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The Evolution of Syariah and Postcolonial Modernity: Embedding Malay Authority Through Statutory Law 1

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The Evolution of Syariah and Postcolonial Modernity: Embedding Malay Authority Through Statutory Law 1 The evolution of Syariah and postcolonial modernity: embedding Malay authority through statutory law 1 Maznah Mohamad National University of Singapore Introduction One of the pillars of State Islamization is the devel - as well as expand Syariah through the enactment of opment of exclusive laws for Muslims. However, this statutes. Thus, I argue that for at least a century or project of authenticating Islam through the enact - more, the evolution of Syariah has been a temporal, ment and implementation of the Syariah is con - if not a secular exercise frequently mistaken for a tentious. Laws meant for Muslims are not movement towards de-secularization in society. In this unequivocally “Syariah” in essence since many of the article I focus on the development of the Syariah in rules may not directly emanate from divine sources Malaysia, a former British colony, today ruled by a such as the Quran or Hadith. Regulations and norms majority Malay/Muslim-dominated government. If a for Muslims are also set forth through edicts known pattern were to be discerned, the “Syariah-tization” as the fatwa , the authoritarial voice and juridical process feeds into the political agenda of entrenching source have traditionally been unstructured, shifting the authority of ethnic “Malayness” within the system and decentralized (Messick, 1986; Burhanudin, rather than that of building an eventual Islamic state 2005). In truth, many local particularities and cultural in line with an ostensible global trend of Islamization. considerations have found their way into the making More importantly this is achieved through faith in a of the Syariah. In the modern context Islamic laws are secular order of law-making rather than through the determined by legislature and in many countries, dismantling of these structures. drafted and validated through a procedural, parlia - The intensification of Islamization is dependent mentary process. This latter system of Syariah law- on the increased codification of the Syariah and by making has supplanted the earlier traditions. The being so, manifests secular law-making, which is then origin of this modern Syariah law-making exercise employed to govern (or rather homogenize and could likely be traced to European colonial rule, ringfence) Muslims within a plural nation-state. which had fashioned Islamic law as a hybrid system, Through fixed stipulations, the Syariah is able to re - incorporating elements of “sacred law’ with customary flect and convey the immutable message of the reli - and British laws replicated almost consistently in all gion, while simultaneously imbibing the shifting of the colonies, from Malaya (Yegar, 1979:119; Husin political contexts and authority-structure of nation- 2007: 4) to Nigeria (Oba, 2002). But while the origin states as they invent and reinvent themselves. While of the Syariah’s formalized and hybridized legislation all Muslim laws try to approximate precepts derived can be traced to colonialism, even postcolonial state from the Quran, Hadith and Sunnah, the formal and religious authority have continued to legitimize, statutes which contain these derived precepts isa.e-Forum © 2011 The Author(s) © 2011 ISA (Editorial Arrangement of isa.e-Forum) 1 Mohamad ultimately vary from one social context to another, historical evolution took place roughly covers the from one historical period to the next, and from one three periods I have briefly sketched above. To reit - national state to the other. erate and abbreviate some of their distinguishing In Malaysia, the Syariah’s evolution into statutory features: law began with its first brush with colonial agents. As part of the political plan to cultivate and co-opt in - 1. The colonial period (1900s-1950s), when plural digenous ruling elites into accepting governance by statutes were formalized, while Islamic law was fused the rule of law, a plural legal system was in set in place with other living laws such as Adat. This was the pe - and a space of autonomy was created for local rulers riod when Malayness was first reified as a legal, dis - to confine their powers of regulation to that of reli - crete category. gious and customary matters. This appeared to have reified the first legal notion of what being a “Malay” 2. The postcolonial period (mid-1980 – early 2000s), meant, with Islam inextricably forming one of its when exclusive statutes for Muslims were rationalized non-negotiable constituents (Husin, 2007). A post - to accommodate modernization. As a by-product of colonial period of nationalization followed, when laws this, a progressive Islamic Family Law was enacted. for Muslims were rationalized to characteristically fit However this was also a period of a fledgling civic in with the ethos of progress and modern notions of Malayness which could not take off completely. Al - civil liberty. This soon proved to be merely a shaky, though dominated by a progressive Syariah Family transitional period, which was gradually overtaken by statute this was eventually supplanted by another leg - a new phase of forceful state Islamization. The latter islation in the following period. has featured the latest phase of Malaysia’s Syariah law- making exercise, where there is now a distinctive trend 3. The current period (post-2000s) is characterized by towards the multiplication, differentiation and exten - the centralization of Islamic governance accompanied sion of the Syariah to encompass and delineate as by the multiplication and differentiation of Syariah much as possible an emerging sphere of “Muslim cit - statutes. Here Islam is elevated as the primus inter izenry”. In this, Syariah statutes cover a gamut of reg - pares of all other religions and various new statutes, ulations for Muslims, ranging from family to property including a New Family Syariah was enacted to con - to associational to morality to criminal laws. But in tain the ethos of this period. A ringfenced legal Mus - all of these, laws for Muslims and on the Muslim fam - lim-ness eases the way for the entrenchment of a ily had crucially evolved to embed a particular ethno - masculinist Malay authority within the system. centric authority: that of the masculinist, Malay state, though taken to be the essentialist and authentic Is - The above phases were marked by the passage of lamic identity, reclaimed in modern times. I attempt different statutes, sets of multiple codes that enabled to show this by tracing how the Syariah has evolved the varying definition of the Malay-Muslim and sub - as sets of statutory laws that were expedient in the sequently the stipulations, limitations and offences eventual creation of this masculinist Malay-Muslim applied to their subjectivity. The discussion below an - state within a plural modern nation-state. alyzes each period by highlighting the essential fea - Malaysia is a country of 14 million Muslims, who tures of the varying and evolving laws for Muslims in constitute 60% of the total population. While all the country. I also analyze some of the societal dis - Malays are constitutionally defined as Muslims, not juncture consequent upon the application of these all Muslims in the country are ethnically Malay. It is laws as these statutes try to serve their purpose of con - Malay, rather than Islamic authority that is embedded structing the essential and authentic Muslim society through the Syariah’s evolution; and its legal character in modern times. should correctly be seen as statutory rather than di - vine. The turning-point-moments through which this 2 The Evolution of Syariah and Postcolonial Modernity Colonial Period (1900s-1950s) Minangkabau tradition, but was modified and altered under Hindu influence. Thus in adat temenggong , we Extensive scholarship had already established that find that land tenure and inheritance is similarly based ‘Malay’ and ‘Islamic’ laws were in existence even be - on a bilateral system, as in adat perpateh , although lin - fore the coming of European colonization, (Wilkin - eage (among the nobility) is traced to the paternal son, 1929; Taylor, 1937; Buss-Tjen, 1958; Ahmad line. Yet another form of law, which came under colo - Ibrahim, 1965; Hooker, 1970; Hooker, 1976). But although many local laws were found to have existed nial knowledge classification was law derived from Is - in written forms there is scant evidence of their lamic sources. The body of laws derived from divine breadth and depth of influence and implementa - or Quranic sources was known by the local term as tion. Some appeared to be reproduction and copies Hukum Syarak (Shara’). Subsequently, when these of laws from as far as Persia, such as the 99 Laws of laws were translated into statutes by the British, the Perak (Buss-Tjen, 1958). The Minangkabau laws on appellation “Muhammadan laws” was attached to it. the other hand were not written as formal dictates Interestingly enough, locals did not refer to these laws or a set of explicit rules but in the form of the Per - as Undang-Undang Islam (lit. Islamic Law) but pre - bilangan or poetical stanzas. 2 By tradition they were ferred the epithet Hukum Syarak to distinguish reli - transmitted orally but codified by colonial scholars at the turn of the twentieth century (Caldecott, gious from customary dictates . 1912). Other compilation of Malay laws were later At the point of early colonization the jurisdictions distinguished by their collective names such as the of the variety of laws were all acknowledged, recog - Undang-Undang Kerajaan (Laws of the Monarch), nized and applied to particular communities by colo - Kedah Digest and the Malacca Digest. Various ver - nial administrators. Hukum Syarak was just one of sions of these law collections could be found from the three streams of laws practiced by locals. The con - Acheh to Macassar to Mangindanao. The dates of cept of a universal Islam or orang Islam or Syariah was origins are not known but they were either scribed not prevalently used then – or at least not from evi - or discovered from about the 17th century onwards.
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