Middle East Law and Governance 4 (2012) 356–385 brill.com/melg Malaysia: Religious Pluralism and the Constitution in a Contested Polity Andrew Harding Centre for Asian Legal Studies, National University of Singapore Abstract Malaysia has a classically plural society with a Malay/ Muslim majority and a legal system which, for historical reasons, is bifurcated between the common law and Islamic law. It also has a colo- nial-era federal constitution under which Islam is a state issue. Disputes concerning religion are both many and divisive. They are dealt with mainly in constitutional terms, especially in debates about the notion of an Islamic state, in light of Article 3 and the enshrinement of an official religion and in litigation. The latter is rendered complex by the separation of Islamic from com- mon law jurisdiction in 1988, a fact that has given rise to highly sensitive and troubling litigation involving, especially, religious conversion in Lina Joy (2007). This article traces historical devel- opments relating to religion and the law, and finds cause for some optimism that religious divides can be bridged by constitutional means, in light of recent judicial responses and evolving debates about the constitutional position of Islam. Keywords Malaysia, Islam, religion, multi-culturalism, Constitution, syariah courts ‘Adat yang kawi, Shara’ yang lazim’. (Custom is the real law, Shari’a is the ideal law).1 Introduction In the places known since 1963 as ‘Malaysia’, comprising nine Malay States and four former British colonies, religious pluralism has existed since 1) This Minangkabau proverb from the Malaysian State of Negri Sembilan is placed at the head of this article to indicate that the tension between tradition and religious doctrine has always been a strand of Malay culture. Under the customary law of the Minangkabau, the matrilineal adat perpatih, property, to this day, passes via the female line, in contradiction of Islamic law. © Koninklijke Brill NV, Leiden, 2012 DOI 10.1163/18763375-00403007 A. Harding / Middle East Law and Governance 4 (2012) 356–385 357 time immemorial. Over many hundreds of years, animism, Hinduism, Buddhism, Islam, Christianity, Taoism Sikhism, and other religious beliefs and practices have co-existed in relative harmony. Yet, in recent years, Malaysia’s reputation for religious tolerance and cultural diversity has become tarnished by images of an intolerant form of Islamisation and of inter-religious strife. In particular, the tragic case of Muslim apostate Lina Joy in 2007 (discussed later in this article) drew attention to the great hostility towards a woman whose campaign simply to choose her own religion led to rejection by the courts and her flight overseas to escape death threats which extended to her Christian fiancé and even a Muslim human rights lawyer involved in the case. Of course, Malaysia is not the only country to experience the paradox of historic religious diversity with co-existence, on the one hand, and contempo- rary strife and division on the other. Nonetheless, what remains interesting in this example is the attempt to deal with the tensions inherent in diversity in a constitutional fashion. In a world in which the exclusively secular nature of states is no longer taken for granted, and religious diversity has become almost universal, Malaysia, as we will see, offers us cause for both warning as to the consequences of intolerance, and hope that that intolerance can be overcome or, at least, contained by constitutional means. In Malaysia, Muslims comprise about 60% of the total population of 28.6 million; Buddhists about 19%; Christians about 9%; Hindus about 6%; Confucian/Taoists about 3%; Sikhs about 2%; and others (mainly animists) about 1%. There is also a clear relationship between ethnicity and religion, particularly given that virtually all Malays are Muslim: indeed, the definition of ‘Malay’ in the Constitution includes being Muslim (this was a factor in Lina Joy’s case).2 In recent years, religion has, to some extent, replaced ethnic- ity in defining identity and interest in what has become a complex and con- tested polity.3 As the author and Amanda Whiting have put it, in Malaysia liberal values and causes are always culturally or socially inflected. Citizenship rights have a social and ethnic dimension; equality before the law has a different meaning as between Muslims and non-Muslims; freedom to speak is freedom to speak about 2) Constitution of Malaysia, art. 160, sec. 2. However, not all Muslims are Malay; they include Indian Muslims and Chinese, Indian, and Sabah/ Sarawak native converts. 3) A.J. Harding, “Constitutionalism, Islam, and National Identity in Malaysia,” in Constitutionalism in Islamic Countries: Between Upheaval and Continuity, eds. R. Grote and T. Rode (Oxford: Oxford University Press, 2012). See, further, A.J. Harding, The Constitution of Malaysia: A Contextual Analysis (Oxford: Hart Publishing, 2012), ch. 8. 358 A. Harding / Middle East Law and Governance 4 (2012) 356–385 something, and in Malaysia that something has ethnic/ cultural/ religious and social con- tent and connotations.4 The intention of this article is to examine some of the debates and controver- sies around religion and the Constitution, which appear to have begun in the early 1980s and intensified significantly since the millennium. Of particular relevance here is the debate concerning Malaysia as an ‘Islamic state’; jurisdic- tional contradictions between the civil and syariah5 courts; and the related issue of religious freedom. All of these are exemplified by the Lina Joy case. Traditional methods of dealing with diversity (these being the ‘pluralism’ which Anver Emon6 refers to as the state’s response to the fact of diversity) are presently under great stress, and the future resolution of these issues is both fraught and unclear. Law and religion in Malaysian history Pre-Islamic society in Malaysia was either largely Hindu (in Malaya, or West Malaysia) or animistic (in Sabah and Sarawak, or East Malaysia); and law was, in general, based on custom (adat).7 Islam came to Malaysia in the 14th cen- tury by means of Arab merchants and Sufi missionaries. When the Malacca Empire was created in the early 15th century, its Hindu founder Parameswara converted to Islam and changed his name to Iskandar Shah. The royal houses of the Malay States derived culturally and politically from the Malacca Empire, which splintered following its destruction by the Portuguese in 1514 into riverine states roughly commensurate with the present states of peninsular Malaya.8 In these states, the Malay Rajas (later usually styled ‘Sultan’, the name change itself a nod towards Islam and a demotion of the Hindu past) linked themselves symbolically with the Arab mainstream Islamic tradition, 4) A.J. Harding and A. Whiting, “‘Custodian of Civil Liberties and Justice in Malaysia’: The Malaysian Bar and the Moderate State,” ch 7, of Fates of Political Liberalism in the British Post- Colony: The Politics of the Legal Complex, eds. T. Halliday, L. Karpik and M. Feeley (Cambridge: Cambridge University Press, 2012). 5) Since this Malay spelling is a matter of legislation, dependant on the context, this spelling, rather than the more universal ‘shari’a’, will be used. 6) This special issue. 7) See the proverb at the head of this article. 8) They are Johor, Kedah, Kelantan, Negri Sembilan, Pahang, Perak, Perlis, Selangor, and Terengganu. A. Harding / Middle East Law and Governance 4 (2012) 356–385 359 attempting, in general, to base their laws and governments on a combination of Islamic principles and adat.9 Some formal traditions derived from Hinduism also remained. Sabah and Sarawak were originally parts of the Brunei sultan- ate, which was also culturally related to the states of Malaya. Hence, Islam was invariably the State religion and the Ruler was also the Head of Islam. This remained true from the Malacca Empire onwards, and, indeed, throughout the period of colonial rule and up until today.10 As James Tully indicates in this issue, it is important to attempt to under- stand the pre-colonial shari’a tradition in the context of its pluralistic potenti- ality – that is, outside the framework of modern law.11 In the case of the Malay States, our knowledge of this is lamentable: not only has little research been done in this field, but the story is likely to vary a good deal from place to place, time to time, and Ruler to Ruler; and, crucially, shari’a had to compete with indigenous Malay adat (customary law). In general, Islamic law seems to have played an important role as the personal and religious law of Muslims (mainly family law, succession, the law relating to mosques, and religious observance) while adat played an important role in criminal law and property, but only marginally in family law. In this the Malay States were probably very different from other parts of the Muslim world, especially the Middle East. There were no customary courts and conflicts were usually judged by the khadi (Muslim judge) with the opportunity to appeal to the Ruler. Even now, the religious bureaucracy, which exists at the State level, has custody of adat as well as syariah; in other words, as the law of Malay/Muslims, these two sets of legal norms have become intertwined and, so, have to be administered together. Although the 19th century legal systems of Malaya are described as Islamic, they were probably often very far in practice from any Islamic ideal, but the position generally varied according to the power and the inclination of the Ruler, as well as on the extent of local adherence to adat.12 In Negri, Sembilan, and the Naning district of Malacca, for example, the matrilineal adat perpatih of the Minangkabau prevailed, which was contrary to Islam in 9) The transplantation of Islamic law can be seen clearly in the Undang-Undang Melaka (Laws of Malacca) of the 15th century.