MARTINEZ IslamicStateState 2001

The Islamic State or the State of Islam in Malaysia
Author(s): PATRICIA A. MARTINEZ

Source: Contemporary Southeast Asia , December 2001, Vol. 23, No. 3 (December 2001),
pp. 474-503
Published by: ISEAS - Yusof Ishak Institute
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Contemporary Southeast Asia, Vol. 23, No. 3 (December 2001), pp. 474-503.
The Islamic State or the State of

Islam in Malaysia
PATRICIA A. MARTINEZ
The issue of the Islamic state has been at the forefront of

Malaysian public discourse, but even more so since the
announcement by Prime Minister Mahathir Mohamad in
September 2001 that Malaysia was already an Islamic state.
The issue has evoked consternation and debate that is not
reflected in the mainstream media, and which is symptomatic
of the disjuncture between perceptions in public discourse and
realities on the ground. This article examines this disjuncture
through the symbiosis of the Islamic state issue with its context,
the state of Islam in Malaysia. It also provides an analysis of the
government's text outlining why its administration qualifies as
an Islamic state, against one of the main sources used, which is
the Shafi'i jurist Al-Mawardi's Al-ahkam as-sultaniyya.
Introduction
The title of this article encompasses both the burning issue in Malaysia
during 2001 about the Islamic state ? between the United Malays
National Organization (UMNO) and the Parti Islam se Malaysia (PAS)1
and their claims to the legitimacy of Malaysia as an Islamic state ? and
the layers of complexity that constitute the context of this issue, which
is the state of Islam in the nation.
The context includes the diversity of actors, scenarios, recent
historical trajectories, and the power of representation (who has the
power to define public discourse) that are as important as the
statements of the government, UMNO, and PAS. The power to speak or
474
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The Islamic State or the State of Islam in Malaysia 475
write and thus shape public discourse must also be understood as

power to claim to speak on behalf of and to appropriate the voices of t
assumed constituency. Hence, UMNO, PAS, and even n
governmental organizations (NGOs) and political commentators of
make claims on behalf of constituencies whose views are essential
assumed and defined for them, rather than as a reflection of wid
spread listening and polling of what most Malaysians want or thin
These claims are writ large in swathes of generalizations, renderi
Malaysians into groups and categories that perpetuate. schisms
stereotypes. Any newspaper or newsletter will exemplify this dynamic
"what Malaysians want is...", "Malays feel that...", "Non-Muslims
Malaysia fear...", "Women are concerned about...", "The people n
more..." and so on. On the one hand, the use of categories
generalizations is an economy of semantics that are employed when
are unable to nuance every single inference. On the other hand, it
important to recognize the power to make claims on behalf of, and, fr
this premise, to mould what people think ? not just by the State b
also by its opposition and even those who speak and write from a t
space, or from the margins.
The nation is configured by its feudal cultures and precedents. T
is compounded by the way politics overwhelms discourse in the nation
as well as the media whose content is shaped by political allegiance
is thus often polemical. The Malaysian media, including t
newsletters of opposition political parties and websites, essenti
reflect either the State/ruling coalition's position or that of the politi
opposition only, together with a few voices of the acceptable elite
speak or write as independent of the State or its opposition, but wh
columns and statements appear because their views resonate w
either's larger agendas. Public discourse is, therefore, essentia
dichotomous and polemical. In such a context, the diversity
opinions, questions, hopes and fears of ordinary people is often missin
from a public discourse that largely reflects the agendas of those w
the power to define it.
This disjuncture between the public transcript and reality on
ground, or a more nuanced and complex understanding of issues su
as Islam in Malaysia, became apparent during fieldwork the autho
undertook. In the past seven months, more than 300 ethnograp
interviews of Malaysians from Kelantan to Johor were conducte
markets, shopping malls, along the road, in fields, and in their hom
The focus was on ordinary people rather than spokespersons a
political personalities. It was significant that more alternativ
perspectives surfaced than did correlations with what has appeared

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476 Patricia A. Martinez
the public transcript. Ceramah (lectures in rallies) by both sides of

political divide were also attended. Malaysian discussion lists
websites were also monitored for feedback on what Malaysians ?
Muslim and non-Muslim ? expressed about issues concerning Is
These electronic conversations were an important source
articulations, arguments, concessions, and bonding over topics suc
race and religion. Malaysians have finally found a place to speak
each other freely about significant issues in the anonymity
cyberspace, despite conditioning in the "sensitive issue" syndrome
policies and laws enacted to coerce peace and harmony.
This diverse study was essentially ethnographic. This methodol
was chosen instead of a questionnaire because of the element
monitoring that constituted part of the study, but also to en
informants to feel comfortable to digress and give additional inpu
basic questions. This methodology was more appropriate as t
objective was information-gathering, which meant that the premi
the study was subjective and qualitative, unlike eliciting statistical
such as household incomes or educational levels. The study did
wish to contain interviewees by questionnaire statements culled f
perspectives from the public discourse, for them to agree or disag
with. Questions such as, "What comes to mind when you are a
what makes you a Muslim?" (that is, "How do you define your M
identity?"), "How is Islam defined for you?" (to both Muslims
non-Muslims), and "Whose Islam do you feel comfortable with?" w
open-ended. Therefore, the study does not claim to be a scientific
representative profile or finding. In this article, the author reinfo
the alternate perspectives offered by informants with her own analys
This article does not discount what appears in the public transcript
as the intention is to move beyond the dichotomies of the Bar
Nasional (BN) versus the Barisan Altematif (BA), UMNO versus PA
Islamic state versus secular state, and Islamic modernity versus Isla
fundamentalism. Since the dynamic is inclusive, this article is wr
according to "Perceptions" and "Realities" with no intention of ma
them exclusive from each other; and does not discount "percepti
by "realities." The intention is to complement the public transcrip
provide a more comprehensive analysis of the most recent evolutio
Islam in Malaysia. The "perceptions" that were chosen reflect
some of the dominant issues and concerns in current public discou
However, because politics, and in particular Islam in Malaysia, are f
and continually evolving at a very fast pace since the general election
November 1999, these issues and concerns may shift perceptibly
privilege other matters even within a few months.

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Perception: The Federal Government controls Islam in all the stat

except Kelantan and Terengganu
This statement was made by many of those interviewed, and is found
a preamble in numerous articles written by both the Malaysian a
foreign media. At least 70 per cent of interviewees in the study believ
that only UMNO and PAS decide on Islam. Among non-Musli
Malaysians, almost all expressed the belief that the BN could "contr
Islam if it chose to do so, but that developments in the nation in the l
few years were entirely about political expediency by both UM
and PAS.
Unpacking this perception that the Federal Government controls
Islam is relevant to understanding some of the simplistic conjectures
that arise ? for example, that the "battle for Islam" is waged only in
terms of elections and is between UMNO and PAS ? as well as for a
deeper understanding of the context of Islam in Malaysia. The reality
includes the premise that UMNO and PAS are battling for the legitimacy
of Islam, but is far more complex.
The department that makes the most announcements or
pronouncements about Islam is the Department for the Advancement of
Islam (almost always referred to as JAKIM or Jabatan Kemajuan Agama
Islam Malaysia, which used to be known as Pusat Islam). It comes under
the ambit of the Prime Minister's Department. From reading the many
statements in the Malaysian media on what JAKIM or the Prime
Minister or the Minister for Islamic Affairs or the Adviser for Islam to
the Prime Minister say, it appears that Islam is administered and
legislated by the Federal Government except in the two states it has lost
to PAS.
What is difficult to discern in all this rhetoric is how limited the
power of the Federal Government really is in terms of enacting and
enforcing Islam. Despite the prominence given to it by the media,
JAKIM actually has limited power. Despite the Prime Minister's strong
views on Islam and the blame or credit that ensues, he does not have the
power to legislate directly his positions or enact them in the Shari'a
(the canonical law of Islam). JAKIM formulates policy on Islam for the
states and only drafts laws that it then sends out to the various states
that make up Malaysia, urging them to enact legislation. This is because
in the Constitution, under Article 95B (1) A, read in conjunction with
the ninth schedule, Islam comes under the jurisdiction of individual
states and their sultans. As such, only individual states can enact laws
on Islam. Conversely, because of the constitutional stipulations about
what merits the death penalty, for example, the ambit of these Sharifa
laws enacted by the various states is also restricted ? hence the hudud2

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that was legislated in Kelantan in 1993 cannot be implemented withou

Parliament amending the Federal Constitution.
That each state enacts its own laws regarding Islam is important in
understanding just how many different versions of Islamic law
enactments and the Shari'a there are. Even this power over Islam withi
each state is complex: the Jabatan Agama and the Shari'a courts
administer Islam in the state. The Menteri Besar, or Chief Minister, who
is essentially a Federal appointee in BN-controlled states,.has to presen
legislation on Islam to the state legislature and the sultan for enactment.
The state legislatures have both Muslim and non-Muslim elected
representatives.3 This dispersed power, of who has control and who
administers and who legislates Islam in each state in Malaysia, is an
important factor in understanding the limitations of Federal power in
effecting its vision of an Islamic modernity, as well as the potential o
other actors and factors. This diffusion of power over Islam is a legacy of
colonialism: of a strategy to appropriate territory and power while
conceding "the rights of natives" over their religion, which was the least
understood element of most colonial endeavours. The diffusion of power
over Islam was also a colonial strategy to diminish Islam by fragmenting
its sources of power and relegating it to personal law for Muslims.
In addition, what must be reckoned with is that many of the ulama,4
whether PAS or UMNO with appointments by each state, have mostl
studied in the same schools in the Middle East (especially
Al-Azhar University in Egypt). These ulama often share the same
opinions. This is discernible in the various tussles or differences of
opinion that the Prime Minister5 has had with ulama even in BN
controlled states, the most public being in 1997/98 with the Chief Mufti
of Selangor, Ishak Baharom (whose contract was subsequently not
renewed) over the arrest of three Muslim beauty queens. Disagreement
over positions within Islam, ranging from modernist to conservative are
therefore not necessarily political but become politicized because
public discourse is largely defined by politics and politicians. Mor
recently, in May 2001, the JAKIM directive to states to gazette the
Amanat Hadi Awang as deviant teaching (a decree allegedly issued by
Hadi Awang of PAS in 1987 that labelled UMNO members as infidels)
caught many muftP in a bind because there was no fatwa (formal lega
opinion resulting in an edict). This situation again highlighted th
fissure in the power of JAKIM amidst the reality of Islamic la
enactment. In addition, detractors or differences of opinion in Islam i
Malaysia also evolve through primary and secondary school Islami
education in the country, which is still largely private and, with Islamic
resurgence, has seen increasing enrolment. While this type of educatio

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is often referred to as "pondok schools", the inference to the huts t

used to be built by parents of students to house them is somew
misleading. There are over fifty pondok schools in Malaysia, the la
numbers being in Kedah, Kelantan, and Terengganu. The studen
these schools form a segment of the public whose views resonate
with a preference for a theocratic Islam than with the moderni
agendas of the State.
The common premise of analysis based on the simpl
dichotomy of PAS versus UMNO over Islam has, therefore,
complex fundamentals. The paradigm is more State with a capital
versus state with a small "s". When an individual state is governe
ulama, then they have the power to Islamize government and law
the Federal authorities have limited ability to curtail them despit
fact that many among those interviewed in the study thought or ho
the ruling coalition could successfully mitigate or intervene. Those w
constitute Islam in each state ? the ulama, religious depart
officials, the Sultan and Shari'a court officials have considerable p
over how Islam evolves in Malaysia. There is a history of ten
between individual states and the Federal Government over Islam
not just in Kelantan and Terengganu. Thus, for example, when
Council of Rulers met in May 2001, although the proposal before
to ban the use of the word "Islam" in a political party's nam
proffered by the National Fatwa Council, it was the sultans
disposed of it. In what can be interpreted as a Ruler's proclivity t
ulama, the Sultan of Terengganu appointed Syed Omar bin Abdul
Al-Idrus, his religious teacher and adviser, as the only acting re
during his two-week absence in September 2000.7
However, the limits to the power of the Federal Governmen
Islam should not be exaggerated. Over the past two years especially,
government has been exerting whatever control it can muster, an
arsenal is not insignificant. For example, religious teachers
government-funded Islamic schools have been monitored and retir
given the sack, and there have been numerous statements in the
over the past two years, especially about "taking control of reli
schools". The power to detract from the will of the Federal Governm
has also decreased significantly because of strong measures take
curtail or control ulama and officials, who are appointed and pa
state governments of the BN. Finally, and as stated earlier, because o
colonial strategy which bestowed power with linked but differ
entities ? the Jabatan Agama Islam, the Shari'a courts, the s
legislature, the Menteri Besar and the Sultan ? the power of thos
define Islam is at times rendered less effective because it is diffused

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What the Federal Government does have is the power to discipl

Muslims using instruments of civil law such as the Internal Secur
Act (ISA) and the Penal Code. For example, in 1995 when Darul Ar
was deemed by JAKIM to have deviated from Islam , its leader Ash
and some of his wives and followers were not prosecuted under
Shari'a, but the ISA was used against them. Throughout much of 20
the Minister for Law in the Prime Minister's Department h
announced that he was considering invoking Section 298 of the Pe
Code against those who disunite Muslims.
Section 298 states: "Uttering words, etc., with deliberate inten
wound the religious feelings of any person",8 while Section 298A state
"Causing, etc. disharmony, disunity, or feelings of enmity, hatred or
will, or prejudicing etc., the maintenance of harmony or unity
grounds of religion."9 These broad categories are defined as crim
offences. Since the wording is general enough to be ambiguous, and
power to define what constitutes religious disunity and disharmon
with those who administer civil law, this section of the Penal Cod
be used to contain deviations from what is defined as normative
those with the power to do so.
Perception: The majority of PAS members want a theocratic state run

Ulamaks
This perception, which is also widely held among Malaysians and
analysts, appeared in the Star on 28 October 2001, in a regular Sunday
column commenting on political developments. However, at least
75 per cent of those interviewed for this article during the past year,
who claimed that they had voted for PAS, said that they were not sure
what really constituted an Islamic state. "Living like Muslims, but even
now we can do it" was the most common response. In the states of
Kelantan and Terengganu, many of those interviewed volunteered how
Islam affected their voting decisions. Almost all respondents, both
Muslim and non-Muslim from various strata of society who said that
they had voted for PAS, claimed that they did so because of anger and
frustration over their perception of widespread corruption by the BN
state government. Thus, the majority of the Muslims interviewed in
Terengganu said that they did not vote for PAS primarily because they
wished to live in an Islamic state, although some added that the reason
that PAS had credibility was because its leaders had the moral authority
of Islam. When asked to explain further, a significant number described
moral authority as not only the PAS leadership's ulama status, but more
importantly that PAS leaders lived exemplary lives free from
ostentation and corruption. This finding resonates with the statement
by Tan Sri Musa Hitam (Deputy Prime Minister of Malaysia from 1981

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to 1986) who had outlined the dangers of UMNO being reactive to PAS
by increasing Islamization: "UMNO is not meeting the expectations of
the people. I have been telling my colleagues in government that every
Malay who joins the Islamic Party can be attributed to disillusionment
with UMNO; that is why they run off to the Islamic party."10
However, even this analysis does not do justice to the complex
reasons for PAS' 800,000 registered members and, more significantly,
perpetuates the perception of PAS as a homogeneous monolith. In
reality, PAS itself, because of its rapid growth and evolution from a
smaller opposition political party to a party that now leads the
opposition in Parliament, is an agglomeration of groups and agendas.
Nevertheless, PAS members are considerably less fractious than
UMNO's and get a lot less attention in the mainstream or their own
media ? all of which focus on personalities in tandem with the
political culture. The traditional PAS base until September 1998
included not just the ulama, whose announcements about the Islamic
state are as much about retaining their definitive power, but also
religious teachers, fishermen, and farmers and other Malays who do not
feel that their plight has been alleviated by the New Economic Policy
(NEP), implemented in 1971 to uplift the socio-economic status of the
Malays, and its successors. After the events of September 1998, PAS
membership now includes all of the above as well as many urban
middle-class Malays, large numbers of professionals educated abroad,
university lecturers, university students, and disgruntled UMNO
members. It is significant that women constitute more than half of the
membership of PAS, and are changing its structure. A woman was
elected to the Central Working Committee at the PAS assembly in 2001,
and this is relevant in comparative terms ? for the first time in many
years, no women were elected to the UMNO Supreme Council. One
interpretation offered by this development is a broadening of PAS' base
and ideology while UMNO is retreating into conservatism.
Likewise, while it is widely known that PAS has enacted the
Shari'a's hudud in Kelantan and ta'azir11 in Terengganu, many are less
cognizant of the slew of Islamization policies and Islamic law
enactments in BN-controlled states. As a result of the tenth general
election when most interpretations were that Islam, more than race,
defined the outcome, UMNO has embarked on a da'wa (mission) to
Islamize itself, the government, and the nation. BN-controlled state
governments have announced measures that have been construed as
steps towards an Islamic state by some of those interviewed.
For example, the state of Johor has provided for caning and jail
sentences for lesbians, sodomy, and pre-marital sex, as well as for
pimps, incest, and prostitution. In Pahang, all Muslim businesses must

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close during the maghrib prayers, and in Malacca the state governme
has issued a circular requiring all female employees, including n
Muslims, to ensure that they do not reveal their elbows and knees.
July 2000, compulsory attendance at weekly classes on Islam for a
Muslim civil servants was announced but these compulsory class
never materialized. These are just some of the many policies and sta
legislative enactments.
Shari'a enactments were considered in all the states in response t
the Federal Government's urging in early April 2000 that state laws
amended to stop Muslims from "deviating" from Islam. In Perlis, a l
on apostasy for converts, entitled the Islamiah Qidah Protection (Sta
of Perlis) Bill 2000, which is also referred to in English as the
Restoration of Faith Bill, was passed. The Bill was legislation drawn
by JAKIM in the Prime Minister's Department. The legislation has be
described as ultra vires the Federal Constitution, which guarantees
freedom of religion for individuals. The enactment consigns those
sentenced under the law to a Faith Rehabilitation Centre that
essentially a detention centre. In debates over the Bill passed by Perli
an even more elaborate version of the original piece of legislation w
considered, whereby Muslims who are accused of misleading oth
Muslims to vote for an opposition party will be prosecuted. Fro
April 2000 onwards, there was considerable consternation expressed
by Muslims, especially over Clause 7 of the legislation drawn up by
JAKIM. The clause provides that if there is sufficient evidence of
attempt to change aqidah (belief) by a Muslim, the Shari'a Enforceme
Officer shall apply to the Court to issue a summons requiring t
attendance of the person in court. There was significant debate in t
English and Malay media, but only twenty-nine Muslims signed
petition protesting against the Restoration of Faith Bill and presented it
to SUHAKAM, the official Human Rights Commission constituted
the government. A few weeks later, the Federal Government announced
that the legislation would be withdrawn for further consideration i
those states that had not enacted it.
For at least the past three years, the Federal Government has be
checking whether the standard khutbah (or sermon) it provides
delivered, and monitors closely other activities at mosques. Fo
example, in October 2001 fifteen Muslims were charged in the Shar
court for contravening an order by the Federal Territory Islamic Counci
regarding Friday prayers. Section 9 of the Wilayah Syariah Crimin
Cases Act of 1997, which carries a maximum jail term of two years o
RM3,000 fine or both, makes it an offence to pray separately from t
main congregation, or for refusing the authority of the imam (pers

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who leads the prayer, and/or guardian of a mosque). Such practice ha

been rife in the tussle for Islamic legitimacy, when PAS supporters have
rejected UMNO or BN state-appointed imam.
There were arrests by the Jabatan Agama Islam Selangor (JAIS) in
May 2000 of Muslims found working in establishments which serve
alcohol, as they were guilty of "insulting Islam". When JAIS raided
three outlets, the furore raised by the media when they uncovered that
only women were being prosecuted, led the Deputy Prime Minister
Abdullah Ahmad Badawi to call the action "extreme" and "unfair" (an
other notables soon followed suit). Some claim that this was after PA
had issued a press statement supporting the JAIS action as being within
the teachings of Islam. The Syariah Criminal Offences Act/Enactment of
many states in Malaysia contains a provision making it a crimina
offence for any person "who acts in contempt of religious authority or
defies, disobeys, or disputes the orders or directions of the Yan
diPertuan Agung as head of the religion of Islam, the Majlis or the Mufti,
expressed or given by way of fatwa",12 although there is no basis fo
criminalizing such disobedience in either textual sources or th
historical practices of Islam. The result of such legislation and th
policing of Muslims had some interviewees, especially in the 18-30 ag
group, describing themselves as second-class citizens in Malaysia wh
had no freedom.
Nevertheless, the swing to PAS is perceived by both PAS and
UMNO as a swing towards wanting to live in an Islamic state. However
the surge of support for PAS in 1999 was partly because of anger ove
perceptions of injustice to Anwar Ibrahim and Malay disgruntlement
over corruption, cronyism, and nepotism. The vote for PAS was als
due to what respondents in the interviews identified as their perception
of corruption. It was also the hope for the ethos of justice in Islam but i
a very straightforward sense that has little to do with PAS or living in
Islamic state. It has to do with wanting a moral compass in a widespread
perception of the travails of modernity and the corruption, cronyism,
and nepotism that many Malaysians, not only among PAS and othe
opposition politicians, rage about since at least the election campaign o
1999. For most of those interviewed who claimed to have voted for PAS,
the solution to the problems perceived lay in religion to provide moral
standards and a return to ethics.
One respondent described why he wanted Islamic law to be th
main law of the land: "By civil law it is so easy to slander and go free
Under Islamic laws, one of the things is to avoid slanderings like now ...
Under Islamic laws those who accuse somebody of sexua
misdemeanours without bringing 4 respectable witnesses are liable t

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get canings. Imagine how frightened Ummi Hafilda and Azizan wo

be..." (Ummi Hafilda and Azizan were key witnesses in the court t
of Anwar Ibrahim.) The issue of justice is highest on the list of w
significant numbers of Muslims in Malaysia are concerned with,
this had been brewing even before the Anwar Ibrahim episode.13
The results of a survey conducted by a website cal
speakerscorner.com that carries items from the mainstr
BN-controlled Malay newspapers as well as from the PAS newslet
and website Harakah and allows visitors to post opinions, w
indicative of the extent to which UMNO and PAS do not necessa
reflect what are the burning issues for the majority of Malaysia
especially Malay Muslims who make up the largest number of visi
to the website. In answer to the question posed on the websit
May 2001, apakah isu semasa yang sedang hangat di Malaysia? (wh
are the current issues that are hot in Malaysia?), 4 per cent respo
that it was Malay unity, 9 per cent said that it was about quotas reser
for bumiputera students in Malaysian universities, 11 per c
responded that it was money politics in UMNO, 19 per cent said th
was the sandiwara percutian (the soap-opera over his leave) of
Zainuddin, 13 per cent responded that it was the health of An
Ibrahim, and 43 per cent responded that it was about the ISA
political detainees.
In this context, it is important to note that the concern about the
and political detentions is about rights, the universalist libe
discourse about fundamental freedoms and not fundamenta
religiosity. This is a significant factor in a more nuanced understandi
of the disjuncture between the growing Islamization of Malaysia
those with the power to ensure it, and the ideals of justice and eth
behaviour of Islam as envisioned by the rakyat (people/citizens).
The Malay middle-class that Karim Raslan, Farish Noor, and e
Abdullah Ahmad (now editor of the New Straits Times) have trie
rouse in their columns is not the self-satisfied materialist-orien
apathetic group it is claimed to be. A privileging of economic we
being is a major factor in the lack of resistance to the los
fundamental freedoms and civil rights by most of the Malay
middle-class, regardless of ethnic group, the rationale being "don
disturb a good thing".14 But the Malay middle-class includes those
feel they have no problem with increasing Islamization because for
majority of them, including those living in Kelantan and Terengga
"being more Muslim" resonates with their own concerns, as descr
above. In addition, many are caught up in more overt manifestation
piety and religious conformity as this is what constitutes a large part

54.253.8.229 on Wed, 16 Aug 2023 01:13:57 +00:00
public discourse and what comes under the rubric of "Islamic teachin
by religious teachers in government and religious schools. Thes
concerns are therefore more about ritual, behaviour that enhances n
only the Muslim identity but also the way it demarcates Mala
difference and conformity to notions ranging from piety to peer
pressure, and less about philosophical or idealogical issues. In answe
to the question "How is Islam defined for you?" the majority of Muslim
described it as "rules and laws and fines", and some added, "always
telling us what to do". However, it is significant that a number of such
responses were said without rancour, but in a matter-of-fact tone. Many
Muslim men and women are comfortable with more conservativ
interpretations of Islam simply because it is couched as their duty,
correct behaviour by religious teachers, by ulama, and by those w
speak and write with authority on Islam. Since most Muslims
interviewed stated that they "do not know enough about Islam and need
to be guided by those who are knowledgeable", this infantalization
cum-wanting to do the right thing results in a lack of resistance to wha
a few other Muslims protest as Malay middle-class apathy over the
increased Islamization that infringes on their freedom.
For women, who are often the markers of religious identity and wh
are thus policed into conformity, wearing the tudong (veil or headscarf
now has its genealogy less as an adult decision about lifestyle as it
something that happens on a large scale at puberty. It is what man
Malay schoolgirls do either because their mothers wear one, or becau
of peer pressure and/or the fact that the teacher in their religious class
insists that they wear a tudong. It is significant that many secula
government schools have informal policies that enforce the wearing
the tudong for Malay female students.
There is a significant but silent segment of Muslims in Malaysi
who do not want to live in a theocratic state. This much smaller grou
of respondents in the interviews said that they could not speak up
because the discourse on Islam was so polemical that many felt the
had to conform or be damned. Some of those who criticized aspects o
Islamization had been labelled munafiqun, or hypocrites ? a serious
charge which appears in the Qur'an, applied to those in Madina whos
fidelity and zeal the Prophet Muhammad felt he could not trus
However, even among this segment of protesting Muslims, the
resistance should not be interpreted in the dichotomy of their bein
more Westernized, or modern, or secular. Muslims in Malaysia have
strong Islamic identity. This is the result of Islamic resurgence all over
the world, including Malaysia where it began in the 1970s, as well a
the Islamization policies of the Mahathir administration that began

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the early 1980s and that of PAS in the states where it is powerful.
Moreover, Islam is ad-din, or a way of life. Thus, there is a gravitation to
religiosity and a desire to display Muslim identity. However, this
religiosity does not necessarily translate into wanting a theocratic state.
As stated earlier, most respondents in the study said that they did not
really know what constitutes an Islamic state.
Non-Muslims almost entirely repudiate living in an Islamic state
partly because of their experience of discriminatory policies in which
their perception conflates Malay identity with Islam. This repudiation
is also because of fears about the attrition of their rights as minorities, as
well as because of widespread ignorance about Islam and the bigotry
that ensues.
Policies and legislation that impact negatively on non-Muslims
during the past few years have been monitored and documented by the
Malaysian Consultative Council of Buddhism, Christianity, Hinduism,
and Sikhism (MCCBCHS). These policies include different allocation
ratios for mosques and non-Muslim places of worship (in terms of the
numbers of adherents required before approval, or the amount of land
that is to be made available). This has ranged from a ratio of one mosque
for every 800 Muslims, with a spatial requirement of 0.4 hectare, while
churches, for example, have a ratio of one for every 4,000 Christians,
with a spatial requirement that is often 0.1 hectare.15 Individual states
have legislated lists of words and expressions which are forbidden for
non-Islamic religious use, on the premise that they are exclusive to
Islam.16 However, because many Arabic words are used in Bahasa
Malaysia, which is the medium of education for all Malaysian
government schools, this means that non-Muslim children who are
fluent in Bahasa Malaysia have to receive their religious education in
English or some other language. More recently, on 2 November 2001,
the BN representative for Teluk Intan raised in Parliament the issue of
the shortage of burial grounds for non-Muslims, stating that the matter
must be dealt with or it could turn into a "time bomb".17 He described
how a Christian cemetery in his constituency had new graves stacked
on older ones like two or three-storey apartments. The issue of
insufficient burial grounds for non-Muslims has been a problem for at
least the past ten years. Most troubling of all, in September-October
2001, there was a spate of arson attacks on at least four churches on the
west coast of peninsular Malaysia, in the townships of Subang Jaya,
Segamat, Gurun, and Sungai Petani.18
What also happened after the general election of 1999 and until at
least August 2001 (the falling out of the DAP and PAS over the Islamic
state issue, the terriorist attacks of 11 September in the United States,

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and the announcement by the Federal Government that it is an Islamic

state) was that more and more non-Muslims were trying to understand
Islam and become less ignorant and thus less afraid of it. What this
meant was that Islam was becoming less effective as a bogey. For
example, in the June 2000 campaign for the by-election in Teluk
Kemang, the DAP's Lim Kit Siang and his son, Lim Guan Eng, assuaged
the fears of non-Muslims about Islam, and the DAP's partner, PAS, in
the BA coalition. Lim Kit Siang and Lim Guan Eng did not in any way
endorse an Islamic state, but seemed to understand that it was also their
own ignorance and fear of Islam that made non-Muslims shy away from
the BA in the 1999 general election. The Lims' position about Islam may
have been one of the factors contributing to the results of the by
election, when the BN candidate won the seat but with a reduction of
3,970 or 40 per cent of the votes that had been cast for the BN just
six months earlier in the general election.
In terms of the furore in May 2001 over Hadi Awang's
announcement that if PAS came to power in Pahang the party would
close down the Genting Highlands casino, the diversity of reactions
from the Chinese who posted messages on discussion lists was
interesting. There was outrage and condemnation. Significantly,
however, there were also many measured responses pointing out that
the outrage was because PAS had proposed it; that if it had come from
another source and had not been hyped in the mainstream media, many
would consider supporting a ban on gambling since it is a vice that has
destroyed many families and lives.
These more nuanced voices have fallen silent or have been
drowned out since 11 September 2001 when the world was shocked by
the heinous acts of terrorism by Muslim fundamentalists and militants
(this is how it is presented in the Malaysian mainstream media), by the
spectre of Muslim militants identified by the Malaysian Government as
being mostly from PAS, and over the announcement by the
Prime Minister, endorsed by the ruling coalition, that Malaysia is an
Islamic state.
Perception: Islam is yet another way of continuing Malay hegemony.

Whether it is about Islam or bumiputeraism, it is all the same
This perception had considerable currency among the non-Malays
interviewed. When a non-Muslim was asked what came to mind as
Muslim identity, in almost all responses the first factor given was "being
a Malay" (some used the word "bumiputera", which literally translated
means "princes of the soil"). In part, this conflation of Malay ethnicity
with Islam is because Malayness has been defined by Islam in Article

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153 of the Constitution. A Malay is described as someone who habitual

speaks the Malay language, practises Malay customs, and is a Musl
However, this perception of Islam and bumiputeraism as synonym
with each other is also because Islam has been racialized beyond
constitutional definition when some unpalatable policies and action
civil servants have been justified under the ambit of their being requi
by Islam. However, this study has uncovered examples that also ma
clear that it is Islam that mitigates against ethnocentrism.
In December 2000, a Malay woman wrote in the popular on-li
newspaper Malaysiakini: "As a Muslim, I'm for Siuqiu"19 (Siuqiu i
umbrella organization of over 800 Chinese guilds and groups which
petitioned for a review of the NEP before the 1999 elections). She w
on to state that "true Islam rejects racism and nationalism, whether it
Chinese racism or Malay nationalism... the universal affirmative a
that helps poor of all races will benefit Malays/Muslims if they
really poor while not rejecting others."20 In March 2001, in anot
letter to Malaysiakini, 19-year-old Nik Nazmi Nik Ahmad wro
"While I realize the majority of the Malays are still concerned w
special rights and various other bumiputera issues, our mentality
progressed significantly since the last 15 years or so. The Siuqiu b
would have caused a racial crisis similar to what happened prior to
Lallang in the mid-1980's, but this time, it did not... most of the Mala
are now aware that the real threat to Malay progress may not necessar
come from the non-Malays but possibly from the rich Mala
themselves, the only real beneficiaries of the NEP."21 He continued
the real aim of the NEP was to overcome the significant economic
between Malaysians, why should it be drawn along racial lin
Shouldn't we concern ourselves with bridging the gap between the
Malays, Chinese and Indians and their poor Malaysian counterp
regardless of their race?" Nik Nazmi concluded his letter by saying th
it is Islam which shapes his views, "Islam advocates a system in w
the disadvantaged sections of society will be given preferenc
enshrine equal opportunity and participation, but never based
ethnicity..."22
In a heated exchange in February 2001 on an electronic discus
list between Aizuddin Danian and another Malay who wrote in ve
strident terms about how Malays were the original people and ent
to special rights, Aizuddin began with "I must say that if this is the s
of thinking that is going through my fellow Malay and presuma
Muslim brother, then I am ashamed to be called a Malay and a Musl
He continued his message: "we keep on saying that this is our coun
this is our land, we have rights to it all ? what does it mean if anythi

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at all? There is no such thing as land inherently belonging to anybody

except God. It just so happens we got here first." Aizuddin argues:
"I'm afraid the writer, like many others, are getting bogged down in
history. They, including our prime minister, has taken to spewing
'look at the history, look at the social contract' ? what is this but more
Tm-your master-you're-just-a-guest' mentality?"23
These letters do not represent the major part of what appears in
Malaysiakini or electronic discussions lists. In interviews, one
encounters far more examples of racism, ranging from stereotyping to
outright contempt from all ethnic groups of Malaysians. However, it
must be recognized that the relative anonymity of cyberspace
encourages Malaysians who have been physically ghettoized, or who
ghettoize themselves along the cleavages of race and religion, or who
are conditioned to avoid thinking and talking about race and religion by
laws and public admonitions, to actually meet and talk to each other
about these issues in sustained dialogue. It is a space not curtailed by
the spectre of laws that police and punish. The disjuncture between
public rhetoric that is still mostly bogged down in racial categories by
those in power, and electronic conversations between Malaysians
across race and religion needs to be recognized as an important new
phase in the evolution of identity, ethnic relations, and inter-religious
encounter in Malaysia. One significant loss if the Internet is controlled
or contained by laws that are sometimes threatened, is this element of a
discursive space where Malaysians inform and argue even about
"sensitive topics".
It is not only the Internet where glimmers of cohesion appear.
On 11 May 2001, the Malay language newspaper Utusan Malaysia,
which has featured or even precipitated what one interview respondent
called racist diatribes, conducted a poll on what its readers thought
about releasing any unutilized quotas for humiputera in public
universities to non-bumiputera. The results: 37.3 per cent agreed,
36.2 per cent disagreed; and 26.5 per cent of the more than 5,000 polled
wanted more discussion on the issue. Even if only half of those, or
13.25 per cent, who want more discussion were ultimately to decide
against the release of unfilled bumiputera places in public universities
to non-Malays, it still means that more than 50 per cent of those polled
would not mind giving up unutilized quotas to non-bumiputera.
Both UMNO and PAS, despite their disclaimers to racial privilege,
have construed a public discourse about championing race and/or
religion, often deepening the cleavages as much as their efforts to bridge
them must be recognized. Therefore, this discernible shift beyond racial
entitlement or racial disempowerment must be attributed also to the

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ability, and not just the will, of Malaysians to live together because they
have been able to do so, and to the ethos of Islam which enables some to
repudiate racial elitism even in affirmative action. However, the skeins
of this fabric of cohesion are very fragile, and perhaps never more
threatened now than over the issue of the Islamic state, which has the
potential to deepen the fear and mistrust of a majority's religion, and
intensify its power as an ethnic marker.
Perception: Malaysia, under the present Constitution, is not a theocratic

state and therefore, can also be called a secular state... all races and
religions will continue to enjoy the freedom which currently exists
This statement was made by Dr Ling Liong Sik, President of
the Malaysian Chinese Association (MCA) and was featured in the
New Sunday Times on 21 October 2001. Dr Ling made the statement
after an MCA-convened forum on the Islamic state, at which the
Adviser for Islamic Affairs to the Prime Minister, Tan Sri Abdul Hamid
Othman (among others), gave a briefing. The press was not allowed to
attend the session and did not report on the fact that some of those
present, including the MCCBCHS as well as a representative from the
Federation of Evangelical Christians of Malaysia and some members of
the MCA, expressed either concern or outright rejection of the notion
that Malaysia was an Islamic state, or that non-Muslims had nothing to
worry about.
This current phase about Malaysia as an Islamic state was
precipitated by the announcement by the Prime Minister on
29 September 2001 at the Gerakan Party's annual general assembly that
Malaysia is, in fact, an Islamic state. A week later, on 6 October,
Mahathir said that there was no need for a debate on the issue,
announcing that the leaders of the BN component parties were
"comfortable" with the current concept of Malaysia as an Islamic
state.24 Subsequently, there were many statements in the English,
Chinese, and Malay press by leaders of the component parties of the
ruling coalition that they had no problems with the announcement,
were accepting it with an open heart, and that they were more
concerned about PAS's version of an Islamic state (which PAS had
announced it would present at the end of 2001).
The uproar over the significance of the existing government and
ruling coalition proclaiming Malaysia as an Islamic state is not reflected
by the mainstream media but in alternative forums, and is perhaps the
most stark example of the disjuncture between perceptions in public
transcripts and discourse, and other realities on the ground.
The MCA and Gerakan held closed-door forums for the MCCBCHS
and others invited to hear the same people speak about the Islamic

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state: the Adviser for Islam to the Prime Minister Tan Sri Hamid
Othman; Professor Shad Saleem Faruqui, who is a constitutional law
expert from Universiti Teknologi MARA; and Zainah Anwar, the
executive director of Sisters in Islam who are activists for the rights of
Muslim women and are extremely critical of PAS and conservative
ulama. On 23 October 2001, more than 800 people were present at a
hastily convened forum although it was advertised only over the
Internet. Discussion lists were flooded with questions, concerns,
protests, and rebuttals as well as approval concerning the government's
declaration that Malaysia is an Islamic state. This was despite the fact
that the debate had been consuming attention for at least the second
quarter of 2001 over PAS' declaration that it would implement an
Islamic state when challenged about it by the DAP, which resulted in
the DAP leaving the BA coalition of opposition political parties that
includes PAS.
However, the beginning of the trajectory of the latest furore over the
Islamic state, but caused this time by the BN, did not provoke any
discernible reaction because it was perceived as one more salvo in the
game of one-upmanship over Islam between PAS and UMNO. It was the
announcement on 4 August 2001 that "a nationwide programme to
explain to the people that Malaysia has fulfilled the requirements of an
Islamic State will be held as soon as possible".25 Tan Sri Abdul Hamid
Othman made the announcement after chairing a three-hour
muzakarah (discussion or consultation) attended by seventy religious
leaders, academics, Islamic scholars, and dakwah (mission) activists at
UMNO headquarters. In his briefing to the press, the reasons that
Hamid Othman gave for Malaysia being an Islamic state were a
precursor to statements by Prime Minister Mahathir, Deputy Prime
Minister Abdullah Badawi, and the de facto Minister for Law, Rais
Yatim, as well as the booklet that was subsequently published and
distributed at various briefings by Hamid Othman since early October
2001.
The first edition of the booklet by Wan Zahidi Wan Teh is published
by the Ministry of Information and is entitled Malaysia adalah Sebuah
Negara Islam (Malaysia is an Islamic nation). It merits analysis because
it is the most concrete explanation or envisioning of the Islamic state
that the government has proclaimed. This first edition of the booklet
has on its cover the seal of the Government of Malaysia, slashes of
lightning, and an aeroplane (which for many evokes the spectre of the
11 September 2001 attacks on the World Trade Centre in New York, and
the Pentagon).
The preface states (the translations are as literal as possible, as the
booklet is in Bahasa Malaysia) that in order to ascertain whether or not

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Malaysia is an Islamic state, reference must first be made to the

opinions of ulama about their definitions of an Islamic state. The first
definition given is that the nation has to be under Muslim governance,
its defence in the hands of Muslims, and that it is the responsibility of
every Muslim to defend it. The second definition is that the nation is
controlled by Muslims, in which they attain peace within it. The third
definition is that the laws of an Islamic ruler are enforced. The fourth
states that any country that has become a Muslim nation, even if it is
defeated, would maintain its status as an Islamic state by adherence to
hukum fiqh (the laws of Muslim jurisprudence), and examples are
given, such as when Muslims were under communist or colonial rule.
The text then states that based on these definitions by ulama and
intellectuals, it is obvious that Malaysia is an Islamic state without any
further debate or controversy. The chapters in the booklet are entitled
"To what extent has the government fulfilled its responsibility as an
Islamic nation?", "The legitimacy of the government according to
Islamic jurisprudence", "The responsibility of the faithful towards their
rulers", "The boundaries of loyalty towards rulers", "The obligation
and the way to critique rulers", and "Islam and Muslim unity". The
chapters provide legitimacy from traditional sources for the present
form of government to describe itself as Islamic and are patterned on the
rhetoric of UMNO since at least the elections of 1999: that the
government knows best on how to lead Muslims, that Muslims should
be grateful, that critique should be gentle, and that Muslim unity is
paramount.
The first chapter, on the extent to which the present government has
fulfilled its responsibilities as an Islamic state, quotes extensively from
the Shafi'i jurist Abu'l-Hasan 'Ali ibn Muhammad ibn Habib al-Basri
al-Baghdadi Al-Mawardi (who died in 450 of the Hijra, or 1058 C.E.)
and his text Al-ahkam assultaniyya.2* The twelve duties summarized
in the booklet as encumbent upon the ruler of the government as his
responsibility are:
1. To preserve religion from any adulteration of understanding that
can divert faith from true Islamic teachings by the ulama based on
the Qur'an and Sunna (practices of the Prophet Muhammad).27
2. To appoint a council of ministers to help the country in carrying out
the duties of government. Al-Mawardi is quoted in the booklet as
stating that ministers can be appointed from unbelievers who are
citizens ? but in parentheses, the text describes these as zimmi
[dhimmi or non-Muslims who reside in an Islamic state) ? to carry
out policies made by Islamic rulers. There is also an extensive
explanation quoting from various sources, both for and against,
about whether women can be appointed to public positions.

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3. To provide an army able to defend the nation and religion from

incursion, and to secure internal peace.
4. To put into existence a judicial system to resolve conflicts an
uphold justice.
5. To establish the five times of daily prayer, the Friday congregational
prayer, and the end of Ramadan, together with the building of
mosques and the appointment of imam, which is the right of the
ruler. Therefore, the booklet states, there should not be an imam in
the sultan's mosque apart from those appointed by the government.
If the government has appointed an imam then he has the right to b
the imam even if there are others more pious, or more learned
than him.
6. To carry out the affairs pertaining to the Haj pilgrimage.
7. To carry out all the affairs concerning the collection and division of
zakat (tithe).
8. To collect taxation from sources that exist in the nation, and in
parenthesis is the word kharaj (land tax).
9. To oversee matters associated with the management and
development of land.
10. To put into place an administrative system which is efficient so as
to carry out the affairs of finance, government property, labour, and
the armed forces.
11. To suppress crime and punish criminals with suitable punishment,
whether hadd crimes whose punishment is determined by the
Sharifa together with other sins such as adultery, theft, drinking
alcohol, etc., or ta'azir crimes for which authority is given to the
government to determine the form of punishment.
12. To carry out the duties of hisbah (ensuring that moral and religious
injunctions of the SharVa are carried out). The text of the booklet
states that in the context of a modern country this is known as
enforcement-delegation, and that hisbah, intended to ensure that
customs and behaviour with regard to the rulers are put in place for
the well-being of society, can be upheld.
The above are described in the booklet as basic compulsory

obligations which are not comprehensive. An extensive argument is
provided about the wide ambit of the twelve responsibilities,
concluding that these responsibilities obviously do not limit the ruler to
implementing the hudud. It is explained that in the context of Malaysia,
the responsibilities, which are an obligation of an Islamic state, have
been implemented despite a few weaknesses and shortcomings that are
unavoidable because of a system of government inherited from
colonialists. In cognizance of this fact, the text continues, the
government has launched a policy of "Penerapan Nilai-nilai Islam"

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(Infusion or Application of Islamic Values). Through this policy, the

text states, everything that conflicts with Islam will be brought in line
with the requirements of Islam in stages and in a way that is wise ?
Melalui dasar ini, segala yang bercanggah dengan Islam akan d
sesuaikan dengan kebendak Islam secara berperingkat-peringkat dan
dengan cara yang bijaksana.26 The text states that this policy is in fact a
large and open policy covering all values as well as Islamic law that the
government must implement, and that this policy will continue until
the aim of upholding an Islamic nation in the national system is fully
implemented ? la juga adalah satu dasar yang akan dijalankan secara
berterusan sehinggalah matlamat untuk menegakkan negara Islam
dalam sistem negara terlaksana sepenuhnya.29
These latter statements about bringing policy and law into line until
the aim of upholding an Islamic state in the national system is fully
implemented had never been articulated by Hamid Othman at th
briefings organized by the MCA and Gerakan but form the core of
briefings by other groups, especially Muslims. What was continually
reiterated and reassured at the MCA and Gerakan gatherings was that
nothing had changed in terms of government policy or law, nor would
there be any change. The analogy by Ling Liong Sik, Hamid Othman,
Shad Saleem Faruqui, and others who sought to reassure was that a rose
is called by different names in the various languages used in Malaysia
but nevertheless remains a rose.
Professor Shad Saleem Faruqui, in his lecture at the same forum, and
the paper he distributed entitled "Constitutional Perspectives on
Freedom of Religion, Secularism, and Theocracy", outlined the various
laws and articles in the Constitution on religion, and described which
were problematic even as his overall theme was one of reassurance. At
the forum, Faruqui gave verbal reassurance that Article 3, which
provides for freedom of religion, cannot be amended easily. In the paper
distributed, he wrote extensively about conversion out of Islam and ho
any laws to legislate aqidah (belief) "will trigger a massive constitutional
debate that will humiliate Malaysia internationally, cause division
within the ummah (the community of Muslims) and embarrass the
judiciary".30 He concluded that "Malaysia is neither a full-fledged
Islamic state nor wholly secular" but that "in view of the fact that
Muslims constitute the majority of the population, and Islamisation is
being vigorously enforced, Malaysia can indeed be described as an
Islamic or Muslim country".31 His regular feature article in the Star, on
28 October 2001, on the Islamic state issue was entitled "Facing a
problem of semantics" in which he attributed the clash of opinions
simply to the fact that there was no litmus test or universally agreed list
of criteria to typify a social or legal system as theocratic or temporal.

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These reassurances notwithstanding, from someone who is an

expert and who struggled with integrity in his paper, the fact remains
that the Malaysian Constitution has been amended extensively since
independence in 1957.32 This caused Dr Mahathir himself to write, "The
manner, the frequency and the trivial reasons for altering the
Constitution reduced this supreme law of the nation to a useless scrap of
paper",33 although in the past twenty years his administration has also
enacted many amendments. As such, many of those at forums on the
Islamic state issue have expressed concern about the possibility that at
any stage in the future, the Constitution could be amended to enhance
the claim to an Islamic state, with ramifications for religious freedom.
In terms of whether or not Malaysia is an Islamic state because it
fulfils the criteria given in the booklet (criteria that are based largely on
Al-Mawardi's Al-ahkam as-sultaniyya), it is instructive to check against
his text, especially regarding the status of ahl al-dhimma, or non
Muslims, since Malaysia adalah sebuah negara Islam uses the word
dhimmi to describe orang kafir, or unbelievers. The paradigm of cross
checking contemporary issues against a source from a few centuries ago
is problematic, because the chasms of time, evolution, and context are
summarily collapsed in such a literal trajectory of interpretation or
comparison. However, since this was the route chosen by the booklet
that explains Malaysia as an Islamic state (and it is a dynamic common
to the use of traditional sources in Islam), it would be best to maintain
this logic in the analysis here.
Al-Mawardi does indeed write that the second type of ministry ?
executive ministry ? is open to members of ahl al-dhimma.
Nevertheless, he makes it clear that the dhimmi should be watched
closely, and cautions that if a dhimmi minister arrogates to himself a
higher rank, he should be stopped.34 However, it is Al-Mawardi's views
on non-Muslims in an Islamic state that are troubling.
First, some clarification is in order: at first glance Al-Mawardi's text
appears contradictory or at least paradoxical. He offers two alternative
interpretations for every policy, including those that concern matters of
jizya (the poll tax to be levied on ahl al-dhimma), but seldom does he
come down in favour of one position or another. It is clear, however,
that the two different interpretations of what the policy should be and
what it means existed in the juridical literature he was reporting. This
equivocation may be due to the fact that over the centuries various
interpretations had been given and policies executed. That there is no
consistency may also be because the initial treaties with the conquered
territories had a somewhat ad hoc character, with each military leader
signing a treaty depending on the prevailing circumstances. According
to Al-Mawardi, the term jizya is derived from jaza, which means

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recompense, and non-Muslim subjects who live in the abode of Islam

are required to pay it either as dues or as punishment for their
unbelief.35 The jizya is to be exacted of them either as an action of
humiliation [sagharan) or as remuneration to the Muslim community, a
guarantee that security would be provided to the subject people.
In citing the Qur'anic authority for jizya, Al-Mawardi quotes Surah
9:29, a verse which has caused consternation, especially among
dhimmi:
Fight against such of those who have been given the Scripture as
believe not in God or the Last Day, and forbid not that which God has
forbidden by His messenger, and follow not the religion of truth, until
they pay the tribute readily, being brought low [an yadin wa-hum
saghirun).36
In the phrase that points to those who "believe not in God or the
Last Day", he argues that while the ahl al-kitab, Christians and Jews, do
acknowledge that God is one, their faith in God may be rejected or
denied on the basis of two interpretations: that they do not believe in
God's Scripture, the Qur'an, or that they do not believe in Muhammad,
God's messenger; for acknowledging the veracity of God's messengers is
paramount to believing in them. As for the enigmatic words at the end
of the verse, an yadin, Al-Mawardi again provides two possibilities for
interpretation. The first is to pay the jizya "out of sufficiency and
ability"; the other is that ahl al-dhimma will become subservient and
humbled by the conviction that Muslims have dominance and power
over them. Finally, the phrase wa-hum saghirun is interpreted to mean
either that they will be servile and submissive, or that the laws of Islam
are applicable to them.37 Al-Mawardi makes it incumbent upon the
ruler to exact the jizya from Jews and Christians so that they will be
entitled to dwell in dar al-islam. Furthermore, by paying, or agreeing to
pay the jizya, no harm will come to them and protection will be
provided for them so that they may be secure and well-guarded. In this,
al-Mawardi seems to be advocating the more conciliatory interpretation
as a standard for the caliph to follow. Perhaps he wrote this out of his
desire to recapture the ideals of early Islam, since he goes on to quote
the hadith (tradition or saying of the Prophet Muhammad), reported by
Nafi on the authority of Umar, that the last words the Prophet spoke
were "Protect me in regard to my covenant [dhimmati).,,3a
On the other hand, while al-Mawardi quotes Abu Hanifa's saying, "I
will not take it (the jizya) from the Christian Arabs lest they be exposed
to humiliation"39 and alludes to the caliph Umar's acceptance of a
double zakah (tithe) from the Arab Christians in lieu of jizya, he goes

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out of his way to affirm that "the Arabs (that is, Arab Christians
liable to pay the jizya as do others".40 He also classifies other conditio
for the ahl al-dhimma in an Islamic state: mustahaqqa (requisite)
mustahabba (recommended or desirable), listing six items under e
category.
Under the category of what is requisite or mandatory
[mustahaqqa] are the following requirements that the ahl al-dhimma
must adhere to:41
1. Not denigrate or misquote the Book of Allah, exalted is He, nor
alter it.
2. Not attribute lies to the Apostle of God, nor speak of him
disparagingly.
3. Not speak of the religion of Islam with slander or calumny.
4. Not commit adultery with a Muslim woman, even in the name
of marriage.
5. Not undermine a Muslim's faith or cause harm to his financial
affairs or his religion.
6. Not aid the people of war, nor befriend (yawuddu) the rich
among them.
The six recommended (mustahabba) conditions are designed
specifically to underscore the subservient status of the dhimmi. These
conditions recommend that ahl al-dhimma:i2
1. Identify their appearance by wearing the distinguishing badge, and
tightened belt.
2. Not build structures that are higher than the Muslims', but at the
same level or lower.
3. Not allow their bell-ringing, the chanting of their scriptures,
or their sayings (doctrines) concerning Uzayr or Christ, to reach
Muslim ears.
4. Not display in public their wine-drinking, crosses, and swine.
5. Conceal the burying of their dead, and not publicly voice their
wailing and mourning.
6. Be prohibited from riding horses, whether thoroughbred or
crossbred, but not from riding mules and donkeys.
Some of the above will seem familiar to non-Muslim Malaysians as
reasons cited over the years by various local authorities for not granting
burial sites, or the stipulations put upon more recent applications for
church building plans in the states under the BN government.
Al-Mawardi has been the authoritative text for many of the ulama
of the Jabatan Agama Islam of the various states, and the issues
described earlier.

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In other words, there are already practices, if not policies and laws
where non-Muslim Malaysians are being perceived or treated as
dhimmi in the privileging of Islam and Muslims by some policies and
civil servants in state governments. If Al-Mawardi's text continues to
define the Islamic state as envisaged by the BN government (the PAS
version has not been publicized yet), and if at a later stage more of his
positions about non-Muslims are invoked and implemented, resulting
in non-Muslim Malaysians becoming officially second-class citizens,
these measures would be in conflict with the notion of egalitarian
citizenship rights that are endowed upon all Malaysians as stipulated in
the Constitution of Malaysia.
It is perhaps significant that there has been some latitude taken in
the interpretation and selection of criteria in the booklet Malaysia
adalah sebuah negara Islam. Such latitude also relates to what is stated
as encumbent upon the ruler (the twelve stipulations described earlier).
What has been left out in the booklet is that, according to Al-Mawardi,
the ruler must "establish the hadd punishments..." and that "He must
make jihad against those who resist Islam after having been called to it
until they submit or accept to live as protected dhimmi community ?
so that Allah's rights, may He be exalted, 'be made uppermost above all
other religion'", and Al-Mawardi then quotes the Qur'an, Surah 9:33.43
Another example of selective interpretation is over the term hisbah.
In the booklet Malaysia adalah sebuah negara Islam, it is described as
enforcement-delegation with the intention of regulating behaviour
before rulers. In the Al-ahkam as-sultaniyya, 'hisbah' is indeed the laws
governing public order, but Al-Mawardi defines it elsewhere in his text
as "commanding what is good when it is being neglected and
forbidding what is bad if it is being practised",44 describing the
muhtasib (Ombudsman's) responsibilities as responding to people's
complaints, so that people have recourse to him.45
In this sense, PAS has perhaps a greater fidelity to the requirements
of Al-Mawardi. Fadzil Noor has described the Islamic state as one in
which the Shari'a prevails, and Hadi Awang the Chief Minister of
Terengganu is legislating the position of muhtasib as a check and
balance upon his administration. Nevertheless, this is simply an
academic point. What is more pertinent is that any implementation,
whether by PAS or UMNO, of Al-Mawardi's edicts on non-Muslims
renders them second-class citizens and abrogates their rights as defined
for all Malaysians in the Constitution of the nation.
In 1856, or 145 years ago, the Sultan-cum-Caliph Abd al-Majid
brought to an end the status of dhimmi in the Ottoman Empire. In a
proclamation known as Hatt-i-Humayun, he declared all inhabitants of

54.253.8.229 on Wed, 16 Aug 2023 01:13:57 +00:00
the Ottoman empire equal citizens under law. Until recently, the i
of ahl al-dhimma and their status disappeared from the area of p
policy in the nation state and was relegated to historical documents
historians to ponder. Now the debate between Muslims and
Muslims concerning the role and status of minorities in an Islamic
appears to have gathered momentum with the rise of political Islam a
its advocacy of the reinstitution of the Sharifa.
Why then an Islamic state? Early in its inception, Islam was n
only about a spiritual community but also about a state empire.
developed as a religio-political movement in which religion
integral to state and the society. Islam embraces within its legitim
sphere not only those acts and performances that the followers of ot
religions would codify as "worship", but also all aspects of individ
communal, national, and international activity. It lays down
prescribes the underlying principles of relationships and regulate
aspects of a Muslim's life in accordance with these principles as
continuous worship of God. This then is most often the impetus
establishing an Islamic state, one in which the principles
prescriptions of living as a Muslim are enabled.
However, there is a wide divergence of views among Musl
themselves about the characteristics of an Islamic state, inclu
whether one is prescribed in the first place. The Qur'an does not
down any specific form of state or government. However, it gives cle
outlines of a political system and general principles in the field
constitutional affairs. The closest paradigmatic legacy from the Proph
Muhammad is what is referred to as the Constitution of al-Madina
the result of his successful negotiations with various segments of
Muslim community in al-Madina. Fidelity and reference to t
constitution is rare compared to the proclivity to use Maududi a
Qutb as sources.
Golam W. Choudhury, who wrote glowingly about Malaysia in 1
as the "ideal non-Arab Muslim country" (note the privileging
Arabism) in his text Islam and the Modern Muslim World, describe
founder of Pakistan, Muhammad Ali Jinnah's declaration in 194
reiterating the spirit of the Constitution of al-Madina. Jinnah said: "
may belong to any religion or caste or creed ? that is nothing to do w
the business of the state. There is no discrimination, no distinct
between one community and another... we are starting with
fundamental principle that we are all citizens and equal citizens of
state."46 Choudhury comments that Jinnah's statements w
interpreted unfairly by many detractors who claimed that he w
advocating a secular state and forsaking his fundamental principl

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fighting for Pakistan. Choudhury argues that, "What Jinnah said in the
Pakistan constituent assembly was reflected in the constitution of
al-Madinah [sic] as founded by the Prophet of Islam. Islam strictly
forbids religious intolerance and fanaticism"47 and goes on to describe
how non-Muslims in Madina were given equal status, when the Prophet
created a polity that banned all privileges.
In 1951, the renowned Islamist Wilfred Cantwell Smith analysed
the problems of non-Muslim minorities in his text on the Pakistani
Islamic state and it is informative for our context. He wrote:
It is fundamental to remember that the rights accorded to any minority

or other non-powerful group in any state depend on the ideal of those
in power. A state may be democratic in form but unless it is democratic
also in ideal, unless the majority of its citizens are actively loyal to the
transcendent principles of democracy, recognizing the ideal validity of
every man's status as a man, then the arithmetic minority has, through
the democratic form, no rights at all... If Muslims do in fact treat non
Muslims unjustly then a democratic framework would merely give
them as a majority the constitutional authority for doing so without let
or hindrance.48
Conclusion
For some of those interviewed for this study who weary of the
deafening cacophony of the polemics of public discourse, the Islamic
state issue in Malaysia during 2001, whether PAS' or UMNO's, seemed
like the last straw. A few ? including Muslims ? spoke about the
possibility of living abroad. Others dismissed the issue as worrying but
yet others as merely sandiwara (soap opera), in the game of one
upmanship between PAS and UMNO. Some of the Muslims
interviewed expressed a fatalism, that it was bound to happen but could
not define one when asked to describe an Islamic state. Quite a few non
Muslims expressed the opinion that it is better to accept the BN version
of the Islamic state than anything that PAS might offer, on the premise
that the claim to an Islamic state is an inevitability.
NOTES
1. PAS is the opposition political party that defines itself as Islamic and is a member of
Barisan Alternatif (BA), a lose coalition of opposition political parties formed before
the general election of November 1999. Until recently, this coalition included the
Democratic Action Party (DAP), which has a large base of Chinese supporters and
which until the last general election led the political opposition in Parliament.
2. Singular hadd, which means "boundary, limit or stipulation". In the Qur'an, it

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means the limits laid down by Allah, and it appears in this sense at the end of several
verses which contain legal provisions. In Muslim criminal law, hadd means an
unalterable punishment prescribed by Shari'a (canonical law), which is considered
a right of Allah. These punishments include stoning or scourging for illicit
intercourse, scourging for false accusations about adultery, the same punishment for
drinking intoxicating liquor, cutting off the hands for theft, and various punishments
for robbery, which differ according to circumstances. These punishments are
draconian, but the onus of proof is also draconian. In addition, judges are mandated
to give the accused every possible opportunity to clear himself or herself (Shorter
Encyclopaedia of Islam, 1995, pp. 115-16).
3. As state legislatures warrant little attention in the media, much legislation on Islam
that has been enacted goes unnoticed until it is enforced. For example, the State
Assembly of Perlis had already passed the Islamiah Aquidah Protection Bill 2000
before Muslims protested against it in the media and to the Federal Government that
had drafted the bill in the first place.
4. Ulama is the plural of 'alim. They are deemed to possess the quality of knowledge
and learning in the widest sense, but which over time has come to denote those who
are highly educated about Islam. In the development of tradition and fiqh, the ulama
were perceived as custodians of Islam as they were theologians. In consequence, the
ulama "in whatever stated form they functioned, came to have in a wide and vague
fashion, the ultimate decision on all questions of constitution, law, and theology.
Whatever the de facto government might be, they were a curb upon it, as a surviving
expression of the Agreement and of the right of the People of Muhammad to govern
itself [Shorter Encyclopaedia of Islam, 1995, p. 599).
5. For an analysis of Dr Mahathir Mohamad's views on Islam, see my chapter on "Islam,
Mahathir and the New Malay Dilemma", in Crisis and Governance in the Mahathir
Administration, edited by Ho Khai Leong and James Chin (Singapore: Times
Academic Publishers, December 2001).
6. One who delivers, or is qualified to deliver, a fatwa. He may or may not hold the rank
of qadi. The Mufti constitutes a living bridge between pure Islamic jurisprudence
and everyday life for Muslims.
7. State government gazette, Warta Kerajaan Negeri Terengganu Darul Iman, Jil. 53,
no. 656, 28 September 2000. There was considerable consternation, and in a more
recent absence in October 2001, a council of regents was appointed which included
the religious advisor but also two members of the Terengganu royal family.
8. The Penal Code (Act 574) (Kuala Lumpur: International Law Book Series, 2000),
p. 109.
9. Ibid.
10. Musa Hitam, "Islam in the State in Malaysia", transcript of a public lecture organized
by the Institute of Southeast Asian Studies, Singapore, July 2001, p. 5.
11. This punishment is intended to prevent the culprit from relapsing, and to purify him
or her. The Qur'an does not prescribe this kind of punishment; on the contrary, it
classifies several transgressions punishable with ta'zir merely as sins, such as
slander, for which there is no hadd punishment, and the bearing of false witness
(Sura II: 283, IV: 135). Tradition has very little to record about it. In fiqh (Muslim
jurisprudence), ta'zir is inflicted for those transgressions which have no hadd
punishment. As the primary objective of the ta'zir is reformation, the degree of
punishment varies with each individual [Shorter Encyclopaedia of Islam, 1995,
589).
12. "Memorandum on the Provisions in the Syariah Criminal Offences Act"
(Kuala Lumpur: Sisters in Islam, 1997).

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13. However, in surveys conducted in 1995 and 1999 by Universiti Sains Malaysia,
the findings showed that Malaysians fared poorly on their awareness of civil rights
and that the scores of the later survey tended to be even lower than that of 1995.
I do not discount this conclusion from large surveys 'but wonder if the outcome
would be different in an ethnic group-differentiated analysis. See Johan
Saravanamuttu, "Malaysian Civil Society ? Awakenings?" in Risking Malaysia:
Culture, Politics and Identity, edited by Maznah Mohamad and Wong Soak Koon
(Kuala Lumpur: Malaysian Social Science Association and Penerbit Universiti
Kebangsaan, 2001), p. 103.
14. See, for example, the chapters on Malaysia in Southeast Asian Middle Class:
Prospects for Social Change and Democratisation, edited by Abdul Rahman Embong
(Bangi: Penerbit Universiti Kebangsaan, 2001).
15. Why MCCBCHS rejects the Application of the Syariah on non-Muslims (Kuala
Lumpur: Malaysian Consultative Council of Buddhism, Christianity, Hinduism, and
Silkhism, 1990), pp. 17-20.
16. Ibid., pp. 26-28.
17. Star, 2 November 2001, p. 10.
18. Star, 29 October, 2001, p. 7.
19. www.malaysiakini.com, archives.
20. Ibid.
21. Ibid.
22. Ibid.
23. Sangkancil discussion list archives.
24. The Sun, 6 October 2001, p. 1.
25. New Straits Times, 4 August 2001, p. 3.
26. Sometimes also referred to as Al-ahkam al-sultaniyya. The definite article al in
Arabic follows the's* consonant, hence 'as-sultaniyya.' The Al-ahkam as-sultaniyya
was written primarily to buttress the Abbasid caliphate which was facing challenges
to its authority by competing caliphates of the Fatimids and Umayyads in Cairo and
al-Andalus (Spain) respectively, and closer to home, by the actual usurpation of its
power by the Twelve Shi'ite Buwayhids. Therefore, Al-Mawardi recapitulates Sunni
political thought to lend credence to the primacy and legitimacy of the Abbasid
caliphate in Baghdad because it was under threat, and this element is important in
interpreting his text for modern-day application.
27. What appears in parenthesis next to an Arabic term is a translation. Note that this is
not provided in the booklet, and is an insertion into the translation provided here.,
28. Dato Wan Zahidi Wan Teh, Malaysia adalah sebuah Negara Islam (Kuala Lumpur:
Jabatan Hal Ehwal Khas, Kementerian Penerangan Malaysia, 2001), p. 8.
29. Ibid.
30. Shad Saleem Faruqui, "Constitutional Perspectives on Freedom of Religion,
Secularism and Theocracy," Paper distributed at the MCA forum on the Islamic state,
Kuala Lumpur, 20 October 2001, p. 11.
31. Ibid., pp. 18-19.
32. See H.P. Lee, "Constitutional Amendments in Malaysia", Malaysia Law Review 18
(1976), and Tun Salleh Abas, "Amendment of the Malaysian Constitution,"
Malaysian Law Journal (MLJ) 2, no. 34 (1977).
33. Mahathir bin Mohamad, The Malay Dilemma (Kuala Lumpur: Federal Publications,
1981), p. 11.
34. Al-Mawardi, Al-ahkam as-sultaniyya (London: Ta Ha Publishers Ltd., 1998), p. 44.
35. Ibid., p. 207.
36. Ibid., p. 207.
37. Ibid., p. 208.

54.253.8.229 on Wed, 16 Aug 2023 01:13:57 +00:00
38. Ibid., p. 208.

39. Ibid., p. 208.
40. Ibid., p. 208.
41. Ibid., pp. 201-11.
42. Ibid., p. 211.
43. Ibid., p. 28.
44. Ibid;, p. 337.
45. Ibid., p. 337.
46. Golam W. Choudhury, Islam and the Modern World (Buckhurst Hill, England:
Scorpion Publishing Ltd., 1993), p. 70.
47. Ibid., p. 70.
48. Wilfred Cantwell Smith, Pakistan as an Islamic State (Lahore, 1951), p. 25.
Patricia Martinez is Senior Research Fellow at the Asia-Europe

Institute, University of Malaya, Kuala Lumpur.

54.253.8.229 on Wed, 16 Aug 2023 01:13:57 +00:00

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The Islamic State or the State of Islam in Malaysia

Author(s): PATRICIA A. MARTINEZ

Stable URL: https://www.jstor.org/stable/25798563

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The Islamic State or the State of

The issue of the Islamic state has been at the forefront of

write and thus shape public discourse must also be understood as

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the public transcript. Ceramah (lectures in rallies) by both sides of

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Perception: The Federal Government controls Islam in all the stat

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that was legislated in Kelantan in 1993 cannot be implemented withou

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is often referred to as "pondok schools", the inference to the huts t

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What the Federal Government does have is the power to discipl

Perception: The majority of PAS members want a theocratic state run

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who leads the prayer, and/or guardian of a mosque). Such practice ha

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get canings. Imagine how frightened Ummi Hafilda and Azizan wo

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and the announcement by the Federal Government that it is an Islamic

Perception: Islam is yet another way of continuing Malay hegemony.

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153 of the Constitution. A Malay is described as someone who habitual

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at all? There is no such thing as land inherently belonging to anybody

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Perception: Malaysia, under the present Constitution, is not a theocratic

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Malaysia is an Islamic state, reference must first be made to the

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3. To provide an army able to defend the nation and religion from

The above are described in the booklet as basic compulsory

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(Infusion or Application of Islamic Values). Through this policy, the

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These reassurances notwithstanding, from someone who is an

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recompense, and non-Muslim subjects who live in the abode of Islam

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It is fundamental to remember that the rights accorded to any minority

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38. Ibid., p. 208.

Patricia Martinez is Senior Research Fellow at the Asia-Europe

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