Rise of Islamic Law in Malaysia

Aug 27, 2009

Rise of Islamic law in M'sia( Singapore Straits Times Excerpt)


KUALA LUMPUR - THE dramatic case of a Muslim model who faces caning for drinking beer in Malaysia has highlighted concerns Islamic law is on the rise and that the nation's secular status is under threat.

Kartika Sari Dewi Shukarno, 32, was arrested at a hotel nightclub and sentenced to six strokes of the cane last month, in a rare prosecution of religious laws that ban alcohol for Malaysia's majority Muslim Malays.

Her insistence that she was ready to face her punishment and would not appeal threw government and religious authorities into a spin as they attempted to carry out the sentence against a woman for the first time.

As international headlines mounted, and foreign TV crews reported live from her family's home as the mother-of-two was detained ahead of the thrashing, she was abruptly released and the punishment is now on hold indefinitely.

'The overriding view was that the sentence meted out was too harsh and is not commensurate with the offence,' Women's Minister Shahrizat Abdul Jalil said as she announced the religious court would hold a review. 'We are equally concerned not only for Kartika Sari, but also for the fact that this one particular case could have damaged the image of Malaysia in its fair and just implementation of the Syariah law.'

Despite the queasiness in meting out the sentence, in a jail not far from the glittering capital Kuala Lumpur, Malay politicians have long been competing to be seen as more pious than the other.

The dynamic of 'political Islam", which has alarmed Malaysia's minority ethnic Chinese and Indians, has gone into overdrive since 2008 elections that humiliated the long-serving Barisan Nasional coalition.

The United Malays National Organisation (UMNO) which leads the coalition and needs Malays as its bedrock, is being challenged by the conservative Islamic party PAS, a member of the resurgent Pakatan Rakyat opposition.

Azmi Sharom, an associate professor in the law faculty of Universiti Malaya, said that in their eagerness to display their religious credentials, politicians were failing to check the creeping authority of the Syariah courts which operate in a dual-track system with the civil courts.

Syariah courts can prosecute Muslims for certain offences including drinking alcohol and 'proximity' or illicit contact with the opposite sex. While enforcement has been lax in the past, it is now becoming more aggressive, and the scope of the religious courts appears to be expanding.

Mr Azmi said the government, which is keen to preserve Malaysia's reputation as a progressive and moderate Muslim nation, was skirting the issue by urging Kartika to appeal. -- AFP


HOW MUCH SHOULD THE LAW EXTEND TO?

Harussani Zakaria, the mufti for northern Perak state - an Islamic scholar empowered to give rulings on the Syariah - endorsed the push for stricter implementation of Islamic law.

'People will ask, you have this law, why don't you practise it? When we practise it, then the government interrupts the process,' he complained, adding that Kartika should be punished swiftly.

The influential cleric said Malaysia would be better off if all citizens, including non-Muslims, were subject to Islamic law including 'hudud' penalties like stoning adulterers and chopping off thieves' hands.

Zaid Ibrahim, a former cabinet minister in charge of legal affairs who quit last September and later switched to the opposition, said problems can arise if sharia pronouncements conflict with the constitution.

'But which Malay political leaders from either side of the political spectrum dare touch it?' he said. 'So the hardliners can and will always push and push and Malaysia will no longer be a liberal and moderate modern state.'

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Sharia law: A brief introduction

Sharia Law - source and definitions:

The term "Sharia" (a.k.a. Shari'a) literally means "the path to a watering hole." The Guardian newspaper in the UK describes Sharia as: "... a religious code for living, in the same way that the Bible offers a moral system for Christians." 1 It is used to refer both to the Islamic system of law and the totality of the Islamic way of life. Sharia is derived both from:

The teachings of the Qur'an. This is the Muslim holy book, which corresponds to the Jews' Torah and the Christians' Holy Bible. Muslims believe that the Qur'an is the Word of God, as dictated to the prophet Muhammad by the angel Gabriel.
From Sunna, which is referred to as Islamic "Custom or practice; particularly that associated with the exemplary life of the Prophet Muhammad, comprising his deeds and utterances as recorded in the hadith." The hadith literally means "report" or "narrative".

Sharia law: founders and schools:

Perhaps the two greatest original founders of Sharia law were Malik ibn Anas and Ibn al-Shaf'i. Anas established the Maliki school of jurisprudence. Al-Shaf'i was one of Anas' students; he disagreed with his teacher about the reliability of the hadith. He felt that it was necessary to trace each hadith from the time of Muhammad through its chain of devout Muslims. This concern led to Islamic scholars considering "... which hadith were true and which were not." Needless to say this led to conflicts among scholars as to the proper application of Sharia law.

Ibn al-Shafi'i promoted the use of additional sources for Shari'a law:

The technique of "... reasoning by analogy in order to develop new laws from existing laws." As the culture evolves, new types of problems emerge that need to be dealt with. Pre-implantation Genetic Diagnosis (PGD) used to prevent the development of a severely defective human embryo is one example.

The technique of accepting the consensus of a Muslim community. The reasoning is that Allah would not allow an entire community to be in error on a basic Islamic principle.

There are four main schools of Sharia law:

Hanbali: This is the most conservative school of Shari'a. It is used in Saudi Arabia and some states in Northern Nigeria.

Hanifi: This is the most liberal school, and is relatively open to modern ideas.

Maliki: This is based on the practices of the people of Medina during Muhammad's lifetime.

Shafi'i: This is a conservative school that emphasizes on the opinions of the companions of the Prophet Muhammad.

What applies within one school of Sharia law does not necessarily apply in the other schools. For example, the Maliki Law School accepts evidence of pregnancy as proof that an unmarried woman has either committed adultery or been raped. The other schools "... do not recognize evidence of pregnancy as proof of Zina [Adultery]."

Recent history:

The Constitutional Rights Foundation notes that:

"In the 19th century, many Muslim countries came under the control or influence of Western colonial powers. As a result, Western-style laws, courts, and punishments began to appear within the Sharia. Some countries like Turkey totally abandoned the Sharia and adopted new law codes based on European systems...Modern legislation along with Muslim legal scholars who are attempting to relate the will of Allah to the 20th century have reopened the door to interpreting the Sharia. This has happened even in highly traditional Saudi Arabia, where Islam began....Since 1980, some countries with fundamentalist Islamic regimes like Iran have attempted to reverse the trend of westernization and return to the classic Sharia."

Within Sharia law, there are a group of "Haram" offenses which carry severe punishments. These include pre-marital sexual intercourse, sex by divorced persons, post-marital sex, adultery, false accusation of unlawful intercourse, drinking alcohol, theft, and highway robbery. Haram sexual offenses can carry a sentence of stoning to death or severe flogging. An eyewitness account of Soraya M, a woman executed by stoning, can be read on an anti-Iranian web site. Caution: do not read this if you have a weak stomach; it is quite graphic.

Sharia law has been adopted in various forms by many countries, ranging from a strict interpretation in Saudi Arabia and northern states of Nigeria, to a relatively liberal interpretation in much of Malaysia.

Sharia law is intended to be only applicable to Muslims. Christians and other non-Muslims are supposed to be exempt from the provisions of the law; this is a provision that is not universally followed..