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Sexuality, Islam and Politics in Malaysia: a Study of the Shifting Strategies of Regulation

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Sexuality, Islam and Politics in Malaysia: a Study of the Shifting Strategies of Regulation SEXUALITY, ISLAM AND POLITICS IN MALAYSIA: A STUDY OF THE SHIFTING STRATEGIES OF REGULATION TAN BENG HUI B. Ec. (Soc. Sciences) (Hons.), University of Sydney, Australia M.A. in Women and Development, Institute of Social Studies, The Netherlands A THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY DEPARTMENT OF SOUTHEAST ASIAN STUDIES NATIONAL UNIVERSITY OF SINGAPORE 2012 ii Acknowledgements The completion of this dissertation was made possible with the guidance, encouragement and assistance of many people. I would first like to thank all those whom I am unable to name here, most especially those who consented to being interviewed for this research, and those who helped point me to relevant resources and information. I have also benefited from being part of a network of civil society groups that have enriched my understanding of the issues dealt with in this study. Three in particular need mentioning: Sisters in Islam, the Coalition for Sexual and Bodily Rights in Muslim Societies (CSBR), and the Kartini Network for Women’s and Gender Studies in Asia (Kartini Asia Network). I am grateful as well to my colleagues and teachers at the Department of Southeast Asian Studies – most of all my committee comprising Goh Beng Lan, Maznah Mohamad and Irving Chan Johnson – for generously sharing their intellectual insights and helping me sharpen mine. As well, I benefited tremendously from a pool of friends and family who entertained my many questions as I tried to make sense of my research findings. My deepest appreciation goes to Cecilia Ng, Chee Heng Leng, Chin Oy Sim, Diana Wong, Jason Tan, Jeff Tan, Julian C.H. Lee, Madhu Mehra, Masjaliza Hamzah, Melody Lu Chia Wen, Mujde Bilgutay, Norani Othman, Rusaslina Idrus, Smita E. Sharma and Zainah Anwar. iii In addition to those named above – who often doubled‐up as my ‘cheer squad’ – this dissertation would not have been completed without another important source of support. I am indebted to my parents Yeoh Siew Hong and Tan Siew Soo, and dear friends, Alice Yap Boon Hui, Anisha Susanna George, Arunima Datta, Bernie Chow, Choo Li‐Yeng, Jana Rumminger, Janine Moussa, Judith Loh, Lim Chin Chin, Ng Siew Hian, Ng Tze Yeng, Silvia Mila Arlini, Suriani Suratman, Tashia Peterson, Yati Kaprawi, and Zarizana Abdul Aziz. All gave generously with their time, support and/or counsel. This thesis is dedicated to the memory of Ruff who showered me with his abundance and love. iv Table of Contents Acknowledgements iii Summary vii List of Tables ix List of Diagrams ix Glossary xi Chapter 1 Introduction 1 Why this Study? 4 Central Arguments 7 Methodology and Scope 11 Organisation of Study 15 Chapter 2 Heteronormativity, the State and ‘Syariah’ 19 Heteronormativity and the State 23 The Federal State 28 Politicising Islam: The role of the centre 33 ‘Syariahtisation’: Islamisation augmented 39 ‘Syariah’ Law and Sexual Regulation 42 Chapter 3 A Political History of ‘Islamic’ Sexual Morality in Malaysia 55 ‘Islamic’ Sexual Injunctions: The pre‐colonial and colonial period 57 Post‐Colonial Sexual Morality: The emergence of ‘unnatural’ 62 religious crimes Syariah Criminal Offences Laws: Origins and impetus 66 The anti‐colonial factor 66 Why Kelantan? 73 Legislative motivations 77 The SCO Laws Revisited: ‘Syariahtisation’ and the Federal factor 81 The Technical Committee on Syariah and Civil Laws 83 Challenges in forcing conformity 87 Conclusion 90 Chapter 4 ‘Secular’ Sex Laws: A precursor to ‘Syariah’ morality? 93 The English Moral Legacy 95 Section 377 of the Penal Code 97 Other colonial bodily controls 101 Fortifying ‘Secular’ Controls Over Sexuality: After British rule 104 Overlapping Moral Laws 109 Explaining the common ground 113 When politics trumps ‘Syariah’ 118 Conclusion 122 Chapter 5 Regulated Sexualities: ‘Unnatural’ encounters with the law 125 Prosecuting ‘Unnatural’ Sex 127 The ‘gay’ experience 127 The ‘lesbian’ experience 132 The fate of other heterodox ‘women’ and ‘men’ 134 Exploiting Gender Ambiguity: The mak nyah experience 143 Other encounters with moral policing 152 Conclusion 157 v Chapter 6 Enforcing Morality: The Federal state agenda 159 The Evolution of the Religious Enforcement Machinery 162 Policing Gone Wrong: The official story 170 Strengthening ‘Syariah’ Enforcement from the Centre 175 Scrutinising the Federal initiative 178 Conclusion 184 Chapter 7 Convergences, Contestations and Complications around Regulating 187 Sexual Marginals Sensational Media and ‘Perverse’ Sexualities 188 Contestations to the Fore 192 The pengkid fatwa 194 Centralisation and Control 203 Complications to 1Islam 215 The Federal political elite versus religious functionaries 216 The religious bureaucracy versus State political leaders 220 A resurgence of the monarchs? 222 1Islam unspun 223 Conclusion 229 Chapter 8 Conclusion 231 Bibliography 241 Annex 1 261 vi Summary Many constituencies are implicated in the assertion of ‘Syariah’ but how this process has come to bear upon those with non‐normative sexualities and genders is an area of research that remains understudied. How has ‘Syariahtisation’ – understood here as a politically driven enterprise to promote and reinforce hegemonic Islam – contributed to and benefited from the deployment of a discourse on sexuality that is intolerant of those who do not live up to its standards? By tracing the genealogy and mechanisms of ‘Syariah’ in the Malaysian context, and comparing this against ‘secular’ laws that regulate sexual marginals, this study shows that ‘Syariahtisation’ has produced a powerful meta‐narrative that reifies heteronormativity and its abhorrence of sexual and gender diversity. Strengthened by claims that ‘Syariah’ laws are divine, this has struck sufficient fear among those painted as the most deviant – even when enforcement of these laws is irregular – to discipline and keep them in line. As well, the ensuing discourse on sexuality has strengthened hegemonic Islam by heightening a greater sense of ‘Syariah’. While the state has muted most challenges to what it dictates as acceptable sexuality, its authority is not absolute. Importantly, the contestations that have erupted over the position of the ‘Syariah’ on discordant sexualities and genders also point to other agendas that are at stake, in particular maintaining the credibility of the Islamic Development Department, Malaysia (JAKIM) and other federal Islamic bodies as the gatekeepers of hegemonic Islam, and ethnic‐Malay nationalist interests that are framed as a defence of Islam. Operating in concert as the Syariah lobby, their attempts to regulate sexuality may give the impression that Islam is homogenous, unchanging and formidable, but they also reveal its fragility as a tool of governance and control. vii viii List of Tables Table 3.1 Syariah Criminal Offences (Federal Territories) Act 1997: 63 Sexual crimes Table 4.1 Comparison between ‘Syariah’ and ‘secular’ moral laws 110 (selected offences) Table 5.1 Syariah Court Cases in Peninsular Malaysia: 146 Selected criminal offences Table 5.2 Syariah Court Cases: Men Behaving Like Women 148 Table 7.1 National Islamic Expenditure as % of Prime Minister’s 206 Department Expenditure List of Diagrams Diagram 1 Conceptual framework 53 ix x Glossary adat custom akhlak conduct amar maaruf, commanding right, forbidding wrong nahi mungkar aqidah belief aurat bodily part that must be covered baitul mal Islamic treasury bilal person who gives the call to prayer BAHEIS Bahagian Hal Ehwal Agama Islam (Islamic Affairs Division) BN Barisan Nasional DAP Democratic Action Party EPU Economic Planning Unit FMS Federated Malay States FT Federal Territories fatwa legal opinion fiqh jurisprudence hadd limit haram unlawful hisbah enforcement of the law hudud a set of crimes and punishments stated in the Quran ICU Implementation and Coordination Unit IFL Islamic Family Law ijtihad personal or independent reasoning IKIM Institut Kefahaman Islam Malaysia (Institute of Islamic Understanding Malaysia) imam leader of a congregational prayer JAG Joint Action Group for Gender Equality JAIM Jabatan Agama Islam Melaka (Melaka Religious Department) JAIS Jabatan Agama Islam Selangor (Selangor Religious Department) JAKIM Jabatan Kemajuan Islam Malaysia (Department of Islamic Development, Malaysia) xi JAWI Jabatan Agama Islam Wilayah Persekutuan (Federal Territory Islamic Affairs Department) JAWHAR Jabatan Wakaf, Zakat dan Haji (Department for Wakaf, Zakat and Haji) JKSM Jabatan Kehakiman Syariah Malaysia (Syariah Judiciary Department of Malaysia) kafir infidel kathi/kadi religious judge khalwat illicit proximity MAIS Majlis Agama Islam Selangor (Selangor Religious Council) Majlis Agama Islam Religious Council Majlis Raja‐raja Council of Rulers maksiat vice MAMPU Malaysian Administrative Modernisation and Management Planning Unit MKI Majlis Kebangsaan Bagi Hal Ehwal Agama Islam Malaysia (National Council of Islamic Affairs, Malaysia) mufti juristconsult muhrim those whom one cannot marry due to familial ties muhsan married MSWP Mahkamah Syariah Wilayah Persekutuan (Federal Territory Syariah Court) rejam stoning to death NGO non‐governmental organisations OIC Organisation of the Islamic Conference PAS Parti Islam Se‐Malaysia penghulu village head PKR Parti Keadilan Rakyat PR Pakatan Rakyat qadf false accusation/slander qisas law of retaliation SCC Syariah Criminal Code SCOA Syariah Criminal Offences Act sida­sida eunuchs SIS Sisters in Islam sunnah traditions of the Prophet xii SS Straits Settlements takzir discretionary taqwa God‐fearing tarbiyyah education tauliah permit ulama
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