anderson, Syed Hussein Alatas, and others – is also responsible for the spread of corruption and the use and abuse of public offices. With the continued prevalence of this patrimonial political culture in Indonesia today, it is difficult to expect that anti-corruption laws and regulations can be enforced effectively. In fact, it is no secret that many, if not most, corruption cases are ‘settled’ behind closed doors. This, in turn, creates demoralisation and apathy among the people, who until now have been committed to the anti-corruption campaign. Worse still, public leadership – particularly political leadership – from the national as well as local levels have mostly failed to show their political will and translate it into concrete action to combat corruption. In contrast, there is much reluctance among them to address the issue of corruption openly. If they do talk about it, it is largely for political consumption only, rather than for the sake of serious political will and action. The failure of public leadership in general to combat corruption has a lot to do also with their failure to present themselves as moral examples for the ordinary people. Many, if not most, of them are more interested in power rather in the creation of good governance which will restrict corruption and other kinds of the use and abuse of public offices for personal or collective gains. At the public level, the anti-corruption campaign has been conducted mainly by relatively small NGOs with limited influence. Large social organisations – especially Muslim organisations such as the NU, Muhammadiyah and the like – which exert strong nationwide influence have only recently shown a special interest in the anti-corruption programme. In cooperation with the ‘Partnership for Governance
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Reform’ they have conducted anti-corruption campaigns and attempted to implement good governance within their own organisations. However, there is as yet much to be done before they can play a greater role in the creation of good governance. These organisations must further be empowered and also oriented not only towards anti-corruption programmes, but also towards the creation of good governance as a whole. Education, no doubt, could play an important role in developing future leaders that have strong commitment to public ethics and morality. Therefore, the teaching of ethics, morality and noble religious values should be enhanced. The teachings of these values should not only be based on (and be for the sake of) memorisation, but more importantly for practical application in real life.
Scaling-up the Momentum: Some Recommendations
Again, with all the noble values and vibrant civil society, the Indonesian war against corruption should be scaled up.
• The country’s KPK or ‘Anti-Corruption Commission’ should be strengthened, so that the efforts to combat corruption can reach a new level. The disclosure and trials of big corruption cases involving some high officials of Bank Mandiri, figures of the General Election Commission (KPU), former ministers, high-level officials of Bank Indonesia, including Aulia Pohan (father-in-law of President Yudhoyono’s son), a good number of provincial governors, heads of districts, members of national and local parliaments, and many more give an even stronger hope of the eradication of corruption in the country. Despite these encouraging signs, there is still much more to be done in order to win the war against corruption which in the end will provide a more fertile ground for the creation of good governance.
As pointed out by the KPK, there are some important factors that make corruption remain rampant. The combination of a corruption-prone system combined with public office holders lacking integrity in addition to inconsistent law enforcement seems to make the problems worse. Not only that, law enforcement agencies and anti-corruption bodies responsible for investigating and bringing corruption cases to court have not been supported by sufficient funding. There is also strong evidence that many of the responsible and relevant institutions are still lacking the political will to fight corruption. Worse still, there is also widespread public permissiveness towards corruption.
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• Therefore, there should be a continued scaling-up of the momentum of the efforts towards combating corruption and creating good governance at all levels of society. Civil society organisations and groups in Indonesia – as suggested above – have been involved in the war against corruption and the creation of good governance. As also mentioned, since 2003 the two largest Muslim civil society organisations in the country, NU and Muhammadiyah, in cooperation with Indonesia’s ‘Partnership for Governance Reform’ have launched a programme to combat corruption. In mid 2005, the Muhammadiyah chairperson Ahmad Syafii Maarif and his NU counterpart have signed an agreement to work together to fight corruption inside and outside their two organisations.13 It is clear that there is no resistance from within the two organisations in their fight against corruption. On the contrary, there is a lot of support. However, their joint efforts have yet to result in any progress, as some of their members are currently accused of involvement in corruption. Many leaders of NU and Muhammadiyah admit that the joint anti-graft movement remains ineffective, since there are no concrete programmes designed to follow up on it.
In July 2005, Indonesian President Susilo Bambang Yudhoyono, in his remarks at the opening ceremony of the Muhammadiyah national congress,14 said that this predominantly Muslim country should be very embarrassed by the fact that it was still considered one of the most corrupt nations in the world. President Susilo did not blame Islam for the widespread corruption, but said that “some Muslim individuals” were to be blamed for failing to embrace the Islamic teachings that, among others, prohibit Muslims to be involved in corruption. In addition, in 2005 Jakarta’s Syarif Hidayatullah State Islamic University began to prepare the introduction of a new course in its curriculum, called Pendidikan Anti Korupsi (Anti-Corruption Education), in cooperation with the United Nations Development Programme (UNDP) and ‘Partnership for Governance Reform’. According to nationwide research conducted in preparation for the new course, many professors and lecturers believe that the anti-corruption course can give students a better perspective of many aspects of KKN – corruption, collusion, and nepotism – and the ways to combat them. The course will be introduced to all state universities and other interested universities across the country. Thus, despite scepticism and pessimism among the Indonesian public, it is important to keep the flame of optimism alive. In concluding, one should thus not give in to pessimism about Indonesia. There are many creative, honest, hopeful people there and many positive things are occurring that are crucial both to win the war against corruption and to create good governance.
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Notes
1. Narrated by Aḥmad, Bayhaqī, and Ḥakīm. 2. Mark Philip, “Defining Political Corruption”,Political Studies 45, no. 3 (1997), 436–62. 3. Robert S. Leiken, 1996, “Controlling the Global Corruption Epidemic”, Foreign Policy 105 (Winter 1996–97), 55–73. 4. World Bank, Helping Countries Combat Corruption: The Role of the World Bank (Washington DC: World Bank, 1997). 5. Syed Hussein Alatas, Corruption: Its Nature, Causes and Consequences (Aldershot [UK] and Brookfield VT: Avebury, 1990), 3–4. 6. Amanda L. Morgan, Corruption: Causes, Consequences, and Policy Implications: A Literature Review (San Francisco: The Asia Foundation, 1998), 6. 7. World Bank, Helping, 105. 8. Merle Calvin Ricklefs, “Susilo’s War on Graft: Lots of Talk, Little Action”, The Jakarta Post, 17 May 2005; see also The Jakarta Post, 30 May 2005. 9. David Osborne and Ted Gaebler, Reinventing Government: How the Entrepreneurial Spirit Is Transforming the Public Sector (Reading MA: Addison-Wesley, 1992). 10. Robert W. Hefner, Civil Islam: Muslims and Democratization in Indonesia (Princeton: Princeton University Press, 2000). 11. Mitsuo Nakamura, Sharon Siddique and Omar Faruk Bajunid (eds), Islam and Civil Society in Southeast Asia (Singapore: Institute of Southeast Asian Studies, 2001). 12. Azyumardi Azra, “Civil Society and Democratization in Indonesia: The Transition under President Wahid and Beyond”, in: David G. Schak and Wayne Hudson (eds), Civil Society in Asia (Aldershot [UK]: Ashgate, 2003); Azyumardi Azra, “Civil Society and Democratization in Indonesia”, in: Towards Good Society: Civil Society Actors, the State and the Business Class in Southeast Asia (Berlin: Heinrich Boehll Foundation, 2004); Azyumardi Azra, “Religious-Based Civil Society and Anti-Corruption Campaign: The Indonesian Experience in the Creation of Good Governance”, in: Helen James (ed.), Civil Society, Religion and Global Governance: Paradigms of Power and Persuasion (Abingdon [UK]: Routledge, 2007). 13. The Jakarta Post, 7 July 2005. 14. Ibid.
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Bahtiar Effendy*
Abstract: This article analyses the source and nature of Islam–state relations, and the efforts made to find a viable synthesis between them. Like many other Muslim countries, Indonesia encountered difficulties in the attempt to establish a synthesis between Islamic political thought and the notion of a secular state. The author makes an important yet often neglected observation, that not all Indonesian Muslims support the politicisation of Islam and that the level and magnitude of support for ideological and symbolical Islam is relatively low in Indonesia. In order to find a middle way for the Indonesian setting in the post-Soeharto period, he argues in favour of a ‘partial accommodation’ of moderate Muslim concerns as a viable option for a more enduring relationship between Islam and the state.
Introduction
The issue of Islam–state relations still captures the attention of many students of the Muslim world. Being the largest Muslim country, and yet located far from the Islamic heartland, Indonesia provides an interesting context where the problem of the relationship between Islam and the state could be examined differently – though at some points similarities will always exist. In the past, theoretical discourse over this issue used to evolve around the question of whether or not Islam is in accord with a modern political system, with the idea of the nation-state as its major element. In the last ten years or so, attention to this issue has shifted towards the debate assessing the compatibility of Islam with democracy. Of course, regardless of preference, one cannot ignore the position of Islamic law (sharīʿah) in the discussion, that is to say, putting the issue in the light of Islam vis-à-vis modern political systems or Islam vis-à-vis democracy. In Indonesia, the relationship between Islam and the state has a very long tradition. Its ‘genealogical’ roots reach back to the late thirteenth or early fourteenth century – a period in which Islam was introduced and spread in the archipelago. It was in the subsequent historical discourse, defining a meaningful dialogue with local socio-
* Bahtiar Effendy is Professor of Politics at Syarif Hidayatullah State Islamic University, Jakarta.
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cultural and political realities, that Islam became involved in politics as well as in the affairs of the state. In fact, throughout its development in Indonesia, Islam has become an integral part of the country’s political history. But it was not until after the crumbling of colonialism – both Dutch and Japanese – in the mid twentieth century that the issue of the Islam–state relationship emerged in its most structured form. Like many other Muslim countries, Indonesia experienced difficulties in the attempt to establish an easy synthesis between Islamic political movements and ideas and the state. In this country, the political relationship between Islam and the state had been characterised by severe tensions, if not hostilities. The regimes of both presidents Soekarno and Soeharto regarded Muslim activists as well as political parties based on Islam as potential power contenders capable of undermining the nationalist basis of the state. Primarily because of this, they worked hard to contain and domesticate them. As a result, not only did the leaders and activists of political Islam fail to make Islam the state ideology and religion in 1945 (during the Investigatory Committee for the Efforts for the Preparation of Indonesian Independence – the BPUPKI meeting) and again in the 1950s (during the Constituent Assembly debates over Indonesia’s constitutional future), but they also found themselves repeatedly labelled ‘minorities’ or ‘outsiders’.1 In short, political Islam had been constitutionally, physically, electorally, bureaucratically, and symbolically defeated.2 Most distressing, political Islam had frequently been a target of distrust, suspected of being opposed to the state ideology Pancasila. For their part, politically active Muslims had looked on the state with suspicion. In spite of the willingness of the state to recognise and assist Muslims in the practice of their religious rituals, they considered the state as manoeuvring to dethrone the political significance of Islam and embrace the idea of a secular polity. In fact, this situation had often been treated as an indication that the state was applying a dual policy on Islam – something that was put into effect by the Dutch colonial adminis- tration. That is, while allowing the ritual dimension of Islam to flourish, it provided neither chances nor opportunity for political Islam to develop.3 In this respect, suffice it to say that a mutual suspicion between Islam and the state had occurred in a country in which the majority of its people (90 per cent) were Muslims.4 It is important to note, however, that over the years the degree and intensity of the suspicion and tensions varied from time to time. There were periods when the political relationship between Islam and the state was relaxed and cordial. In a time when issues related to ideology, politics, or the sharīʿah were brought to the surface they did function as windows of opportunity that reopened the old stigmatic enmity and hostility between Islam and the state. With President Soeharto’s departure from office in May 1998 things began to change. This included the mode of the relationship between Islam and the state. More than anything else, democracy has greatly reduced the overt enmity or hostility
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between Islam and the state as well as the mutual suspicion between the former’s activists and the latter’s administrators. This is not to say, however, that the problem of Islam–state relations no longer exists. On the contrary, it remains one key issue that consumes our energy as a nation to solve, especially with regard to the position of the sharīʿah in the state which is neither theocratic nor secular. However, such issues are now debated fairly and squarely in parliament as well as by the public at large. This article attempts to analyse the source and nature of, and efforts to ultimately solve, the issue of Islam–state relations. While it may not bring fundamentally new insights, the article is intended to give the reader a firm foundation in the issues involved.
Source of Contention: Theological Dimension
It may not be sufficient to identify the sharīʿah as the source of contention with regard to the strained relationship between Islam and the state. Yet one could not forget the fact that the ideological debates that took place in the BPUPKI and the Constituent Assembly were the hallmark of the ideologically – or perhaps theologically – strained relationship between Islam and the state in Indonesia. In this context, one way to understand the crux of the problem with regard to the antagonistic nature of the relationship between Islam and the state lies in how religion is to be construed. As suggested by Robert N. Bellah, “the resurgence of Qur’anic Islam in the last century has contributed greatly to the emergence of the collective consciousness of the Muslim peoples, to what Karl Deutsch would call their ‘social mobilization’”.5 The limitations inherent in this process do not derive chiefly from the problem of converting Muslim consciousness into national loyalty, or from unrealistic attempts to implement detailed prescriptions of the sharīʿah. The limitation comes rather from the power of veto that Islamic consciousness continues to exercise over the whole realms of political ideology and action. Of course, this may not be entirely a bad thing. It perhaps helps to restrain totalitarian tendencies. But it is also related to the tendency in many Muslim lands to rely on what Soedjatmoko calls “virtual images”, rhetorical devices as a substitute for any serious and thorough programme of political reform.6 Complementing Bellah, it can be suggested that Muslims (and non-Muslims alike) generally believe in the holistic nature of Islam. As a divine instrument to understand the world, it is often conceived as more than a religion. Many have suggested that it can also be perceived as a “civil society”, “a complete civilisation”7 and in fact a combination of both “religion and the state”.8 What lies behind these formulations is actually a widely held notion that Islam constitutes more than its
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theological and/or ritual systems. Moreover, Islam does not recognise the wall of separation between the spiritual and the temporal. While such perceptions remain largely unanimous, articulating it is quite problematic. This is not necessarily because of the different degrees of devotion among Muslims, but primarily because of the general character of the vast majority of Islamic doctrines, which allow multiple interpretations depending on the historical circumstances. As previously implied, there are those who are inclined to understand the holistic nature of Islam in an organic way – in the sense that the relationship between Islam and all aspects of life should be established in a legal/formal manner. Others prefer to interpret the holistic nature of Islam in a more substantive fashion, in which essence rather than form serves as the core orientation in social life. Failure to reconcile these conflicting views, as experienced by a large number of Muslim countries, has resulted in the development of an uneasy synthesis between Islam and the state in terms of their political relationships. This has generally been followed by the state’s deliberate attempts to contain the religion’s political idealism and activism which is perceived as threatening to national unity.
Source of Contention: Political Dimension
Modern Indonesia’s Islamic political discourse has not escaped from such a predicament. Its genesis can be traced back to the early years of the country’s nationalist movement, where the political elite engaged in the debates concerning the role of Islam in an independent Indonesian state. This search for a viable political relationship between Islam and the state continued well into the independence and post-revolutionary period, where a sizeable portion of Islamic political thinkers and activists called for the union between Islam and the state, manifested in the adoption of Pancasila as the basis of the state. To no avail, this ideological discourse, in turn, led to the development of a greater political animosity between Islam and the state, especially during the first 20 years of the New Order period – from the late 1960s until the late 1980s. If anyone cares to revisit the venture of the country’s political Islam during the Revolutionary (mid 1940s), Liberal Democratic (mid 1950s), and early New Order (late 1960s) periods, he or she will see that the formalistic or legalistic articulations of Islam, especially in terms of its political idealism and activism, played a crucial role in the evolution of a highly strained relationship between Islam and the state. In those years, the ideological aura of political Islam was at the height of its intensity, demanding, among other things, that Islam be adopted as the state ideology or religion, along with its socio-political ramifications. It is important to note, however, that Indonesian Islamic legalism and formalism did not evolve out of a vacuum. To a large extent, these thoughts and actions were
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driven by negative encounters with the West, most notably Dutch colonialism. There was no doubt that this long and penetrating process of colonial control had a devastating impact. For the large part of the Muslim community, this was particularly evident in the obstruction of their economic, educational, and political opportunities. This, in turn, contributed to the limited availability of choices for political Muslims to express their self-realisation in modern Indonesia. Thus, like Jamāl al-Dīn al-Afghānī (1838–1897) in Egypt and elsewhere in the Middle East, who waged an ideological-political campaign of pan-Islamism in the wake of the European encroachment, they inwardly sought refuge in the holistic nature of Islam for the purpose of countering Westernisation. Not all Indonesian Muslims supported this kind of politics. A large and powerful group of Indonesian political thinkers and activists, concerned mainly with the nature of Indonesia’s nation-state, rejected these ideas and worked hard to contain them in the 1950s. The relative success of this politics of containment left political Islam an outsider in the country’s political process. Later, especially during the first 20 years of the New Order regime, political Islam had in fact become a principal target of ideological-political distrust and the state’s exclusionary policies, because it was suspected, as I have already stated, of being inherently against the state ideology of Pancasila.
New Intellectualism: In Search of a Way Out
It is this kind of dismal situation that the new generation of Muslim thinkers and activists, emerging in the early 1970s, intended to address. Their primary purpose has been to transform the earlier outlook of political Islam, from formal-legalism to substantialism. With their pioneering moves, political Islam seemed to have found a new format. This new thrust does not require a legalistic or formalistic connection between Islam and the state (or politics in general). As long as the state, ideologically as well as politically, operates on a value system which does not contradict Islamic teachings, it is sufficient for political Muslims to render their loyalty and support. This makes them at ease with Pancasila which, as they themselves suggest, is in accord with Islamic precepts. In the late 1980s to mid 1990s, this integrative approach showed some encouraging signs of success. Political Islam seemed to have found ways to integrate itself into the discourse of Indonesia’s national politics. In addition, there were also a number of indications which suggested that the state began to see political Islam not as a threat but as a complementary force in the country’s national development. Evidence of this new development has been the political relaxation of the state toward Islam, signified by the former’s implementation of a number of policies perceived as being in accord with the latter’s socio-cultural and political interests.
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Included in these accommodative actions were the passing of education law and religious court law; the compilation of Islamic law; the issuance of a joint-ministerial decision concerning the agency, Bazis, entrusted with the collection and distribution of zakāt or ‘obligatory alms tax’ (one of the ‘five pillars’ of Islam); the reversal of a long-standing policy which prohibited Muslim female high school students from wearing the headscarf and ‘modest dress’ (ḥijāb); the establishment of an Islamic bank; the annulment of the national lottery; and many others.9
Post-Soeharto Indonesia: The Battle Continues
However, has the transformation – from formalism to substantialism – been a genuine one? Indonesia’s post-authoritarian political development tends to suggest otherwise. The political relaxation and liberalisation which allowed the unravelling of Soeharto’s regime, has provided very fertile ground for political symbolism and legalism – not exclusively Islamic – to re-emerge. The birth of a large number of Islamic political parties has been the obvious sign of this new development. There is no single explanation for these events. But, in a nutshell, they can be attributed to a simple fact that not every idealism and activism can be controlled or transformed into something else that others desire. Moreover, it is important to realise that the process of transformation occurred in a situation in which the politics of uniformity was the only game in town. In such a hegemonic atmosphere, how can anyone expect a clear or simple result? President Soeharto’s resignation bore tremendous and far reaching impacts. For one thing, it generated changes. Undoubtedly it has opened up the country’s political ‘Pandora’s box’. For so many years, Indonesian politics had been too sacred a field for the society to be involved in. Politics had not been permitted to be played out competitively. Rather, it had become a luxurious arena enjoyed primarily by some sort of ‘praetorian guard’. As a result, not only did society become more and more depoliticised – in the sense that it could not develop any political ideas and practices other than those dictated by the state – but it often faced confrontation and discouragement to the point where the realm of politics simply had to be avoided. The resignation of Soeharto overturned the above situation. Public euphoria was everywhere, and as such demystified the sacredness or remoteness of politics. Thus, quite suddenly, politics became a public sphere where everybody felt they owned the very right to be involved in it. Waged under the spirit of reformation the public engaged in political activities with virtually no structural or socio-cultural barriers. One of the most conspicuous indications of this political relaxation or liberali- sation was the emergence of an astonishing number of political parties. Between May and October 1998, in the midst of socio-economic and political uncertainties – signified among other things by economic collapse, bloodshed, and enormous
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destruction in a number of big cities – Indonesia witnessed the birth of 181 political parties. Out of that number, 42 parties can be categorised as Islamic – the majority of which use Islam as their symbol and/or ideological basis.10 The (re)emergence of Islamic political parties is a phenomenon one could not fail to notice in Indonesia’s turbulent years of reformation in the late 1990s. In fact, other than political relaxation and liberalisation, which appear to be the crux of the general tone of post-Soeharto Indonesia, one could say that the (re)birth of Islamic political parties is the most conspicuous feature of the reformation era – particularly if viewed from the Islamic group perspective. The formation of 42 Islamic political parties in a six-month period (May to October 1998), following the resignation of Soeharto, is too obvious an indication of the rising tide of political Islam. More importantly, it is also perceived as a sign of the resurgence of symbolical and ideological Islam along with the possible ramifications of this. This phenomenon has brought about some speculation. But the tendency has been to see this development as déjà vu – a recurrent attempt on the part of many Muslim political thinkers and activists to (re)politicise Islam or (re)assert Islamic interests in politics. At least, if the term ‘politicisation of Islam’ sounds pejorative, the resurgence of Islamic parties has been viewed as an indicator that for (many) Muslims – and perhaps for (many) other political practitioners as well – Islam can function as a political resource. Though it is justifiable in a free society – in fact it is often considered as a natural right – nonetheless the formation of political parties based on Islam will always remind the public – non-Muslims in particular – of the historical stigma of bringing Islam to the forefront of Indonesian politics. As such it will always be perceived as an attempt to legally or constitutionally link Islam with politics or to establish a state based on Islamic principles. However, the alarmism did not come only from non-Muslim quarters. Some Muslim circles too voiced a similar apprehension for different reasons. Kuntowijoyo, a highly respected Yogyakarta-based Muslim intellectual, wrote a provocative essay outlining six arguments why Islamic political parties should not be formed. Like many Muslims, he recognises that during Soeharto’s 32 years in power, Islam was politically marginalised in the sense that Muslim political activists could not express thoughts and actions other than those allowed by the state. Accordingly, only those who shared – and felt comfortable with – the New Order’s socio-economic and political agenda, which emphasised stability and order, could participate in politics. In spite of this, in the view of Kuntowijoyo, the New Order’s politics of mar- ginalisation was a blessing in disguise. In a situation in which politics was a forbidden realm for many Muslims, the santri community had managed to diversify the political meaning of Islam by deliberately focusing their potential and energy on areas of strategic interest such as human resource development. The Muslim
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intellectual boom, which Nurcholish Madjid epitomised in Indonesian Islam in the mid 1980s and early 1990s, was a direct result of that choice.11 No less important was the fact that Muslims’ involuntary retreat from politics in those years brought about major impacts on at least two important socio-religious phenomena. First, it played a pivotal role in establishing a relatively amicable relationship between Muhammadiyah and Nahdlatul Ulama (NU). Any student of Indonesian political Islam could not fail to notice that these two organisations shared irreconcilable theologico-political differences, which affected the nature of the relationship between these two socio-religious leviathans. During the height of the venture of Indonesian political Islam of the 1950s and early 1960s, whatever differences Muhammadiyah and NU had could easily be transformed into socio- religious and political conflicts. Second, it contributed to the making of a religio-political convergence between the santri and abangan communities. The dichotomy between santri and abangan had been associated mainly with differences in religious understanding as well as the application of Islamic tenets in the daily life of Javanese Muslims. Given the position of Islam in Indonesian politics, this santri–abangan socio-religious grouping spilled over into the realm of politics. In fact, it polarised the country’s modern politics into two major cleavages or currents (aliran). While the santris were inclined to direct their political orientations toward Islamic political parties, the abangans were more apt to express their political associations within the nationalist or communist parties.12 This kind of interplay between religion and politics characterised and sharpened the schism between these two religio-cultural groupings. However, the absence of aliran politics in Soeharto’s New Order administration enabled santri and abangan communities to converge religiously as well as politically. More importantly, it allowed Muslims to build a larger umbrella for the Islamic community under which religiosity was not measured by certain political ideas or ideological and party affiliations, but simply by exercising religious tenets. Given the above perspectives, for Kuntowijoyo, the re-entrance of Islam into politics could jeopardise this favourable development. In his view, the establishment of political parties based on Islam would be likely to
• stop Muslim social mobility; • bring about disintegration within the Muslim community; • encourage Muslims to become myopic, emphasising more short-term (political) objectives; • narrow Muslims’ understanding of Islam; • cease the proliferation of key Muslim figures; and • alienate the younger Muslim generation.13
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Kuntowijoyo is correct in suggesting that the establishment of an Islamic party may bring about certain implications not necessarily consistent or compatible with some of the achievements Muslims have already accomplished when they concentrated their potential and energies on issues related to non-political aspects of Islam. Nevertheless, many Muslims do not seem to share his opinion. In fact, not only did they found Islamic parties, but they created Islamic political institutions in large numbers, unprecedented in the history of the Muslim world. The existence of 42 Islamic parties is indeed a clear challenge to his view. His alarmism is well taken in so far as it is placed in the context of the pre-New Order circumstances in which Islamic political ideas and practices were generally perceived to be legalistic and formalistic in character. There is no doubt that the development of the new Islamic intellectualism and activism in the past three decades has contributed to the transformation of a sizeable proportion of Muslim intellectuals and practitioners to adhere to a more tolerant and inclusive Islam. Even so, many believe that some Muslims still aspire to a certain political idealism and symbolism – such as the use of Islam as a party platform and identity. However, it is a mistake to assume that this is an indication that Muslim political thinkers and activists will always “orient Indonesia to the direction of Mecca”.14 This viewpoint is only true in a certain historical terrain, such as in the 1950s or early 1960s, when the relationship between Islam and politics not only contributed to the birth of aliran politics, but also polarised the Muslim community into santri and abangan socio-religious groupings. Thus, arguing that using Islam as a party platform and identity is automatically identical to promoting the idea of Islam as the basis of the state requires a number of factors rather than simply relying on a stigmatic account of history. Nevertheless, it is important to note that in so far as this issue is concerned (i.e. the relationship between Islam and politics), historical stigma – more than anything else – is still the primary popular basis of perception. Because of that, Kuntowijoyo is not alone in trying to convince or alarm the public into believing that the foundation of Islamic parties could eventually resurrect the past – the (re)emergence of an antagonistic and polarised Muslim community with all the possible ramifications of this. Even Amien Rais – an important disciple of Mohammad Natsir – shares a similar notion of automaticity that “if religious idioms and symbols are used to increase political support, religion will become a divisive issue among Muslims and sensitive, possibly non-negotiable principles and beliefs will burden electoral politics”.15 Partly because of such a conviction, he chose to form a religiously neutral party such as PAN, rather than an Islamic one. If the use of Islam as a party platform and identity is not meant to entertain the idea of Islam as the basis of state, why then do some Muslim political practitioners remain committed to the idea of Islamic symbolism in politics? Furthermore, what
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are the most likely explanations for those who are still inclined to see the current emergence of Islamic symbolism in politics in light of the past? To answer these questions, one has to examine first the dynamics of the relationship between Islam and the state, and secondly the political relaxation and liberalisation which the fall of Soeharto had brought about. Recalling the previous discussion, it is safe to say that finding a proper place for Islam – or any religion for that matter – in Indonesia’s socio-cultural, economic, and political development is the crucial point in the whole construct of the relationship between Islam and the state. The earlier generation of Islamic political thinkers and activists were of the opinion that Islam should function as the constitutional and legal basis of the state. Not every Muslim, however, agreed to the idea that organically linked Islam with the state. Instead, they proposed the notion of a ‘deconfessional- ised’ state based on the ideology of Pancasila. This made Indonesia neither Islamic nor secular, but a “religious” state, in the sense that the state allowed and assisted its citizens to perform their religious obligations.16 The idea of a ‘deconfessionalised’ state may have been a viable compromise between the religious and the nationalist groups. However, the manner in which Pancasila as well as the 1945 constitution were formulated, introduced, debated, and finally accepted as the two most important legal bases of the state seemed to have left the impression that the adoption was temporary in nature. At best, the acceptance was not based on genuine compromises, as pressure and fait accompli were part of the environment of the constitutional committee meetings. In this case, as the records of the minutes of BPUPKI17 indicate, Soekarno repeatedly asked members of the committee, especially those from the Islamic circle, to immediately accept Pancasila and the 1945 constitution if they really wanted independence to occur. In the view of Soekarno, a complete and revised version of the ideological as well as constitutional arrangement of the state could be formulated at a time when the country was independent. Partly because of this, Muslims as well as other political forces debated the issue once again in the Constituent Assembly. The formation of the Constituent Assembly following the first general elections of 1955, with the sole duty to formulate the ideological and constitutional basis of the state, reasserted the temporary nature of Pancasila and the 1945 constitution. The fact that all four Islamic parties – Masyumi, NU, PSII, and Perti – reintroduced Islam as the basis of the state was only an exercise of their constitutional duties based on their religious as well as political aspirations, which they perceived to be appropriate and necessary. As such, one should not argue that Muslim parties were absolutist with regard to their religio-political ambitions. Like their nationalist counterparts, Muslims expected to have meaningful discussions and be able to reach a viable compromise. Indeed, they had done so in respect to their duty to formulate a much better constitution –
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with the exception of the question of the state ideology (i.e. Pancasila or Islam). The fact that Soekarno, backed by the military at that time, did not wish to go the extra mile to enable a genuine compromise to take place, and chose instead to issue a presidential decree in June 1959, which abrogated the laborious work of the Constituent Assembly – thus putting Pancasila and the 1945 constitution once again into effect – only proved that a truly negotiated settlement among the country’s national elite on the two most important issues (i.e. Pancasila and the 1945 constitution) failed to occur.18 This remained the case for the next 49 years. Forces that contributed to the failure of the national elite to compromise on issues related to the socio-cultural, economic, and political life of the country became more apparent during Soekarno’s seven years and Soeharto’s 32 years of rule. Especially during Soeharto’s rule, the ideological position of Pancasila and the 1945 constitution was strengthened and reasserted. They were treated as the two most sacred documents, which no one could discuss, question, and interpret in any way other than what was dictated by the state. Complementary to this situation, political or ideological Islam was severely contained, leaving it as an outsider in the country’s political dynamic. During the first 20 years of the New Order administration, political Islam became a principal target of the state’s exclusionary politics as well as the focus of ideological and political distrust. More particularly, political Islam was suspected of being inherently against the state ideology of Pancasila. This was indeed a distressing situation. As stated above, the new generation of Muslim political thinkers and activists that emerged from the 1970s onwards, endeavoured to reverse the situation by adhering to more substantive socio-political ideas of Islam. They did not aspire to the notion of Islam as the basis of the state. In their view, as long as the state operated on a value system that did not contradict Islamic teachings, there was no religious obligation to question the existence of such a state. More importantly, they also believed that in essence, Pancasila was in accord with Islamic precepts. By the late 1980s, a meaningful transformation with regard to Islamic political ideas and practices began to evolve. Muslims seemed to be at ease with the idea that Indonesia is neither an Islamic nor a secular state. When the state reversed its treatment of Islam, leaning to a more accommodative stance toward Islamic aspirations, the hostility was substantially reduced. In a situation like this, there was no religio-political need to raise the question of Islam as the basis of the state. One important question still remains, however. How genuine was the transfor- mation of Islamic political ideas and practices? Or rather, how sincere was the accommodative response of the state toward Islam? In a situation in which the state was very much still exclusionary in nature, there was no way of knowing the degree of sincerity of both sides – the Muslims and the New Order state. This issue
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needs to be raised because of the view that, as mentioned earlier in this article, the hegemonic and authoritarian nature of the state was the major weakness of the whole process of Islamic ideological and political transformation. The fact that the state contained political Islam did not actually leave much choice for political Islam to pick in order to survive. Strong as it was, no single socio-cultural, economic, and political institutions could escape the web of influence of the New Order state. Because of that, it is fair to suggest that there was always a dimension of religio- political expediency. To be sure, there were Muslims who – for religious or other reasons – believed that Islam does not oblige its adherents to form a theocratic state. And the process of the transformation of Islamic political ideas and practices during the New Order administration strengthened this conviction, and increased the number of those who shared and supported such a viewpoint. Nonetheless, it was equally true that not every Muslim was on the same wagon of Islamic intellectual transformation. There were those who saw the issue differently – tacitly or otherwise conserving an organic view of Islam–state relationship. It was the nature of the New Order state which prevented many of them from voicing and developing their genuine Islamic political aspirations. While the proper relationship between Islam and the state remains a debatable issue among Muslims, this was not the case with regards to the characteristics of the New Order state. Muslims generally believe that the New Order state was basically hegemonic, practising non-competitive politics, and leaving no space for the public to articulate their demands. Indeed, it was considered a ‘repressive-developmen- talist’ institution. When the pillars that had supported Soeharto’s way of governing crumbled, quite a sudden opportunity to embrace long-overdue ideological and political aspirations emerged. Like many other political practitioners, politically active Muslims wanted to express their own ideas which differed from what was decreed by the state – an exclusionary political system; the existence of two docile parties (PPP and PDI) and one corporatist political institution (Golkar); and the adoption of Pancasila as the sole ideological basis of existing socio-religious and political organisations. The rise of Islamic political parties – like many other political parties – and the adoption of Islam – like many other ideologies – as party ideology and symbol should be viewed from this perspective.19 Thus, the political relaxation and liberalisation, which Soeharto’s sudden departure from power brought about, was the major factor in the emergence of political forces and the articulation of their own interests. With virtually no socio-cultural, political, and ideological barriers in the way, they were very much on their own course of action and determination. Therefore, it is only a natural phenomenon that political Islam has re-emerged and adopted Islam as its party ideology, symbol, and platform. As suggested by Nurcholish Madjid, “We have lost our freedom for more than 30 years. All of a sudden, the freedom is back in our hands, which of course makes us
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happy. From this perspective, creating a large number of parties is only a natural phenomenon. This is like children who just got new toys.”20 The fact that such a development has aroused apprehension and alarmism – not only from non-Muslim quarters, but also from many Muslims as well – is equally understandable. As in the past (1950s), democracy gave ample opportunity for Muslims to aggregate and articulate their interests. Ironically, it was in this liberal and democratic situation that the debates on the question of Islam as the basis of the state reached their height. The failure to seek compromises, especially with regard to the position of Islam in Indonesia’s political and ideological construct, brought about certain historical stigma. Primarily because of that stigma, the birth of 42 Islamic political parties was conceived in a manner in which modern Indonesian political history had evolved. And because of that stigma, the existence of Islamic political parties will always be associated with the idea of a theocratic state and/or the absorption of the sharīʿah into the country’s legal system. This stigmatic standpoint, however, does not seem to provide an accurate description of the characteristics and agendas of post-Soeharto era Islamic political parties. The inclination to generalise all Islamic parties as proponents of Islam as the basis of the state is clearly misleading. The newly formed Islamic political parties cannot be viewed as homogeneous entities. Monolithicism is certainly not a useful concept to apply in this case. This is especially true given the fact that not every Islamic political party uses Islam as their ideological basis. While Islamic nuances and fervour are undoubtedly present, even in the self-claimed nationalist parties such as PKB (with NU members as its core constituents and Islamic jurisprudence as the basis of the party platform) and PAN (with Muhammadiyah members as its only meaningful supporters), some took Pancasila – or a combination of Pancasila, Islam, and the 1945 constitution – as their party basis. If party basis can be regarded as party ideology, the reality presented above is surely a strong indication that not all Islamic parties adhere to a single ideological orientation. Should this characteristic stand, it is equally true that not every existing Islamic party adopts a single, unified political aspiration. On the contrary, they seem to have different – often contradictory – political agendas. Other than the fact that all ten Islamic parties which gained one or more seats in the parliament – together enjoying 172 seats – agreed with Amien Rais to form an ‘Islamic’ or ‘Central Axis’ caucus with the sole purpose at making Abdurrahman Wahid Indonesia’s fourth president, there were hardly any other primordial aspirations shared by the existing Islamic parties. Even such important issues as whether or not Article 29 of the constitution should be amended – a process which opened up the possibility of inserting the Jakarta Charter into the constitution – was not able to bring Muslim political thinkers and activists into a single line, whereas in fact it was often considered of great importance to Muslim interests.
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When the process to amend the constitution began in 1999, it was clear from the start that not all Islamic parties shared the same vision regarding the proper place of Islam in the state. This situation continued well until 2002, the year in which parliament was scheduled to complete their work to amend the constitution. Throughout the process, Islamic political forces demonstrated the fact that they have different opinions concerning the matter. There were those who wanted to revive the Jakarta Charter and insert it into the constitution, which would make the implementation of the sharīʿah, in the eye of the state, mandatory for all Muslims. Others, while not necessarily against the idea of putting some Islamic precepts into the country’s legal system, rejected that particular idea quite explicitly. Given the existence of public apprehension and alarmism toward political Islam, it is interesting to note that the support for inserting the Jakarta Charter into the constitution was minimal. Out of the ten Islamic parties in the parliament, only PPP, PBB, and PDU – together occupying 87 seats – supported the inclusion of the Jakarta Charter in the new constitution. Of course, these three parties had done their best to realise their objectives. Nonetheless, they did not seem to launch a political struggle in a manner in which their predecessors did half a century ago in the Constituent Assembly debates. Although the likelihood is that these three Islamic parties would continue their efforts to have the Jakarta Charter included in the constitution, they did not block the assembly decision to stick to the original formulation of Article 29 of the constitution – which reads that the state is based on one God. The fact that the process to amend the constitution was far from deadlocked, especially on issues related to the relationship between Islam and the state, is an indication that the historical stigma of the ideological debates that occurred in the mid 1940s and the late 1950s can no longer be employed as a reference point in analysing the existing Islamic political parties in post-Soeharto Indonesia. As far as the idea of placing Islam in its appropriate position within the state is concerned, it is also important to note that unlike their struggle in the mid 1940s and 1950s, current Islamic parties do not aspire to Islam as the basis of the state. Unlike before, no single Islamic party has ever publicly proposed the idea of Islam as the basis of state. At best, as already mentioned, their aspirations have been reduced or modified to something like the revival of the Jakarta Charter. Coupled with the fact that the process of constitutional amendment did not end in deadlock, it is safe to argue that the religio-political circumstances have undoubtedly changed. Putting that in perspective, there is no legitimate reason for seeing the rebirth of Islamic political parties in light of the past. Given what has evolved over the last 50 years or so, one should not expect that a perfect and complete transformation from Islamic political legalism and formalism to substantialism can ever occur. However, the fact that Islamic parties are by no means homogeneous is evidence that their emergence should not and cannot be perceived in a monolithic manner.21
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However, it is not only the emergence of Islamic political parties that has created apprehension and alarmism. Besides what has been suggested, the New Order’s departure was also followed by the rise of a number of Islamic organisations. Apparently, the opening of this Pandora’s box did not only encourage the development of political parties, but also the emergence of various socio-religious organisations. In a situation in which politics seems to be the only game in town, these organisations regarded themselves as instruments to express and channel Islamic aspirations. In fact, more than the existing Islamic parties, they often articulated their interests in a strong and forceful way which made others see them in light of radicalism. This is especially true with respect to their calls for sharīʿah implementation. Thus, other than giving more weight to what has been addressed by several Islamic political parties, their existence has been viewed as a confirmation of “the rising tide of Indonesian (political) Islam”.22 Their blunt outlook and militant tendency in communicating Islam has led many to observe their resurgence in light of the past. The context of a globalised world has also encouraged them to relate this new development to the worldwide trend of political Islam. This is not to suggest that these religious organisations have connections with the international Islamic movement – though they might share comparable ideas and thoughts. Unlike the Islamic parties, the birth of these organisations was not an immediate response to Indonesia’s democratic transition. Instead, their development was more a reaction to the socio-religious and political circumstances which evolved during the period of transition, which in their view did not seem in accord with Islamic values or Muslim interests. The inability of the state to administer effectively and solve pressing problems that concerned the lives of many Muslims (e.g. socio-religious conflicts, law enforcement on gambling and prostitution, regulation of alcoholic beverages, etc.) has triggered the emergence of these Islamic groups. Similarly, the United States foreign policy towards the Islamic world, which is often perceived as uneven-handed, discriminatory, and unjust, especially concerning the Palestinian nation, has also contributed to their emergence.23 These Islamic organisations include, to name only the most prominent ones, Front Pembela Islam (Islamic Defenders Front); Forum Komunikasi Ahlus Sunnah Wal Jamaah (FKASWJ, Ahl al-Sunnah wa-’l-Jamāʿah Forum) along with its militia wing, Lasykar Jihad (Jihad Brigade); Majelis Mujahidin Indonesia (MMI, Indonesian Mujahidin Council) along with its Lasykar Mujahidin (Mujahidin Brigade); Hizbu al-Tahrir (Liberation Party); Hammas (Inter-Campus Muslim Students Association); Front Hizbullah (Hizbullah Front); Ikhwanul Muslimin; and the relatively much older organisation, Kisdi (Komite Indonesia untuk Solidaritas Dunia Islam, Indonesian Committee for Islamic World Solidarity). All of these groups seem to share the same concern – i.e. that Islamic sharīʿah law should have been taken more seriously by the state as well as the greater
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Muslim society. Such a viewpoint is based primarily on three important factors – theological, demographic, and socio-political. The first factor emphasises the fact that Islam is perceived as a religion which offers guidance and solutions to all aspects of life – socio-cultural, economic, political and so forth. This position has led them to believe that all Muslims are religiously obliged to base all aspects of their lives on Islamic values and teachings as outlined in the sharīʿah. The second factor refers to the fact that the majority of Indonesians are Muslims. Adherents of Islam constitute 87 per cent of the country’s population. And for them, this fact alone should function as socio-cultural and political legitimacy for making Islam as the basis of the state – or at least to recognise the sharīʿah as a core ingredient or an integral part of the constitution.24 The last factor points to the fact that the secular- positive law has not brought about socio-cultural, economic, legal, and political improvements for Muslims. In their view, for more than half a century, Indonesia has been plagued with a number of socio-economic and political misfortunes – with the recent multidimensional crises as its pinnacle – for which only Islam can serve as the ultimate solution. Should this be the case, then it is fair to argue that what these organisations aspire to is actually reminiscence to what had been articulated and aggregated by the Islamic groups in the 1940s and 1950s. This means that for more than half a century, Indonesia’s national elite have not been able to come to terms with the position of Islam in this archipelagic nation state. As a result, the question of Islam – especially issues related to the implementation of the sharīʿah – has tended to become a recurrent issue. Unless a negotiated settlement can be reached, it will always re-emerge in various forms, depending on the situation.
Towards a Partial Accommodation of Islam: Some Conclusions and Recommendations
From what has been presented at length, it is difficult not to see the development of political Islam during the post-Soeharto period in light of legalism and formalism. The intellectual transformation which occurred between the 1970s and 1990s seemed to have lost its significance when ideological, symbolic, and formal Islam gave the impression of dominating the new discourse on Indonesia’s political Islam. The use of Islam as a party basis, the call for the implementation of the sharīʿah, the attempt to insert the Jakarta Charter into the new constitution, and opposition to Megawati’s presidential candidacy in 1999, based on the religious argument that men are to lead (or be stronger than) women, are clear indicators of the rising tide of political Islamism. In spite of this new development, one should not view it as a genuine phenomenon. In fact, the birth of 42 Islamic parties – like other parties – has to be seen from
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the perspective of the shifting pendulum of Indonesia’s political system, from authoritarian to democratic rule. This means that one should always question whether or not such new developments are genuine or permanent in nature. At a time when transition seems to be characterised by some degrees of socio-economic and political fluidity – not to say breakdown – it is difficult to see things with certainty. The fact that only 20 Islamic parties met the electoral requirements in 1999, and only ten gained one or more seat, suggests that this new development is primarily due to the euphoric and myopic nature of the transition, rather than to a well thought out and deliberated religio-political determination. When those who earlier opposed Megawati’s presidential candidacy finally accepted her victory in her constitutional appointment to succeed Abdurrahman Wahid to become the country’s fifth president, this only indicated that religious considerations are temporarily and not permanently upheld. Should religious principles become a determining factor in politics, any leadership posts contested by Megawati or any female candidates for that matter should have been rejected. A similar viewpoint can also be used to understand the fact that PPP, PBB and PDU politicians, who fought for the insertion of the Jakarta Charter into the new constitution during the process of amendment, eventually gave up their cause and did not block moves to stick to the original formulation of Article 29, which says that the state is based on one God. They may have accepted their constitutional defeats on a temporary basis. However, the choice not to have the case settled by way of voting can also cast doubt on their religious convictions in politics. Therefore, unlike the earlier Muslim politicians in the Constituent Assembly who tackled the issue by way of vote – though neither sides of the spectrum received adequate support to win their cause – post-New Order Muslim politicians appear to have moderated themselves with regard to their efforts to articulate and aggregate Islamic interests. What seems to be more certain is that the level and magnitude of support for ideological and symbolical Islam is relatively low and small. The majority of Muslims, as signified by the limited number of seats enjoyed by Islamic forces in the parliament and the rejection of the Jakarta Charter, remain moderate and aspire to a more viable and proper relationship between Islam and the state. This view is also shared by the two most important religious organisations in the country – Muhammadiyah and NU. In light of Indonesia’s political history, it is fair to say that
• in two democratic situations, legalist and formalist political Islam was unequivocally defeated. Its fate and destiny – to say the least – was even bleaker in an authoritarian political setting.
This is not to suggest, however, that the majority of Muslims (politicians) oppose the sharīʿah. Being Muslim, they accept the significance of the sharīʿah and are
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obliged to implement Islamic teachings in all aspects of life. Yet they differ greatly with regard to how the sharīʿah is to be understood, interpreted, and implemented. They do not believe that the sharīʿah should be adopted in its entirety and serve as the positive law of the land. Instead, they share the idea that certain elements of the sharīʿah can be formulated into legally-binding law, such as on issues related to marriage and divorce, inheritance and endowment, zakāt collection and distribution, the pilgrimage, and the like. The fact that many Muslims feel that the state’s accommodation of Islamic law is still limited has not stopped them from struggling within the bounds of the existing system, laws, and regulations. Having said this, it is safe to argue that:
• Partial accommodation seems to be a viable option for a more enduring relationship between Islam and the state. The commonly shared notion that Indonesia is neither a theocratic nor a secular state only suggests the importance of the obligatory nature of the state in accommodating the interests of Muslims. • At the same time, realising the heterogeneity of Indonesia’s socio-religious origins, it is the task of every Muslim to articulate and express their interests in so far as they do not disrupt the construct of the country’s nation-state.
For more than half a century, Indonesia has been unable to conduct an uninterrupted dialogue concerning the proper role and position of religion in the state. In the 1940s and 1950s, the effort was hampered by a lack of time, and Soekarno’s and the military’s political manoeuvrings. Throughout the New Order government, the debate was forbidden because of the deep-seated suspicions of the state regarding its disruptive potentials. Taking into consideration all the lessons we have learned in the last 50 years or so, it is time for the national elite – religious as well as political – to undertake such an important dialogue in order to reach an appropriate settlement.
Notes
1. Ruth McVey, “Faith as the Outsider: Islam in Indonesian Politics”, in: James Piscatori (ed.), Islam in the Political Process (Cambridge: Cambridge University Press, 1983), 199–225; W.F. Wertheim, “Indonesian Moslems under Sukarno and Suharto: Majority with Minority Mentality”, in: B.B. Hering (ed.), Studies in Indonesian Islam (Townsville [Australia]: James Cook University of North Queensland, 1986). 2. Donald K. Emmerson, “Islam and Regime in Indonesia: Who’s Coopting Whom?”, paper delivered at the 1989 annual meeting of the American Political Science Association (APSA), 31 August 1989. 3. Harry J. Benda, The Crescent and the Rising Sun (The Hague and Bandung: W. van Hoeve Ltd, 1958). 4. B.J. Boland, The Struggle of Islam in Modern Indonesia (The Hague: Martinus Nijhoff, 1971); Allan Samson, “Islam and Politics in Indonesia”, PhD dissertation, University of California at Berkeley, 1972.
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5. Robert N. Bellah, Beyond Belief: Essays on Religion in a Post-Traditionalist World (Berkeley and Los Angeles: University of California Press, 1991). 6. Ibid. 7. H.A.R. Gibb (ed.), Whither Islam? (London: Victor Gollancz Ltd, 1932). 8. Mohammad Natsir, Islam sebagai dasar Negara (Bandung: Pimpinan Fraksi Masyumi dalam Konstituante, 1957); Abu A’la al-Maududi, The Islamic Law and Constitution (Lahore: Islamic Publication, 1977). 9. Bahtiar Effendy, Islam and the State in Indonesia (Singapore: Institute of Southeast Asian Studies, 2003). 10. Arskal Salim, Partai-partai Islam dan relasi agama-negara (Jakarta: Pusat Penilitian IAIN Jakarta, 1999). 11. Kuntowijoyo, “Enam alasan untuk tidak mendirikan parpol Islam”, Republika [Jakarta], 18 July 1998. 12. Clifford Geertz, The Social History of an Indonesian Town (Cambridge MA: MIT, 1965). 13. Kuntowijoyo, “Enam alasan”. 14. Emmerson, “Islam”. 15. M. Amien Rais, “Islam and Politics in Contemporary Indonesia”, in: Geoff Forrester (ed.), Post-Soeharto Indonesia: Renewal or Chaos? (Singapore: Institute of Southeast Asian Studies, 1999), 198–203. 16. C.A.O. van Nieuwenhuijze, “The Indonesian State and ‘Deconfessionalized’ Muslim Concepts”, in: C.A.O. van Nieuwenhuijze, Aspects of Islam in Post-Colonial Indonesia: Five Essays (The Hague and Bandung: W. van Hoeve Ltd, 1958). 17. Toward the end of World War II, BPUPKI (Badan Penyelidik Usaha Persiapan Kemerdekaan Indonesia) was a Japanese-organised committee for granting independence to Indonesia. 18. Deliar Noer, Partai Islam di Pentas Nasional 1945–1965 (Jakarta: Pustaka Utama Grafiti, 1987); Ahmad Syafii Maarif, “Islam as the Basis of State”, PhD dissertation, University of Chicago, 1983. 19. Bahtiar Effendy, (Re)politisasi Islam: Pernahkah Islam berhenti bepolitik? (Bandung: Mizan, 2000). 20. Republika [Jakarta], 7 June 1998. 21. Bahtiar Effendy, “Antara substansialisme dan formalisme”, Panji Masyarakat [Jakarta?] 40 (2000). 22. “Van Zorge Report on Indonesia” 2, no. 20 (30 November 2000), available online at http://www. vzreport.com/main/about-us.html (accessed on 12 July 2010). 23. Penelitian radikalisme agama dan perubahan sosial di DKI Jakarta (Jakarta: Pusat Budaya dan Bahasa (PBB) dan Pemda DKI Jakarta, 2000). 24. Maarif, “Islam”.
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Datu Michael O. Mastura*
Abstract: This article adopts the general theme of governance to provide an institutional framework for law reform and constitutional regime. To look into the political culture and religion of Filipinos is to ask why there is much reliance on law with an internal dynamics of hostility to all things religious in public life. The author employs the democracy argument to raise asymmetrical issues in a constitutional regime within the context of ‘the national state’ rather than problematise it as a majority versus minority relation. This makes it possible, for instance, to consider the Bangsamoro in the Philippines as a ‘people’ in legal terms and in reference to ‘state-nations’ instead of ‘nation-states’. The author also treats the dimension of international law regarding the right to self-determination with respect to the current peace negotiations between the government of the Philippines and armed non-state actors (MILF and MNLF). One might not necessarily agree with all that is stated in this contribution, which is intended to be an essay rather than a scholarly paper, but, nevertheless, it grants some insights into the mindset of contemporary Muslims in the Philippines.
Introduction
This article adopts the general theme of governance to provide for an institutional framework in law reform and constitutional regime in Southeast Asia that would allow for a greater presence of Islam in the public sphere. The twentieth century has produced progressive development in various fields. Just about the time when the era of decolonisation was almost coming to an end, the secular humanists triumphed once again in the Western world. Today, in the countries of the West, we come across certain internal dynamics of hostility towards all things religious in public life, especially in mass democracies where popular culture dominates.
* Datu Michael O. Mastura is a noted Muslim lawyer, lecturer, author, and historian-genealogist from Magindanaw, the Philippines, as well as a former member of Congress. He would like to thank the Associate Editor of this journal, Dr Christoph Marcinkowski, for preparing his conference notes for publication in the form of the present essay.
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In the following, we would like to elaborate on the impact of those developments on Southeast Asia. We would like to argue that the point of procedure in this decline of the role of religion in the public sphere is early modern period of European history, which brought about an essentially secular basis of the Western ‘Westphalian’ state system. Inter-state conflicts of European powers have shifted from seeking religious dominance to competition in power and territory. From the perspective of Muslim Modernist insight, according to which a territory becomes hostile not on an ideological, but on a political basis, the question is less one of the category of Muslim territory where Islamic law is valid. This would amount to solving the issue of whether Muslims and non-Muslims could coexist peacefully in a country with a non-Muslim majority and government based on some sort of pact or agreement.
Jurisprudential Antecedents
Why is the most negative aspect of the contemporary influence of religion on world politics focused on Islam? Early on, the legalistic tenor that Islam in history had been assuming was considered unsuitable by many Muslims themselves. In reaction to the legal formulation of Islam mitigated jurisprudential antecedents had to be developed. Perhaps there has always been a tension between religion and political authority, between what juridical-religious authority wants the people to believe when dealing with state power. Sovereign authority is legitimate because it is limited (e.g. bill of rights) and exercised by consent. This idea of a self-governed community is a manifestation of democracy. The crucial point, I think, about legitimacy is that it constitutes a ‘free people’ – somewhat skewed to a liberal state. Legitimacy is capable of taking different historical forms. In terms of the approach of Islam, if one insists on illustrative constraint in Islam, then the restrictive benchmark would be the clear verdict of the Qur’ān, according to which “there is no coercion in religion” (2:256). To be more precise (and in terms of the experience in the Philippines), I deliberately would like to apply the term ‘plurinational’, because one of the key elements in the conflict and peace process in Mindanao – the second largest and easternmost island in the Philippines with a large Muslim minority of about 32 per cent – is a sense of belonging to a ‘Bangsamoro identity’ distinct from the rest of the Filipino nation. Given this, imposed political structures on the Moro people are contested ‘constitutional issues’ which altogether are often renounced as an extension of past colonial control. All known advanced societies are inherently pluralistic and diverse. Because expansion of citizenship rights is a concept of legitimacy, grounded on democracy as collective self-government, the solution to the asymmetrical issues should be sought within the context of state-nations rather than in the standard formation of nation-states.
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Powerful Abstractions and Explications
Religion and culture produce both social and political forms. This article advances some basic aspects of sociological explanation between private troubles and public issues as they relate to political identity. Questions of the sectarian (religious) conflict in Mindanao need to be seen within a historical perspective. A related problem is that of political identity – in other words, one important social issue of our time: “Who are we?” This introduces the powerful abstraction of three dimensions of political identity:
• religion, as a community of faith; • ethnicity, as a source of ancestry or common descent; • nation, as a feeling of belonging to a larger political entity.
Consideration of the division of territory and ‘peoples’ outside the context of decolonisation also deploys common ideology, resulting in a fourth dimension of political identity:
• class.
As Marxist praxis encoded ‘class’ in the Catholic ‘theology of liberation’ in Latin America, it subsequently was very briefly diffused to the Catholic-dominated Philippines as well. Ruling conservative populists often resort to oppressive political restrictions, officially referred to as ‘political correctness’. Yet in popular culture, ‘political correctness’ often amounts to ‘cultural Marxism’. Through some sort of ‘culture war’ the progressive Left controls culture in its own interpretative apparatus, arguing for ‘multiculturalism’. In this manner, ‘class’ – in terms of a Maoist ideological option – is not a rare occurrence in mainland Asia (to wit, Myanmar, Vietnam, and Nepal). Beyond such definitions by an elite, the political class in the Philippines, in turn, would not develop ‘sectoral’ forms of publicly controlled socialisation of land for the popular classes to devise a more expansive definition of the nation. This is why in spite of additionally granted social rights, the Bangsamoro reject their classification by progressives and the democratic Left as simply ordinary ‘sectors’ for the sake of mere ‘social protection’ measures.
Template of Governance
In the following, I shall develop my thoughts within an assumed framework for the study of ‘fragile states’ as the template for interim governance, where partition or secession might be impractical. Complications relating to the various formations
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of adventurist sectors of the military contemplating coups d’état on the one hand and Muslim ‘jihadist’ armed groups on the other (that is to say, differing contexts of contestations) have defined the secularity of the Filipino centralised symmetrical unitary state. Therefore,
• to clarify contemporary ‘Islamism’ as a form of activism, it is useful to employ several key terms – ‘Islamic revivalism’, the ‘Islamist phenomenon’, and ‘political Islam’ – in defining various aspects of Islam as an ideology for an Islamic movement, an organising structure for societal reform, and an institutional system of Islamic governance (al-niẓām al-islāmī), as vested authority (walāyah) that favours collective values over individual ones. • Moreover, in order to clarify ‘political Islam’ as consistent with an absence of a hierarchical ‘church’, Islamist activists in the Philippines often contend that their power-sharing arrangements mark a shift in their struggle. Political non-violent forms of resistance aim at achieving a situation of balance. This is seen as more necessary for unconditional amnesty rather than negotiating the position of the ʿulamā’ within such a setting.
However, where armed conflicts lead to ethnically, religiously, or tribally homogeneous or ‘sanitised’ areas, the redrawing of boundaries to match these diversities as historic ‘nationalities’ or ‘plurinationalities’ could produce stability and normalisation of life. In my view, the ongoing negotiations aiming at power-sharing with constitutional status, transitional wealth-sharing arrangements, and the preparatory transfer of authority through interim governance may be achieved with a lasting effect by concluding a deal based on ‘devolution through union’ in compact agreements. I thus would like to argue in favour of a negotiated political settlement of the conflict in the troubled areas in Mindanao – a settlement that requires the reframing of the ‘nation-state’ framework into a ‘state-nations’ template of governance.
Asymmetrical Issues in Plurinational State
My intention here is not so much to discuss the structure of power (as pluralists tend to do), but rather to mark out asymmetrical issues in a plurinational state. Some preliminaries are in order: There is no real model for an ‘Islamic state’. Therefore, some scholars problematise the issue by focusing on the question of who is enjoying real political authority in a Muslim polity. The other reason for my not discussing the issue of power-structure has to do with some sort of mere outer resemblance between the US Constitution and the Filipino setting. As a matter of fact, however, the Constitution of the United States was transposed to the Philippine polity without a due process of federal restructuring.
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At a time of escalating nationalism and accelerating globalisation, there are also tensions over the remnants of ‘big power’ quasi post-imperial ambitions from the part of the nation-state imposed on in the meantime de facto autonomous juridical entities. Yet religion in general (and the continuing role of Islam in public life in particular) are of pivotal importance in the current debate regarding the mode of popular representation and the concept that also haunts the media towards greater freedom of expression. Some might argue that Muslim social and religious life rejects secularism in principle. This view – erroneous or not – can be considered a legacy from the often romanticised and supposedly (but, from a historian’s perspective, not really) ‘non-sectarian’ phase of the early caliphal period, a period that was to establish the ‘consubstantiality’ of the religious and the political constants for centuries to come. However, modernising the juridical spirit of the modern nation-state, following the patterns of the republican model, would actually also capture the consultative approach (or shūrā) of classical Muslim political thought. Conversely, this also poses a dilemma inherent in the theological–political divide – namely, when the governance of religion is subordinated to that of de facto political authority. If we then equalise (and thus signify) ‘sovereign authority’ simply with Modernity (or its modern expressions), it is crucial to go beyond the modernist view that the state is separate from the society it penetrates. What makes territorial integrity of the state explicit is the fact that it is public rather than private, which enables us to see how unsettled the meaning of sovereignty really is – ‘as if’ a ‘static’ citizenry would actually exist. I would like to take a different position regarding struggles that are aimed at establishing sovereign foundations that shift from the ruler to the people and that are intertwined with the ‘establishment of the faith’ (tamkīn) in Muslim polity. This is an asymmetrical issue in a shared state, which is a dimension we have to bear in mind. The Catholic-dominated Philippines imparts a majority-versus-minority aspect owing to the religious orders who match the territorial state with their own symmetrical, hierarchic Church. Thailand and Sri Lanka – although both Buddhist countries – have shown distinct preference for the symmetrical unitary state model as well.
Religious Tension and Ethnic Separatism
Religion in general – not just Islam – takes centre stage in politics in the twenty-first century. Fundamentalist Evangelical Christians, too, tend to make political issues out of the issues of reproductive rights, same sex marriage, stem-cell research all in the name of ‘freedom’ and ‘liberty’. Religious freedom is not the same as the separation of church and state. The constitutional arenas for separation of church and state are
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tested by a new generation which is vernacular or ‘bi-conceptual’ in its concepts of morality. Many people live by moral laws that require discipline and sacrifice, but the politics of ‘double standards’ readily erode the mental constructs which we use to understand the world and to live our lives. If we are to understand the politics of religious conflict we must know the questions that are currently being raised. The Constitution of the Philippines guarantees us freedom of speech and religion. The right to practise our religious faith freely, openly, and in public is guaranteed as well. In Malaysia, “Islam is the religion of the Federation.” It also ‘confers’ on the Yang di-Pertuan Agong – Malaysia’s paramount ruler, His Majesty the King – the position of the ‘Head of Islam’. As a matter of fact, Islam does not constitute a structured, coherent entity. Under the effect of Modernity, the ʿulamā’ have over a long period of Islamic history long accepted nominal caliphs who ruled while real power resided with other officials, in most cases the military. In Indonesia, the contemporary discourse about religion and politics is evidenced by the rise of Muslim parties and movements which are seen as a new engagement with democracy, comparable to the trend in contemporary Turkey. Participatory politics entails Islamist parties to frame their discourse as ‘Muslim democrats’ in a secular state. They often tend to turn their respective grassroots movement or party into an ‘electoral franchise’. Thus, a proper understanding of the electoral process is politically crucial for the role played by ‘political Islam’ for contesting power. As a matter of fact, the legitimacy of the democratic process was also accepted by the Moro National Liberation Front (MNLF), and its strategy was to resort to alliances with governmental figures. If the narrative of the expansion of political Islam in Mindanao is to be told appropriately, weaning the Bangsamoro from armed struggle and transposing them to ‘electoralism’ would demand different governance strategies. Organised non-state actors like MNLF and MILF (Moro Islamic Liberation Front) employ agitation and propaganda to achieve their respective political ends. MILF proselytising (daʿwah) provides popular support based on religious ideology and the need for humanitarian assistance. Because of religious tension and ethnic separatism, the inadequacies of government to restrain private armies and other armed groups in effect grant impunity to Muslim political clan allies that have weakened the state, thus allowing them to subordinate politics to their interests. Such de jure as well as de facto constraints are currently limiting a fully functioning democracy and are contributing to what I would like to refer to as a ‘democracy deficit’. All this might even suggest to speak of a ‘fragile state’ status. Constitutionalism accommodates consensus when laid down as fundamental law and the central concept governing the Muslim polity. Its origin and basic purpose remain constant from which there is no deviation. In so far as shared rule can give adequate expression to the desires of the Muslim community – the ummah – as sociological reality, it has a humanising effect. However, a different course
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of political evolution has shaped the church–state dichotomy within the modern democracies. It also pivots on separation between economy and politics. Moreover, it left unaffected the claims to sovereignty vis-à-vis the outside as a modality for sovereign representation. And that seems to be the main issue: A paradoxical case is that even with the borders of the modern ‘state-nations’ drawn, certain ungovernable geographic areas (for brevity, ‘ungoverned territories’) do not possibly exclude some staging hegemonic outposts spawned by the archipelagic doctrine of the Filipino state. Thus the Bangsamoro being a viable and continuous geographical entity represent an illustrative case when Muslims aspire to share in political power in order to recast the democracy argument to their favour. In standard treatments, the issue of ‘asymmetrical arrangements’ occurs, for instance, in the establishment of ‘autonomous regions’, as ‘devolution’ or ‘home rule’ (Northern Ireland) and in other parts of the world as historic ‘nationalities’ (Basque Country) or as ‘federacies’ for compact union and political associative relationships.
Comparable Constitutional Status in the Southeast Asian Region
During the colonial period, the sequence of discourses and the redrawing of the political map of the then British Straits Settlements (Penang, Malacca, and Singapore) cannot be projected backwards uncritically. Once British defence facilities in the years between the two World Wars were reduced, decolonisa- tion accelerated. Today, the price that was paid for modalities involving shared sovereignty provides useful treaty frameworks and case studies to confront issues in self-determination. Collective rights instituted comparable constitutional status. In the regional context, the intriguing strategic plans in the 1960s to federate the British Borneo territories with Malaya, for instance, have ended up with Sabah and Sarawak joining the Federation of Malaysia under the structure of a parliamentary political system. The tiny territory of Brunei, in turn, became an independent monarchy. Singapore, embraced full independence under a republican regime and ultimately left Malaysia. Indonesia swayed between federalism and republicanism based on a unitary state structure after the long experience of Dutch mercantilist governance and colonial exploitation. The Philippines evolved from a mercantilist idea of commonwealth in transition towards a republican state based on the presidential model of the United States. A contravention of the discursive practice of securatio – Latin for ‘surety’, ‘security’ – creates identity by the rhetoric of otherness and enmity. The troublesome restructuring of the template of sameness or diversities of identities and amity is resolved in the diplomatic practice of reputation provided by mutual recognition. In the first decade of the twenty-first century, when new nations are being inscribed
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on the map of Europe, the new ‘world order’ has spawned the genesis of new states like Palau in 1994 and Timor-Leste in 1999. In many cases, the final status as an ultimate solution to a conflict through popular consultation was preceded by arrangements based on a constitutional framework for autonomy. Adherents of integration can become disillusioned when the mood of political freedom springs from the expansion of citizenship participation or the links between citizenship construction and social rights as well as collective rights. In any case, the task of the public intellectuals is to incorporate into the public agenda key items that can mobilise organisations of the people around concerns of common citizens. While Latin America, perhaps, has seen in many of its countries ‘governments of politicians’ rather than ‘governments of the people’, the fact is also that there is not so much public harping on so-called ‘originalist’ readings of the Constitution. By now it has perhaps become a bit clearer why I often tend to refer instead to the ‘justness’ of ‘the original position’ invoking parity of esteem and equality of peoples. Political and governmental institutions face structural adjustments but cannot hurt the labour market, nor do they submit to the logic of an alleged ‘vicious circle of poverty’. The unfettered ‘free-market freedom’ is the mechanism that allows large corporate bodies to rightfully assume governing power. Both Church and ‘self- interest democracy’ support a ‘moral foreign policy’, which is somehow similar to the foundations of fundamentalist religion. Both are concerned with the spread of right-wing interpretations of ‘freedoms’ and their respective ‘good news’ in order to justify their proselytising missions. Contrary to what this ‘family of resemblances’ depicts, however, a ‘dogmatic choice’ to emulate will face serious problems for governability. Here is an outline of adaptability to substantial legitimacy:
• Desirability of democracy and self-determination invites external peace- builders as a viable alternative to the conceptual framework of trusteeship; • the abandonment of grand visions for a future place in the Pacific Ocean, except in so far as existing international law provides for humanitarian intervention; • the demise of the ‘domino effect’ scenario – the fall of pro-Western countries into the hands of Communists – in Mainland Southeast Asia in the wake of globalisation in trade relations; • the increased geostrategic significance of the Malay Peninsula and the Straits of Malacca and the archipelagic islands of Indonesia and the Philippines offer some regional role to a number of smaller territories for governance.
In the Philippines, metropolitan strategic intervention in a new ‘plurinational’ form perceived as ‘national identity’ may just be one discourse of identity that appeals to a ‘state-nations’ and their future aspirations. At the conceptual level, the
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pluralist theory is used to prevent a discussion of majority-minority situations, such as in the Mindanao areas of conflict.
Humanitarian Intervention
The issue of more than half a million internally displaced persons in Mindanao raises the question of responsibility in terms of their protection. Ethnic-majority Moro towns have been evacuated and the abandoned villages burned to the ground just because they happen to be Muslims and considered by the military as ‘fifth column’ of the MILF. This is not a description of the composite Armed Forces of the Philippines and the Christian Ilaga militias which operated during the 1970s in Southern Mindanao and fought against Moro Islamist guerrillas. There seems to be a rather new pattern of collective punishment which, in practice, is a strategically motivated state repressive ‘hamlet programme’ reminiscent of the humanitarian catastrophe in the late 1960s and early decades of the 1970s. As a matter of fact, the ethnic conflict in Mindanao was one justification for the declaration of martial rule in the Philippines in 1972. However, this scenario resulted in the Organisation of the Islamic Conference (OIC) initiative to report on the situation of Muslim minorities in the Southern Philippines. Various OIC-backed attempts to negotiate an agreement in Tripoli (1976) and in Jakarta (1996) made actual progress on expanding the area of autonomy, but they left the overall Bangsamoro status unresolved. In the aftermath of the aborted signing of the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the government of the Philippines and MILF, open hostilities escalated in the year between August 2008 and August 2009. In the 1970s, atrocities and massive human rights violations created large numbers of displaced persons – according to some sources about 600,000. As the violence escalated so did international pressure. The resumption of the Government–MILF peace negotiations in late 2009 had led to the conclusion of the International Contact Group and the Civilian Protection Component. The impact was real in that the Malaysian-led International Monitoring Team (IMT) was augmented. Just as the strength of the political argument for the IMT to hang on prevailed, it was now bracing itself for returning to the field when emergency rule was followed by declaration of martial law on account of an election-related massacre in Maguindanao.
Balancing Between Sovereignty and Self-Determination: Some Conclusions and Recommendations
Conceptual principles are helpful in understanding restorative justice in order to deal with the collective rights of the Moros and their political status of deprivation of
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shared or ‘earned’ sovereign authority. Towards the closing years of the nineteenth century, fate intervened when the United States tangled with Spain over the Philippines and annexed the Moro lands, without the assurance that the majority of our people was actually desiring such a move. One might well ask: Was the American annexation and subsequent surrender of the Moro homeland to the Republic of the Philippines legal and moral? After eight years of peace negotiations, facilitated by the Government of Malaysia, between the Filipino government and the MILF to settle the Bangsamoro homeland and territorial claims, Manila unilaterally aborted the signing of the MOA-AD. In reality, there remains the issue of governance and the solution to the project of hybrid self-determination. The emerging approach after the end of the era of the protectorate (known as ‘trusteeship arrangement’) leaves room for resolving violent tensions that are usually associated with sovereignty-based conflicts. The MOA-AD was established contrary to the Constitution because the judges of the Supreme Court failed to appreciate our associative new formulation of shared authority which could have led to federative or associative arrangements. The failure was, perhaps, due to its resemblance to the category of associated ‘free states’ or compact states under a quasi ‘colonial’ status of overseas territories. These are negotiated forms of political dependency that assumed transition into a sovereign state. In the formulation of the MOA-AD with earned/shared sovereignty, however, a particular possibility could have opened in order to debate anew the meaning of sovereignty. We would refrain from suggesting here any outward political form concerning the conceptual basis of authority in Islam. It may well be possible to write a ‘basic law’ (al-dustūr) for a future Bangsamoro state that is different from the Lockean constitutional canon adopted by the Republic of the Philippines. National liberation and political independence are assumed to coincide. Underlying debates on changing the political and economic status raises the key issue of relationships with Manila and with other regional or local units. In concluding then, I would like to argue that
• powerful reasons do exist for continuing political ties with ‘imperial Manila’, but the MOA-AD approach pursues a path for long-term resolution of the Mindanao conflict. Shared sovereign authority as negotiated, if handled constructively with a cooling off transition period during which the central authority as well as our aggrieved people will have a defined legal preclusive effect. • This transitive process should also lead to a stop to political violence. The interest in outright independence would be substantially lessened and bring about an end to the conflict through some form of perpetual autonomy or self-governance.
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• To steer stabilisation and a political association process, an outward tracking mechanism rather than an inward-looking political culture for a final status plan is in order. The Filipino government and the MILF have exchanged drafts for a comprehensive compact accord. Concern for the plight of the Bangsamoro (or Moro Nation) should always be a key concern. • Finally, there never was an attempt to draw a catalogue of new institutions after the OIC-brokered political process began in late 1976 and got reformulated in 1996. Subsequent Tripartite Meetings have been criticised and are widely resented for their failure to achieve many of their substantial objectives. While also authorised in a limited degree to create legal framework the Filipino government has been slow to transfer real competencies to the autonomous institutions. It is hoped that there will be changes for the better under the administration of the newly elected President of the Philippines, Benigno Simeon Cojuangco Aquino.
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Suzaina Kadir*
Abstract: This article explores the dynamics of Singapore’s administration and management of its minority Muslim population. Singapore has developed a reputation of being highly interventionist in all aspects of its citizens’ lives, including the private domain. Not surprisingly, there is a slew of legislation governing the religious beliefs and practices of its citizens, aimed primarily at maintaining religious and racial harmony. Islam and the Muslim minority, it can be argued, have been at the receiving end of tighter state management as compared to the other religious communities. This article traces the evolution of the state’s administration of Islam in Singapore and explores the historical and contemporary reasoning behind such careful management of its Muslim citizens. It lays out the evolution of a Singapore model of accommodating and administering a religious/Muslim minority, and questions the sustainability and exportability of such a governance model.
Introduction
On 4 January 2002, Singaporeans witnessed what several news agencies described as “the most potent act of civil disobedience this tightly controlled nation had seen in years”1 when four seven-year-old schoolgirls defied the Ministry of Education’s warning and attended the first day of school wearing the Muslim headscarf or tudung, as it is referred to in Malay. Local and foreign media carried scenes of the four girls clutching their fathers’ hands as they walked into the school compound in a modified uniform. Fear and uncertainty registered on the girls’ faces while the fathers looked ‘defiant’ and school officials watched uncomfortably. In interviews with local media one of the fathers admitted that his daughter was reluctant to attend school but insisted that “my religion is as important to me as education, [so] why do I have to choose between them?”2 The four schoolgirls were subsequently suspended from attending public school. The incident represented the height of what is now referred to as the ‘tudung controversy’ in Singapore politics. It sparked intense discussions between
* Suzaina Kadir is Senior Lecturer at the Lee Kuan Yew School of Public Policy in Singapore.
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representatives of the Muslim community and the government. The Majlis Ugama Islam Singapura (MUIS, Islamic Religious Council of Singapore) was forced to issue a public statement to defuse tensions, pointing out that Islam did not require girls to cover their hair at such a young age.3 There were also heated debates on internet discussion groups, as well as protests from international non-governmental organisations. For example, KARAMAH, the Association of Muslim Women Lawyers for Human Rights, sent an official letter of protest to Singapore’s ambassador to the United States. They insisted that the Singapore government abide by its constitutional guarantee to uphold the religious freedoms of its minority communities.4 In a country where any form of public performance and gathering requires a special police permit, such a public debate around the headscarf is especially striking. Singapore has prided itself of successfully managing a multi-ethnic and multi-religious population. The controversy therefore suggested a level of serious contention, previously undetected, involving the Muslim minority and the state. In order to better contextualise the ‘tudung controversy’, this article will examine the relationship between the Muslim community and the State in contemporary Singapore. It will explore how this relationship has evolved over time and what new arenas of contestation have emerged, and – more specifically – whether thetudung incident should be seen as an act of civil disobedience against a state infringing on the rights of its religious minorities. The article does not, however, address international issues as they have played out in Singapore. The article situates these questions within a larger debate regarding the integration and adaptability of Muslims vis-à-vis the secular nation-state. While Muslims comprise a minority in Singapore, the city-state is not immune to larger tensions within the Muslim world, such as the wars in Afghanistan and Iraq, or the Israeli– Palestinian conflict. This debate is not new. Its history can be traced to the emergence of the modern nation-state. Europe’s Reformation and the Enlightenment periods paved the way for the institutionalisation of a secular public realm of government and a private realm for religion. However, Islam never encountered something similar to Europe’s Enlightenment and rather propagated a holistic conceptualisa- tion of life, embracing politics, economics and society. For some this has meant the establishment of an ‘Islamic state’ in contrast to the secular nation-state. For others, it has meant the implementation of Islamic law and the establishment of an Islamic society within the framework of a modern state. Muslim scholars remain divided, however, on the position of Muslim minorities living within the territorial boundaries of a secular state. Specific to Southeast Asia, tensions between secularism and Islam are tied to the colonial experience and the nationalist struggles in the early twentieth century. In Indonesia and Malaya, Islam was an integral part of the anti-colonial struggle. However, the tensions between Islam, democracy, secularism and the nation-state remain unresolved in these countries today.
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Based predominantly on news reports, interviews with Muslim leaders and participant observations in dialogue sessions with select Islamic organisations, as well as between these organisations and the state, this article begins with a look at Islam and the Muslim community in Singapore, with close attention to the ethnic dimension. While no careful study has been done so far to measure the levels of religiosity within the Muslim community, this writer argues that modernisation, Islamisation and globalisation are producing new tensions within the community, creating new or changing existing horizontal linkages between community organisations. The article proceeds to examine the vertical linkages between the community and the state through examining the administration of Islam and considers several new arenas of tension in the evolving relationship between the two parties. These horizontal and vertical contestations constitute the increasingly complex sets of linkages between Muslim minority communities and the secular state.
Malays and Muslims in Singapore
Muslims constitute a politically significant religious minority in Singapore. They make up 14.9 per cent of a total population of 3.26 million.5 This is compounded by the fact that some 99.6 per cent of the Malays are Muslims – essentially, almost all Malays are Muslims. The rest of the Muslim community is made up of Singaporeans of Arab descent, a segment with South Asian descent and a small number of Chinese and Eurasian converts. This conflation of Malay ethnicity and Islamic identity creates a unique and particular dynamic to the issue of Muslims in Singapore. It leads to a perception of homogeneity in addressing Muslims, and questions of integration/accommodation involve inevitably both religious and ethnic dimensions. There is an additional regional dimension. Singapore’s immediate neighbours, Indonesia and Malaysia, comprise populations which are overwhelmingly Malay (in the case of Malaysia) and Muslim. Muslims make up some 87 per cent of Indonesia’s population of around 210 million people. In Malaysia, Malays and Muslims make up about 60 per cent of the population. Hence while Malays/Muslims are a minority in Singapore, they nevertheless constitute a majority within the region. The Singapore government is acutely aware of this. In 2000, then Deputy Prime Minister Lee Hsien Loong admitted the state’s concerns regarding the ‘loyalty’ of Malays/Muslims in the event of a war against fellow Malays/Muslims in the region. In spite of the conflation of the Islamic religion with Malay ethnic identity, much of the scholarship on ethnicity in Singapore has focused on the issue of Malays rather than on Islam.6 The socio-economic status of Malays has been a longstanding matter of concern in the management of multi-ethnicity. For example, data shows that Malay-Muslims continue to lag behind Chinese and Indians in education and
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income levels. Data from Gallup International showed that there are only 11 per cent of Malays/Muslims earning more than US$2,000 a month compared to 30.8 per cent of Chinese and 18.9 per cent of Indians.7 Only 28 per cent of the Malays gained admission to post-secondary educational institutions and polytechnics as compared to 68 per cent of Chinese and 37 per cent of Indians.8 At the tertiary level only 4.2 per cent of Malay-Muslims were admitted to universities in 1999. This has led to allegations that Malays/Muslims in Singapore are a marginalised community much like other Muslim minorities elsewhere in Southeast Asia.9 Singapore government officials have acknowledged the disparity and – like the academics who adopt the ethnic-linguistic approach – state policies have focused almost exclusively on helping the Malay community to improve their economic status. In 1980, the government established Majlis Pendidikan Anak-Anak Islam (MENDAKI, Council on Education for Muslim Children), a self-help organisation that would provide free tuition classes for Malay students who could not afford private tutors. It also branched into exploring economic opportunities for Malays and providing welfare services for poorer families. Other government aided organisations, such as the Association of Malay-Muslim Professionals (AMP), also focused on improving the educational standards and socio-economic status of Malays. As a result, the educational level of the Malays has improved over time.10 The contemporary conflation of Islam and Malay is obviously a historical phenomenon. It has its beginning with the arrival and spread of Islam in Southeast Asia. Islam arrived in Southeast Asia via Arab and Indian traders who plied the Indian Ocean trade routes. Mass conversions of indigenous communities occurred around the fourteenth century when the rulers of various coastal kingdoms embraced Islam.11 Subsequently, Islam spread further inland, mixing with and adapting to the existing cultures and traditions. Gradually, a Malay-Muslim community – the amalgamation of Islam with ‘Malayness’ – emerged,12 and over time Islam came to be identified with being a ‘Malay’. At the beginning of the nineteenth century, the Muslim community in Singapore could be divided into two broad categories of migrants: those from within the Southeast Asian region, such as Java, Sumatra and Riau; and those from outside, notably South Asia and the Arab lands.13 The migrant character of the Muslim society of those days meant that no indigenous traditional authority governed or represented Islam. Hence, as Siddique has argued, “because of the ethnic heterogeneity of the Singapore Muslim population, one had, for at least a better part of the 19th century, not a Muslim community, but a number of Muslim communities […] reinforced from within by the preservation of linguistic barriers, place of origin, occupational specialisations, diverse economic and educational levels”.14 The situation began to change only towards the end of the nineteenth century, as the British colonial administration became more direct and urbanisation started
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to break down existing barriers between the different Muslim communities. In 1877, representatives from the Muslim communities approached the British for an improvement of the administration of Muslim marriages. This resulted in the enactment of the Mohammedan Marriage Ordinance three years later. Muslims also sought British help to coordinate ḥajj (pilgrimage to Mecca) activities and manage religious funds. In 1906, the Muslim Endowments Board was established and finally, in 1915, the Muhammedan Advisory Board was set up, providing an official avenue for Muslim representatives to negotiate with the British colonial administration. These developments paved the way for Muslim representation in Singapore’s colonial setup, but more importantly, it began to centralise religious administration and allowed for the evolution of a specific religious consciousness among the different Muslim communities. The emerging Muslim elite emphasised the implementation and practice of the sharīʿah as anchoring religious identity and transcending ethno-linguistic differences.15 Possibly influenced by the current modernist thinking from the Middle East seeking to ‘purify’ Muslim communities from traditional practices perceived as ‘non-Islamic’, these Muslim elites increasingly turned to the sharīʿah. The British, in turn, aided the emerging Malay-Muslim identity among Singapore Muslims by de facto recognising the Malays as the quasi representatives of Islam in Singapore.16 The British had previously recognised the Malay sultans as the guardian of Islam on their protectorates on the Malay Peninsula and, therefore, did the same for Singapore. Hence, for example, in 1921 the Muslim Institute in Singapore sought two seats – one for a Malay and the other for a non-Malay Muslim – on the Legislative Council. After some pressure, the British agreed to the appointment of a Malay, Mohd Eunos Abdullah, to the Municipal Council, but denied the appointment of an Arab Muslim, despite strong lobbying by the Muslim and Arab Associations. The institutionalisation of Islamic administration in Singapore intensified and accelerated after the brutal Japanese Occupation, culminating with Muslim Ordinance in 1957 and the setting up of the Sharīʿah Court and the Registry of Muslim Marriages (ROMM) in 1958. After Singapore’s independence, the Admin- istration of Muslim Law Act (AMLA) was enacted, allowing for the establishment of the earlier mentioned Islamic Religious Council, MUIS, in 1968. Subsequently, MUIS would come to represent a culmination of the fusion of Malay and Muslim identities in Singapore, a point to which we shall return in the next section. MUIS sought a central role in shaping the Muslim community, since it became to the government the sole legitimate representation for Islam in the island republic. The centralisation of administration thus played a pivotal role in moulding a religious identity that sought to transcend the ethno-linguistic divides among Muslims in
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Singapore. The religious consciousness that emerged fused Malay and Islamic identities together and leant heavily towards sharīʿah-related issues.17 The global Islamic revivalism of the 1960s and 1970s pushed for Islam to be the dominant, if not exclusive, identity for its adherents, propagating the notion of a transnational Muslim ummah as an integral part of Muslim identity18 and pushing for a comprehensive conceptualisation of Islam as a way of life and an anchor for economics, politics, state and society. This has had a significant impact on the continuing development of the Malay-Muslim religious consciousness in Singapore. This was seen in the increasingly public manifestations of a stricter Muslim identity. By the 1990s, for instance, a Malay-Muslim woman’s dress-code tended to involve the covering of the head, in contrast to the portrayal of Malay-Muslim women in media images during the 1950s.19 Similarly, more Muslims adhered to their Islamic obligations, and there was a stricter conformity to dietary requirements.20 Growing Islamic consciousness can also be linked to the increasing number of Muslim parents opting to enrol their children in madrasahs or Islamic religious schools. Data from MUIS showed that the number of applications to madrasahs jumped from 824 in 1994 to 1,354 in 2000. A Gallup survey of 1,000 households in 2000 which asked respondents to rank their forms of identification in terms of ethnicity, religion, and neighbourhood, found that Malays identified chiefly with religion – in contrast to Chinese who identify with ethnicity and neighbourhood.21 The finding, therefore, supports the observation of a general trend towards increasing identification with religious symbols associated with Islam. However, growing religious consciousness among Muslims in Singapore should not lead to an erroneous assumption of homogeneity brought about by global Islamic revivalism. In Singapore, as elsewhere in the Islamic world, religious revivalism has not produced a homogeneous Islamic identity. While revivalist thought reinforced the role of the traditional Islamic clerics – the ʿulamā’ – access to education and exposure to different Muslim communities have produced emerging centres of religious authority. ‘Cyber-ʿulamā’’ and younger Western educated Islamic scholars have become more vocal in their debates with the traditional ʿulamā’, especially over the latter’s literal interpretations of the Qur’ān. Even in Iran – usually considered the ‘theocracy’ par excellence – there are serious challenges to the dominant discourse of the clerics. Several studies have shown how revivalist ideology coupled with modernisation, urbanisation, and globalisation has intensified contestations for meaning and representation within Islam.22
Growing Pluralism and Muslims in Singapore
In Singapore, while historical developments have produced a conflation between Islamic and Malay identities, the heterogeneity among Muslims is likely to increase.
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There exist, for instance, different levels and layers of religiosity among the population which, in turn, are linked to different educational and income levels. One can infer this from the increasing trend among parents with post-secondary or even tertiary education to enrol their children in Islamic religious schools. In addition, like in other parts of the Muslim world, modernisation and globalisation are producing different readings and understandings about Islam and its practices among the different generations of Islamic scholars. The first generation of Singaporean ʿulamā’ was educated in Islamic schools in the region and steeped with knowledge of the sharīʿah, but they also embraced Sufi thought and retained an accommodating attitude towards local traditions and customs and British colonial administrators. They taught in the various madrasahs and played an important role in making Singapore a regional hub for the teaching of the Arabic language in Southeast Asia.23 An example of this first generation of ʿulamā’ would be Ustaz Burhanuddin al-Helmy who taught at Singapore’s Madrasah Aljunied in the 1950s. By the end of the 1960s, a second generation of Islamic scholars emerged out of the few students from this Madrasah who gained entry to Al-Azhar University in Egypt. They were exposed to the global revivalism thinking that was sweeping through the Middle East in the 1970s, which produced a somewhat more rigid interpretation of Islam and the sharīʿah. The second generation pushed for the creation of an Islamic society. Many of them focused on increasing religious consciousness among Muslims rather than engage with the state on matters of society and politics. For example, the Singapore Islamic Scholars and Religious Teachers Association (PERGAS) under the leadership of Ustaz Ali consciously chose not to engage the state on the issues of morality or society and focused instead on educating the population on becoming better Muslims and eradication of non-Islamic practices and beliefs.24 The educational background of the newly emerging third generation of Islamic scholars is more diverse. Muhammad Haniff Hassan divided them into three groups – those who were educated wholly in local madrasahs, those with a mixture of madrasah and government secular education and those who underwent the traditional method of studying with the first and second generation ʿulamā’.25 In addition, an increasing number of ʿulamā’ were able to obtain a degree from other universities in the Middle East, including the University of Media in the 1980s.26 Medina trained Islamic scholars displayed a staunchly sharīʿah-oriented mindset and were determined to push society towards a proper implementation of Islamic law in everyday life. Unlike the second generation scholars, however, the Medina- educated ʿulamā’ believed that engagement with society and state was necessary to protect the moral being of Muslims.27 Beyond the ʿulamā’, education and technological advancements have also enabled ordinary Muslims to access and reinterpret the religion for themselves. Using new
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media of communication, such as the internet, many Western-educated Muslim scholars challenge the traditional authority of the ʿulamā’. In countries like Egypt, Iran, Malaysia and Indonesia, for example, movements calling for a liberal or even secular interpretation of the Qur’ān have emerged vis-à-vis more sharīʿah-minded approaches. These movements, however, have not gained significant ground and are still in their infancy in Singapore as compared to other parts of the Muslim world. Nevertheless, there has been a greater openness to these liberal thinkers. In 2003, MUIS invited Muslim scholars like Ali Asghar Engineer, Tariq Ramadan, Abdullah An-Naim and Ulil Abshor Abdillah to speak to the Muslim public. These talks were met with high levels of interest among the younger, well-educated Muslims. The President of MUIS, Mr Alami Musa explained that Muslims in Singapore had gone through three development phases. He described the first phase as ‘tradi- tionalist Islam’ where religious fused with existing cultural traditions. Subsequently Muslims underwent a ‘revivalist phase’ where Muslims sought a return to a purified version of Islam as a way of life. He added that Muslims in Singapore were now embarking on a ‘progressive phase’ in which they were exploring their position within a secular state.28 These different phases have produced a plurality of inter- pretations and perspectives among Muslims towards the religion. He added that the challenge for MUIS was to create an environment of tolerance for divergent views and ideas among Muslims.29 Dale Eickelman and James Piscatori30 have pointed out that the growing plurality of voices would inevitably result in a horizontal contestation for religious authority and representation among the Muslim communities around the world. They referred specifically to the emergence of a new religious elite that sought to challenge the traditional authority of the ʿulamā’. In Singapore, there are new tensions emerging over a range of issues pertaining to Islamic identity within a secular nation-state. They include differences of opinion regarding the role of Islamic education, the use of the Muslim headscarf in public schools, and secularism. More importantly, these horizontal contestations over meanings within the Muslim community have spilt over into vertical tensions with the state over the legitimate representation of the Muslim community. However, before we can explore this nexus a brief look at the administration of Islam in post-independence Singapore is necessary.
The Administration of Islam in Singapore
Singapore is a secular state. The Constitution upholds the right of groups to adhere to their religious faiths but enshrines a separation of religion and state. Experiences with religious riots, including the 1964 riots during the Prophet Muḥammad’s birthday celebrations, have led to strong controls on religious activities. For example, while all religious groups are granted space to engage in their practices,
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open and aggressive proselytising is not allowed. Additionally, a Maintenance of Religious Harmony Act was enacted in the late 1980s authorising the state to “take action against any religious group or institution that carried out subversive activities under the guise of practising religious belief” following the involvement of church groups in a perceived ‘Communist conspiracy’. However, it is important to note that the state does not ban or bar religious activities. Indeed, it could be argued that the state encourages the development of religious moral codes for its respective citizen-communities but insists that religious identities be kept out of politics. The idea of secularism as propagated by the state is thus more complex than simply privatisation of religion. This is reflected in its administration of Islam. As discussed earlier the framework for the administration of Islam was laid out during the later part of the British colonial administration when the Muslim elite negotiated for representation in state, pushed for greater coordination of Islamic practices and the implementation of the sharīʿah as customary code alongside civil law, culminating in the enactment of the Muslim Ordinance of 1957. In 1965 the Administration of Muslim Law Act (AMLA) was introduced in the newly independent Singapore parliament to reinforce the provisions already in the Muslim Ordinance and synchronise the management of Muslim affairs such as collection of the zakāt (islam’s obligatory ‘alms tax’), administration of mosques, management of waqf (an inalienable religious endowment in Islamic law, typically denoting a building or plot of land for Muslim religious or charitable purposes; in Malay known as wakaf) land and the coordination of ḥajj activities. The AMLA also called for the creation of a statutory board that could advise the government on matters pertaining to the Muslim community, leading to the establishment of MUIS in 1968. MUIS constitutes an executive-president who was appointed by the President of the Republic of Singapore on the recommendation of the Prime Minister and a list of nominees from the different Muslim organisations in Singapore. In addition, the office of muftī, or the country’s chief expounder of Islamic law, was also created to preside over the Fatwā Committee, with the responsibility of issuing religious rulings pertaining to Islamic law. With the establishment of MUIS, Muslims in Singapore encountered a religious bureaucracy that sought to administer and manage the community. It has a central role in the collection of zakāt fiṭrah(an additional charity to be paid once a year), the administration of all wakaf land by the Muslim Endowments Board and centralisa- tion of the annual ḥajj pilgrimage to Mecca; from 1975 onwards, all pilgrims had to register with MUIS before obtaining their relevant visas and could only perform the ḥajj through MUIS-approved vendors. The centralisation of religious administration was also evident in the role that MUIS would come to play in mosque management. Prior to Singapore’s independence, individual mosques were constructed and maintained by the local Muslim populations living within their respective vicinities.
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MUIS acquired responsibility for managing about 90 existing village mosques.31 In the immediate post-independence period, however, the government embarked on a massive public housing development project. This meant that many Muslims, along with the rest of the population, were re-settled in modern apartment blocks. Muslims were thus cut off from their village mosques, which were also likely to be demolished to make way for new development projects, including large public housing estates. In the 1970s, the decision was made to build large centralised mosques in each housing estate. However, there were concerns over whether sufficient funds could be raised to build and maintain those large mosques. MUIS emerged as a key player in ensuring that the minority Muslim communities were not deprived of their mosques when it pushed for the establishment of a Mosque Building Fund (MBF). The MBF sought to utilise a small portion of the compulsory social security fund the Central Provident Fund (CPF) of Muslim citizens to help in the building and maintenance of the mosques. The government agreed to the establishment of the MBF in 1975. The MBF is wholly administered by MUIS and has been crucial in the massive construction of ‘new generation’ mosques throughout Singapore. It was only through the MBF that sufficient funds were raised to build these large centralised mosques to replace smaller kampong (or rural) mosques destroyed in the urban redevelopment plan. Between 1975 and 1980, six new mosques were built amounting to a total cost of S$10,985,580. Each mosque is capable of accommodating between 1,000 and 2,000 people and is equipped to provide a wide range of activities. Consequently, from the 1980s onwards mosques flourished as centres of activity for Muslims. These new generation mosques provided kindergartens, religious classes, pilgrimage classes, Arabic language courses, remedial tuition classes and even family counselling. The former president of MUIS, Haji Maarof Salleh, proudly proclaimed that mosque building and management had been among the most successful responsibilities undertaken by MUIS to date.32 He added that this project was so successful that it had led to complains from the government that Muslims were not making use of facilities provided by the Community Centres (CCs) in the public housing estates.33 AMLA has provided for the establishment of a centralised religious bureaucracy, MUIS, to administer Islam in Singapore. This has led Siddique to point out that “few foresaw the hegemonic role which MUIS would play in the development of the Muslim community in the 1970s and 1980s”.34 However, the writer of these lines would argue that the state’s centralised administration of Muslims in Singapore has not always been smooth. While the AMLA has facilitated the administration of sharīʿah courts and the Registry of Muslim Marriages and enabled MUIS to take over select Islamic activities including mosque building and maintenance, centralised control over other autonomous Islamic institutions was more difficult. Many of these institutions had been in existence prior to the establishment of
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MUIS. For example the position of the ʿulamā’ is not easily controlled by MUIS. While MUIS’s approval is necessary for the nominees to mosque management committees, the ʿulamā’’s authority within the mosque cannot be easily challenged.35 An individual Muslim cleric can still deliver his own sermons over and above those of the text provided by MUIS although most would read the MUIS-prescribed texts first. The uneasy relationship between MUIS and PERGAS is a testimony to this. We shall return to this point later. More recently, engagements between the state and the Muslim community over Islamic education in Singapore has pointed to the difficulties of administering Islam through a centralised bureaucracy. In 1999, then Prime Minister Goh Chok Tong voiced concerns about the number of madrasah students who were dropping out without completing their lower secondary education.36 The speech and subsequent announcement that the Ministry of Education would make elementary school education compulsory for all Singaporeans sparked a storm of discussions within the Muslim community regarding the future of Islamic education in Singapore. In the process, it became clear that MUIS had not been able to extend its administra- tion over the madrasahs in Singapore. MUIS officials I interviewed admitted that they had very little power and authority over these schools.37 They attributed this to the fact that the madrasahs had been in existence since the late nineteenth and early twentieth centuries. Furthermore, the madrasahs came under the purview of the Ministry of Education as ‘private schools’ whose authority superseded that of MUIS. Therefore, the madrasahs and their religious teachers enjoyed substantial autonomy in the administration, curriculum and teaching within these schools. Additionally, there are various religious organisations/bodies that are relatively autonomous from MUIS. Many of these organisations existed prior to Singapore’s independence, and while MUIS oversees these associations, they retain their institutional independence. Examples include PERGAS, the Singapore Dakwah Movement (PERDAUS), and the Muslim Missionary Society of Singapore (Jami’yah). PERGAS was registered as an association in 1957, while Jami’yah is the oldest Islamic organisation in Singapore, having been established in 1932. Both associations had provided submissions during the drafting of the AMLA in 1966. Disagreements between MUIS and these associations have occurred in the past but more often than not such debates took place behind closed doors. For example, there were disagreements between MUIS and Indian-Muslim associations over the use of the Muslim Endowment Fund in the 1970s. There had also been disagreements between MUIS and Jami’yah over dakwah (proselytising) activities. There have been rather public demonstrations of disagreements between MUIS and these Islamic bodies more recently. This writer argues that this has been a reflection of the new tensions over representation of Islamic authority in Singapore. For example, in the run-up to the war in Iraq, four Islamic organisations in Singapore
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came out to issue a joint press statement objecting to the US move. They were PERGAS, PERDAUS, Muhammadiyah and the Centre for Contemporary Islamic Studies (CCIS). MUIS had registered discomfort but stopped far short of making a statement against the US-led war. In several discussions with cabinet ministers and MUIS officials prior to and during the initial few days of the US-led war, representa- tives from these organisations had also voiced their displeasure at Singapore’s firm support for the US position. They made clear that even if MUIS could not come out publicly against the war, they – as representatives of the Muslim community – should be given the right and space to voice their objections.
Emerging Arenas of Contestation Between State and Muslims in Singapore
What we have seen is, therefore, the emergence of horizontal and vertical contestations for meanings and representation of Islam in contemporary Singapore. These emerging pluralities of meanings, however, are confronted with the push for the centralisation of religious administration by the state. In other words, while new ideas and interpretations continue to evolve from within the Muslim communities in Singapore, the space within which these contestations can take place appears to be shrinking. This is producing new arenas of tension between the state, often represented by MUIS, and groups within the Muslim community. We would highlight here several issue areas that reflect the growing tensions over legitimate representation of Islamic authority in Singapore. The ‘tudung controversy’ mentioned at the beginning of this article must be taken alongside these other areas of contestations. However, we should begin briefly with a discussion of theJemaah Islamiyah threat to Singapore. The discovery of a regional terrorist network, operating and being coordinated from within Singapore, raised the question of potential conflict between Muslims and the state to high prominence. If there was to be growing tension and potential for conflict between a secular state and an increasingly religious minority population, the threat would be the best evidence of this. However, we should make the case here that the network itself is fairly disconnected to these developments within the Muslim community in the sense that it does not reflect a conflict between a disenfranchised religious minority community against a repressive state. Yet, the existence of Jemaah Islamiyah suggests the growth of radical perspectives on Islam and a potential arena of conflict between its ideology and that of a secular state.
Jemaah Islamiyah Between December 2001 and August 2002, Singapore’s Internal Security Department (ISD) arrested 34 Muslim men for planning bomb attacks throughout Singapore.
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These men were leaders and members of the Jemaah Islamiyah (JI) regional terrorist cells linking Indonesia, Malaysia, and Singapore. Their aim was to create a dawlah islāmiyyah (Islamic state) in the region through the use of violence.38 JI is also linked to the bombings in Bali in October 2002 and the more recent Mariott Hotel bombing in the centre of the Indonesian capital of Jakarta. The discovery of the plot proved shocking for the government as well as the citizens of Singapore. It reinforced the emerging dominant discourse of a growing Islamic consciousness among Muslims and suggested for the first time a link with religious extremism. To put it another way, it reinforced the notion of an increasingly homogeneous fundamentalist Islam growing on Singapore soil. It raised the question of incompatibility between Islam and secularism as much as old questions regarding the marginalisation of minority communities by Singapore’s predominantly non-Malay and non-Muslim state. The White Paper on the JI revealed that the arrested men were relatively educated and with jobs. It stated that “these men were not ignorant, destitute or disenfran- chised”, but appeared to regard “religion as the most important personal value”.39 The document did point out that the men tended to shun “mainstream” religious classes or gatherings and were focused on creating an Islamic state in the region through jihad. While a case can be made that the men were not economically deprived, the alienation of these men vis-à-vis the secular, capitalist state can factor into why there was involvement in such activities. There was evidence that the men had received education and training in Afghanistan and Pakistan prior to joining JI activities. Several reports suggested that trips to Pakistan exposed the soon-to-be regional leaders of JI to a more militant understanding of their religion. Upon their return the men recruited followers. The growing sense of frustration and alienation vis-à-vis the larger community and state among fellow Muslims led the few to be attracted to the JI ideology. Nevertheless, further research is necessary in explaining the link between religiosity and violent action of the kind planned by the JI members. It is also important to point out that the reaction of the Muslim community towards the arrest and imprisonment of the JI members was fairly uniform. From shocked disbelief that such a network had evolved in Singapore, Muslim organisations came out in support of the arrests. All condemned the planned actions of the JI members and pointed out that such actions were not Islamic. Most felt that JI members had been led astray by external or foreign elements. Hence the focus turned to erroneous teachings in Islam with calls for a tightening of religious teaching.40 In many ways, JI quickly became a non-issue among Muslims in Singapore. The primary concern for many was how it would adversely affect the state’s perception towards the community, including concerns about the labelling of Muslims into categories such as ‘radical’, ‘moderate’ and ‘liberal’.
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The concern that there are efforts on the part of the state to further centralise and tighten control over the community vis-à-vis a religious bureaucracy and through its security agencies is real. For example, there are efforts to restructure MUIS so that the agency can better administer on matters pertaining to Islamic education and mosque development. For example, MUIS has finally been given additional authority to administer and develop the madrasahs in Singapore. Previously, the Ministry madrasahs remained under the purview of the Minister of Education. MUIS has also announced its intention to monitor mosques and madrasahs closely to prevent deviant teachings from being circulated. It has also reinforced a registry of Muslim or religious teachers. In light of the emerging tensions between MUIS and the Muslim community over legitimate representation of authority, such a move may in fact worsen the situation. It is to these emerging tensions that we now turn. They are over
• Islamic education, • the Islamic headscarf, • the issue of secularism and Islam, and • alternative Muslim representation.
The madrasah issue There are six full-time Islamic schools or madrasahs in Singapore.41 These madrasahs predate Singapore’s political independence. After independence, madrasah education grew increasingly less popular as Malay-Muslim parents opted to send their children to national schools. However, in the mid 1980s, a growing number of parents opted to send their children, in particular young girls, to the madrasah. Government officials expressed their concern about this trend in August 1999. This sparked off heated discussions within the Muslim community and between the representatives of the madrasah and the government. Much of the debate occurred within the (now inactive) PERGAS website, CyberUmmah, with accusations that the state was intent on eliminating the last bastion of autonomous Islamic activity in Singapore. When the government announced its intention to introduce Compulsory Education (CE) for all children from ages six to ten, PERGAS was compelled to issue a stern warning that it would not allow any effort to undermine or shut down Islamic education in Singapore.42 This caught many by surprise. For the first time it indicated willingness to confront the state openly. PERGAS officials explained that they had little choice but to express their views directly with the government on the issue.43 Meanwhile, others from outside the community of ʿulamā’ argued that if public schools allowed Muslims to adhere to Islamic practices, including the headscarf
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for women and scheduled prayer times, then madrasah education would be less attractive. Yet, others agreed with the government position that the madrasahs were not performing up to the mark and called for greater coordination of madrasah curricula and teacher training by MUIS.44 The madrasah debate appeared to have opened a Pandora’s box on the struggle for meaning and representation within Islam and in the relationship between the Muslim community and the state. Government officials seemed surprised by the emotional responses from the ʿulamā’ community while the debates clearly showed that Muslims themselves were quite divided on the issues. In the end, the government appeared to have backed off and exempted students enrolled in the six full-time madrasahs from compulsory education in a public school. The state insisted however that the ʿulamā’ madrasahs would have to prepare their students for the Primary School Leaving Certification Examination and that it had the right to review the performance of these students at the end of the six years.
The ‘tudung’ issue In spite of the publicity, the controversy over the Muslim headscarf did not suddenly emerge in 2003. Requests from parents for public schools to allow their daughters to wear the headscarf had been on the increase since the early 1990s.45 There were already instances when certain schools would allow female Muslim students to cover their head and wear a school uniform with longer sleeves and lengthier skirts. The issue was often raised at dialogue sessions between Muslim groups and government agencies. For example, in 2000, the issue was raised in a dialogue with then Prime Minister Goh Chok Tong, with rather passionate appeals for the government to allow the wearing of the headscarf so as to counter the increasing number of parents sending their children to a madrasah. This culminated with the public display of disagreement with the official policy on 2 January 2003 and the suspension of four young girls from primary school. Following the incident, MUIS issued a public statement asserting that the religion of Islam did not require young girls to cover their heads.46 It further stated that Islam prized education over the issue of awrah (in Malay: aurat; parts of the body that are permissible to be shown publicly) if a choice had to be made. This position, however, was not accepted by the ʿulamā’. The next day, PERGAS issued a statement maintaining that ḥijāb (‘modest’ covering for women) was compulsory and that “it is the responsibility of every individual Muslim to strive as best he/ she can to remove whatever causes which obstruct the fulfilment of one’s religious duties”. They implored the Muslim community to do their part in “finding a way such that our children can be permitted to don the modest attire as required by Islam when they are in school”.47
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While there had been no incidences of female Muslim students being barred from school since 2004, the ‘tudung issue’ is unlikely to disappear. Muslims were placated when then Prime Minister Goh Chok Tong announced the possibility of female students being allowed to wear the Muslim headscarf in the future. Muslim leaders interviewed by this writer, including the ones in PERGAS, were confident that if dialogue with the state on the issue was kept open and consistent, the government would ultimately relent on allowing the Muslim dresscode to become institutional- ised. MUIS officials have found themselves in a tight spot in refusing to refute the claim of the ʿulamā’ on the issue. Discussions have not, for example, focused on the validity of the ʿulamā’’s claim but rather on strategies for negotiation with the state.
Islam and secularism The president of MUIS, Alami Musa, acknowledged that there has been an emerging perception of tensions developing between Islam and secularism in Singapore.48 He tied this to his observation that a progressive brand has been developing within the Muslim community, seeking an understanding of their position vis-à-vis a secular nation-state, as more and more Muslims come to grips with what it means to live as a Muslim minority in a secular state. This involves having a sphere for Islamic beliefs and practices without contradicting the basis of a secular state. Hence Muslims would reject secularism if it were an ideology that negates the position of religion but would have no problem with a secular state that respects the basic religious beliefs of its citizens, which is already constitutionally guaranteed. Alami Musa’s comments came after an ʿulamā’ congress organised by PERGAS issued a statement regarding secularism and Islam in 2003. At this congress, ʿulamā’ deliberated on a range of issues including the labelling of Muslims as moderates and radicals, as well as future challenges facing Muslim communities around the world. The congress was not open to the public but a local Malay newspaper report stated that PERGAS ʿulamā’ had endorsed the need for Singaporean Muslims to adapt themselves to a secular environment.49 PERGAS replied with another strongly worded statement denying that such a position was taken at the congress.50 In its statement, the president of PERGAS, Ustaz Hasbi, explained that Muslims could only accept a secular state if it meant that the state would remain neutral vis-à-vis religious groups in society. He reiterated that Islam was a comprehensive way of life and did not distinguish between the public and private spheres. The issue of how Muslims should accommodate to a secular environment was actively discussed at the 2003 congress of ʿulamā’; they were cognisant of the inherent tensions. For example, the younger, university trained ʿulamā’ in particular were concerned about addressing the temptations facing Muslim youth, including basic questions regarding drinking alcohol, abortion and pre-marital sex. There was clear recognition that the globalised and westernised nature of Singapore society
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would seriously challenge Muslims and their faith. They felt it their responsibility to serve as the moral anchor for Muslim society since, as a Muslim cleric explained, “MUIS could not do it”. When asked why, one of them explained that since “MUIS is a statutory board they must serve the interests of the state. It is our responsibility to serve the interest of the Muslim community.”51 Tensions between Islam and secularism are likely to persist. Already on 12 June 2004, PERGAS issued a press statement declaring their objections to government plans to turn Sentosa Island into a Las Vegas-like casino strip on grounds that gambling is immoral and would encourage other immoral activities. Sentosa is a small island of the southern tip of Singapore and had served as a tourist and recreational destination for some years. However, dwindling visitor arrivals prompted discussions about making the island a casino so as to generate economic activities and attract the tourist dollar. Dialogue sessions between government and the public to gather feedback on plans have only just started. It is clear that a new generation of ʿulamā’ is taking a proactive role in protecting the community from what they perceive as the onslaught of secularism.
Alternative Muslim leadership At the tenth anniversary of the Association of Malay-Muslim Professionals (AMP) in 2000, the organisation proposed a multipronged approach towards the betterment of the Malay-Muslim community. AMP was formed in 1990 as an alternative voice to the government self-help group, MENDAKI. In its early years, AMP concentrated its activities on the educational economic advancement of the Malay community. Like MENDAKI, AMP conducted remedial classes, provided social welfare services for poor Malay families and ran enrichment classes for Malay children. However, in 2000 it developed an interest in managing growing Islamic consciousness among Malay-Muslims in Singapore.52 The organisation proposed the development of the mosques and argued for the need to harness the leadership potential of religious leaders in helping the community move forward. They wanted a public role for Islam. The state’s reaction was to reject the AMP proposals for alternative Muslim leadership to Malay Members of Parliament as efforts at undermining the latter’s legitimacy. The Prime Minister’s Office issued a press statement declaring that if AMP wanted to propose alternative leadership for Malays they should form a political party and contest the general elections.53 However, in so doing the state may have misunderstood the point of contention. The AMP proposal simply rejected the conflation of the ethnic and religious identity that had so far governed the state’s administration of Malay and Muslim affairs. For the People’s Action Party (PAP) government, leadership and representa- tion are based on ethnicity and not religious affiliation. We see this clearly in the formula for the super-constituencies instituted in Singapore’s political system in
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the 1990s. The Group Representation Constituencies (GRCs) were introduced to ensure minority representation in parliament. In a GRC, six candidates – one of which must be from a minority group – run on a single party slate to represent a super-constituency. The minority representation, however, is defined narrowly as minority ‘race’. For instance, in ascertaining whether a non-Chinese candidate can stand on a GRC slate, the Elections Commission checks the ethnic/racial identity of the candidate – but not his or her religious affiliation. In the case of representation of the Muslim community, the PAP government assumes that religious representation is encapsulated by the ethnic identity that is by ‘Malay’ representation. It assumes the Malay Members of Parliament to also be Muslim MPs. Further testimony to this comes from the recent tradition of appointing the Malay cabinet minister – often the Minister of Community Development and Sports – to the position of Minister in charge of Muslim Affairs. The AMP proposal suggested the need for a separation of ethnic and religious rep- resentation. While acknowledging the good that the Malay political leadership had done, the proposal questioned the extent to which the Malay elite truly represented the religious interests of the community. The AMP proposal suggested an acknowl- edgement of a Muslim elite that could serve as a real bridge between the state and the Muslim society in Singapore. AMP had the ʿulamā’ in mind although which particular group of ʿulamā’ was not made clear in the proposal. Hence the AMP proposal called for special attention to be paid to the positive role that mosque leaders and ʿulamā’ could play at the grassroots level, and in linking the community to the state. They argued that since the ʿulamā’ understood the pulse of the religious community best, they should be properly acknowledged as the legitimate alternative Leadership for the Muslim (and Malay) community. The proposal died a quick death but it does point us to an important tension that results from the growing plurality among Muslims in Singapore and the diminishing space resulting from the state administration of Islam. The colonial period had paved the way for a select Muslim elite to administer Islam. In the post-independence period, the state established MUIS as a kind of religious bureaucracy that could advise it on matters pertaining to Islam. This religious bureaucracy is in the hands of the Malay politicians and not in those of the ʿulamā’, leading to questions over who should best represent the Muslim community in their negotiations with the state. However, horizontal contestations of meanings and representations within the community have been growing and questions over who would legitimately represent religious authority vis-à-vis the state have become more difficult to resolve. Debates over the proposed amendments to the Administration of Muslim Law (AMLA) Act in the late 1990s also testify to this emerging tension between the ʿulamā’ and the existing Malay political elite. In 1995, a review of AMLA was carried out by a select committee comprised of officials from MUIS and Muslim
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professionals. No ʿulamā’ were specifically consulted. MUIS officials explained that involving the ʿulamā’ at that stage was not necessary since many within MUIS were also Islamic scholars.54 MUIS met with several Islamic organisations including PERGAS to discuss the proposed amendments to AMLA. PERGAS objected to amendments to the concurrent jurisdiction of the sharīʿah and civil courts, which would have allowed Muslims the choice of seeking remedy on ancillary matters such as custody, maintenance claims and division of matrimonial property to either court. PERGAS interpreted these moves as undermining the jurisdiction of the sharīʿah court.55 The exchanges between PERGAS and MUIS representatives proved heated. The amendments to AMLA were finally enacted in 1998 without incorporating PERGAS’s objections. The committee explained that Singapore citizens had to be accorded the right of equal access to civil courts in the event of an irreconcilable dispute at the sharīʿah court.
Islam, State, Society and Politics in Singapore: Some Conclusions and Recommendations
We have tried to show how Islamic society in Singapore is an evolving entity. While there has been substantial fusion of localised Malay identities and Islamic consciousness, the society remains open to external influences and ideational flows creating dynamic shifts within the Muslim community. Hence, Islamic society in Singapore has not only evolved through different phases but also become increasingly more pluralistic and complex. The relationship between state and the society can be characterised by attempts at centralisation of religious authority and careful administration. The incongruence of growing pluralisms within the society and a centralising tendency of the state is producing new arenas of contestation, leading to tensions between the state-sanctioned Muslim elite and the ʿulamā’ community, who are themselves becoming more diverse. Muslim politics in Singapore can therefore be characterised by the horizontal contestations of meanings and a vertical contest for legitimate representation of the Islamic society to the state. To put it another way, emerging tensions between the state and Islam may not be about the infringement of religious rights of a minority Muslim community or about a marginalised Malay community, but as a consequence of the growing complexities within Muslim society itself. Therefore,
• the question for the future is whether the state should allow a new set of Muslim elites to emerge. A second question would be which ‘Muslim’ elite. For example, not every Muslim agrees with PERGAS’s brand of Islam. The tone it has taken in stepping forward as the defender of the religion suggests an intolerant attitude to reformist elements within Islam. For example, on
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the issue of the Muslim headscarf, PERGAS insisted that any ruling on the matter could only be undertaken by “those qualified in the field so as to avoid confusing the masses”. • Muslim politics in Singapore requires a careful balance between the admin- istration of Islam and allowing space for Islamic society to reform itself from within. This may entail less centralisation and more space for greater pluralism within Islam. In the aftermath of the September 11 terrorist attacks in the United States and the arrest of 34 Singaporean Muslim men for allegedly planning terrorist attacks in Singapore in 2001, this careful balance may have become much harder to achieve.
Notes
1. “Singapore School Dress Code Alienates Muslims”, The New York Times, 27 February 2002. 2. Ibid. 3. The Straits Times [Singapore], 3 February 2002. 4. See the official website for KARAMAH, available online at http://www.karamah.org (accessed on 6 July 2010). 5. Singapore Department of Statistics, Ministry of Trade and Industry, “Census of Population 2000”, available online at http://www.singstat.gov.sg/pubn/popn/cop2000admin.pdf (accessed on 6 July 2010), 9. 6. Willard Hanna, The Malays of Singapore (New York: American Universities Field Staff, 1966); Stanley Bedlington, The Singapore Malay Community: The Politics of State Integration (Ithaca NY: Cornell University Press Southeast Asia Program, 1974); Tania Li, Malays in Singapore: Culture, Economy and Ideology (Singapore: Oxford University Press, 1989); Lily Zubaidah Rahim, The Singapore Dilemma: The Political and Educational Marginality of the Malay Community (Singapore: Oxford University Press, 1998). 7. Suzaina Kadir and Yusaku Horiuchi, “Political Culture and the Singapore Puzzle”, IOC Discussion Papers 8 (Tokyo: University of Tokyo, Institute of Oriental Culture, March 2003), 6–7. 8. Yayasan Mendaki, “Progress of the Malay Community Since 1990”, available online at http://www. mendaki.org.sg/content.jsp?cont_cat_id=12&cont_id=92. 9. Rahim, The Singapore Dilemma. 10. For example, data released by MENDAKI charted the progress of Malays admitted to polytechnics and universities from 1980 onwards. In 1980, only 1.3 per cent of the Malays gained admission to polytechnics and universities, while in 1990 this figure had risen to 13 per cent. 11. William Roff, The Origins of Malay Nationalism (New Haven CT: Yale University Press, 1967); M.B. Hooker, Islamic Law in Southeast Asia (Singapore: Oxford University Press, 1984). 12. Roff, Origins. 13. Sharon Siddique, “Administration of Islam in Singapore”, in: Taufik Abdullah and Sharon Siddique (eds), Islam and Society in Southeast Asia (Singapore: Institute of Southeast Asian Studies, 1986). 14. Ibid., 318–19. 15. Roff, Origins. 16. Siddique, “Administration”, 324–5. 17. Roff, Origins. 18. Hussin Mutalib, “Islamic Revivalism in ASEAN States: Political Implications”, Asian Survey 30, no. 9 (September 1990), 878. 19. Ibid.; Mak-Lau Fong, Modeling Islamization in Southeast Asia: Brunel and Singapore (Taipei: Program for Southeast Asian Studies, 2000).
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20. Fong, Modeling. 21. Kadir and Horiuchi, “Political Culture”. 22. Dale Eickelman and James Piscatori, Muslim Politics (Princeton: Princeton University Press, 1996). 23. Hussin Mutalib, “Islamic Education in Singapore: Present Trends and Challenges for the Future”, Journal of Muslim Minority Affairs 16, no. 2 (1996). 24. Interview with Ustaz Murad, President of PERGAS, Singapore, 23 February 2004. 25. Muhammad Haniff Hassan, “Asatizah: Siapa dan Bagaimana”, At-Takwin [Singapore] (July–September 2001), 11–28. 26. Ibid. 27. Interview with Ustaz Hasbi, President of PERGAS, Singapore, 23 February 2004. 28. Discussion with Mr Alami Musa, President of MUIS, Singapore, 17 April 2004. 29. Interview with Mr Alami Musa, President of MUIS, Singapore, 26 June 2004. 30. Eickelman and Piscatori, Muslim Politics. 31. Siddique, “Administration”, 327. 32. Interview with Haji Maarof Salleh, former president of MUIS and research fellow at the Institute of Southeast Asian Studies (ISEAS), Singapore, 21 April 2004. 33. Interview with Haji Maarof Salleh, former president of MUIS, Singapore, 21 April 2004. 34. Siddique, “Administration”, 326. 35. Interview with Mohd. Razak Lazim, Director, Mosque Division, MUIS, Singapore, 15 January 2004. 36. The Straits Times [Singapore], 23 August 1999. 37. Interview with Mr Razak Mohammed Lazim, Director, Mosque Division, MUIS. 38. Ministry of Home Affairs [Singapore], “White Paper: The Jemaah Islamiyah Arrests and the Threat of Terrorism”, January 2003, available online at http://www.mha.gov.sg/publication_details. aspx?pageid=35&cid=354 (accessed on 6 July 2010). 39. Ibid. 40. PERGAS press release on Jemaah Islamiyah arrests; see PERGAS website, available online at http://www.pergas.com.sg (accessed on 6 July 2010). 41. They are Madrasah Aljunied, Madrasah Alsagoff, Madrasah Wak Tanjung, Madrasah Al-Maarif, Madrasah AlErsyad and Madrasah Al-Arabiah. 42. See PERGAS press statement in Berita Harian [Singapore; in Malay], 10 May 2000; The Straits Times [Singapore], 11 May 2000. 43. Interviews with Ustaz Zul, Ustaz Murad and Ustaz Hasbi, PERGAS, Singapore, 15 October 2003. 44. See Straits Times Interactive Forum, 11 May 2000, available online at http://www.straitstimes.com/ ST+Forum/ST+Forum.html (accessed on 6 July 2010). 45. Interviews with Ustaz Murad, Singapore, 17 March 2004; Razak Lazim, MUIS, 25 May 2004. 46. See BBC Online, “Mufti Puts Schools over Scarves”, 6 February 2002, available online at http:// news.bbc.co.uk/2/hi/world/asia-pacific/1804470.stm (accessed on 6 July 2010). 47. See PERGAS press releases at the PERGAS website, available online at http://www.pergas.org.sg (accessed on 6 July 2010). 48. Discussion with Mr Alami Musa, President of MUIS, Singapore, 26 June 2004. 49. Berita Harian [Singapore; in Malay], 14 September 2003. 50. Berita Harian Forum [Singapore; in Malay], “Pergas tidak seru masyarakat Islam bersifat secular”, 16 September 2003. 51. Discussion with Ustaz Hasbi, 23 February 2004. 52. “Vision 2010: Setting the Community Agenda in 21st-Century Singapore”, 2nd National Convention of Singapore Malay-Muslim Professionals, 4–5 November, Singapore. 53. The Straits Times [Singapore], 10 November 2000. 54. Discussion with Haji Maarof Salleh, former president of MUIS, Singapore, 27 March 2004. 55. Report of the Select Committee on the Administration of Muslim Law (Amendment) Bill, Singapore, 1999.
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What Makes a Muslim Leader Mohammad Hashim Kamali*
‘Leadership Challenges for the New Era’ was the subject of a plenary session at the 6th World Islamic Economic Forum (WIEF) which was held at the Kuala Lumpur Convention Centre (KLCC) between 18 and 20 May 2010 and in which the writer of these lines participated. The topic generated a lively discussion by a panel of eminent speakers. HE Surin Pitsuan, Secretary General of ASEAN, for instance, moderated and referred in his opening remarks to the qur’ānic phrase ūlī ’l-amr (‘those in charge of affairs’; 4:59), raising the question as to who are the ūlī ’l-amr of today who can usher us into the new era. The first panellist, Malaysia’s former Prime Minister and Patron of IAIS Malaysia – Tun Abdullah Badawi – rightly stressed the role of education and recounted a question he was asked, during his recent visit to the Middle East, as to how Malaysia managed to be a success story among Muslim countries. He responded that Malaysia allocated a large portion of its budget to education – an area where Malaysia set a record. He also spoke passionately on the importance of grounding our youth in good values. The former Prime Minister of Pakistan, Shaukat Aziz, emphasised incorruptibility and transparency. He referred to several of the prevailing global problems – financial crises, terrorism, climate change, to name only a few – which are evidently the results of bad decisions, and thus a shortage of good leaders. Dr Ahmad Muhammad Ali, President of the Islamic Development Bank (IDB), recommended the ‘bottom-up’ approach to leadership whereby leaders arise from the grassroots level, as opposed to the elite-based ‘top-down’ model. The moderator addressed the floor with a remark as to why the youth were preoccupied with qualifications and career matters and uninvolved in public affairs – only to invoke an energetic rebuttal from many younger speakers: the younger generation everywhere is crying for attention; they want to be involved, but their voices all too often fall on deaf ears. According to them, mostly it is the leaders who are not opening up.
* Professor Mohammad Hashim Kamali is the Chairman and CEO of IAIS Malaysia. An earlier version of this Viewpoint appeared on 31 May 2010 in The New Straits Times (Kuala Lumpur).
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In my own brief intervention, I explored the Islamic dimension of our discussion a little further, which I should like to elaborate in the following. Surin Pitsuan’s quotation was reminiscent of another qur’ānic guideline: “Their (the Muslims’) affair is a matter of consultation among them” (42:38). Consultative leadership as such entails engagement, communication, and partnership, which is also implying that leaders are connected, interactive, and maintain good relations with their grassroots. Furthermore, walī al-amr (sing. of ūlī ’l-amr) is generic and inclusive and thus including anyone in charge of community affairs. A company director, judge, member of parliament, minister and head of state – all of them qualify in principle. This view, in turn, has been adopted into the juristic usage of the term wilāyah (pl. wilāyāt) to signify public authority. All government authorities are thus known as wilāyāt. Walī – lit. a friend and protector – is what a Muslim leader should be. He must remain open to sincere advice (naṣīḥah) and constructive criticism (muʿāraḍah). In a renowned ḥadīth we read: “Every one of you is a custodian and responsible for what is in his custody” – this means that the ruler is responsible for what is in his custody and so is every man and every woman. The Prophet also instructed: “Be not weak in character nor simply do what others do, whether good or bad. Rather make up your own minds: you may follow others in good deeds but not when they do something wrong.” What we see then is open and accessible leadership – not of a single person, but one in which everyone can take charge of what is placed under his or her custody. The Prophet also praised a leader who empathised with his people, reaching out to them and aligned with them around their needs and interests, and denounced leaders who distance themselves from the grassroots. Humility and dedication to service run through Islam’s guidelines on leadership, as in the ḥadīth: “The leader of a people is (veritably) their servant.” The second caliph, ʿUmar b. al-Khaṭṭāb (d. 644), added his voice to say: “There is no pomp and ceremony in Islam.” Leaders must also listen. Thus when someone rudely criticised ʿUmar in the presence of senior Companions, one of them asked for permission to deal with the intruder, but the caliph responded: “No, let him speak. No good will come out of us if we did not listen.” In saying this, however, this writer admits that Islamic history is littered with despotic leadership and grave neglect of basic guidelines. Moreover, age too is not a determining factor of leadership. ʿAlī b. Abī Ṭālib (d. 661), who later became the fourth caliph of early Islam, was the youngest among the Companions, but he was also a leading voice and a very close assistant of the Prophet. Similarly, when the Prophet appointed the 18-year-old Usāmah b. Zayd to lead an army expedition, elder Companions acceded, and events showed he was a good choice. Gender too should also not be a hindrance, as there is no prohibitive injunction on it. However, at times, certain issues arose that were mainly to medieval society practices. The Prophet’s wife, ʿĀ’ishah bt. Abī Bakr (d. 678), was a learned
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and leading figure among Companions, and later caliph ʿUmar appointed a woman, Shifā’ bt. ʿAbd Allāh (d. 665), as market inspector of Medina. The only exception Muslim scholars have made is for the head of state, as he would be the commander- in-chief of the armed forces. However, subsequent material changes in warfare and leadership make it inadvisable for the head of state to lead the army in person. Al-Māwardī (d. 1058), the author of a renowned text on governance, enumerates several qualities of a good leader, which he summarises into three: knowledge (ʿilm), just character (ʿadālah), and wisdom (ḥikmah). Leadership arises from knowledge, insight and virtue, a vision of the good, courage, humility, commitment, and God-consciousness. These are the ingredients of ḥikmah in a good leader. Knowledgeable leaders exuberate clarity of purpose and persuasiveness. The Qur’ān thus instructed the Prophet: “Take not a stand on something you are not knowledgeable about” (17:36). The term firāsah (foresight), a synonym of ḥikmah, is often used in the context of siyāsah sharʿiyyah (judicious policy), which affords the leader flexibility in the management of public affairs in order to make effective decisions in emergencies and fast unfolding scenarios. For instance, when calamity strikes and looters take people’s properties, the leader must act, and not, as it were, to await legal technicalities of evidence and proof. Siyāsah sharʿiyyah thus combines political acumen with the higher purposes of the sharīʿah. It is premised on the recognition that policy measures and administra- tive action by government leaders may go beyond the stricter confines of a certain ruling of the sharīʿah in the wider interests of good governance and justice.
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ICR 2-1 01 text 179 28/09/2010 11:06 Why Issues of Islamic Leadership are Important to ASEAN Osman Bakar*
In Southeast Asia, it is only rarely that issues of Islamic leadership are seriously discussed at respectable forums organised by prominent organisations, even when these are Muslim-initiated or Muslim-led. This is quite a surprising thing – and an unfortunate one. Given the large Muslim presence in the region, one would expect to see the opposite picture as true. Therefore, when I was invited by the Asian Institute of Management (AIM) in Manila to deliver a keynote speech at its two-day conference in April 2010 on the theme of Islamic leadership in a changing ASEAN (Association of Southeast Asian Nations) I did not hesitate to accept. At last, I thought, there is a positive change of mindset in the region concerning the international role of Islamic leadership. AIM organised the regional conference in collaboration with the Institute of Islamic Understanding Malaysia (IKIM) and the Paramadina University in Jakarta. In my address, I congratulated the organisers for having come forward with such a significant theme for the conference. I told them that many people will read the theme as a message of acknowledgement of the important role that Islam can play and the important contribution it can make towards the realisation of peace and development within ASEAN. I would like to take up here one of the points that I had stressed in my keynote address. This pertains to why ASEAN has to be concerned with issues of Islamic leadership. In my view, there are at least three reasons for this regional concern. One is demographic, the second historical, and the other civilisational. Demographi- cally, Muslims constitute about 40 per cent of the ASEAN population, making them its largest single religious group. In the light of this demographic factor alone, therefore, ASEAN Muslims can argue that they deserve to be considered as a major stakeholder in the regional community’s future development and wellbeing. The second reason is the historically rooted conflicts in southern Thailand and in Mindanao, the Philippines – both are multi-dimensional in nature, but are also largely cultural. They have prevailed for a long time and have so far defied all peace initiatives. These conflicts can threaten peace and development in ASEAN. Since Islam and Muslims are part of those conflicts, ASEAN places hope on a more enlightened future Islamic leadership to find lasting solutions to the conflicts. The third reason is the factor of Islam’s civilisational richness that Muslims would like to share with the rest of the community. Islam claims to have at its disposal
* Professor Osman Bakar is the Deputy CEO of IAIS Malaysia.
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the ‘intangible wealth’ in the form of its universal and contemporaneous teachings that may be tapped for answers to many of the problems ASEAN and its member states are now facing As a living civilisation that is now in the fifteenth century of its existence, Islam also claims to have inherited a rich treasury of historical experiences that may offer to the world useful insights into some of the major issues with which it is currently confronted. Let me mention five of these issues and challenges. First, there is the issue of knowledge society. This issue is becoming increasingly important in our contemporary global society. More and more people are talking, for example, about the need for a knowledge-economy (k-economy). In this new discourse, issues of knowledge and of knowledge-divide between societies feature prominently. The belief underlying this new thinking is that knowledge investment would be the key to future development and progress, particularly in the economic sphere. Just to illustrate the growing importance of these issues, IAIS Malaysia and The New Club of Paris, one of the world’s leading think-tanks on the subject, organised on 16 June 2010 a public dialogue on the theme of ‘value-based development’ that was well received. The reason why IAIS, an Islamic think-tank, has been approached by various parties for collaborative programmes is because they are interested to know what Islam has to say about these engaging issues. The second issue is that of tradition and modernity, which is related to the issue of change and permanence in human society. Every society faces this issue, more so developing ASEAN societies. In this region, as in other parts of the world, there have been approaches to economic development and social progress that tend to marginalise cultural traditions. Advanced countries in the West have long marginalised religious traditions as well in their path to development and progress. But in our region – more so among its Muslim communities – despite the rapid modernisation and development, many aspects of its religious and cultural traditions still thrive to this day. Reconciling between tradition and modernity is an on-going thing in the region. There is a large constituency out there in ASEAN societies who still believe in the importance of tradition and who insist on its continuing relevance. To the extent that religious and cultural traditions are still alive and strong in ASEAN, issues of tradition and modernity will continue to engage the minds of many people in the region. In Muslim societies in particular, given the pervasive influence of tradition, their encounter with modernity and modernisation has also generated ideas and movements for religious reforms. One of the most important religious reforms taking place in Muslim societies today is in the field of religious education. It is noteworthy that in the Philippines the ʿulamā’ have organised themselves into a group, meeting regularly to discuss issues important to the Muslim minority community in the country such as reforms in the traditional madrasahs and the role of the ʿulamā’.
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The third issue is the challenge of globalisation and ‘glocalisation’. People generally understand globalisation to mean that our contemporary world is characterised by greater flows of ideas and goods across national borders and increasing interdependence between member nations of the international community. If we view globalisation as an all-embracing phenomenon and as a total global process to embrace all kinds of ideas and goods – including the economic and financial, the political, the religious and cultural, and the scientific and technological – then we can see how impactful it has been on the lives of nations. The whole world has been impacted by globalisation, both positively and negatively. Southeast Asia is traditionally known as a region that is open to cultural influences from the outside world. Therefore, it is not at all surprising to see ASEAN receiving a more extensive impact of globalisation than many other regions of the world. The manifold challenges of globalisation are well-known. Muslim leaders in the region have responded to at least some of these challenges with varying degrees of success. But problems remain. Generally speaking, in response to the challenges of globalisation, Muslim leaders in ASEAN countries appear to be guided by the principle that the benefits of globalisation should be exploited to the fullest and its negative impact simultaneously minimised. When Malaysia’s present Prime Minister, Dato’ Sri Mohd Najib Tun Abdul Razak, was deputy Prime Minister he sought to popularise the idea of ‘glocalisation’ as a response to globalisation. ‘Glocalisation’ is presented as the guiding principle that would help a nation to define its national interests in the light of both the positive and negative impacts of globalisation. The fourth issue is the challenge of cultural pluralism, which I understand in its broadest sense to include religious pluralism. ASEAN as a whole is well noted for its cultural pluralism. The Philippines is predominantly Catholic. Indonesia is the world’s most populous Muslim nation. Thailand, Vietnam, and Myanmar are predominantly Buddhist. Moreover, there are many Hindus in Malaysia, Indonesia, and Singapore. Of all the regional groupings in the world today, ASEAN is easily the most heterogeneous. Some ASEAN countries are more pluralistic than others. In terms of its religious make-up, Malaysia is perhaps the most pluralistic of them all. Even before the post-colonial wave of globalisation the Southeast Asian region was already pluralistic. But globalisation has only made it more complex in its cultural make-up. Cultural pluralism poses numerous challenges that are not easy to overcome. It would indeed be a tremendous challenge for ASEAN to emerge as a fully integrated regional community given its unmatched cultural diversity. The experience of Muslim leaders in managing cultural pluralism in their respective countries may provide useful input into the regional discussion on the subject. Malaysia, in particular, has often been cited as a Muslim-majority country that has done relatively well in managing cultural pluralism and diversity.
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The fifth issue and a final one is the issue ofsustainable development. As ASEAN becomes more developed in the sense conventionally understood, which means increasing depletion of its natural resources without replacement, the more it has to worry about its future resources and about the fate of its future generations. A new philosophy of development and a new approach to it is needed. Sustainable development is now presented as the most sensible alternative for the world to adopt. Muslim academics, scholars, intellectual and political leaders, and non- governmental activists have all embraced the idea and, moreover, they have done so by claiming that it accords with the core teachings of Islam. All of these issues are being addressed in the core teachings of Islam as embodied in the Qur’ān. Since these issues will become more engaging to the region in the years to come, and since these are at the same time of major concern to Islam, we can expect to see a more visible role by the Islamic leadership at both national and regional levels in addressing these issues.
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ICR 2-1 01 text 183 28/09/2010 11:06 Islamic Affinities with New Sciences and Technologies Eric Winkel*
Science and Technology (ST) understood as mechanical Newtonian physics and industry has indeed bypassed Muslim societies – and that’s a good thing. Because with the new ST Muslims can become full participants rather than passive recipients. From the 1960s and 1970s, a few Muslim thinkers sounded the alarm about ST (e.g., Seyyed Hossein Nasr, Ismail Faruqi, and Syed Muhammad Naquib al-Attas). They were aware that Muslim societies were trying to catch up and join a system of knowledge and technological tools that were both ontologically opposed to Islam and harmful to Muslim cultures. At the same time, thinkers in the West were horrified at the implications of ST for the natural world and for human freedom (e.g., Theodore Roszak, Jerry Mander, Lewis Mumford, Jacques Ellul). Today, from intellectual discourse to popular culture and movies, the idea that the old science and technology has gone wrong is easy to find and accept. What is the ‘New Science and Technology’? First, it is something that sees itself as a critique, rejection, or improvement on what came before. Industry is dehumanising, petroleum-intensive, toxic, and consumerist. The old science assumes a mechanical world where we can predict, and control, nature. In contrast, the New ST gives preference to the small, human scale; to the local; to sustainability; to organic and healthy; to taste, not blind consumption. The science is of systems that are complex and nonlinear; huge traffic jams may result from only one car braking for one second; patterns emerge from what looks like chaos. These ‘emergent’ patterns show robustness and demonstrate new and desirable qualities only after they spin out of our control. The New ST is interested in networks and how tiny, even individual, inputs have profound consequences down the road. The New ST is interested in democracy, in systems that function without control from above, and in ways that are user-friendly and initiated and supported by users. E.W. Lawrimore, writing in 2004, speaks of “a profound truth so important for 21st Century leaders and organizations: Most organizations today were established on linear, mechanical principles, the organization as a machine, producing goods and services. Science abandoned the mechanical view of the universe almost 100 years ago. Most of us are still operating on a worldview that is left over from the machine age and is 100 years out of date! This is the Information Age, and nonlinear, complex adaptive systems are the best way to understand systems involving people.” Contemporary science still has its old ways, and contemporary technologies are often as destructive and harmful as they were before, even if a ‘green’ face has
* Dr Eric Winkel is Principal Research Fellow at IAIS Malaysia.
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been painted on. The ‘net generation’ has very intriguing possibilities, but there are negatives as well – is all that activity merely distraction? Aldous Huxley was worried about “the development of a vast mass communications industry, concerned in the main neither with the true nor the false, but with the unreal, the more or less totally irrelevant. In a word, they failed to take into account man’s almost infinite appetite for distractions.” Fully aware of these criticisms, we can still make a distinction between two different styles of ST, one largely industrial and the other given names like ‘knowl- edge-intensive’ or ‘green’ or ‘sustainable’ or ‘humanscale’. In the area of science, names that signal this other intent include ‘complexity’, ‘chaos’, ‘emergent’, and ‘quantum’. Many pieces and aspects of the New ST show a surprising affinity with Islamic civilisation. The spread of knowledge with the internet has remarkable similarities with paper and printing in the historical Arab-Islamic world, where knowledge was disseminated over long distances and among a fairly widely diverse, public audience. As Muslim societies seek to participate in this new realm, where they were previously passive recipients, resonances with the Islamic heritage could mean that this participation will become authentic, integral, and full. The first effort, then, is to engage the fullness of this heritage with the ‘now’. Democratic use of technologies, networks, patterns in the natural world, and the criterion of ‘beneficial’ (read ‘green’) applied to knowledge and ‘not harmful’ applied to technology are all examples desired by New ST and enjoined by Islamic civilisation. This effort is one of language, speaking a language that is inspired by Islam and familiar to the global ‘now’. Going back to the ‘family’ metaphor of ‘familiar’, in a sense this is introducing long-lost brothers to each other: they have had very different experiences, but they also recognise kinship. When ST was engrossed by the Doctrine of Self-Interest, there was not much interest in hearing voices from Islamic and other civilisations that said cooperation is fundamental to human nature. Scientists with the Santa Fe Institute have documented the failure of the ‘canonical selfishness based model’, and the field is open to Muslim contribution on cooperation. When nature and resources are seen as utterly exploitable and consumable, there was not much room for people who speak of the earth as our mother (as in the statement by Prophet Muḥammad, “And be mindful of the earth, because she is your mother”). With a growing sense of dystopia, the field is open for Muslims and others to speak of our connections to the earth; and to reject the arrogance that we must ‘save the planet’, because it is we who are the weak party, and we who need to be saved. This might be the time to leave the margins of science, technology, and history that Muslims were written into by a dominant culture and to enter fully into the new field of ST that is under no one’s control.
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ICR 2-1 01 text 185 28/09/2010 11:06 Enhancing Civilisational Dialogue between Malaysia and the European Union Christoph Marcinkowski*
Cooperation between the European Union (EU) and Malaysia started with the 1980 European Commission–ASEAN Agreement which has made it possible for Malaysia to benefit from a number of ASEAN and Asia-wide cooperation programmes. The EU Delegation to Malaysia was opened in 2003 and since then dialogue, policy interaction and cooperation with both federal and state authorities, the Malaysian and EU business community as well as the civil society has increased progressively. Moreover, Malaysia is also the EU’s second most important trading partner in ASEAN. No bilateral preferential trade arrangements exist between Malaysia and the EU, but under the new Generalised System of Preferences (GSP), in force since January 2006, the share of Malaysia’s merchandise exports to the EU eligible for preferential treatment rose from 16 per cent to 81 per cent. Over 70 per cent of Malaysia’s exports to the EU now enter duty-free. Malaysia records a trade surplus with most EU Member States. To the mind of the writer, however, EU–Malaysian relations are all too often reduced to facets that are related to economics and trade alone. Perhaps, EU–Malaysian relations are all too often focusing on facets that are related to economics, trade, technology, or cooperation in the vocational or academic sectors – in other words, a scenario where Malaysian students are trained in Europe and by Europeans, where European goods can be sold to Malaysians who are on the receiving end – an end where the ‘big money’ is supposedly to be made quickly. Such a mechanism, however, is surely favouring only one side. But what about civilisational dialogue within this setting, a dialogue which would well produce positive long-term effects for all parties involved? In order to counter this trend, the extension of cultural cooperation between the EU and Malaysia – a multicultural country that is also one of the leading nations of the Muslim world – could well open up new avenues of cooperation and understanding. Issues pertaining to the environment, human rights, security, migration, and higher education, for instance, are currently gaining in importance.
Possibilities and Challenges
With over 500 million citizens, the EU combined generated an estimated 28 per cent share (US$16.5 trillion) of the nominal and about 21 per cent (US$14.8 trillion) of * Dr Christoph Marcinkowski is Principal Research Fellow at IAIS Malaysia. From 2007 to 2008, he was Senior Research Fellow at the Asia-Europe Institute (AEI), University of Malaya, Kuala Lumpur.
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the PPP gross world product in 2009.1 The EU has developed a single market through a standardised system of laws, which apply in all member states, and ensures the free movement of people, goods, services and capital, including the abolition of passport controls by the Schengen Agreement. The EU also maintains common policies on trade, agriculture, fisheries, and regional development. Moreover, 16 member states have adopted a common currency – the euro, currently somewhat under pressure – to constitute what is commonly known as the ‘eurozone’. As a legal entity the EU is able to conclude treaties with countries and enact legislation in justice and internal affairs. It has devised the Common Foreign and Security Policy, thus developing a limited role in European defence and foreign policy. Permanent diplomatic missions of the EU are established around the world – including Malaysia. The EU operates through a hybrid system of ‘supranationalism’ and ‘intergovernmentalism’: in certain areas, decisions are taken by independent supranational institutions, while in others they are made through negotiation between member states. The EU is an economic and political union of 27 member states with different interests and constitutional settings. However, although there already exist several institutions which focus explicitly on Malaysian–EU relations – among them the Malaysia Europe Forum which quite recently, in March 2010, staged its ‘Malaysia Europe Forum Spring Dialogue’ in Munich, Germany – there is much more to do to make true Malaysian–European dialogue a reality. Most of these institutions happen to function as mere platforms for bringing together business people from both regions. However, what we are talking about here is intercultural dialogue for its own sake whereby other, certainly legitimate, agendas, would remain in the background. Recently, Professor Corrado Letta – a colleague of mine during my time at the University of Malaya’s Asia-Europe Institute (AEI) – wrote Malaysia–Europe: Strategic Partnerships for the Pacific Century, published by Malaysia’s Ministry of Foreign Affairs, a book which aims at critically examining Malaysia’s diplomacy and foreign relations vis-à-vis the EU and how this affects both economies. However, in spite of this laudable effort toward moving beyond purely economic issues, there is, alas, not much reference to intercultural dialogue in it. In order to address this serious issue and to fill in this gap for the first time, I have conceived the book Malaysia and the European Union: A Partnership for the 21st Century, which will be edited by Professor Letta in cooperation with Professor Ruhanas Harun (National Defence University of Malaysia) and Associate Professor Dr Constance Chevallier-Govers (University of Grenoble, France) and which will have a foreword by HE Vincent Piket, the Ambassador and Head of the EU Delegation to Malaysia. Malaysia and the European Union – forthcoming at a major European publishing house in 2011 – features essays by senior Malaysian and European practitioners and scholars as to the current state of relations between Malaysia and the European Union in core issues that would
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also include perspectives of cooperation in the fields of bilateral and multilateral relations, economics, finance, trade, the environment, higher education and academic cooperation, culture, gender, and intercivilisational dialogue, as well as human rights, security and international politics.
Moving Beyond: Some Recommendations
However, Malaysian–EU relations – and their extension beyond the fields of economics and trade – could also serve a wider purpose, a purpose that would contribute positively toward improving the rather strained relations between what are usually known (and rather clumsily subsumed) as ‘the West’ and ‘the Islamic world’, as Malaysia has always understood its own role as a bridge between those two major world civilisations. Relations between Europe and the world of Islam could be improved through the extension of cultural cooperation between the EU and Malaysia, a multicultural country that is, nevertheless, also one of the leading nations of the Muslim world, which could play a vital part. Events, such as the ‘Danish cartoon’ issue, the military involvement of several EU member states in Afghanistan and other parts of the Muslim world or the hotly disputed issue of Turkey’s bid for full membership in the EU are only some of the key indicators of the presently rather challenging state of affairs of European–Muslim relations. Moreover, in the last two decades or so, Muslims in Europe have managed to establish religious communities and to assert their identity in a more visible, public and – to some degree – more controversial manner. In May 2010, IAIS Malaysia and the Embassy of the Federal Republic of Germany in Kuala Lumpur took a step in the right direction by jointly staging “The First International Seminar on Germany and Islamic Culture”, a highly successful two-day event – partly organised by myself – which was also well received by many of the diplomatic representations accredited to Malaysia. Subsequently, several embassies of European countries have approached IAIS Malaysia, expressing their interest in jointly organising similar events. There are thus several positive outcomes and suggestions for future cooperation for which the EU–Malaysian story could only be a beginning:
• Regular events, staged jointly with European embassies and hosted by IAIS Malaysia, that would enhance further the current status of the Institute as the one-stop place in Malaysia for intercivilisational dialogue between Western and Muslim nations, should be envisaged. • Such events should also be planned in cooperation with other Western nations that have a considerable involvement with the Islamic world – at the forefront
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of those would be the United States which so far has kept a rather low profile in this regard, in spite of its Obama administration which is usually seen as somewhat more open to dialogue. • The embassies of the nations of the Organisation of the Islamic Conference (OIC) accredited to Malaysia could also be approached in this project. • By approaching both Western and Muslim nations in this dialogue project, it could become clear to all involved that neither of them constitutes a monolithic bloc, a realisation which could enhance further the building of trust between them.
In closing then, although I am aware that these are just ideas on the basis of ‘brainstorming’, they could, nevertheless, well become the basis of further, more concrete planning, as IAIS Malaysia has in the course of its first two years of existence established itself as an important forum of intercivilisational dialogue in the Southeast Asian region and beyond.
Note
1. World Economic Outlook Database, April 2010, International Monetary Fund, a vailable online at http://www.imf.org/external/pubs/ft/weo/2010/01/weodata/weorept.aspx?sy=2005&ey=2009&scs m=1&ssd=1&sort=country&ds=.&br=1&c=001%2C998&s=NGDP_RPCH%2CNGDPD%2CPP PGDP%2CPPPPC%2CPPPSH&grp=1&a=1&pr.x=36&pr.y=15 (accessed on 25 June 2010).
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ICR 2-1 01 text 189 28/09/2010 11:06 The Significance of Propagating Islam Hadhari in Japan Kazunori Hamamoto*
More than a year has passed since Tun Abdullah Ahmad Badawi resigned his position as Prime Minister of Malaysia. His Islam Hadhari (Civilisational Islam) approach is no longer a journalistic topic. However, I believe it is still significant as a topic of contemporary Islamic thought for it faces up to such serious problems as poverty and violence throughout the Muslim world of today and seeks well-balanced solutions which are not only consistent with Islamic ethics and moral values but also compatible with modernisation and multicultural realities. This Viewpoint proposes that the ideas of Islam Hadhari should be introduced to the Japanese people in order to correct their often distorted image of Islam. First, I shall report on how Islam is misunderstood by many of them, quoting eminent Japanese writers and politicians; then I shall refer to the efforts that should be made to improve the situation. I shall conclude by suggesting that propagating Islam Hadhari in Japan would help Japanese people understand Islam better.
Misunderstandings of Islam among the Japanese People
Various epithets such as ‘violent’ and ‘anachronistic’ have been unjustly given to Islam in Japan as well as in the West. Among others, ‘monistic’ and ‘exclusive’ are noteworthy sobriquets for Islam for those coming from the Japanese polytheistic tradition. An emeritus professor at Tokyo University, Takeshi Yoro, criticises monotheism for its monistic way of thinking, insisting that the monotheistic assumption that “I am 100% right” causes wars, terrorism and conflicts between nations or religions.1 Although his distorted view on monotheism is too simplistic in that he ignores, for instance, studies on diversity and pluralism by Muslims, such views are quite popular in Japan. In fact, Bakano kabe (Barriers Surrounding Bigoted Minds) – the book in which he expressed this view – topped the bestseller list in Japan in 2003. In June 2004, the Democratic Party proposed, in an interim report on amending the Constitution, that Japan should build a tolerant multicultural society based on Japanese polytheistic values, thereby totally disregarding monotheistic approaches. In November 2009, Ichiro Ozawa, Secretary-General of the Democratic Party, even remarked that “Christianity and Islam are exclusive”.2 In order to counter such misperceptions, Higuchi Mimasaka, emeritus chairman of the Japan Muslim Association, has expressed his hope that not only non-Muslims
* Kazunori Hamamoto is a PhD candidate at the Graduate School of Theology, Doshisha University, Kyoto, Japan.
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but also Muslims themselves in Japan will learn more about Islam. In the preface of his book, he says that two motives had urged him to write it: his sorrow for the Japanese people’s misconception of Islam as a militant religion and his concern over those Japanese Muslims who find it difficult to live up to Islamic values and standards in Japan. As for the second motive, he seems to be more anxious about those who are ready to ‘exit’ from Japanese society, supposedly on behalf of Islam, than about those who tend to neglect Muslim duties. Referring to a young Japanese Muslim who quit his job because he was not allowed to grow a beard at his workplace, Higuchi deplores this man for “mistaking Islam for having a particular appearance or leading a reticent and isolated life”.3
What Efforts Should Be Made?
Above all, it should be made clear that Islam is a peaceful religion. However, such a statement might sound empty without serious attempts to eradicate acts of terrorism. Muslims must stop killing innocent civilians and infighting. Second, concerning the accusation that Islam is monistic and exclusive, it should be explained that various interpretations of the Revelation have coexisted all the time since the Prophet Muḥammad died and that the Qur’ān has numerous verses which are favourable to religious pluralism.4 Third, with regard to the view that Islam is anachronistic, it should be pointed out that this view is based on the prevailing values in the contemporary world – namely Western values. Therefore, if someone oppresses Muslims merely because their faith seems not accord with today’s dominant values, he should be blamed for his own monism and exclusivism. It should be noted, on the other hand, that Islam does not refuse dialogue with religions nor does Islam deny that interpretations of the Revelation may vary, depending on matters of time, place, and particular circumstances. This implies that Islam does have the ability to reach consensus with other religions through meaningful dialogue between them. Fourth, it should be taught that God does not want to burden people with hardship. Accordingly, a conversion to Islam does not demand to change one’s lifestyle totally, let alone to break away from one’s society. Conceding that it is not easy to pray five times a day and fast for a full month every year in Japanese industrious culture, still Higuchi Mimasaka maintains, from his experience of Muslim life for over forty years, that Japanese Muslims should try to get along with Japanese society. He admits that Muslims have to be flexible in Japan. Instead, he emphasises the importance of penitence and compensation for not fulfilling duties, referring to the Prophet Muḥammad’s explanation that every good deed is acceptable as atonement – for example, removing stones, thorns and bones from roads or offering words and deeds of kindness to others. Furthermore, Higuchi observes that many Islamic
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virtues, such as charity, love for neighbours, honesty, tolerance and moderation, are actually also Japanese traditional virtues. Therefore, he concludes, “if Muslims in Japan bear this in mind and lead a peaceful and well-balanced life, they can propagate Islam without even raising their voices”.5
The Merits of Islam Hadhari
Despite its emphasis on economic development, Islam Hadhari should not be rashly judged as caring only about worldly matters. This is because the first principle of Islam Hadhari – faith and piety in Allāh – requires Muslims to practise Islam wholesomely.6 In this respect, there is no difference between ‘traditional Islam’ and Islam Hadhari. It was not with the intention of ‘distorting’ or ‘reducing’ Islam that Tun Abdullah Badawi emphasised economic development; he focused on what today’s Muslims, especially the Malays, often tend to neglect – for, generally speaking, administrative leaders should prioritise urgent concerns in order to make the most of their limited time and resources. In other words, Abdullah chooses to tackle economic problems first so that Islamic civilisation can recover its completeness and soundness. As he affirms, “It is an effort to bring theummah back to the basics of Islam. […] it will not cause Muslims to deviate from the true path.”7 Some readers might ask what on earth Japanese people, who have been called ‘economic animals’, can learn from Islam Hadhari. However, civilisation is not a mere accumulation of its material components.8 Whoever reads some of the speeches which Abdullah gave on Islam Hadhari will notice that he repeatedly emphasised the importance of spiritual elements, such as honesty, integrity, fraternity, charity, passion for justice, sense of fairness, love for peace, tolerance of diversity, willingness to dialogue, moderation, openness to self-criticism, and eagerness for knowledge. In Japan, as I wrote above, some of these have been regarded as alien to Islam, and this regrettable misunderstanding has prevented Japanese people from understand Islam properly. If they learn more about Islam Hadhari, they will be more sympathetic, or less hostile, to Islam. Abdullah encouraged Muslims not only to be morally upright but also to promote intellectual reform through ijtihād (intellectual effort) and jihād (practical effort), being convinced that the currently prevailing miserable situation of the contemporary Muslim world is attributable to blind imitation (taqlīd) of traditional views. Ijtihād makes interpretations of the Revelation suited to time and conditions. As for jihād, Abdullah, going back to its original and undistorted meaning, proposes that it should be interpreted as struggle in all aspects of life, including the pursuit of knowledge and the mastery of science.9 If these efforts toward civilisational renewal could be
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made known to the Japanese people, their misconception that Islam is rigid and out-of-date could be modified. Admittedly, Islam Hadhari does not answer directly the question of how Japanese Muslims should live. However, Abdullah’s call for ijtihād would enable them to understand the flexibility of Islam. They would also come to appreciate the importance of a proper balance between so-called ‘religious matters’ and so-called ‘worldly matters’ from Abdullah’s emphasis on ‘moderation’ and his belief that God not merely imposes ritual duties but requires Muslims to make every endeavour toward civilisational development. Furthermore, they would ultimately realise that Japanese Muslims have an obligation of dialogue with non-Muslims in Japan and that if they do make efforts for this purpose, it would be a great contribution to the development of Islamic civilisation.
Notes
1. Yoro Takashi, Bakano kabe (Tokyo: Shinchosha, 2003), 20–1 and 30. 2. http://www.asahi.com/politics/update/1110/TKY200911100459.html, accessed on 19 March 2010 [in Japanese]. 3. Higuchi Mimasaka, Nihonjinmusurimutoshite ikiru (Tokyo: Kouseishuppansha, Tokyo, 2007), 5 and 229–30. 4. Religious pluralism in Islam is different from that in the West; see Mohammad Hashim Kamali, “Diversity and Pluralism: A Qur’ānic Perspective”, Islam and Civilisational Renewal 1, no. 1 (October 2009), 34–5. 5. Higuchi Mimasaka, Nihonjinmusurimutoshite ikiru, 234–6 and 244–5. 6. Mohammad Hashim Kamali, Civilisational Renewal: Revisiting the Islam Hadhari Approach (Kuala Lumpur: IAIS Malaysia, 2008), 15. 7. Abdullah Ahmad Badawi, Islam Hadhari: A Model Approach for Development and Progress (Kuala Lumpur: MPH, 2006), 3. 8. Malik Bennabi, Mushkilāt al-afkār fī ’l-ʿālam al-islāmī (Cairo: Maktabah ʿAmmān, 1971), 50, quoted in Kamali, Civilisational Renewal, 26–7. 9. Abdullah, Islam Hadhari, 68.
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ICR 2-1 01 text 193 28/09/2010 11:06 Mandatory Rebate and Unearned Profit: The Latest BBA Decision Idrus Ismail*
A recent Malaysian High Court decision in BIMB v Azhar Osman & Ors. (2010) held that Bank Islam Malaysia Berhad is not entitled to claim the full sale price under its bayʿ bi-thaman ʿājil (BBA) financing scheme as it is obliged by the implied terms of the contract to grant a ‘rebate’ or ibra’ to the customer. This decision – implying a rebate where none is expressly stated – is roiling the Islamic banking community in much the same way as Justice Wahab Patail’s decision in Affin Bank v Zulkifly b. Abdullah did in 2005. Heads are huddled in Islamic banks to decide how to address the issue that sprang from this judicial determination: customers now are entitled to a rebate on the sale price by way of contractual obligation when in the past ibrā’ had always been at the discretion of the bank. Malaysia’s Central Bank Act (CBA) of 2009 was amended pursuant to the 2009 Court of Appeal decision in Arab Malaysian Finance Bhd v Taman Ihsan Jaya Sdn Bhd (2008) where it overturned Justice Wahab’s shocking decision to declare the BBA void a year before. Now the CBA allows sharīʿah advice to be sought and obtained from the National Shariah Advisory Council (NSAC) of Bank Negara Malaysia (BNM), whose advice is now binding when hitherto it was merely informative. With this enhancement to its power by the judicial body, it is time that the NSAC is engaged for a ruling (fatwā) on whether ibrā’, or rebate, in Islamic banking transactions can be made mandatory. The High Court’s objective of ensuring certainty for the customers is laudable, but contracting ibrā’ into the documentation and forcing Islamic banks to grant a rebate on the sale price has serious implications which need addressing quickly. The risk of ‘two-pricing’ and diluting the meaning of ibrā’ in the sharīʿah are just two layman views on why ibrā’ should still be discretionary and not be spelled out upfront but rather granted upon full settlement of the sale price.
* Idrus Ismail is a Malaysian lawyer specialising in Islamic finance. The author would like to men- tion that after the submission of this viewpoint, the National Shariah Advisory Council (NSAC) at Bank Negara Malaysia (BNM) has ruled in early June 2010 that mandatory ‘rebate’ or ibra’ can be contracted into the documentation by Islamic financial institutions. This appears to be a pivotal change from the stand taken by the sharīʿah committees of IFIs in the past where it was felt that ibra’ is discretionary and ought not be made mandatory upfront. The author is well aware of the dif- ference of opinion between the Association of Islamic Banks in Malaysia (AIBIM) and the Jabatan Perbankan Islam dan Takaful (JPIT) of BNM back then, with the former prevailing in its stand which reflected thesharī ʿah committees’ collective view.
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When a customer comes to an Islamic bank for a BBA facility he brings with him a sale and purchase agreement (SPA) for a property he intends to purchase and under which he has paid 10 per cent to the developer or vendor of the property. The bank is requested to finance the balance purchase price. Using the concept of ‘sale’, based on the qur’ānic injunction in 2:275, “Allāh prohibits usury but allows sale”, the customer first enters into the Property Purchase Agreement (PPA) where the bank purchases the asset under the SPA from him; the purchase price is the facility amount to be disbursed to the vendor. The customer then, almost immediately, resells the same asset back to the bank under a Property Sale Agreement (PSA) where the price is the sum total of the purchase price plus a mark-up (or profit margin) calculated over the tenure of the BBA facility. This is the sale price which the customer undertakes to pay. However, because the customer is unable to settle the sale price at once, the bank allows or indulges the customer to settle by instalments over, say, 25 years. The BBA is a means to allow a bank customer to benefit from sharīʿah-permissible financing by utilising the sale mode and allowing the sale price to be settled by monthly instalments; hence bayʿ (sale) bi-thaman ʿājil (on credit or by instalment payments). A form of debt financing, the BBA is actually amurābaḥah (cost plus) financing where the cost is topped with a premium or margin. The sharīʿah allows credit sale under BBA/murābaḥah. The transaction involves two parties, the original asset owner selling and repurchasing the same asset at an inflated credit price, this being a means – in Arabic termed ḥiyal (the plural of ḥīlah) by Muslim jurists – to obtain money from the first cash sale by skirting the prohibition onribā’ by direct lending. The BBA financing is a two-pronged transaction: it is firstly a sale transaction where the buy and sale of asset produces the sale price or proceeds of sale. It is secondly a financing transaction where upon the bank’s indulgence as the second seller, the customer or original asset owner is allowed to settle the sale price under the PSA by instalments or on credit. Profit for the full financing is already costed by way of the mark up over the purchase price, and the bank has earned the profit in full upon conclusion of the sale when the PSA is executed. It is perhaps the confusion arising from the above flows that brought about the concept of unearned profit (UEP). If one were to examine the Sale flow, it would be obvious that sale was completed when the asset was exchanged for money (this being a contract of exchange or ʿaqd al-muʿāwadāt). Once the requisites (arkān) and conditions (shurūṭ) of an Islamic sale are met, the sale is complete, and all profits are accounted for. But under the second part of the BBA flow, the bank allows the customer to settle by instalments or grants credit to him. This is the Financing transaction where the relationship becomes a long term debtor–creditor relationship: as long as the customer has not settled the sale price in full he remains a debtor, notwithstand-
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ing that the asset now is his by way of sale under the PSA by the bank. He has an obligation to pay the sale price in full, and if he defaults, the documentation allows the bank as creditor (cum charge or assignee) to take action to enforce the obligation including termination of the facility. The debt owing by the customer under the financing flow does not translate into unearned profit before the latter belongs to the sale flow: in fact, no profit remains to be earned once the PSA was executed as the sale was completed having complied with all the requisites and conditions of a sharīʿah sale. It is not proper to refer to the balance unpaid instalments as ‘unearned profit’ since the bank has already earned the profit at the time of execution of the PSA. The sale is over, and what remains is a new relationship established upon the customer’s request to settle the balance sale price by instalments, viz. a debtor–creditor relationship. The customer cannot in default cry that the bank is enriching itself unjustly by claiming the full sale price when the default is in the early stages of the tenure; he has agreed to pay the full sale price under the PSA which did not state payment has to be varied according to when the facility is terminated upon default; this would be against sharīʿah stricture not to have more than one price in the ʿaqd or contract. The bank is not enriching itself because it is entitled to the balance unpaid sale price which the customer has undertaken to pay under the PSA; under BBA, the buyer can settle the price either in one lump sum, or on credit by instalment payments. The fact that the bank indulges the customer’s request to allow him to pay on credit what he is owing under the sale price shows that there is no unjust enrichment as the bank is fully entitled to the sale price. In fact, it is the customer who is unjustly not keeping to his agreement to settle the sale price in full by defaulting and he cannot come to court with ‘dirty hands’ asking for equitable relief. In the view of this writer, terms like UEP are alien to Islamic banking as the Islamic bayʿ, or sale, does not mesh with the conventional lending principles: once the sale is complete, all profit is earned justly; in lending,unearned income comes into play when the tenure is interrupted and the bank is not supposed to levy more than the loan drawn down and enjoyed by the customer. The financing flow in the BBA transaction could have inevitably confused all parties when the proceeds of sale of the PSA, named ‘sale price’, is wrongly thought to be a loan to the customer. Despite being a facility extended upon request, it is nothing but a debt owing by a customer who ought to have settled the BBA price, but who is allowed by the bank’s indulgence to settle by instalments. Hence it is a debt by instalments rather than a loan on tenure. The conventional term ‘unearned income’ is now known as ‘unearned profit’, but this is indeed a strange term to use, since UEP does not even exist in the context of a bayʿ, or sale, that is complete and has met its requisites and conditions.
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The practice of paying up the sale price in full and granting a discretionary rebate, or ibrā’, to ensure equity and fairness is in accordance with the sharīʿah as firstly the customer is bound by his agreement under the PSA to pay the full sale price, and as even under civil law, one is bound by one’s signature and cannot claim ignorance when the bank enforces its claim. Secondly, ibrā’ is a discretion, but because the need to ensure Islamic financing is fair, all financiers inevitably grant ibrā’, despite the absence of a mandatory clause to force them to do it. It has become a common practice, but it is still within the realm of discretion as intended under the stipulations of ibrā’. Islamic bankers have to think how they can contest the ruling while remaining true to their professed calling of offering equitable financing at reasonable profit. However, this writer urges that recourse be made to the NSAC at BNM to pose the following questions: Can ibrā’ – being a discretionary rebate – be made mandatory by contracting it in the documentation? Can the concept of unearned profit be imported into Islamic financing when the sale is already complete and the bank as seller under the PSA has earned all its profit under the mark up to the purchase price? It is imperative that these issues are settled.
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ʿAbd al-Lat.īf al-H.usayn – Al-Amānah fī ’l-islām wa-āthāruhā fī ’l-mujtamaʿ [Trust in Islam and its effects on society] (al-Dammām: Dār Ibn al-Jawzī, 1426 AH [2005]), 536 pp.
Nora S. Eggen University of Oslo
Intrinsic to the ethos of Islam are concepts of trust, not only the theological concept of trust in God (tawakkul), but also various concepts of social trust. Yet the latter are often an implicit premise rather than an explicitly treated topic within the literature, and few if any writings are wholly dedicated to treating this important social and moral issue from an Islamic perspective. A commendable exception to this rule is the book under review. It was originally written as a doctoral thesis, submitted at the al-Imam Muhammad Ibn Saud Islamic University in Riyadh in 2003 and has been published in Dār Ibn al-Jawzī’s series of theses (Rasā’il jāmiʿiyyah). The author is currently an associate professor at the al-Imam Muhammad Ibn Saud Islamic University, College of Sharīʿah and Islamic Studies in al-Ahsa in the Eastern Province of Saudi Arabia. In al-Amānah, the author offers a survey of important areas in human life affected by trust, and by loss of trust, with the notion of amānah as the fulcrum of the study. The author translates amānah into English as ‘honesty’ or ‘trust’ and into French as ‘sincerité’ (pp. 39–40). This translation may however cause some confusion, as it becomes obvious that what the author is discussing is not trust as a phenomenon but trustworthiness as an ethical value. The book is in fact a study in trustworthiness as an ethical value from a normative, Islamic point of view, and the overall message is that preserving the ethical value of trustworthiness is necessary for the well-being of humankind both in this world and the next. On the other hand the author barely touches upon the question of trusting, and whether there are in Islamic thought any normative evaluations attached to the ethics of trusting fellow human beings. After discussing a number of different definitions, the author’s chosen definition for amānah is “all the matters of the religion with which the human being has been entrusted” (p. 23) explained as a charge (taklīf), obedience (ṭāʿah) and the obligatory matters (al-farā’id). This definition certainly makes sense in as much as it is tied up to the qur’ānic notion of amānah which is a divine directive to be trustworthy (Qur’ān 4:58, 8:27, 23:8, 70:3). However, by choosing this definition as a pivot the
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author comes up against some problems. For instance, the adjective thiqah is defined by al-Sharīf al-Jurjānī (d. 1413) as “someone to be relied upon in his words and actions”,1 which evaluates the relative moral value of a person’s action but not the moral nature of the action in itself. ʿAbd al-Laṭīf al-Ḥusayn ties this understanding of trustworthiness up to amānah in the qur’ānic sense, and consequently thiqah becomes “a characteristic of whoever is qualified for theamānah ” (p. 281). But if a general concept of trust (thiqah) is linked to the ultimate Divine good and truth, what do we then make of the trust based relationships which do not have this Divine good and truth as neither explicit nor implicit goal? It is for instance well known that certain criminal activities are dependent on strong bonds of internal trust (cf. the mafia), at the same time as they thrive from general distrust in the society. In these cases public interest actually lies in collapsing rather than building trust and cooperation. In order to deal with such complex phenomena it would be useful to keep some notions of trust morally neutral. The study is introduced by pinning down understandings of trustworthiness in different cultures, observing that this value is commonplace to most, if not all, human societies and cultures. Trust has received considerable and growing interest in the academic literature within such diverse fields as sociology, psychology, business management and moral philosophy in recent years, but these are not discussions ʿAbd al-Laṭīf al-Ḥusayn refers to. He engages with Islamically-based arguments in an analysis of the basis for the great importance attached to trustworthiness. Throughout the text the argument is substantiated with quotations from the Qur’ān and the Sunnah as well as several great thinkers from Islamic tradition (such as al-Ṭabarī, d. 923, al-Ghazālī, d. 1111, Ibn Taymiyyah, d. 1328) and contemporary authors both within and without the Islamic frame of thought. In terms of the stylistic makeup of the study it falls quite well into the literary genre of akhlāq, where arguments about virtues and vices are substantiated both by normative texts, wisdom literature, narratives and anecdotes without further contextualisation. The basis for the importance attached to trustworthiness is according to ʿAbd al-Laṭīf al-Ḥusayn of three kinds: the natural, the rational, and the normative. The author argues that inherent in the human being, as part of the fiṭrah, there is a drive towards being trustworthy as well as appreciating trustworthiness in others, as the human being accepted the primordial Divine trust (Qur’ān 33:72). Human rationality (al-ʿaql) on the other hand is a prerequisite for taking up the Divine charge (al-taklīf), as well as being a trust in itself. However, although the human being appreciates trustworthiness through rational means, the author firmly rejects that moral reasoning can be based on rational grounds. This leads him to the normative (sharʿī) basis for trustworthiness as it, and its antithesis ‘betrayal’ (khiyānah), is perceived in the Qur’ān and the Sunnah. In this manner it becomes clear that the foundational textual sources of Islam are in unison in claiming that human
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beings wish for trustworthiness as well as in charging them with trustworthiness and warning them against betrayal. With this framework established ʿAbd al-Laṭīf al-Ḥusayn presents the role of trust in areas of human life, generally labelled belief and worship, social life, economic life, and the sphere of knowledge. This main body of the study is structured in three parts. First, the author outlines the importance of trust within different fields in the four areas. Then he precedes to point out the positive outcome of a high level of trust and the negative outcome of breach or failure of trust. This way of structuring the material causes quite a bit of repetition which prolongs the text unnecessarily. On the other hand the potentially negative outcome is not always given corresponding to the potentially positive outcome, so we get for instance to know that according to our sources the leaders have to be trustworthy (pp. 175ff.), but what if they’re not? What will the effect be on the society, and what are the legitimate means for the Muslims in reaction to it and in trying to regain the balance of trust? There is hardly any area of human social life that is not in some way affected by the issue of trust, as the author successfully shows. Trustworthiness is a crucial value in family life and married life as well as in society at large, and it is maintained by such actions as keeping one’s promises, honouring one’s agreements, keeping the secrets of others and covering their flaws and faults as well as one’s own. In the commercial sphere special emphasis is put on paying one’s debts and maintaining one’s trust funds. Among the positive outcomes of high trust levels are economical boom, while corruption is the most obvious and vicious negative outcome of lack of trust. Scholarly trustworthiness is upheld as a crucial value in Islamic tradition of learning, epitomised in the isnād-system. As long as compliance to these standards are upheld, intellectual life will prosper; and the opposite is also true: when a sense of personal responsibility is lost even intellectual life will suffer. The general message in the book is that if trustworthiness is upheld as a value the individual as well as the society will thrive, whereas if the opposite happens and trustworthiness becomes a lost value, cheating, lying, loss of sense of responsibil- ity will spread and eventually the individual as well as the society will be afflicted by general misfortune and suffering. This rests on the premise that amānah makes up the sum total of good values. It seems to me as with the author that there is a straight causal relationship between the level of trustworthiness and the level of trust, and on an overall level it may hold, but does it hold on the level of individual relationships? It would imply a rather simplistic view of the way social relations work. Distrust as a fundamental attitude is within this framework dismissed by default. But what about attitudes and feelings developed within one social setting that are brought over to other social settings? In such a scenario a person who has learned to become distrustful could distrust a trustworthy person, at least in the initial phases of the relationship. Even though it is perfectly legitimate to give an account
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of the ethics of trust, when assessing the effect it has on the society it seems to this reader to be difficult not to include other elements such as social infrastructure, social control and cultural codes. What is the difference between culturally defined social expectations and trust, between a generally optimistic attitude and trust? Trust is in this book seen as an utterly positive value, with the implication that trusting is utterly positive. It follows that the author does not reflect upon potentially problematic sides of trust, or dilemmas in trust based relationships such as child– parent, student–teacher. Is it possible to trust too much? In education for instance there needs to be an element of critical thought on the part of the student to avoid the fallacies of ‘blind trust’ and to promote intellectual growth. Even in assessment of trustworthiness in transmission of knowledge, as well as the Prophetic aḥādīth, an element of critical thought is necessary in order to uphold the true value of trust. There is also a rhetorical potential in praising individuals as trustworthy or dismissing them as not trustworthy, a potential which may be used and abused in struggles for power. These are considerations not taken into account, but which may have further enhanced an otherwise interesting and thorough study.
Note
1. ʿAlī b. Muḥammad al-Sharīf al-Jurjānī, Kitāb al-taʿrifāt (Beirut: Maktabat Lubnān, 1985), 76.
Irfan A. Omar (ed.) – A Muslim View of Christianity: Essays on Dialogue by Mahmoud Ayoub (Maryknoll NY: Orbis Books, 2007), xviii+264 pp. ISBN: 978-1570756900. US$18.25
Christoph Marcinkowski International Institute of Advanced Islamic Studies (IAIS) Malaysia
A Muslim View of Christianity features key texts on Muslim–Christian relations from the pen of Professor Mahmoud Ayoub, who is currently Faculty Associate in Shi‘ite Islam and Christian–Muslim Relations at the renowned Macdonald Center for the Study of Islam and Christian–Muslim Relations in the United States and who was born into a Shi‘ite family in Southern Lebanon. His authority in both the scholarship and comparative study of Islam and Muslim-Christian relations, as well as interreli- gious dialogue, is demonstrated by the national and international recognition he has received. Hailing himself from a multireligious kaleidoscopic setting – in Southern Lebanon, Shi‘ite Muslims have for centuries lived side-by-side with Christians of various denominations – Ayoub is perhaps particularly well suited when it comes to discussing Christianity from the perspective of Islam. Significantly, among his
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numerous books is also the Arabic two-volume Dirāsāt fī ’l-ʿalāqāt al-masīḥiyyah al-islāmiyyah (Studies in Christian–Muslim Relations). The texts contained in this volume have been carefully selected and edited by Dr Irfan A. Omar, who is an associate professor in the department of theology at Marquette University in the United States. Omar specialises in Islamic thought with a focus on interreligious connections between Islam and other religions. It is noteworthy that, like Ayoub, Omar too has contributed significantly to the study of Muslim–Christian relations. He has edited or co-edited several volumes in this field, including Islam and Other Religions: Pathways to Dialogue (Routledge, 2006) and A Christian View of Islam: Essays on Dialogue by Thomas F. Michel SJ (Orbis, 2010). A Muslim View of Christianity is divided into four parts: Part I (“The Need for Dialogue: Setting the Context”) features four essays that reflect on both the context and the need for genuine and meaningful dialogue between Muslims and Christians and on some of the values and beliefs that are commonly held by them. Part II (“Critical Theological and Juridical Issues: A Comparative Perspective”) – also containing four essays – addresses comparatively important concepts that are at times similar in both traditions, such as martyrdom and holiness, or that are setting them apart from each other, such as the Christian concept of redemption or the Muslim idea of the ahl al-dhimmah (or ‘protected communities’, commonly seen as referring to Christians and Jews living under the rule of Muslims). In Part III (“Christological Issues: Muslim Perspectives”), Ayoub offers some Islamic as well as personal reflections on Christology, that is on how the figure of Jesus Christ is seen from the perspective of the religion of Islam and its followers. Christology remains perhaps one of the richest and at the same time most difficult areas of dialogue between Muslims and Christians. One of the central arguments of this section, which features four essays, is the need for recognising the reality of a genuine Islamic Christology (although this is often denied by Christian scholars) and to take this assumption seriously both when being engaged in dialogue as well as when studying the Qur’ān – the ‘inlibrated Word of God’ from the Muslim perspective vis-à-vis Christ as the incarnated Word of God from the perspective of Christians. In the final Part IV (“Muslim–Christian Dialogue in the Modern World: Comparative Studies”), which features three essays, Ayoub addresses some specific issues of Muslim–Christian dialogue in the modern world of ours. As in the previous parts, here too Ayoub offers some comparative perspectives on issues of common concern. The first essay of this part deals with an important qur’ānic expression of amity and appreciation of the piety of the Christian desert monks who played a crucial role in the formation of both eastern Christian and Islamic spirituality. This essay is perhaps one of the highlights of this remarkable volume and most clearly in line with the Qur’ān itself, which states (5:82) that
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[…] you will find the nearest in love to the believers [Muslims] those who say: “We are Christians.” That is because amongst them are priests and monks, and they are not proud.
The next essay in this final fourth part addresses modern Muslim views of Christianity and discusses the views of four Egyptian scholars. The final essay looks at the specific Christian approach to Islam in the thought and life of the late Pope John Paul II. At the end of the volume Professor Ayoub lists a very useful select bibliography. The perspective of Professor Ayoub himself towards the issue of Muslim– Christian dialogue becomes clear at the very beginning of the volume – right in the first paragraph – when he states in the introduction some of his key works on this topic:
Muslim–Christian dialogue is as old as Islam itself. It began when the Prophet Muhammad sought confirmation of the authenticity of his message in the witness of the Christian savant Waraqah b. Nawfal, the cousin of his wife Khadijah, who may have herself been a Christian. Furthermore, tradition reports that while still a youth, Muhammad met a Syrian monk, called Bahirah who recognized him as the ‘prophet of the end of time’. The Syrian monk is said to have recognized Muhammad by the seal of prophethood, which he saw between his shoulders. (p. 1)
However, even he is aware of the fact that the Qur’ān is at times ambivalent in its treatment of the ‘People of the Book’ and their beliefs, as well as their actual moral conduct. Ayoub makes this very clear by stating:
While it cannot be denied that the Prophet’s attitudes toward the two faith communities [Christianity and Judaism] were to a considerable extent determined by the social, political, and theological realities of the time, the Qur’an always dealt with these realities within the logic of its own faith and worldview. This ambivalent approach can be discerned in the Qur’an’s warm and sympathetic appreciation of Christian piety, on the one hand, and the brief allusion to a well-documented positive but disputatious meeting between Muhammad and a delegation of the Christian community of the valley of Najran of South Arabia, on the other. (pp. 1–2)
In connection with this approach of Islam toward Christianity, we also read in his introduction (p. 2) the following passage, which is also highly relevant when considering very recent irritations and misunderstandings between the Muslim and Christian communities, in South and Southeast Asia as well as in certain parts of the Middle East:
This […] is [also] fully consonant with the Qur’anic view of the inviolability of and open access to houses of worship. Mosques, monastic cells, churches, and synagogues are
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houses of God in which “His name [that is to say, Allāh] is mentioned and where He is glorified evenings and mornings” [Qur’ān 24:36].G od, the Qur’an further asserts, in His wisdom protects such houses of worship by repelling their would-be destroyers by others who would defend them: “Had God not restrained some people by others, monastic cells, churches, synagogues and mosques in which God’s name is remembered much would have been demolished” [Qur’ān 22:40]. Furthermore, the Qur’an emphatically condemns those who hinder God’s worshipful servants from frequenting His houses and who seek their destruction. It accuses such evil perpetrators of wrongdoing (z.ulm) and predicts for them a grievous punishment [Qur’ān 2:111].
Since the volume is almost void of the (one is tempted to say) usual polemics and based on scholarship and respect for ‘the Other’, A Muslim View of Christianity is certainly an excellent contribution to interfaith studies as there are not many such works from the pen of Muslim scholars. It should be part of the libraries of those individuals or scholarly institutions that try to understand the world we are living in today – a world that is all too often marked by prejudice and ignorance. Moreover, A Muslim View of Christianity is a work edited by a Sunnite Muslim of works written by a Shi‘ite Muslim, published by a Catholic publishing house in the United States of America – how much more genuine and meaningful dialogue does one want? In sum then, this book is indeed a remarkable contribution that sets it apart from other works by Muslims who claim to aim at dialogue with Christians, but which are, alas, all too often based on emotions and lack of knowledge – both of Christian and, sadly, Muslim scripture. What then would be more fitting than to remind those who lack this knowledge of even the very fundamentals of their own religious and ethical tradition by closing with a clear verdict on this issue from the Qur’ān itself (5:69, emphasis added):
Verily, those who believe [in the Qur’ān], those who follow the Jewish [scriptures], and the Sabians and the Christians, – any who believe in Allah and the Last Day, and work righteousness, – on them shall be no fear, nor shall they grieve.
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Christian W. Troll – Dialogue and Difference: Clarity in Christian–Muslim Relations transl. David Marshall (Maryknoll NY: Orbis Books, 2009), 182 pp. ISBN: 978-1570758560. US$25.12 [original German title: Unterscheiden um zu klären. Orientierung im christlich-islamischen Dialog (Freiburg im Breisgau: Herder Verlag, 2008)]
Christoph Marcinkowski International Institute of Advanced Islamic Studies (IAIS) Malaysia It is certainly not easy these days to break a lance for dialogue with the scandal- ridden Catholic Church: …paedophile ‘predator priests’, seemingly roaming freely through the Western (and developing) world; rampant moral decay among large segments of the Roman Catholic priesthood, while – at the same time – continuous preaching to other cultures and civilisations of the merits of Christian virtues; the alleged beating up of innocent orphan children, sometimes to unconsciousness, by a certain former German bishop who had been accused of lying under oath and invoking the name of God when questioned by legal authorities; the attempts to hush up such crimes; the financial (not to mention moral) bankruptcy of entire dioceses throughout the United States due to the compensation claims running into millions of US dollars by tens of thousands of victims – the list could be continued endlessly… Such (and other even more disturbing) ‘revelations’ have certainly also affected the way people of all faiths are now looking at Pope Benedict XVI and his approach to interfaith relations. For many people (this reviewer included) what is at stake is the credibility of the Roman Catholic Church as one of the leading moral forces in this world. One might well argue that Christianity – and its Roman Catholic version in particular – would do well to start first to clear up the rather serious issues that lay at its own doorstep. Such a disastrous scenario does not make matters any easier for those who have been professionally involved for decades in the Catholic–Muslim dialogue industry – among them Christian W. Troll, a German Roman Catholic priest, a member of the Jesuit Order, and the author of the book here under review. Troll – one of the Vatican’s foremost authorities in the field of contemporary Christian–Muslim relations – visited IAIS Malaysia in November 2008, where he delivered a lecture that was subsequently published by the Institute in its Occasional Papers Series.1 For decades, Troll, who is personally known to this reviewer as a person of integrity, has publicly taken position on topics and debates concerning the world’s two largest faiths – Islam and Christianity. He is currently Honorary Professor of the Philosophical-Theological University of Sankt Georgen at Frankfurt am Main. From 1993 to 2005, he was a member of the sub-commission for Catholic– Muslim relations, which is part of the Pontifical Council for Inter-Religious Dialogue
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(PCID). Since 1999, he has also been a member of the German Bishops Conference’s sub-commission for inter-religious dialogue. He is thus a senior figure in today’s Christian–Muslim dialogue industry. Troll therefore knows what he is talking about when he focuses in this volume on the different dimensions of Christian–Muslim dialogue. According to him, clarification and distinction through gathering central figures and collating teachings of the respective religion are essential. Necessary for a meaningful dialogue between Christians and Muslims is, from Troll’s perspective, also an assessment of the essential aspects of the Muslim faith under the criteria of Christian theology in which he is located. He tries to make out what elements are shared by Christianity and Islam and where they differ from each other. Troll argues that in order to enter into a meaningful dialogue it would be necessary to mark out and understand differences not only in theology but also in worldview. The first 70 years of Troll’s biography were somewhat intertwined: After five years of studies – Bonn, Tübingen, Beirut, London – the five main stations of his activities before Frankfurt were New Delhi, Birmingham, Rome, Ankara and Berlin. It appears that each of these places has shaped the author. Troll knows life among Muslims in majority as well as diaspora situations. He is also well acquainted with the forms of life and ways of interpretation of Islam in various social and cultural contexts. Moreover, he knows Catholic theology as a university professor and as a living reality. He finally knows the legitimate and/or exaggerated concerns of the German public spheres. These experiences seem to have amalgamated somehow in Troll’s basic attitude. The original German version of this book was published in 2008 (Freiburg im Breisgau: Herder Verlag) under the title Unterscheiden um zu klären. Orientierung im christlich-islamischen Dialog, which could be translated as ‘Distinguishing in order to clarify: Orientation in Christian–Muslim dialogue’. ‘Distinguishing’, for Troll, still means to add certain differentiations that have so far been missed out. It is thus the opposite of ‘political correctness’, or of what has become known recently in German as Kuscheldialog, literally ‘cuddle dialogue’, thus a dialogue which tries to make everybody involved to ‘feel good’ by leaving out core areas of dissent. ‘Distinguishing’ is therefore also always readiness to distinguish. Troll’s book revolves around the Christian–Muslim encounter in two major runs. The first (more descriptive) part deals with the dimensions of dialogue. It locates the dialogue industry within the context of Germany, as well as of the contemporary Muslim world at large, and maps the main issues and problems. The second, somewhat more critical, part ‘exposes’, from the perspective of Troll, currently fashionable unification motifs, such as the ‘Abrahamic heritage’ as mere ‘eyewash’. One might bring Troll’s distinction of the Jewish, Christian and Muslim views of Abraham to the formula ‘departure, dawn and friction’. In addition to this, ‘clarification’ is also a demand that is concerned with daily affairs. In
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this manner, the procedure of ‘distinguishing’ emerges as some sort of ‘peaceful culture of debate’ that is carried by ‘critical sympathy’, as a kind of sobriety that allows us to make out common objectives without the blurring of differences. This is certainly something else than ideological multiculturalism or enforced assimilation. Troll’s target description can therefore be summarised as ‘fair and peaceful mutuality’ (Konvivenz). The publication of Troll’s writings of the last two decades or so – first by Herder Verlag in Germany and then in Maryknoll’s English translation here under review – is certainly to be welcomed. This is because the author has provided us with the tools that he had been able to prepare for himself in the course of his own life, tools that allow us to accept more meaningfully the challenges that are often posed by interfaith ‘insecurities’ – even if those tools had been created by someone who might ascribe to a different religious or philosophical persuasion (that is, different from that of many of the readers of this journal). Troll’s main tool may be referred to as ‘inter-religious distinguishing’. What does he mean by that? That an honest debate can lead to unexpected results. However, there is hardly any alternative to this open-ended attitude. After all, someone who wants solutions must want dialogue as well. In closing then, we can say that Troll’s approach of ‘distinguishing’ – that is, of not avoiding key areas of difference between Islam and Christianity – makes this book an important contribution, even for those who hail from a different religious tradition. It is hoped that in the not too distant future Muslim scholars too will be able to reciprocate with a book that follows a similar approach – this time, however, from the perspective of their own faith and tradition. This is because only an open and honest approach can make Muslim–Christian dialogue a meaningful reality.
Note
1. Christian W. Troll SJ, “Dialogue as Encounter in Faith: Problems and Prospects”, IAIS Malaysia Occasional Paper Series, no. 3 (Kuala Lumpur: International Institute of Advance Islamic Studies (IAIS) Malaysia, 2009).
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Johan Fischer – Proper Islamic Consumption: Shopping Among the Malays in Modern Malaysia (Copenhagen: University of Copenhagen, Nordic Institute of Asian Studies, Monograph Series No. 113, 2008), xix+258 pp. ISBN: 978-87-7694-032-4. RM96
Karim D. Crow International Institute of Advanced Islamic Studies (IAIS) Malaysia
This is an excellent study both in substance and in conceptual refinement, opening up important perspectives on the particular mode of ‘Islamic modernity’ being achieved in Malaysia, and the dynamics of implanting globalised capitalist values within a major Muslim society. From 2001, Fischer did anthropological fieldwork into consumption patterns among Malay middle-class families at Taman Tun Dr Ismail (popularly known as ‘TTDI’), a major township in the western part of Kuala Lumpur. The book gives a refined presentation of research on consumption concerning issues of class, market relations and Islamic practice and identity, relating these to Islam– State relations in contemporary Malaysia. It could produce discomfort among many Muslims who might not appreciate or comprehend the portrait of Malaysian society reflected in the mirror of academic anthropology. Others with greater perception may experience the peculiar shock of self-recognition – similar to the experience of hearing one’s own recorded voice for the very first time – when they read of “middle-class Malays shopping for the state”. The manner and direction in which growing Muslim middle-classes embrace consumerist attitudes and priorities, blending these with key aspects of their own Islamic practice and identity, is one of the great unfolding realities of contemporary Islamic societies. Malaysia provides an instructive example of the role state-spon- sored consumerism plays in the ‘nationalisation’ of Islam within the state and Islam’s role as “both an agent and product of globalisation” (p. xii). Capitalism is adjusting to the new requirements of the growing number of middle-class Muslim Malays while the Islamic market expands rapidly. Serious studies on how consumerism and modern religious consumption in Muslim societies is managed and exploited by societal elites or the state only began to appear over the past decade. Fischer makes a valuable contribution toward understanding what the rise of the consumerist middle-class in civil society portends for emergent modes of modernity in Muslim majority nations. He demonstrates a very good grasp of theoretical issues relating to mass consumption and the ‘marketisation’ of societies; indeed his bibliography is quite helpful in this regard. The main thesis of this work is stated by Fischer in the social-science jargon of contemporary social anthropology:
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The nationalisation of Islam and halalisation may be all about creating, fixing and maintaining the religious as a material base, the thingness in enjoyment […]. The emergence of an ontology of Islamic consumption has infused discursive Islam in Malaysia with an immensely powerful ability to syncretise politics, state, authority and morality. In spite of state nationalist insistence on exorcising the excessively magical, deviationist, ritualistic and adat, these repressions seemingly reappear in the commodity form as fetishes and adornments indispensable to modern forms of state power on the one hand, and individual claims of piety on the other. For purist Malays, halalisation has caused a deep concern with halalised piety. […] Middle-class Malays work hard to demonstrate how the particularities of their visions are compatible with religious capitalism and modernity. (pp. 232 and 236)
He employs key anthropological notions of ‘ritualisation’, ‘repression’, ‘fetish’ and ‘performance of identity’, while introducing fresh concepts – “halalised piety” or “ontology of consumption” meaning our way of being consumers or the way the world is viewed and treated for consumption. Fischer also states:
I have tried to show how Islamic practice in Malaysia is undergoing processes of ritualized domestication. This domestication can be seen as a response to or an effect of the wider nationalization of Islam as a hegemonic state project. Growing authoritarianism from the 1970’s onwards has produced a crisis of not only authority, but also authenticity for the Malaysian state and UMNO in particular. This crisis has taken on new forms in the era of an emergent ontology of consumption in the Malay middle class. Shopping for the state and patriotic consumption naturally come to mind as forms of re-ritualisation that work as the performance of Malay identities through proper Islamic consumption. […] This allegiance to the state is preconditioned on trust in its capability to certify and authenticate proper Islamic consumption. (p. 221)
The most significant portion of this study centres on state controlledhalalisation as the hallmark of suburban public consumerism moulding many aspects of Malay Muslim behaviour. This actually forms the core of his book (chaps. 3–6, pp. 74–203), and focuses on the implications of urban growth and the ‘domestication’ of Islamic consumerism. “Focusing on the intimate space of Malay nuclear families in their houses in the suburb puts an emphasis on how urban space and its transformations, and even the nation, is produced and understood in contemporary Malaysia” (p. 13). The impulse for promoting an Islamic vision of ḥalāl authenticity and prosperity derived from the revivalist dakwah commune Darul Arqam originally located in the Sungai Pencala reserve next to the TTDI area. From its establishment in 1971 until the Malaysian National Fatwa Council banned this ‘deviant’ organisation in 1994, this middle-class commune successfully produced and marketed a wide range of ḥalāl food products and other goods including toothpaste and medication, traded throughout peninsular Malaysia.
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The Arqam group sought full independence from any kind of non-Muslim (read: ethnic Chinese) control, and “successfully promoted this vision of communal self- sufficiency” (p. 3). Fischer observes that the group’s alleged Mahdist ‘deviationism’ and sectarian secrecy became viewed as “an outside other threatening the nation and state nationalist visions of modernity”, and became “evoked as the other of the pure and modern national Islam promoted by state nationalism” (p. 4). The authoritarian response of the Malaysian state in banning the commune was matched by an increased move to institutionalise and monopolise the certification of everything ḥalāl in the promotion of religious consumption (pp. 39–44). The various modes of purification are most evident in food consumption, marked by a ‘fetishistic’ concern with ḥalāl propriety typical of modern Malays. With regard to the ongoing nationalisation of Islam, Fischer observes (pp. 83–4) that it “[…] is discursively driven in that it encompasses constant competition for the most appropriate Islamic practices […]. Simultaneously, Malay middle-class groups resisting the pressure for correct conduct and piety are subjected to forms of moral pressure.” He further highlights (p. 85): “[…] it is noteworthy that urban Malays are often worried and afraid of being poisoned or sorcerised”, and “these fears can easily target food and drink that formally are halal certified, but suspected of being haram and thus impure”. Such interiorised attitudes inherent to Malay Muslim identity have a direct bearing upon the reception of current forms of Islamic spiritual practice. For example, ideas about Islamic mysticism and Sufi ‘orders’ (ṭuruq) display a mixture of admiration for the purity of Sufi tradition, along with suspicion of extremism, excessive secrecy, ritualism, and individualism. Beyond such stereotypical perceptions, Sufism is also being viewed as actively countering material excess, and thereby of concern for the state:
In state imaginings in Malaysia, these secretive and esoteric practices are considered deviationist and unwanted, but they are nevertheless enjoying popularity in the new Malay middle class. The state is fearful of what it sees as uncontrollable, subversive and regressive ritual practices that may displace modern and patriotic national energy. Moreover, piety and moderation are seen as unproductive and un-patriotic. (p. 219) Fischer demonstrates that nationalisation of Islamic identity and promotion of middle-class consumerism among Malays has been essentially state-driven, serving the self-interests of the political and business classes. The danger remains that prevailing forms of material consumption packaged as indigenous national Islamic identity, will continue to serve the ‘marketising’ forces of trans-national corporations at the helm of global capitalism. Obsessive concern with purist ḥalāl food consumption, outer dress or ritualistic practice, yields a form of Muslim modernity pervaded by shallow materialist consumerism subject to manipulation by state elites to maintain power and wealth. People thus become outwardly more ‘Muslim’ yet inwardly less Islamic.
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Margaret J. Wheatley – Leadership and the New Science: Discovering Order in a Chaotic World (San Francisco: Berrett-Koehler Publishers, Inc., 2006), 218 pp. ISBN: 978-1576753446. US$20.95
Eric Winkel International Institute of Advanced Islamic Studies (IAIS) Malaysia Writing from wide experience working with organisations as a management consultant, Margaret Wheatley has seen the necessity for integrating the new science with organisational management. The new science of quantum physics, fractals, and chaos theory creates a new nonlinear world view. The old, linear view is suited only for the factory model, where outputs increase in a linear fashion according to the inputs. But the real world is nonlinear: think about learning. We study and study and suddenly, we understand. Wheatley describes the conventional command-and- control management style, where we think the company is a black box with inputs on the left and outputs on the right. She talks about laboriously crafted organisational charts, when the real communication of the company takes place around the water cooler. She shows us how organisations flounder and stagnate when they are seen as machines in a Newtonian world, the old mechanistic view. But in the new science, the organisation that works is self-organising, not top-down and hierarchical. Her stories from Hurricane Katrina, which are replayed universally from the tsunami of 2005 to Haiti more recently, demonstrates the efficacy of the new science of process, relationship, spontaneous innovation, and connecting. Her description of a meeting that FEMA (the Federal Emergency Management Agency) had with eager firemen and rescue crews during Hurricane Katrina shows us how bureaucracy and rigid institutions get in the way of the real work these informal groups were ready to do. The consequence of this dependence on the old way of viewing reality is a pervasive fear. Wheatley explains:
In modern Western thought, I believe one source is our fuzzy understanding of concepts that gained strength from seventeenth-century science. Three centuries ago, when the world was imagined as an exquisite machine set in motion by God – a closed system with a watchmaker father who then left the shop – the concept of entropy entered our collective consciousness. Machines wear down; they eventually stop […]. By sheer force of will, because we are the planet’s intelligence, we will make the world work. We will resist death […]. What a fearful posture this has been! (p. 19)
This belief that only our human will can fight entropy and must support the entire planet by sheer human effort is predicated on the mechanistic view of science. Perhaps it is reflected in modern Western civilisation, when people speak of plans
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and intentions: they say “I will” as if they determine the future. In other civilisations, the phrases ‘God willing’ and ‘inshā’ Allāh’ indicate acceptance of a non-material world ‘in process’. We are used to thinking of people as cogs in machines or billiard balls bouncing around. The new science, however, points to the “field” as important. It is the “culture” of an institution, and we can recognise it, often unconsciously, as soon as we enter the building. Wheatley says:
To learn what’s in the field, look at what people are doing. They have picked up the messages, discerned what is truly valued, and then shaped their behavior accordingly […]. If vision is a field, think about what we could do differently to use its formative influence. We would start by recognizing that in creating a vision, we are creating a power, not a place, an influence, not a destination. (p. 55)
During the discussion of torture during the Bush administration, some military officers made the point that if there is a clear message from the top that torture is wrong, torture will not happen. They were tacitly agreeing that there was a message from the top to torture. In stores and in schools, when we enter we know, consciously or not, what message is coming from leadership. Is this a school where rules are more important than people? Is this a restaurant where they will replace your order cheerfully to keep the customer happy? Wheatley is saying that there is real science going on here, with the name ‘field’, beyond anecdote and intuition. The applications of her research into organisations connects to many different fields of study, including politics. She contrasts the old way with the new:
We believe that in order to maintain ourselves and protect our individual freedom, we must defend ourselves from external forces. We tend to think that isolation, secrecy, and strong boundaries are the best way to preserve individuality. But this self-organiz- ing world teaches that boundaries not only create distinctions; they are also places for communication and exchange. Because system members engage in continual exchanges among themselves and with their environment, the system develops greater freedom from its environment. (p. 85)
The importance of civil society organisations shows itself in the new world. Wheatley describes participation as the basic process of life, where authoritarian approaches are inappropriate responses from a mechanistic worldview.
I wonder how we can continue to support authoritarian approaches. Can we resist inviting people to participate? Can we survive as command and control leaders? Can we hope that participation goes away? Not until life changes its fundamental processes. (p. 163)
And yet leaders and managers want to lead in the old way, and managers want to control and manage change. They do so assuming that “most people are dull, not
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creative, that people need to be bossed around, that new skills develop only through training. People are motivated using fear and rewards; internal motivators such as compassion and generosity are discounted. These beliefs have created a world filled with disengaged workers who behave like robots, struggling in organizations that become more chaotic and ungovernable over time” (p. 171). Her ideas about the new science as it relates to identity is especially interesting for Malaysia. The new science suggests that organisms gain robust identities as they interact more and more at the boundaries with the outside environment. This means that increased interaction leads to increased robustness of identity. It would be interesting to use the new science to understand issues of cultural identity in Malaysia. Cultural defence, for example, would not mean isolation and fragmentation. It would mean increasing interactions with others. For individuals, we know from child development theories that identity is formed and strengthened by interaction: we are asking ourselves how we are the same and different from our parents, from siblings, from neighbours, from strangers. All of these many, many interactions form an identity.
As it does with defence, cultural or national, the new science touches all areas. The new way of fractals, emergence, and chaos that she describes is the real world; it is “how life works. We can learn this from new science, or we can learn it from what happens every day somewhere in the real world.” (p. 179)
We need to start applying this new science to our thinking, for issues in Malaysia and in the wider Muslim world.
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Workshops in Djibouti Organised by the Constitution Commission of Somalia Mohammad Hashim Kamali, IAIS Malaysia
In June 2010, this writer participated at the plenary session of the Constitution Commission of Somalia and made presentations on various aspects of the sharīʿah and how the relevant parts of sharīʿah could be articulated in the proposed constitution. During the first two days, models of 13 Muslim countries and their respective constitutions were discussed at considerable length. The focus of this writer was on briefing the Commission on references to Islam and thesharīʿah that are found in the constitutions of Algeria, Bahrain, Egypt, Saudi Arabia, Qatar, Iraq, Afghanistan, Kuwait, Jordan, Morocco, Syria, Tunisia and Oman. The provisions of these constitutions and their references to Islam bear a great deal of uniformity yet are also different in some ways. There is much uniformity among these countries and their constitutions over the provision that adopts Islam as the state religion. There is also much in common between them over adopting the sharīʿah as a principal, or the principal, source of legislation. Some constitutions also adopt a repugnancy clause to the effect that parliament may not pass any law that contravenes the basic principles of the sharīʿah of Islam, whereas others provide for the head of state to guarantee the protection of Islam in his oath of office. Only some constitutions contain references to particular subjects, such as the position of women and that of the family, the laws of inheritance, religion of the head of state, formation of a High Islamic Council to supervise Islamic affairs and the conduct of ijtihād and the protection of (Arabic and) Islamic culture. Saudi Arabia’s Basic Law of 1991 has many more references to the sharīʿah to the effect of making the sharīʿah the only authoritative law of the land. This writer gave an in-depth presentation and a 14-page paper on the separation of powers, providing an analysis of the history and practice of this principle in Muslim countries, the various approaches taken towards it and the sharīʿah positions over the basic idea of the limitation of governmental powers and their division among the various organs of state. I explained that the basic idea of an Islamic government is one of limitation and a regulated approach. If the purpose is to establish account-
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ability and justice, then separation of powers is desirable and has in effect been functionally in existence during much of the Islamic history of state and government. The last day of my presentation – lasting for a full four-hour session – I was asked to discuss human rights, especially from the perspective of Islam. I provided a broad outline of the supportive evidence that is found in the sources of the sharīʿah on the various aspects of fundamental rights and liberties and wide-ranging themes of relevance to human rights in the sharīʿah. The last four days with the Commission were devoted to reading and revising the draft text on human rights and obligations. The Chairman also asked me earlier on to prepare a Preamble, and the Fundamental Principles segments of the text – which I did and presented to the plenary session of the Commission on 10 June. They were both approved as presented with one or two minor additions. I was gratified to see a great deal of receptivity and support for the work I have done so far. I then composed and presented to the plenary session four additional clauses to be inserted in the proposed draft on the position of Islam and the sharīʿah, which were approved as proposed. I have also revised a number of clauses, in consultation with other colleagues, on human rights such that the whole chapter is now more or less visibly sharīʿah- compliant, not only in general terms but also over specific issues that arose in our detailed discussions.
* * *
As already reported in the July issue of this journal, in February 2010 I was also a presenter and participant of yet another four-day conference in Djibouti, together with over 40 participants, parliamentarians and ʿulamā’ from Somalia and a number of other speakers. The event was organised by the Max Planck Institute (Heidelberg, Germany) and the United Nations Consortium on the Constitution of Somalia under the lead role of Mr Paul Simkin. Several contributions by speakers from Somalia in that conference, and also the discussions we had in the last eight days of June, left me in no doubt over the centrality of Islam and the sharīʿah that is demanded to be given a prominent role in the future constitution of Somalia. It is in line with the insights I gained through these engagements and consultations that I have tried to moderate and articulate my contributions to this process. Several times, the issue of the acceptability and relevance of a superior law or constitution vis-à-vis the sharīʿah was raised. This is not a new question. The same question was already raised and addressed in Egypt in the mid 1920s by the eminent scholar and Qur’ān commentator, Muḥammad Rashīd Riḍā, as to whether having a constitution is acceptable at all to Islam. He issued a religious verdict on this issue which is recorded in his collection of published fatāwā to the following
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effect: if the purpose of a constitution is to regulate the administration of justice, accountability and good governance, and also to place limits on the exercise of coercive power, then these are equally sought-after objectives of Islam and the sharīʿah. Riḍā added: should there be a clause in a constitution that is contrary to the sharīʿah, one should try to draw attention to it and rectify it as soon as possible, but not to reject the whole of the constitution due to a minor repugnancy. For after all we find errors in many of the renowned works of the ʿulamā’ of the past; we should surely try to correct them and not reject them and throw out the whole of their worthwhile endeavours. Since the days of Rashīd Riḍā, we have witnessed the acceptance and development of a general practice to the effect that nearly all Muslim countries have actually adopted a constitution, and some of them have revised and amended it many times. This then becomes a generally accepted convention and custom that is upheld by the vast majority of Muslim countries. Constitution-making is now seen as an instrument of good governance which inspires compliance and support. Furthermore, a constitution is a commitment, a national charter and a document that signifies determination of a nation over a set of priorities and principles. Moreover, when a constitution contains a clause demanding its own conformity to the principles of Islam and that of the parliament and law-makers to respect and observe the sharīʿah, it becomes a ḥukm of the ūli ’l-amr (ordinance of those in charge of the community affairs – cf. Qur’ān 4:59). Then also according to a renowned ḥadīth, “Muslims are bound by their stipulations”, which evidently means that they may agree on and incur commitments on what they deem to be desirable – a duly ratified constitution thus becomes a sharīʿah-compliant commitment for a desirable purpose. Without a specified charter and text, a general reference to thesharīʿah is bound to be vague and prone to wide-ranging disagreement and differences of opinion – simply because the sharīʿah has not been codified nor ratified in the same way as a constitution is, and when compliance to sharīʿah becomes a part of the constitution, there remains little doubt over its acceptability and authoritative standing. Another line of sharīʿah-based support that I discussed in my presentation on human rights is the newly flourishing area of the higher goals and objectives (maqāṣid) of the sharīʿah, a subject that was elegantly articulated by Imām Ibrāhīm al-Shāṭibī in the late fourteenth century CE and seen in a spate of books and articles, doctoral works etc., which in recent decades have developed the maqāṣid into a new chapter of Islamic jurisprudence. Among the maqāṣid of the sharīʿah that Muslim scholars and jurists have identified and discussed, the one category, namely the ḍarūriyyāt, or the essential maqāṣid, are to be upheld as a matter of absolute priority. It thus becomes the duty of an Islamic government to uphold and promote them to the extent their capability and resources permit. These are as follows:
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protection of life, protection of religion, human intellect, property, and family. One other objective that some scholars have added to this is human dignity. These are basic sharīʿah commitments and they assign a place of central importance to what also represent the major headings of any constitution. The bill of rights aspect of contemporary constitutions in almost all Muslim countries thus provides to all intents and purposes a distinctive commitment to the maqāṣid of the sharīʿah. This is another way of saying that the lines of convergence between the constitution and the sharīʿah are unmistakably obvious. We have also seen a fresh emphasis on the revival of Islam and the demand of Muslim masses almost everywhere to integrate and enhance the relevant aspects of the sharīʿah in their otherwise Western-law oriented laws and constitutions. This is a demand that seeks to rectify the imbalances of colonialism and their aggressive downgrading and suppression of the sharīʿah. Yet the success of this exercise, and indeed of any other aspect of the constitution, would very much depend on methodical, realistic and moderate approaches toward the revival of a valuable heritage. We need to take cognisance of the reality also that the Muslim world has interacted with other countries and civilisations over long periods of time. We ought to retain and protect the wisdom we can gain from them for our betterment and appreciate what is in common between us – and contribute in the same spirit toward greater harmony of civilisations for the benefit of all.
Round Table of the Perdana Leadership Foundation and the New Club of Paris and Public Dialogues on the Knowledge-Economy Osman Bakar, IAIS Malaysia
On 15–16 June 2010, a notable two-day intellectual event – the Perdana Leadership Foundation and the New Club of Paris Round Table and Public Dialogues on the Knowledge Economy – took place in Malaysia’s capital Kuala Lumpur. Broadly concerned as it was with issues of knowledge – knowledge-society in general and knowledge-economy in particular – the event could not be more aptly described than as ‘intellectual’ in nature. It was jointly organised by the Perdana Leadership Foundation (PLF) and the New Club of Paris (NCP). The event consisted of a ‘Round Table’ discussion, which was held on the first day, and ‘Public Dialogues’, which took place on the second day. The Round Table, jointly organised by PLF and NCP, was jointly moderated by former Malaysian Prime Minister Tun Dr Mahathir Mohamad, who is also PLF’s Honorary President, and Datuk Dr Tengku Azzman Shariffadeen, a former CEO of the Malaysian Institute of Microelectronic Systems (MIMOS), who is currently a consultant with the Jeddah-based Islamic Development Bank (IDB).
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For the Public Dialogues on the next day, PLF had invited three Malaysian think tanks to help organise and host the dialogues at their respective premises. Each of them was to take up a different theme of dialogue. The three think tanks were the International Institute for Advanced Islamic Studies (IAIS) Malaysia, the Institute for Strategic and International Studies (ISIS), and the Asian Strategic and Leadership Institute (ASLI). The seven NCP participants at the previous day’s Round Table were evenly distributed as speakers to the three think tanks. Allocated to IAIS were NCP’s Vice-President, Professor Ahmed Bounfour (Paris) and its General Secretary, Dr Günter Koch (Vienna), both of whom spoke on the subject of ‘value-based development’. ISIS, with its three allotted NCP speakers, deliberated on the theme of ‘development of national policy’. As for ASLI, its two NCP speakers addressed the theme of investing in creativity and innovation. The Public Dialogues, hosted by IAIS, was well attended. There were about 60 participants representing quite a good cross-section of the Malaysian intelligent- sia and professional groups. The Dialogue, which I chaired, began with a short presentation each on the issue of value-based development and related issues of knowledge-economy by Professor Bounfour and Dr Koch, followed by Professor Mohammad Hashim Kamali, the Founding Chairman and CEO of IAIS, acting as a discussant. Dr Bounfour touched on a number of issues pertinent to value-based development. These included the concern for intangibles, as well as the issues of the creation of values, education systems, innovation, and of self-confidence. Dr Koch spoke of the kind of dialogue that can be pursued between IAIS and NCP on the theme of knowledge-society and knowledge-economy. He explained to the audience the rationale of NCP and its knowledge-society agenda and referred to a few European experiences and successes in knowledge-economy, especially from Finland. In his response to both speakers, Professor Kamali, a world-renowned expert on Islamic law, dealt with the issue of value-based development from the perspective of the sharīʿah as well as with Islamic views of knowledge in general. The three presentations were followed by a lively discussion with critical and pertinent comments from the audience, particularly from Professor Tan Sri Dzulkifli Abdul Razak of Universiti Sains Malaysia (USM, Penang), who expressed concern about the many shortcomings of Malaysian institutions of higher learning in their knowl- edge-leadership roles. The issue of the meaning and significance of value and development was contentious among the participants. The moderator concluded the Public Dialogues by expressing his appreciation for the spirited exchange between the speakers and the audience in which both sides benefited from the wide range of issues discussed and the numerous views expressed. The Round Table was presented to the public as the main feature of the two-day event. This had already been made clear during the media briefing which was
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convened by Dr Mahathir on 1 June 2010 in order to publicise the Round Table. The main objective of the Round Table was to provide a forum in which experts in knowledge-economy would engage with high-level policy makers in Malaysia – especially political, economic, business, and financial leaders – on the crucial issue of the structural transformation of the Malaysian economy into a knowledge- economy. It was in line with this objective that the organisers had chosen the topic ‘Bridging the Knowledge Divide – Building the Malaysian Link’ as the central theme of the Round Table. Moreover, it was for the purpose at hand that the NCP’s seven experts in knowl- edge-economy in different cultural and social settings – including its President, Professor Leif Edvinsson – had been invited to the Kuala Lumpur event. In the view of the organisers, a number of initiatives that had been launched by the Malaysian government ought to be considered important steps towards the realisation of a structural transformation of the Malaysian economy into a knowledge-economy. These initiatives, however, need to be synchronised with the emerging global knowl- edge-community. The Round Table was, therefore, viewed by the organisers as an appropriate means for helping Malaysia to achieve this synchronisation and thus to bridge the knowledge-divide between the present Malaysian economy and the emerging knowledge-economies in other parts of the world. The key person in the organisation of the Round Table was Dr Tengku Azzman. He was instrumental in introducing the NCP to Dr Mahathir and a few other policy makers in the country and in bringing the seven experts to Kuala Lumpur. He has an excellent grasp of the concept and philosophy of knowledge-economy – especially its practical dimension. Moreover, he is committed to its pursuit as a national policy. He is also well-informed about the latest developments in the global discourse on the subject. With these credentials, Dr Tengku Azzman has also the trust and confidence of Dr Mahathir. The two, in fact, have known each other for quite some time. It was Dr Mahathir who, as Prime Minister, introduced Dr Tengku Azzman to his cabinet as Malaysia’s ‘first knowledge worker’ in those days, when the latter’s expertise was solicited by the government to help it execute its ambitious plan for leadership- in-information technology and the Multimedia Super Corridor (MSC) enterprise. The first day’s Round Table was a closed-door session; participation was by invitation only. Altogether, 42 names were listed as participants. This impressive list represented also, as far as Malaysia was concerned, a broad spectrum of this country’s policy makers and professional leaders. This writer felt indeed honoured to be invited not only as a participant but also as a paper presenter on the issue of ‘knowledge-society and knowledge-economy in the Islamic context’, especially since his paper was the only one to specifically deal with the main topic of the Round Table from the Islamic point of view. The paper was entitled “Towards a
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Global Knowledge Society and Economy: Sharing Islam’s Inner Resources and Untapped Wealth.” The Round Table comprised an official opening session with an introduction by Dr Tengku Azzman and two keynote speeches by Dr Mahathir and Dr Leif Edvinsson, respectively, four sessions each with three speakers, and concluding remarks by the moderators and Dr Edvinsson. The participants were told that the NCP will prepare an official report, containing their recommendations to the PLF, a copy of which will be presented to the office of Malaysia’s Prime Minister.
Common Ground between Islam and Buddhism Eric Winkel, IAIS Malaysia
It is with great excitement that we welcome the initiative and book publication of Common Ground between Islam and Buddhism.1 In 2007, spurred by Pope Benedict XVI’s controversial ‘Regensburg lecture’, major figures in Islam and Christianity created A Common Word between Us and You, an initiative which was instrumental in reducing tensions and the sense of clash between the two religions. Now, Fons Vitae has just published the book Common Ground between Islam and Buddhism, which is a platform for much-needed, sustained conversations between Muslims and Buddhists. The body of the book is written by Reza Shah Kazemi. There is also a fascinating essay by Hamza Yusuf. The introductions are provided by the Dalai Lama, Prince Ghazi bin Muhammad, and Mohammad Hashim Kamali. The latter two were vital participants in the earlier Common Word initiative. Before a common ground can be made, the Muslim has, I would suggest, to address three questions. The first is historical. Hamza Yusuf describes Muslim– Buddhist relations over the centuries as being turbulent, indeed centred in the wider region of which Afghanistan is a part. Buddhists were treated historically by Muslims along a wide spectrum, from being seen as ‘People of the Book’ to being protected to being condemned as ‘idolaters’. Shifting from historical precedent, the Muslim might then ask about the place of Buddhists in the law. Mohammad Hashim Kamali addresses this question and provides a legal argument for an open interpretation of “People of the Book” to include Buddhists, and the legal background for seeing Buddhism as a dīn and for Islam to be seen as a dharma. The spirit of civilisational renewal, he writes, encourages mutual respect “at a time when the talk of ‘clash of civilisations’ has become an unwelcome distraction from the Qur’ānic vision of recognition and friendship between the Muslims and other world communities and nations” (p. xxi). If the Muslim has come this far, the last question is, one hopes, what we can learn from each other.
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Prince Ghazi bin Muhammad writes of his experiences with reading about Zen Buddhism and recently with meeting the Dalai Lama, when he found greater concentration in his five daily prayers and a better ability to monitor his thoughts the rest of the day. His description resonated with me. When I came out of a retreat – very much needing a ‘practice’ to inform and direct insights – I was fortunate to findkyudo , the ‘way of the bow’. I was part of a teaching with a continuous lineage, directed by the twentieth Kanjuro Shibata Sensei. The practices of Islam, especially the ṣalāh, became for me tremendously deep. I connected ‘breath’ in kyudo with the vast literature and wisdom around ‘spirit’ and ‘self’ in Islam. Everything I learned, in Japanese and in kyudo, I transposed into Arabic and Islam, while wondering why it was so hard to find this living spirit among Muslims. Over the past 50 years or so, especially, the petrodollar has been driving ‘spirit’ out of the religion. But even just the process of creating this common ground is a sign of the movement of spirit, if we are still enough to perceive it, and to be welcomed and sustained fully. Recently, The Muslim World (vol. 100, no. 2–3, April–July 2010), an eminent journal published quarterly by the Macdonald Center in the United States and usually addressing issues pertaining to the study of Muslim–Christian relations, devoted its latest issue to Islam and Buddhism. One author identifies four dialogues. One of those dialogues came about as a reaction to the destruction of the statues of Bamiyan and the events of 9/11. A second is the dialogue between Majid Tehranian and Daisaku Ikeda. A third is the series of dialogues in Thailand to address the conflict of Muslims and Buddhists, especially in southern Thailand (Pattani). This kind of dialogue is reduced to ‘diplomatic crisis-management’. A statement made during the dialogue in Kuala Lumpur in 2002 seems to suggest that the best we can expect is crisis-management, and that spiritual and doctrinal issues should be ‘not up for discussion’.2 A fourth dialogue is found in the perennialist tradition, which is also somewhat ‘controversial’ here in Malaysia. The author’s hope is for what Raimundo Panikkar called “intra-religious dialogue,” where “Muslims and Buddhists […] in their own hearts and minds feel the spiritual strength of the other’s religion and try to combine this with what they have learned from or through their own tradition”.3 One hopes this is the year when a mutually beneficial dialogue may begin between Islam and Buddhism.
Notes
1. Reza Shah Kazemi, Common Ground between Islam and Buddhism (Louisville KY: Fons Vitae, 2010). 2. Perry Schmidt-Leukel, “Buddhist–Muslim Dialogue: Observations and Suggestions from a Christian Perspective”, The Muslim World 100, no. 2–3 (April–July 2010), 353. 3. Raimundo Panikkar, The Intrareligious Dialogue (New York: Paulist Press, 1978).
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Three Relationships Eric Winkel, IAIS Malaysia
A masterful, stimulating lecture, entitled “Islamic Finance: Challenges and Opportunities”, by Dr Abbas Mirakhor, an International Monetary Fund (IMF) Executive Director, at IAIS on 30 June 2010 got me thinking. He subjected the enterprises of finance to one single question: Is it trade, which Allāh has made lawful, or ribā – usury – which Allāh has prohibited? This question is not limited to Muslim-majority countries or Islamic governments. It is rather universal, as the Qur’ān, from the perspective of Islam, is meant to be for all mankind, as the Prophet was sent to all mankind. In trade, things go mostly according to the maxim ‘I give up my rights to a property, you give up your rights to a property, we exchange the thing, and our property rights have been exchanged’. The other system is different. I ask for a loan, the banker lets me use some money without actually giving me the right to that money, with collateral, which the banker takes over. This, however, cannot be considered ‘trade’. The banker got the benefit of property rights without any work and without any risk. This one question can also be applied to any other kind of ‘contract’, including marriage, where both parties give up certain rights to the other in an equitable exchange. Dr Mirakhor connected the question to the maqāṣid or ‘higher goals’ of the sharīʿah. The first kind of situation is one which entails work, risk, and mutuality. It tends to bring human beings together. The second situation where someone gets wealth without work and gets money without risking his own property tends to divide society and separate human beings. Numerous studies are coming out showing that people are naturally generous, not the self-interested selfish individual actors presumed by the Anglo-American economic model. Mirakhor used one finding, where participants were given a sum of money only if they shared it with another person. The other person does not know what the sum is, and according to the homo economicus or ‘economic man’ model, the windfall to the other person should be minimal, a few cents. But in practice, the study found that people gave 48–55 per cent of the sum to the other person. Mirakhor’s lecture addressed the maqāṣid, the higher goals, and he incorporated three decades of work in financial institutions, and the details of not only western economics but Islamic economics as well. By showing us the forest (financial transactions as mutually beneficial exchanges serving to increase social harmony) for the trees, he demonstrated the true power of this form of legal interpretation dormant for centuries. We could see the poverty of an ‘Islamic’ financial system claiming to follow the ‘letter’ of the law without following the ‘spirit’.
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Under the rubric of path dependency, Mirakhor gave us an insider’s view into Islamic banking, telling us stories of the bankers charged to introduce Islamic banking in the 1970s and 80s saying, off the record, that there is no such thing as Islamic banking. They simply used, with path dependency, the same instruments they had always used, but now labelled them ‘Islamic’. The spirit, or aim of the law, which is to bring people together, to exchange rights, to bring harmony in society, was ignored in favour of nominal compliance. The lecture has inspired me to take his approach of bringing people closer together – from the world of finance to social interaction – and extend it to our relationship to the divine. In the audience were students of Mirakhor, and from their comments it was clear that he has inspired them as well.
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Azyumardi Azra is Professor of History and Director of the Graduate School at Jakarta’s Syarif Hidayatullah State Islamic University. Previously, he had been Rector of that university twice. Since 2007, he is also Deputy for Welfare at the Office of the Vice-President of the Republic of Indonesia. He earned his MA, MPhil, and PhD in history from Columbia University, New York City. In 2005, he received an honorary doctorate from Carroll College, Helena MT, United States. He has published 21 books, the latest being The Origins of Islamic Reformism in Southeast Asia (Honolulu: University of Hawaii Press, 2004). He is a member of a number of international organisations, among them the World Economic Forum, Davos, Switzerland. In 2005, he was awarded by Indonesia’s President the Bintang Maha Putra Utama, the highest award for an Indonesian civilian for his outstanding contribution to the development of a moderate form of Islam in that country.
Osman Bakar is the Deputy CEO of IAIS Malaysia and Emeritus Professor of Philosophy of Science at Kuala Lumpur’s University of Malaya. He received an undergraduate degree and an MSc in Mathematics from the University of London. He then graduated from Temple University with an MA in Comparative Religion and a PhD in Philosophy of Science and Islamic Philosophy. Bakar is currently Professor of Islamic Thought at the International Institute of Islamic Thought and Civilisation (ISTAC) in the International Islamic University Malaysia (IIUM) as well as Senior Fellow at the Prince Al-Waleed Center for Muslim–Christian Understanding, Georgetown University, Washington DC. He was also the holder of the Malaysia Chair of Islam in Southeast Asia at Georgetown University. Previously, Bakar was also Deputy Vice-Chancellor of the University of Malaya. He is the author of 15 books and nearly 200 articles.
Abdul Aziz Bari is Professor of Law at the International Islamic University Malaysia (IIUM), where he has been teaching for the last 20 years. He was deputy Dean of that university’s Research Management Centre and also the former head of the Department of Public Law. He received his legal education in Malaysia and the United Kingdom. His main interests and academic expertise are in public law, in particular constitutional law. His works include best-selling textbooks, such as The Constitution of Malaysia: Text and Commentary (with Sufian Shuaib), The Malaysian Constitution: A Critical Introduction, and Cabinet Principles in
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Malaysia: Law and Practice, in addition to more than 60 articles and book chapters. A leading constitutionalist, he has also written more than 300 articles on various legal and constitutional issues in the Malaysian press. He is a member of the Society of Legal Scholars (SLS) and the International Bar Association (IBA), which are both based in the United Kingdom.
Chaiwat Satha-Anand is Professor of Political Science at Thammasat University, Bangkok, and Director of the Thai Peace Information Centre at the Foundation for Democracy and Development Studies. His work focuses on non-violence – theory as well as activism – and on Islam-related issues. He has published numerous articles and book chapters on the military, alternative defence, religion and peace, Islam and non-violence, as well as contemporary political philosophy. For several years he directed the International Peace Research Association’s (IPRA) commission on non-violence, and he also serves at the Scientific Committee of the International University for Peoples’ Initiative for Peace (IUPIP) in Rovereto, Italy. He holds a PhD in political science from the University of Hawaii at Manoa, United States.
Bahtiar Effendy is since 2009 Professor of Politics at Syarif Hidayatullah State Islamic University in Indonesia’s capital, Jakarta. He also is deputy director of the Institute for the Study and Advancement of Business Ethics, LSPEU Indonesia. Concurrently, he also held teaching positions at the University of Indonesia, the University of Jayabaya and the Muhammadiyah University, all in Jakarta. In 2005, he was a Fulbright Visiting Specialist (Direct Access to the Muslim World) to the University of Hawaii at Manoa in the United States. In 1988, he earned his MA in Southeast Asian Studies, and in 1994 he obtained his PhD in Political Science, both from Ohio University in the United States. His research interests have focused on Indonesian politics, Indonesian Islamic politics, Islam and democracy, and development policy. Among his publications are Islam and the State in Indonesia (2004), Teologi baru politik Islam (2001), and Masyarakat agama dan pluralitas keagamaan (2001).
Constance Chevallier-Govers is Associate Professor of Law at the Faculty of Law in the University of Grenoble, France, and Associate Research Fellow at the Asia-Europe Institute in the University of Malaya, Kuala Lumpur. Before that she was Associate Professor at the Paris 12 Val de Marne University and a lecturer at the National Law School of Bangalore, India, and Saransk University, Russia. She has been Director of the Master’s Degree on International and European Law of the University of Grenoble. She holds an MA and a PhD in European Law from the Pantheon-Assas Paris II University and has obtained her habilitation from the University of Grenoble. Her main fields of research are related to European
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and International Law, especially freedom, security and justice (the fight against terrorism, internal security of the European Union, police cooperation) on which she has published more than 20 articles and two books (De la cooperation à l’intégration policière dans l’Union européenne, and Le traité de Lisbonne, Bruylant, 1999 and 2009, respectively).
Idrus Ismail graduated in economics from the University of Malaya (1977), in law from the National University of Singapore (1987), and recently completed his Executive Master in Islamic Banking and Finance at the Asia e-University. He was called to the Malaysian Bar in 1988 and served at financial institutions, both conventional banks and Islamic banks, for two decades as company secretary as well as in house counsel. He also acted as recording secretary to the sharīʿah committees of Bank Muamalat Malaysia Berhad (Malaysia’s second Islamic bank), CIMB Islamic Bank and CIMB Aviva Takaful. Previously, he was a reporter for Business Times, was appointed by the state government of Penang as the Chairman of the Penang Rent Tribunal, and was a past director of BHLB Trustee Bhd and PT Niaga Kommerce. He has conducted courses for banks through the Islamic Banking and Finance Institute of Malaysia (IBFIM) and was involved in the standardisation of Islamic financing agreement.
Mohammad Hashim Kamali is the Founding Chairman and CEO of IAIS Malaysia. He graduated from Kabul University, before going on to complete an LLM in Comparative Law and a PhD in Islamic and Middle Eastern Law in the University of London from 1969 to 1979. Kamali was a Professor of Islamic Law and Jurisprudence at the International Islamic University Malaysia (IIUM) (1985–2007) and also Dean of the International Institute of Islamic Thought and Civilisation (ISTAC). He has taught at the Institute of Islamic Studies, McGill University, and has also held Visiting Professorships at Capital University, Ohio, and at the Wissenschaftskolleg, Berlin. Professor Kamali was a signatory of the international ‘Common Word’ document between Christians and Muslims and was a member of the Constitution Review Commission of Afghanistan (2003) and he also served as an expert on the new constitutions of Iraq, the Maldives and Iraq. He has published about 140 academic articles and 20 books, many of which are standard textbooks at English-speaking universities worldwide.
Kazunori Hamamoto is a PhD candidate at the Graduate School of Theology, Doshisha University, Kyoto, Japan. He graduated from the Faculty of Law, Kyoto University, in 1995 and obtained his MA from the Graduate School of Theology, Doshisha University in 2009. He is specialising in Islamic jurisprudence, primarily in the renewal of Islamic law. Hamamoto has written papers on, among other
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matters, Islamic legal maxims and the theory of necessity. He also co-wrote a book on the familial law of the Ḥanbalī legal school, in which he translated a part of Zād al-mustaqniʿ by Sharaf al-Dīn Mūsā b. Aḥmad al-Ḥujāwī (d. 968) into the Japanese language. In 2009, awarded a scholarship from the Saito Foundation, he carried out research in Tunisia. He was a Visiting Research Fellow at the International Institute of Advanced Islamic Studies (IAIS) from January to March 2010.
Tahir Mahmood, former Dean of the Delhi University Law Faculty, is currently Chairman of the Institute of Advanced Legal Studies and Ambassador for Interfaith Harmony at Amity University, India. He has also served India in various capacities such as Chairman of the National Minorities Commission and Jurist-Member of the Law Commission of India. He has written numerous books and is the founder of the Islamic and Comparative Law Quarterly and the Religion and Law Review. He has been cited for his progressive views in numerous judgments of the Supreme Court and various High Courts of India. His major interest areas are Islamic law, human rights and religio-legal studies. Distressed by the widespread distortion and misinterpretation of Islamic law in certain parts of the world, he has recently formed an International Islamic Law Consortium with a worldwide membership aimed at presenting sharīʿah law to the contemporary world in its correct perspective.
Christoph Marcinkowski, award-winning German scholar of Islamic and Middle Eastern, as well as Southeast Asian and Security Studies, is Principal Research Fellow and Co-Chair (Publications) at IAIS Malaysia. He holds an MA in Iranian Studies, Islamic Studies and Political Science from the Free University of Berlin, Germany, and a PhD in Islamic Civilisation from ISTAC, where he served also as Associate Professor of Islamic History. He has held numerous distinguished fellowships, such as at New York’s Columbia University, Switzerland’s University of Fribourg, Singapore’s Nanyang Technological University, the National University of Singapore, and Kuala Lumpur’s University of Malaya. Professor Marcinkowski has published ten books, among them Religion and Politics in Iraq (Singapore, 2004) and The Islamic World and the West (Vienna, 2009), as well as about 100 articles and book chapters. Currently, he is editing two new books, Malaysia and the European Union: A Partnership for the Twenty-First Century, and Moving Ahead: Extending German–Malaysian Relations, which feature articles by senior practitioners in the field, and is concurrently writing two volumes on Shi‘ite organisations in Germany and the European Union, respectively.
Datu Michael O. Mastura, a noted Muslim lawyer, lecturer, author, and histo- rian-genealogist from Magindanaw, the Philippines, earned his Bachelor of Arts and Bachelor of Law degrees from Notre Dame University, Cotabato City, the
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Philippines, and his Master of Law from the University of the Philippines. He is an active senior member of the peace negotiating panel for the Moro Islamic Liberation Front in the ongoing peace talks with the government of the Philippines. He was a member of Congress from 1987 to 1995, Deputy Minister for Muslim Affairs, as well as President of the Amanah Bank in the Philippines. He has also served as a member of the Board of Regents of Mindanao State University. In 1991 he established the Sultan Kudarat Islamic Academy Foundation, which operated as an endowed institution (waqf) accredited with the Philippines’ Department of Education and the Commission on Higher Education.
Suzaina Kadir, award-winning Singaporean sociologist, is Senior Lecturer at the Lee Kuan Yew School of Public Policy in Singapore. She holds an MA and a PhD in Political Science from the University of Wisconsin at Madison, United States, and a Bachelor of Social Sciences and a Bachelor of Arts from the National University of Singapore. Her work focuses on religion and politics, in particular political Islam and Islamic movements in Southeast Asia. She has written several publications and papers on state–society interaction with a special focus on the interaction between religious movements and the state in Indonesia and island Southeast Asia (Malaysia, Singapore and the Philippines); political Islam and regional security in Southeast Asia and political transitions in Southeast Asia including the role of civil society and party system institutionalisation in Indonesia.
Zaleha Kamaruddin is Professor at the Kulliyah of Law at the International Islamic University Malaysia (IIUM). She has authored or edited 17 books and is extensively involved in the areas of comparative family law and international women’s rights. At the level of Malaysia’s federal states, she is affiliated to the Selangor State Council of Religious Affairs. At the national level, she is involved in the Technical Committee on Sharīʿah and Civil Law in the Department of Islamic Religious Affairs and in the National Religious Council. She is a member of the Malaysian Investigating Tribunal Panel, the Advocates and Solicitors’ Disciplinary Board Committee, the National Women Advisory Council, as well as a Technical Committee Member with the Non-Aligned Movement (NAM) Institute for the Empowerment of Women. Currently, she is also Deputy Director General of the Institute for Islamic Understanding (IKIM), a think tank in Kuala Lumpur.
Eric Winkel is since May 2009 Principal Research Fellow at IAIS Malaysia. After obtaining his PhD in Government and International Studies from the University of South Carolina in the United States he worked with the International Institute of Islamic Thought (IIIT) in Herndon, Virginia, and later the International Islamic University Malaysia (IIUM) on ideas of Islamisation. He has taught at universities
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in the United States, Mexico, and Pakistan as a Senior Fulbright Scholar and again recently at the National College of Arts in Lahore. His primary study focus over the last 20 years was on Ibn ʿArabī’s (d. 1240) Futūḥāt al-makkiyah. His publications include Islam and the Living Law (Oxford University Press, 1996), Mysteries of Purity: Ibn al-ʿArabī’s Asrār al-Ṭahārah (Cross Cultural Publications, 1995), and a novel, Damascus Steel (CAR&D, 2001). His current work is an attempt to connect the world of the new sciences with the study of civilisational renewal.
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ICR 2-1 01 text 229 28/09/2010 11:06 Aims of the Journal
Islam and Civilisational Renewal (ICR) was established in order to link up the unique Islamic tradition of more than 1,400 years of dialogue, pluralism, and coexistence with other world civilisations. ICR advances civilisational renewal, based on Malaysia’s Islam Hadhari (Civilisational Islam) initiative and its ten component principles: 1. Faith in God and piety 2. A just and trustworthy government 3. A free and independent people 4. A rigorous pursuit and mastery of knowledge 5. Balanced and comprehensive economic development 6. A good quality of life 7. Protection of the rights of women and minorities 8. Cultural and moral integrity 9. Safeguarding the natural resources and the environment 10. Strong defence capabilities ICR aims at becoming a platform of policy-relevant contemporary research that will contribute to a better understanding of Islam’s universal teachings through inter-faith and inter-civilisational dialogue.
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Islam and Civilisational Renewal (ICR) invites scholarly contributions of articles, reviews, or viewpoints which offer pragmatic approaches and concrete policy guidelines for Malaysia, the OIC countries, civic non-governmental organisations, and the private corporate sector. The principal research focus of IAIS is to advance civilisational renewal through informed research and interdisciplinary reflection with a policy orientation for the wellbeing of Muslim communities, as well as reaching out to non-Muslims by dialogue over mutual needs and concerns.
Our enquiry and recommendations seek to be realistic and practical, yet simultaneously rooted in Islam’s intellectual and spiritual resources, Muslim political and social thought, inter-faith exchanges, inter-civilisational studies, and global challenges of modernity.
Based at the International Institute of Advanced Islamic Studies (IAIS) in Kuala Lumpur, ICR’s inaugural issue appeared in October 2008 with contributions from distinguished scholars including Mohammed Hashim Kamali, Osman Bakar, Syed Farid Alatas and Christoph Marcinkowski.
ICR invites contributions on the following topics:
• issues of good governance and Islamic law reform in Muslim societies • science, technology, development and the environment • minorities and culture-specific studies • ethical, religious or faith-based issues posed by modernity • inter-faith, inter-civilisational, and Sunni–Shi‘ah dialogue and rapprochement.
A complete list of topics may be consulted at: http://www.iais.org.my/research.html. Contributions should be submitted as an e-mail attachment in Word for Windows (Mac files must be converted) to:[email protected] as well as a hard copy (double-spaced and consecutively numbered on one side only) to: Associate Editor – ICR, International Institute of Advanced Islamic Studies (IAIS) Malaysia, Jalan Elmu, Off Jalan Universiti, 59100 Kuala Lumpur, Malaysia.
ICR is published in English and it is essential that to help ensure a smooth peer-review process and quick publication all manuscripts are submitted in grammatically correct English. For this purpose, non-native English speakers should have their manuscripts checked before submitting them for consideration. The Editorial Board holds the right to make any necessary changes in the approved articles for publication upon consultation with the writers.
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ICR 2-1 02 endmatter 231 28/09/2010 11:06 GUIDELINES FOR CONTRIBUTORS
Islam and Civilisational Renewal (ICR) publishes original research works. Contributors to ICR should take the following guidelines into consideration:
Form
• Articles should not have been published elsewhere or sent for publication. Articles that have been a part of a dissertation can be considered if there is a major modification and adjustment. • Articles should be between 6,000 and 8,000 words. Authors should also include a 100 to 150 word abstract, outlining the aims, scope and conclusions but not containing sentences from the article. Book reviews should not exceed 1,200 words, and Viewpoints 1,500 words. • All submissions must include a separate page with the author’s name and current affiliation as they should appear in the journal and contact information (e-mail address, phone and fax numbers, and mailing address: all to remain confidential). • Contributors will receive a free copy of the Journal issue in which their article appears. • Authors are requested to extract actionable policy recommendations from their research – preferably in brief bullet point format in the conclusion. • Languages based on Arabic script should be transliterated following the system applied in the Journal of Islamic Studies, Oxford (see Transliteration Table). In terms of capitalisation in languages other than English in biblio- graphical references, authors are encouraged to consult the Chicago Manual of Style (ch. 10).
Content
• The Journal is devoted to civilisational renewal, in particular of Muslim communities, while, at the same time, reaching out to non-Muslims. • Submitted articles should be scholarly, but also accessible to a wider audience.
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Consonants Ar = Arabic, Pr = Persian, OT = Ottoman Turkish, Ur = Urdu
Ar Pr OT Ur Ar Pr OT Ur Ar Pr OT Ur ’ ’ ’ ’ z z z z - g g g b b b b - - - ṙ l l l l - p p p - zh j zh m m m m t t t t s s s s n n n n - - ṫ sh sh s sh h h h1 h1 th th th th ḍ ḍ ḍ ḍ w v/u v v/u j j c j ṣ ṣ ṣ ṣ y y y y - ch ç ch ṭ ṭ ṭ ṭ -a2 -a2
3
̉ ̉ ̉ ḥ ḥ ḥ ḥ ẓ̉ ẓ ẓ ẓ -al kh kh h kh 1 when not final 2 d d d d gh gh ġ gh -at in construct state 3 (article) al- or l- - - - d f f f f dh dh dh dh q q ḳ q r r r r k k/g k/ñ/ǧ k
Vowels Arabic and Persian Urdu Ottoman Turkish Long ā ā ā Ā Ā - ū ū ū ī ī ī Doubled iyy (final form ī) iy (final form ī) iy (final form ī)
uww (final form ū) uv uvv uvv (for Persian) Dipthongs au or aw au ev ai or ay ay ey Short a a a and e u u u or ü o or ö i i i
Urdu Aspirated Sounds
For aspirated sounds not used in Arabic, Persian and Turkish add h after the letter and underline both the letters e.g. jh gh For Ottoman Turkish, modern Turkish orthography may be used.
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