Since 9/11, Islamic law has gained an unfair reputation for being medieval and repressive. Certainly, there are occasional high-profile cases that seem disturbing according to modern notions of human rights (stoning in Iran for instance). Yet, many non-Muslims lack a firm grasp of how Islamic Courts actually operate on a regular basis. In Islamic Modern: Religious Courts and Cultural Politics in Malaysia, Professor Michael Peletz, who conducted fieldwork in Malaysia during the 1980s, provides synopses and transcripts of several cases in the Islamic Court in Rembau. He argues that, far from being repressive, Islamic Courts in fact tend to resemble arbitration and family counseling.
As a record of the types of cases in the docket of the Islamic Court of Rembau, Islamic Modern is invaluable. The book – and Peletz’s commentary – really conveys a sense of how Islamic courts operate on a daily basis. Almost all of the cases dealt with actions for divorce – from the husband who wants a second wife to the wife who abandons her lazy husband. Surprisingly, females were more likely to initiate litigation than males. Indeed, I was surprised how often the Kadi (judge) permitted the wife’s petition for divorce and how often he stressed the husband’s responsibility in marriage. Furthermore, by treating marriage as a contractual obligation between individuals, Peletz argues that Islamic Courts are modernizing Malay identity slowly eroding customary familial and kin linkages (hence the title “Islamic Modern”).
Beyond the actually cases, I found Islamic Modern unfortunately lacking. First, the cases Peletz summarizes deal almost exclusively with divorce. I understand that marital actions probably do comprise a large portion of the docket of most Islamic Courts (as statistics on pages 156-59 suggest). However, it would have been useful to learn more about how Islamic Courts handle other areas of the law – especially because several Malaysian apostasy cases, such as “Lina Joy,” have received so much international attention. In fact, Peletz spends much of the last third of the book discussing gender and homosexuality in Malaysia. This is an important discussion, but seems only tangentially related to the courts.
At the end of the day, Peletz, an anthropologist by training, focuses more on the individual cases and concepts of human culture (he uses the word “symbol” quite a bit). As such, Islamic Modern excels when discussing gender relations, but almost ignores the courts as political institutions. After reading the book, I learned very little about the jurisdiction of these courts, their relationship to the secular courts, or even the tenure of Kadi judges – all of which seem to be hot issues in the field of Shari’ah law in Malaysia. I do hope Peletz’s future research explores these issues in a bit more depth. In the meantime, if you have any interest in Islamic law, I highly suggest reading at least the discussion of the cases in Islamic Modern.
Not Southeast Asia-related per se, but here’s an interesting article in The New Republic about how some Latin American constitutions have become extremely malleable and easy to amend. This situation is somewhat similar to Malaysia before the 2008 elections (when UMNO lost its supermajority). UMNO had rammed through frequent constitutional amendments (according to some estimates, over 42 packages totaling over 650 individual amendments). While flexibility is not totally undesirable (and might be linked to the endurance of constitutions), it does raise the question of whether a “wiki-constitution” is sufficiently entrenched to even be considered something separate and above normal legislation.
Here’s an interesting case from Malaysia: in a custody dispute, the Islamic court awarded a couple’s children to the Muslim father, while the civil courts awarded them to the Hindu mother. The case is now at the Federal Court (Malaysia’s highest court). Here is an enlightening except from the BBC article:
The case highlights conflicts within Malaysia’s dual track justice system. Islamic laws only apply to Muslims in personal matters. Non-Muslims are covered under civil laws. Rights groups have criticised the Federal Court for delaying its decision in this landmark case. They say overlaps between the two legal systems need to be addressed urgently.
For more on Malaysia’s Islamic Courts, check out Michael Peletz’ Islamic Modern.
I’ve already posted a few stories on Malaysia’s “Allah” case here and here. I’ve continued to follow the story and it appears that Malaysia’s High Court misjudged the political and popular context. Suffice it to say, this moment of judicial activism isn’t quite shaping up to be a pretty “constitutional moment.” I’d be curious as to why the High Court decided to rule the way it did. Alas, that story hasn’t yet been made public. In the meantime, Amrita Malhi has an excellent discussion of the political and cultural background to the case here. It can be summarized it two tragic words: identity politics.
Last week, I asked how and why Malaysia’s High Court ruled against the government and allowed the Herald to use the word “Allah” in its publication. After all, Malaysia’s political elites are known to exert influence over judges, especially for politically-sensitive cases. The answer: it didn’t. According to The Straits Times, the High Court suspended its decision pending an appeal to the Court of Appeals.
This sounds a bit more like the Malaysia I know. The elites exert the greatest influence over the higher courts. This happens in courts in other competitive authoritarian systems. It is much cheaper and less difficult to monitor and influence a small group of senior justices than try to control the entire judiciary. Furthermore, judicial appeal to the highest court serves as a signaling device, telling political elites that those are the most controversial cases. Malaysia’s elites seem to use this model, generally not interfering with lower cases but making sure the senior ranks of the judiciary remain loyal.
I’ll post another entry as soon as the Court of Appeals makes its decision. In the meantime, I think it’s fair to predict that the Court of Appeals will reverse the High Court’s decision.