Citation: 6 Sing. J. Int'l & Comp. L

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2 Singapore Journal of International & Comparative Law (2002) 6 pp The Keris, The Crescent and the Blind Goddess: The State, Islam and the Constitution in Malaysia Andrew Harding* The emergence of the Islamic party PAS as a political force in Malaysia, and its demand for an Islamic state has given rise to new debates about the nature of the Islamic state. It has also given rise to debate concerning the possible extent of Islamisation of the state within the constraints of a federal constitution which embraces religious freedom and pluralism and restricts the scope of Islam as a state matter. This article examines the relationship between the Malaysian state, rising Islamisation, and a constitution derived from traditional notions of constitutional government. The author argues that a definition of of 'Islamic state' is impossible. He goes on to outline the positive of Islam under the present constitution, and examines the ambiguous and controversial nature of Islamisatism measures under PAS rule in Kelantan and Terengganu. He concludes that, while a syncretic, creative, and peaceful solution to the problem of Islam and constitutionalism is by no means impossible such a solution is fraught with both political difficulty and intellectual confusion. I. THE NOTION OF AN ISLAMIC STATE IN Malaysia, law and legal ideology often fulfil the role of a political football. The football game is becoming ever more intense when, with the advance of Islamisation in two states (Kelantan and Terengganu) controlled by the Islamic party, Parti Islam Se-Malaysia (PAS), a heady mix of religion and law come into play. The game often looks like a virtual game on which nothing practically important actually depends. Even so, there seems little doubt that the country is engaged on what in the long term will be seen as a fundamental struggle about the nature of law and the objects of society. This article will address that struggle, revolving as it does around the state (represented by the keris), Islam (the crescent), and the Constitution (represented by the blind goddess of justice'), and the claim that Malaysia is or is not, or ought or ought not to be (depending on who is speaking) an Islamic state. * Professor of Law, SOAS, University of London. 1 I intend here more than an implicit reference to Daniel Lev's well known essay, 'The Lady and the Banyan Tree: Civil-Law Change in Indonesia', (1965) 14(2) AJCL, 282; also in DS Lev, Legal Evolution and Political Authority in Indonesia: Selected Essays (The Hague: Kluwer Law International, 2000), 119.

3 6 Sing J1CL Keris, Islam and the Blind Goddess The rise of PAS, which in 1999 made substantial inroads into the seemingly permanent and huge parliamentary majority enjoyed by the Alliance/Barisan Nasional since 1957, has created a new environment for the discussion of the role of the syariah 2 and the relationship between the three entities appearing in the title. There is, by way of egregious example as this article is being written (August 2002), a protracted ongoing debate about the concept of an Islamic state, which started in 1999 and intensified and broadened following a recent announcement by the Prime Minister Dr Mahathir Mohamad in Parliament that Malaysia is an 'Islamic state'. Dr Mahathir has gone even further to say that Malaysia is a 'fundamentalist, not a moderate Islamic state', and is also a 'model Islamic state'. 3 These statements have sparked great controversy. Catholic bishops and non-muslim parties, for example, have denounced them as creating a climate of fear and discrimination in a society that has always embraced religious and ethnic pluralism, and as being factually incorrect as an analysis of the Federal Constitution. On the other side PAS itself criticises Dr Mahathir's statements simply as being false and not according to Islam. An Islamic state is precisely what they wish to create if they get into power, and what they are presently attempting, within the severe constraints of federalism, to implement in the two states that they presently control. No doubt the Prime Minister's statements can be taken with a pinch of salt as part of an elaborate political war of words in which words themselves seem to be main casualties. Nonetheless, at a more fundamental level they raise some interesting questions that this article will attempt to unravel. I will start with some observations about the notion of an Islamic state, and then attempt to describe the position of Islam under the Constitution. I propose then to discuss the particular problems to which this position gives rise, and, somewhat tendentiously, how they might be resolved. First, let us take the concept of an Islamic state. This could certainly be the subject of several very learned doctoral theses, which would analyse the Qu'ran and the Hadith and classical Islamic history with the purpose of extracting Islamic doctrine concerning the state and studying actual examples. It is not possible here to perform this task, but it is perhaps possible to take a practical approach. There seems little doubt - and current debates in Malaysia appear to confirm this 2 Here, and in general in this article, I use the Malay spelling in preference to the Arabic. 3 CNN, 18 Jul 2002, malaysia.mahathir/, accessed 2 Sep 2002.

4 Singapore Journal of International & Comparative Law (2002) - that the construction of any kind of consensus around the question of what constitutes an 'Islamic state' is essentially impossible. There is no clear definition of the Islamic state, and indeed it is hard to see how there could be a clear definition of it, given the fact that the question is not directly confronted in the classical sources, and doctrine would have to be imaginatively constructed rather than simply harvested from existing doctrine and scholarship. In addition the enormous changes in our conception of the state since the classical times of the Caliphate makes the task even more uncertain and debateable. The eminent Muslim scholar Abdullahi An-Naim goes so far as to argue that the Islamic state is 'conceptually impossible, historically inaccurate, and practically not viable today'. 4 Even if that approach is not accepted, we would certainly have great practical difficulty in stating with any conviction, even in outline, what an Islamic state would be, or what criteria exist for determining whether a given state is Islamic. As Abdullahi goes on to explain While the term 'Islamic state' may serve as shorthand for referring to states where Muslims constitute a clear majority of the population, the adjective 'Islamic' logically applies to a people, rather than to a state as a political institution. Some scholars tend to use the term 'Islamic state' to refer those countries which have officially proclaimed Islam to be the state religion [as is the case with Malaysia], or where shari'a is a formal source of legislation [as is not the case with Malaysia]. However, I find this characterisation misleading because such features do not accurately reflect an 'Islamic' quality of the state itself as a political institution. Unless one is willing to accept every claim by a state to be 'Islamic', the question becomes one of who has the authority to determine the quality of being Islamic, and according to which criteria. 5 Hashim Kamali takes a different approach, dealing with issues of governance, leadership and justice, and stressing the democratic, consensual, and just nature of the Islamic state; but he does not lay down any essential, definitive, criteria for the existence of an Islamic state. In terms of modern Islamic states, he adopts Iran as an interesting example, but falls short of saying that it is a model for others to follow. 6 Given these definitional problems, while it would be easy to find many reasons for arguing that Dr Mahathir's announcement concerning 4 Abdullahi A An- Naim, 'Shari'a and Positive Legislation: is an Islamic State Possible or Viable', Yearbook of Islamic and Middle Eastern Law (The Hague: Kluwer Law International, 2000), 29, at Ibid. 6 Mohammad Hashim Kamali, Islamic Law in Malaysia: Issues and Developments (Kuala Lumpur: Ilmiah Publishers, 2000), ch 3.

5 6 Sing JICL Keris, Islam and the Blind Goddess Malaysia as an Islamic state is misconceived, one could not actually prove that it is false without agreed criteria. Since agreement is not likely to be forthcoming, especially considering the political sensitivity of the issue, we cannot assert definitively that Dr Mahathir is either right or wrong. For example, I would myself be inclined to suggest that an Islamic state must have a constitution which embraces the syariah as its fundamental source of law, as its grundnorm, to use Kelsenian language. 7 But even this rather obvious point (which Malaysian law does not in fact satisfy, and which is only casually referred to by Abdullahi An-Naim and Hashim Kamali, for example) could actually mean several quite distinct things. It could mean that the syariah is the only permitted source of law of any kind, and all others are invalid. It could mean that the constitution contains a guarantee or mechanism or body (of what kind?) to check the consistency of actual laws (past, future, written, unwritten?) with Islamic doctrine. It could mean that the syariah is merely an ideal at which law ought, officially, to aim. It could mean that Muslims are in practice governed by the syariah (but in which and how many contexts?), but not non-muslims. From this example we can see that even an apparently obvious criterion is, on closer examination, fraught with difficulties. In order not to labour the point, we can perhaps conclude that if we take any example of a proposed criterion for an Islamic state, we will find similar definitional problems. Such examples might include considering the social composition of the nation and the official status of Muslims within it; the means of constitution-making which were adopted and ideology which it embraces; the status of Islam as a state religion and in relation to other religions; and the conformity of personal, civil and criminal law with the syariah and the structure of the court system designed to enforce it. There are probably many other examples, but my point here is that in a practical sense we cannot identify an Islamic state in such a way that our criteria will be uncontroversial or authoritative. It would be more useful to look at the Islamic nature 7 Herein lies an interesting point. Is there a contradiction in using Western concepts to analyse the concept of an Islamic state? Abdullahi, indicating the modern constraints and elaborate nature of the state in the age of human rights and globalisation, implies, I think, that the answer to this is yes. There is, at least, certainly conceptual confusion and practical difficulty here. A telling consideration is that the imposition of a particular interpretation of the syariah by the state deprives the individual Muslim of the right to define his/her Muslim identity and interpretation of Islam. Even a purely secular state would properly, according to international and constitutionalist norms, allow a Muslim this freedom.

6 Singapore Journal of International & Comparative Law (2002) of the state as represented by a sliding scale on which we could locate a particular example. Even this might entail some difficulty in stating which facts would be relevant in pushing our example to one side or another, but in principle it should be possible to construct such a scale, even if agreement on this might be difficult to achieve. On this assumption we do not need to postulate a model or an extreme or a fundamental historical or philosophical prototype, even if we could find one. On this assumption too Dr Mahathir's statements cannot be said to be incorrect in principle, but only at worst an exaggeration. I would argue that they constitute a considerable exaggeration, and that Malaysia is, on the kind of scale that we could construct, much nearer to the purely 'secular' end of the scale (this is also an ideal or extreme which does not actually exist in practice8) than to the 'Islamic' end; I will in due course refer to a number of reasons for supposing this to be the case. But I would also recognise that there is here a grey area where reasonable human beings, whether they be scholars or Muslims or neither, might disagree. The Malaysian argument is not a new one, but is now raised with a new seriousness. For half a century PAS has based its politics on the idea that Malaysia should become an Islamic state. The Constitution made precious little concession to the notion that the Federation contained a Muslim majority. Although Article 3 names Islam as the religion of the Federation, it has until recently always been agreed that this provision does not in any sense establish an Islamic state, but merely provides for the religious nature of state ceremony. Article 3 goes on to say 'but other religions may be practised in peace and harmony in any part of the Federation.' 9 PAS sees the secular order established by the Federal Constitution of 1957 as both un-islamic and corrupt, and, together with the common law, as an obstacle to the establishment of an Islamic state. The ruling Barisan Nasional, a coalition of parties representing different ethnic communities, led by Dr Mahathir, takes its stand on the basis of ethnic pluralism, Malay political dominance, and economic development. It is able to point to a proud record of 45 years in power, in which racial harmony has prevailed, and prosperity has been both created and fairly well distributed. It is able to point also to a modest degree of Islamicisation of state and law, for example in the legal system, education, and banking. 8 For example, how 'secular', in fact, are the United States or the Indian or British states? 9 A leading Muslim lawyer told the author that the word 'but' in Art 3 is insulting to Islam and should read 'and therefore'. See, further, Mohammad Hashim Kamali, above note 7.

7 6 Sing JICL Keris, Islam and the Blind Goddess II. HISTORY: THE CRESCENT AND THE BLIND GODDESS The evolution of the present divide between Islam and the commonlaw based Constitution requires, first, some explanation. Islam came to Malaya in the fourteenth century by means of Arab merchants and Sufi missionaries. Arab influence can still be traced in Arabic personal names and Arabic words, especially those relating to law and religion, which have now passed into the Malay language; and Sufism has informed the tolerant and non-confrontational approach to religion that characterizes the region. When the Melaka (Malacca) sultanate was created in the early 15th century, its founder Parameswara converted to Islam, becoming known as Iskandar Shah. The royal houses of the Malay states, which culturally and politically derived from the Melaka sultanate, linked themselves with the Arab mainstream Islamic tradition, attempting to base their laws and governments on Islamic principles and Malay custom (adao. The 19th century legal system in the Malay states is exemplified by Terengganu, a state that is now in the forefront of Islamisation. This system was well summarized by British colonial official Hugh Clifford in his report to the Colonial Secretary entitled Report of An Expedition into Trengganu and Kelantan, By the time Clifford visited the state the legal system, both civil and criminal, was being used by powerful aristocrats to exploit and terrorise the lower orders for their own benefit, and there was no semblance of justice, Islamic or otherwise. Shortly afterwards the state came under British protection and this led eventually to the introduction of the common law and the institutions set out in the 1957 Constitution. Earlier the powerful usurper Sultan Baginda Umar ( ) had applied the syariah with harshness but impartiality. The administration of justice varied from state to state and from time to time. Although characterisation of the 19th century legal systems of Malaya is not inaccurately described as Islamic, they were often very far in practice from the Islamic ideal. Islamic law was at any rate the general law of the Malay states until the advent of British rule in the late 19th century, when the traditional rulers (styled 'Raja' or 'Sultan') accepted British Residents as advisers, but retained control over matters pertaining to Islam and Malay custom. This pattern of 'indirect rule' came to be established throughout the Malay states, which now form nine of Malaysia's 13 states (the others, Penang, Melaka, Sabah and Sarawak, were British colonies). Under the treaties concluded between the British Crown and the Rajas, the Raja 10 MBRAS Reprint (Kuala Lumpur, 1992).

8 Singapore Journal of International & Comparative Law (2002) was obliged to receive and act on the advice of the Resident, except in relation to matters pertaining to 'Islam and Malay custom'., As a result the common law became the general law of the Malay states, as English-style legal institutions were introduced. Thus Islam in Malaysia has been identified with the states and with personal rather than public law. Islamic law operates as an exception to the common law, the latter being the general law as received (now) under the provisions of the Civil Law Act of 1956, which consolidated earlier similar provisions of different dates for different parts of the country. During the late 1980s and early 1990s there was some discussion of the development of a 'Malaysian common law' which would incorporate Islamic and other elements; ultimately this discussion came to nothing, and it was pointed out by the legal profession that the common law in Malaysia was already a 'Malaysian common law', as the law had developed from the original English model in line with the needs and social facts of Malaysian society. Malaysia is one of those countries in which, as in India, Pakistan, and Bangladesh, constitutionalism along Westminster lines is also a legacy of the British colonial past, and has had to engage with Islam both legally, as an important topic to be dealt with as an aspect of the constitutional order, and philosophically, as an alternative conception of what the constitutional order might be. It is of special interest in a country with a narrow-majority Muslim population, but which also has numerous non-muslim minorities belonging to all of the major religions and 178 officially recognized ethnic groups. About 58 percent of Malaysian citizens are Muslims, principally the Malays, although there are also Muslims of Indian and Chinese descent. Islam has an estimated 13 million adherents at the present time. Most forms of Christianity (10 percent), Buddhism (18 percent), Hinduism (7 percent), and other religions (7 percent) such as Sikhism are also strongly represented. Members of the indigenous tribes of East Malaysia (Sabah and Sarawak), and the orang asli (aboriginals) of West Malaysia (the Malayan Peninsula), also have animistic beliefs, although many Dayak, Iban and Kadazan of East Malaysia have converted to Catholicism. Both Islam and Christianity are growing very quickly in terms of the numbers of their adherents, which is perhaps a mutually enforcing trend. A high birth rate and a high conversion rate, assisted by a certain amount of intermarriage, contribute to this growth. It is not unusual to find 11 Sir WG Maxwell and WS Gibson WS (eds), Treaties and Engagements Affecting the Malay States and Borneo (London: Truscott, 1924). For further discussion of Islam in the pre-and post-colonial period, see Mohammad Hashim Kamali, above note 6, ch 2.

9 6 Sing JICL Keris, Islam and the Blind Goddess Buddhist and Hindu temples and Christian churches of several denominations huddled together in close proximity to mosques; and the prevailing culture of mutual tolerance and non-interference in religious matters generally is sufficiently deeply embedded that the kind of inter-communal rioting seen recently in neighbouring Indonesia is virtually unthinkable at the present time. Although pluralism has been a feature of most Islamic societies, Malaysia is an extreme contemporary example and one that occurs in a part of the world where pluralism is an all-pervasive fact that pervades Islam itself. 2 III. CONSTITUTIONAL AND POLITICAL BACKGROUND The Constitution itself dates from 1957, when Islam was a much more peripheral issue than it is now, being much less important in the minds of the constitution-makers than emergency powers or the monarchy, for example. Essentially the Report of the Constitutional Commission under Lord Reid,' 3 which formed the basis of the Constitution of the Federation of Malaya (1957) and later of the Federal Constitution of Malaysia, as it became in 1963 with the formation of Malaysia, legalized the situation which had applied under British rule in the Malay states: the role of Islam in the Federation's political system was confined to the states and to be dealt with by the traditional ruler (the Sultan or Raja) in consultation with the Religious Council. It was thus outside the purview of, but nonetheless ultimately constrained by, the British legal structure. In terms of jurisdiction, Islamic law was confined to personal law for Muslims. In brief, it had no role, or only a formal role, to play in the Constitution. It was clear that an Islamic state as such was not contemplated. Although the Constitution has been amended many times since 1957, the provisions concerning Islam have remained unaltered in their essentials. Islamic revivalism since the 1970s, evidenced by the dakwah (Muslim revivalist) movement 14 has brought increased demand for 12 RW Hefner and P Horvatich, (eds), Islam in an Era of Nation States: Politics and Religious Renewal in Muslim South East Asia (Honolulu: University of Hawaii Press, 1997). One can meaningfully refer to Javanese or Achehnese or Malay Islam: see Kamali, above note 6, at Federation of Malaya Constitutional Commission, Report (Kuala Lumpur: Government Printer, 1957). 14 J Nagata, The Reflowering of Malaysian Islam: Modem Religious Radicals and their Roots (Vancouver: University of British Columbia Press, 1984); Chandra Muzaffar, Islamic Resurgence in Malaysia (Petaling Jaya: Fajar Bakti, 1987); Zainah Anwar, Islamic Revivalism in Malaysia: Dakwah Among the Students (Petaling Jaya: Pelanduk, 1987).

10 Singapore Journal of International & Comparative Law (2002) Islamisation of the law, and increasing tension between the liberaldemocratic constitutionalist state along British lines established in 1957 and the Islamic state as conceived by Muslim thinkers and activists." 5 This tension has been heightened in recent years by the outrage of many Muslims at injustices perpetrated by the Malay political leadership, which is perceived not to be very seriously Islamic, in spite of its attempts, which are far from negligible, to appear such. 16 The Reid Commission consisted of five persons under the chairmanship of Lord Reid, the Scottish Judge. The other members were Sir Ivor Jennings, the Cambridge jurist; Sir William McKell, a former governorgeneral of Australia; Justice B Malik, an Indian judge; and Justice Abdul Hamid, a Pakistani judge. 7 None of the commissioners was Malayan and only one, Justice Abdul Hamid, was a Muslim. It seems likely that the latter was included for his experience of constitution-making in Pakistan. His stance as a dissenter on several issues such as citizenship and fundamental rights was in fact generally based squarely on orthodox constitutionalist rather than Islamic principles. In his note of dissent, he did express support, however, for making Islam the official religion of the Federation (now enshrined in Article 3 of the Constitution but actually omitted from the Reid Commission draft). This was in accordance with the position of the Alliance, the predecessor coalition to the current Barisan Nasional (BN), led by Tunku Abdul Rahman. The Tunku was in favour of Article 3 on the grounds that the provision was innocuous; would not prevent the state from being secular in nature; was similar to provisions in constitutions of Muslim countries (Afghanistan, Iran, Iraq, Jordan, Saudi Arabia and Syria were cited) as well as (mutatis mutandis) some'christian' countries. It was also found in the Constitutions of the Malay states and was agreed to unanimously by the Alliance, which included non-muslim parties.1 8 Islam was little discussed in the drafting process and there was no proposal that an Islamic state along 15 See, in general, Hussin Mutalib, Islam in Malaysia: From Revivalism to Islamic State (Singapore: Singapore University Press, 1993). 16 For example, the creation of the International Islamic University Malaysia (UIA); the Institute of Islamic Understanding (IKIM), and other think tanks; and the upgrading of the Syariah Courts, judiciary and legal profession. 17 The members were appointed by their respective governments. 18 Federation of Malaya Constitutional Commission, Report, above note 4, 96ff, at paras Hashim Kamali comments that 'the prevailing climate of opinion in the judiciary and elsewhere in the higher echelons of Government has not shown any decisive shift of policy to alter the original perception of the secular state as was expressed in the constitutional debate fifty years ago': above note 6, 35.

11 6 Sing JICL Keris, Islam and the Blind Goddess the lines of Pakistan, for example, should be adopted. Despite the failure to address the religious predisposition of the majority of the population, the 1957 Constitution was approved by the federal and state legislatures and all major interests. Muslim jurists, of whom there appear to have been rather few at that time, appear to have supported secular constitutionalism. For example, the late professor Ahmad Ibrahim ( ), the doyen of Islamic jurisprudence in Malaysia for many years, and founding Dean of the Khulliyyah of Laws at the International Islamic University Malaysia, wrote several articles from an orthodox constitutionalist perspective, even though he was also a fervent advocate of Islamisation. It is interesting to note here that the appointment of such a Commission was preferred to the appointment of a constituent assembly, as occurred in India. Although this enabled independence to be reached probably sooner than might otherwise have been possible, and although the Commission consulted widely and sympathetically, and the Reid Constitution was accepted by all the relevant institutions in Malaya, the Malaysian Constitution has probably suffered from the fact that it was not drafted by representatives of the people. It has often been perceived or represented as a foreign document rather than an indigenous one. A more democratically chosen body would, undoubtedly, have come up with radically different recommendations, and the character of the Constitution would probably have been more Islamic in nature. However, the Reid Commission did not have carte blanche in settling the Constitution; it was tied by its terms of reference, agreed in London in negotiations between the Malay leadership and the British Government. Essentially, their brief was to give constitutional effect to: (1) the survival of the existing monarchies (the sultanates of the nine Malay states) and the federal system to which it was linked; (2) political agreements concerning special privileges for the economically disadvantaged Malays; and (3) citizenship and related rights of the non-malays. Thus the Constitution which emerged was an entrenchment of a social contract reached between the main communities, and otherwise everything was left more or less as it had been under British rule, albeit with some advances in terms of democracy and constitutionalism generally, for example in the enumeration of fundamental rights. The issue of Islam was thus actually marginal to the drafting process. Subsequent developments have tended to undermine the liberaldemocratic constitutionalist order established in The ruling coalition, in power since 1957, has generally enjoyed more than the two-thirds parliamentary majority required for effecting constitutional amendments. Although there have been many and generally far-reaching amendments, the Constitution's basic structure remains the same. The

12 Singapore Journal of International & Comparative Law (2002) outcome is a state which is described as semi-authoritarian, or quasidemocratic, but which is nonetheless based, in some fundamental sense, on rule-of-law principles. It is interesting that those who oppose Islamicisation rely on the Constitution which they nonetheless frequently criticise. The prevailing political consensus in Malaysia is that any inflammatory act or statement relating to relations between the races and religions can lead to a serious breakdown in law and order, and should be prevented by stringent legal provisions. 9 Thus the most important function of constitutional law, apart from the function of making general provision for governance, is to ensure that the potentially fragile social fabric is kept intact. There is therefore already a tension between the principle of constitutionalism as such and a perceived need to maintain a religiously tolerant but politically authoritarian executive and a strong state. Most importantly, economic progress thus far, which has been remarkable despite the economic crisis of , from which recovery is taking place at speed, is seen as depending on a continuation of the consensus politics of the last 45 years, under which the same intercommunal coalition has retained power at every election. However, the period since the economic crisis hit in mid-1997, culminating in the fall and trial on corruption and sodomy charges of the former Deputy Prime Minister and Finance Minister, Anwar Ibrahim (himself a politician with impressive Islamic credentials as well as the hero of those carrying the reformasi posters), has been very turbulent, and the issue of Islam and the Constitution has become a crucial aspect of political debate. IV. CONTEMPORARY POLITICS: KERIS AND CRESCENT The constitutional debate intensified into a profound struggle during a passage of events that has ended with a decisive victory for the ruling coalition in the general elections for the federal and state legislatures held on 29 November Despite the majority's apparently calm rejection of calls for reform, the election indicated some surprising developments. Large numbers of Malay/Muslim voters, traditional Government supporters, but angry with the treatment of Anwar Ibrahim and with the fallout from the economic crisis, defected to PAS. PAS based its campaign on a platform of furthering attempts to create an Islamic state. It not only substantially increased its representation 19 For example, the Internal Security Act of See, further, AJ Harding, Law, Governmentandthe Constitution in Malaysia (The Hague: Kluwer Law International, and Kuala Lumpur: MU, 1996), ch 3.

13 6 Sing JICL Keris, Islam and the Blind Goddess in the federal Dewan Rakyat (lower house) from seven to 27 seats, enabling them to lead the parliamentary opposition for the first time in Malaysian history, but also won control of two state governments, ie, the north-eastern and traditionally Muslim States of Kelantan and Terengganu, the former having been controlled by PAS since Other opposition parties also made gains, but, although discontent was clearly reflected in declining support for the BN, it was not in general reflected in parliamentary representation due to the effects of a first-past-the-post electoral system and other factors such as the weighting of rural constituencies. Ironically, commentators have attributed the political survival of Mahathir (who swept into power in 1981 as a champion of Malay rights) and the BN to the votes of non-muslims, compensating in effect for the loss of Muslim votes to PAS. It was felt by non-muslims that a vote against the BN might lead to the imposition of an Islamic state by a PAS-led government, even though it would require the cooperation of non-muslim and chiefly non-malay parties to gain power. The post-election period saw the Government attempting to control the spread of support for PAS, for example by restricting the publication of its newspaper Harakah to twice-monthly and only for party members, by interfering with the political content of Friday sermons in the mosques, and by presenting UMNO as the party of true, moderate, Islam, and PAS as the agent of international terrorism. PAS itself, in the meantime, appears to be undergoing a predictable internal power struggle in which the 'traditionalists' (principally the ulama) are attempting to reassert themselves against the 'young professionals'. 0 Attempts to Islamise the states under PAS control, already under way in Kelantan since 1990 (for which see below), bring the Constitution and constitutionalism directly into question, since Islam is a state as opposed to a federal subject, and the powers of the States are severely circumscribed to the extent that implementation of such a programme requires the cooperation of the federal legislature in effecting constitutional amendments which, as matters stand, cannot obtain the support of the crucial two-thirds majority in lower and upper houses. In fact the federal opposition itself, the Barisan Alternatif (BA), is made up of parties that have directly contradictory views on the relationship between Islam and the Constitution. The Democratic Action Party (DAP), which until the 1999 election led the opposition in parliament, 20 Sunday Times, Singapore, 4 Jun The party constitution has been amended to give the traditionalists more power at the state level. PAS is also in debate about the role of women in politics.

14 Singapore Journal of International & Comparative Law (2002) has a record of defending the rights of the Chinese population, and is obviously opposed in principle to an Islamic state; this party has now left the BA, citing PAS' adherence to the Islamic state agenda. The other BA parties are Parti Keadilan Malaysia (ADIL) and Parti Rakyat Malaysia (PRM), opposition parties that are also represented in parliament. 2 PAS on the other hand is presently buoyed by its popular success but at the same time restricted by the need to cooperate with the other opposition parties. The post-il September environment has in general reduced the party's appeal in the eyes of the electorate. This brief description of the contemporary political scene indicates broadly the place and the current importance of Islam within the Malaysian polity. For the reasons indicated it looks as though the issue of the relationship between the two constitutional traditions is only now being joined in earnest for the first time as a practical as well as an intellectual matter. The scope for intellectual syncretism is great but the tenor of debate so far has generated little illumination. The encounter has been much more a matter of political rhetoric and perception, than of intellectual inquiry and examination of the kind of real issues on which electors generally cast their votes. The need for opposition parties to find common ground on Islamic law (exposed as their principal weakness in the 1999 elections) may well lead to the kind of dispassionate engagement on real issues and purposes which is now urgently needed if the constitutional impasse into which Malaysia has sunk in recent years, especially since the Anwar trial, is to be resolved. V. CONSTITUTIONAL ARRANGEMENTS RELATING TO ISLAM How then as things stand have the two traditions been moderated under present constitutional arrangements? A. Islam as the Religion of the Federation First of all, Article 3 of the Federal Constitution names Islam as the religion of the Federation. It has generally been agreed that this provision does not in any sense establish an Islamic state, but merely provides for state ceremony. However, according to Dr Mahathir, this provision is conclusive evidence of the existence of an Islamic state. Article 3 goes on to say 'but other religions may be practised in peace and harmony in any part of the Federation.' There is also no provision 21 They are currently discussing merger.

15 6 Sing JICL Keris, Islam and the Blind Goddess for the syariah to be a source, or the basic source, of legislation. The matter was in fact tested in the 1988 case of Che Omar v Public 22 Prosecutor, in which it was argued that the enactment of a mandatory death penalty was contrary to Islam and therefore unconstitutional. The Supreme Court (now Federal Court) rejected this argument, holding that Article 3 was not a clog or fetter on the legislative power. In doing so, the court drew a sharp distinction between private law, where Islamic law applies, and public law, where it does not, and referred to the basic facts of Malaysian history (as set out in the introductory section above) to explain this position. At a more fundamental level the case represents an acknowledgement that in Malaysia the intrusion of Islam into public law, or even into areas of law applicable to non- Muslims, would be politically extremely dangerous. Thus Islamic law is not a fetter on legislation but exists only for the purpose of providing personal law for Muslims. Sovereignty is instead enjoyed by the Constitution itself, Article 4 proclaiming that '[the] Constitution is the supreme law of the Federation'. It is perhaps ironic that even the historically liberal-democratic Constitution makes no attempt at all to lodge sovereignty with the Malaysian people. B. Constitutional Rights in Respect of Religion Secondly, religious rights are guaranteed in the right to practice and profess any religion in peace and harmony; 23 in the prohibition of discrimination on religious grounds; 24 in the right of every religious group to establish and maintain institutions for the education of children in its own religion; 25 and in the prohibition on requiring a person to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own. 26 Article 1 (1) says that '[e]very person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.' Article 11(4) allows the -states to legislate for the control or restriction of the propagation of any religious doctrine among persons professing Islam. Thus Article 11, while safeguarding freedom of religion, draws a distinction between the practice and the propagation of religion. The states have in fact exercised their right to enact restrictive laws as envisaged by Article 11(4); and since the states include Penang and Melaka, former British colonies where Islam is not even the state 22 [1988] 2 MLJ Art 3, Art Art 8, Art Art 12(2). 26 Art 12(3).

16 Singapore Journal of International & Comparative Law (2002) religion, it seems that the restriction of proselytism has more to do with the preservation of public order than with religious priority as such. This problem is discussed further below. Article 11(5) creates a further restriction on freedom of religion by providing that Article 11 does not authorize any act contrary to any general law relating to public order, public health or morality." Freedom of religion is, however, bolstered by other provisions. Article 11(2) says: 'No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.' Article 11(3) says: Every religious group has the right (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire and own property and hold and administer it in accordance with law. Similarly, Article 12(1) prevents discrimination on religious grounds in the administration of public education and scholarships. Article 12(2), as stated above, gives every religious group the right to establish and maintain institutions for the education of children in its own religion; the same clause adds that the States or the Federation may establish or maintain institutions providing instruction in Islam. Article 12(3) provides: 'No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.' Legislation during an emergency, sanctioned by Article 150, and legislation against subversion under Article 149, may not interfere with freedom of religion, and may not interfere with the legislative powers of the states with regard to Islamic law. 28 Thus primacy is given by the Constitution to religious rights even where the security of the state itself is at risk. This primacy has in effect been endorsed by the Supreme Court in Jamaluddin Othman, a habeas corpus case in which freedom of religion under Article 11 was held to override even the power of preventive detention under the Internal Security Act. 29 The detainee, 27 This clause was discussed in Halimatussaadiah v Public Service Commission [1992] 1 MLJ 513, in which it was held that a public service disciplinary order prohibiting female employees from wearing purdah that prevents identification of the employee was constitutionally valid, as it protected the secrecy of the service. For comment, see Zainur Zakaria, 'Religious Freedom - Right to Wear the Purdah' (1993] 3 MU xxv. 28 Art 149(1); Art 150(6A). 29 Minister for Home Affairs v Jamaluddin bin Othman [1989] 1 SCR 311; [1989] 1 MLJ 369, 418.

17 6 Sing JICL Keris, Islam and the Blind Goddess a Malay/Muslim who had converted to Christianity, was granted habeas corpus to secure his release from detention, which had been effected on the grounds that his alleged attempts to convert Muslims was a threat to national security. The restriction of propagation of non-islamic religions among Muslims and state control over the propagation of Islamic doctrine may also serve the purpose of maintaining social stability. The problem with these principles is that they are contrary to the spirit of freedom of religion, and place the adherents of other religions (or Muslims who hold to unorthodox religious tenets) at a disadvantage compared with Muslims (or 'orthodox' Muslims). Thus in the long term the maintenance of these restrictions may have the effect of undermining the overarching principle of religious freedom, which, as may be seen, is a fundamental right which exists at a higher level, in practice, than other fundamental rights. C. Islam as a State Subject As is stated above, Islam is a state subject under Schedule 9 of the Constitution. 30 The courts have attempted to clarify the way in which state and federal powers are divided with regard to religion in the case of Mamat bin Daud v Government of Malaysia. 31 The plaintiffs were charged under an amendment to the Penal Code, section 298A, which created a new offence of doing an act on the ground of religion that was likely to cause disunity or disrupt harmony between people professing 30 See Sch 9, list 11, item 1, and Art 74. Item 1 reads: '... Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the state; Malay customs, Zakat, Fitrah and Baitumal or similar Islamic religious revenue; mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah courts which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.' 31 [1988] 1 MU 119; [1988] LRC (Const) 46.

18 Singapore Journal of International & Comparative Law (2002) the same or different religions. They were charged with doing an act likely to prejudice unity amongst Muslims in that they acted as unauthorized bilal (one who gives the call to prayer), khatib (one who gives the sermon), and imam (one who leads the prayer) at Friday prayers. They sought declarations that section 298A was ultra vires Article 74 of the Federal Constitution because in pith and substance it dealt with Islam, a state matter, and was therefore beyond the power of Parliament to enact. On a careful analysis of section 298A, a lengthy, complex and sweeping provision, the Supreme Court decided, by a majority of three to two, that the acts prohibited by the section had nothing to do with public order, a federal matter, but were directly concerned with religion. Two of the majority, Seah and Mohamed Azmi SCJJ, formulated the following test: It is the substance and not the form or outward appearance of the impugned legislation which must be considered... no amount of cosmetics used in the legislative make-up can save legislation from being struck down for pretending to be what it is not. The object, purpose and design of the impugned section must therefore be investigated for the purpose of ascertaining the true character and substance of the legislation and the class of subject matter of legislation to which it really belongs. 32 However, it is difficult not to agree with Hashim Yeop Sani and Abdoolcader SCJJ, dissenting, who, while agreeing with the test set out by the majority, differed in their view of what the pith and substance of the legislation actually was. In the words of Abdoolcader SCJ, the section applies to all persons irrespective of the religion they profess and in my view it clearly relates to the dominant aspect of public order consequent upon activities exercised on grounds of religion and is directed at ensuring the tranquil observance of all faiths without disruption of the public weal.3 The precise scope of the States' power in respect of Islam may soon be clarified in a case before the Federal Court relating to the power of the Legislative Assembly of Kelantan to pass the hudud law 3 4 One of the great tasks of Islamic law in Malaysia has been, and continues to be, the achievement of uniformity among the state jurisdictions. Since 1952 attempts have continued to provide for uniformity between the various state enactments on Islamic law. The result is that, while Islam is 'official' only in the ceremonial sense, there are actually 13 different systems of Islamic religious administration and Islamic law, and each state has its own Administration of Islamic Law 32 [1988] 1 MU Ibid, at For further discussion of which, see below.

19 6 Sing JICL Keris, Islam and the Blind Goddess Enactment and its own Islamic Family Law Enactment. 35 The Sultan of each state (or the Yang di-pertuan Agong for the Federal Territories and the States of Penang and Melaka) is the Head of Islam and is also responsible for the administration of adat (Malay custom) within his state. He is advised by the Majlis Ugama Islam (the State Religious Council, headed by a mufti), which also has power to issue a fatwa; a fatwa may also be given by or on the advice of a Legal Committee, which is appointed by the Majlis. A Department of Religious Affairs is responsible for the Syariah Courts and Syariah legal profession, judicial appointments, and the enforcement of Islamic law generally. The state laws also provide for the registration of Muslim marriages and divorces. Islamic law is not, however, codified by these laws, which provide merely a framework for its enforcement. The jurisdiction of the Syariah Courts is defined by the scope of 'Islamic law' as defined by the Constitution. 3 6 Appeals lie to the Rulerin-Council, who may appoint a Committee, usually the Legal Committee, to hear appeals. The principles of law administered are those of the Shafi'i school. However, there are some exceptions to the use of Shafi'i doctrine. The reference to the Shafi'i school at present only formally applies to fatwa jurisdiction, although the Syariah Courts do in fact follow the doctrines of the Shafi'i school. Even in the case of fatwa it is possible to rely on the doctrines of other schools where it would be in the public interest to do so. A fatwa may also relate to adat, and in some states the Majlis must have regard to adat in the performance of its functions. A particularly awkward example of conflict between Islamic law and adat is the adat rule of harta sepencarian, which provides for the division of joint earnings of husband and wife on divorce; this category of matrimonial property is not known to Islamic law. The adat perpatih of the state of Negeri Sembilan, which was developed from the rich Minangkabau legal culture, vests property rights exclusively in women, which again is contrary to Islam, but these are nonetheless enforced by the courts. D. The Divided Court Structure The Syariah Courts administer personal laws with respect to Muslims, but the ordinary criminal courts have jurisdiction over Islamic criminal matters provided under the various Administration of Islamic Law 35 In what follows I am generalising with regard to the effect of the various state enactments, it being cumbersome to cite all the relevant provisions from 14 different jurisdictions. 36 See above, note 31.

20 Singapore Journal of International & Comparative Law (2002) Enactments. These laws include provisions making it an offence to propagate religious doctrine other than Islamic doctrine among Muslims; in the State of Perak, for adherents of other religions to use 25 words of significance in Islam; to teach Islamic doctrine publicly without written permission; to teach Islamic doctrine other than in accordance with Islamic law; and in some states to publish an Islamic book without permission. There are also extensive provisions with regard to unlawful sexual intercourse and khalwat. 37 Following an amendment to the Constitution in 1988 and subsequent amendments, notablythat of 1994,2 8 Article 121 provides for the jurisdiction of the High Courts, the Court of Appeal, and the Federal Court, but adds: '(1A) The courts referred to in clause (1) [ie, the High Courts and inferior courts] shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.' Thus, Article 121 separates the jurisdiction of these courts (commonly known as the 'civil courts') and the jurisdiction of the Syariah Courts. 39 One important consequence of this is that the civil courts still retain the power of judicial review of administrative acts and decisions by inferior tribunals, including the Syariah Courts; and this has been recognized in case law. 40 The 37 ie, being found in retirement and suspicious proximity to any woman, Muslim or non-muslim, the offence being committed by a male Muslim. The Syariah Criminal Offences Act 1997 (Federal Territory), Act 559, contains radical but not untypical provisions which go far in restricting constitutional rights of freedom of religion and freedom of expression, at least as classically defined. Offences include wrongful worship (s 3), propagation of false doctrine (s 4), or of non-muslim religious doctrine among Muslims (s 5), contempt or defiance of religious authority (s 9), religious teaching without authority (s 11), propagating opinion contrary to fatwa (s 12), religious publication contrary to Islamic law (s 13), and even failure to perform Friday prayers (s 14) and instigating neglect of religious duty (s 17). 38 See Constitution (Amendment) Act of 1994 (Act A885). Hamid Jusoh, The Position oflslamic Law in the Malaysian Constitution with Special Reference to the Conversion Case in Family Law (Kuala Lumpur, Dewan Bahasa, 1991); Ahmad Ibrahim, 'The Syariah Court and its Place in the Judicial System', (1989) 5 Syariah Law Journal 1; Ahmad Ibrahim, 'The Amendment to Art 121 of the Federal Constitution: Its Effect on the Administration of Islamic Law', [ 1989] 2 MU xvii; AJ Harding, 'Islam and Public Law in Malaysia: Some Reflections in the Aftermath of Susie Teoh's Case', Ch 9 of C Mallat, (ed), Islam andpublic Law (London: Graham and Trotman, 1991); Yong Chiu Mei, 'The Aftermath of Susie Teoh - are Parental Rights Supreme?', (1992) JMCL See D Horowitz, 'The Qu'ran and the Common Law: Islamic Law Reform and the Theory of Legal Change', (1994) XLII AJCL 233 and Ahmad Ibrahim, 'Amendment to Art 121 of the Federal Constitution'; Kamali, Islamic Law in Malaysia, ch 9. See also Sukma Darmawan SasmitaatMadja v Ketua Pengarah Penjara Malaysia [1998] 4 CU 481.

21 6 Sing JICL Keris, Islam and the Blind Goddess amendment to Article 121 does not purport to oust the jurisdiction of the High Court to review decisions of the Syariah Courts. It merely says, in effect, that the ordinary courts cannot exercise the Syariah Courts' jurisdiction, a position which, it should be noted, applies in judicial review cases in relation to the decision of any inferior jurisdiction, not just a Syariah Court. The Syariah Courts have not therefore been converted into a totally separate legal system. Such a reform would require a major readjustment of the entire legal system. There would, for example, have to be some mechanism for deciding into which system, civil or syariah, a given case would fall. The preceding discussion should sufficiently indicate the bifurcated nature of Malaysian law under prevailing constitutional arrangements. In many ways the underlying issues that divide these two legal worlds have not yet been explored and the engagement is slow and very tentative, the terms of reference for the debate being a matter of conjecture. In the following section I will illustrate some of the observations made above by looking at current attempts at Islamisation in Kelantan and Terengganu. VI. KELANTAN, TERENGGANU: ISLAM IN GOVERNMENT Islamic government within the existing constitutional restraints has already been tried in Malaysia at the state level." In 1990 a coalition of PAS and an anti-mahathir UMNO splinter party called Semangat '46 (Spirit of '46) took over the Government of Kelantan with a sweeping majority in the Legislative Assembly; the Chief Minister was a popular religious teacher, Nik Abdul Aziz Nik Mat. It proceeded to attempt to implement Islamic principles into law and government policy. 4 Mainly these attempts involved minor changes in regulations concerning the 41 Despite what might appear the anomaly of Islam being a state matter in the federal structure of a country with a Muslim majority and in which Islam is the religion of the federation, PAS representativs agreed in conversation with the author that the opportunity to experiment and perhaps make mistakes at the state level was actually a useful windfall. Malaysia may afford an interesting comparison and model for countries such as Sudan, where federalism may provide a solution to the problem of religious pluralism. 42 Kelantan has for several hundred years been the Malay/Muslim state having the closest connections with the Islamic world generally and the Middle East in particular. See, further, W Roff, 'An Argument About how to Argue', in Muhammad Khalid Masud, B Messick, B & David S Powers, (eds), Islamic Legal Interpretation: Muftis and their Fatwas, (Cambridge: Mass, Harvard University Press, 1996), ch 19.

22 Singapore Journal of International & Comparative Law (2002) civil service, such as dress code, and concerning public entertainments. One major initiative called for legislation and was extremely controversial, namely the enactment of a hudud criminal code. The Kelantan Syariah Criminal Bill (11) was passed unanimously by the Legislative Assembly on 25 November This Enactment sought to create hudud offences and punishments; 44 qisos offences and punishments; and offences and punishments left to the discretion of the court (ie, a new Special Syariah Trial Court and Special Syariah Court of Appeal set up by Pt VI of the Enactment), and termed ta'zir offences and punishments. 4 The punishment of amputation of the right hand for persons convicted of sariqah (theft), for example, is hedged with no less than 15 exceptions, including return of the stolen property before execution of the hudud punishment; and failure to comply with onerous evidence provisions applicable under Part III of the Enactment and the Evidence Enactment of the Syariah Court, which was passed in In addition, all hudud punishments must be confirmed by the Appeal Court. The Enactment, by virtue of section 56, only applies to Muslims aged 18 or over and of sound mind, and non-muslims who elect that it should apply to them; 4 " and only when the offence is committed in Kelantan. Under section 61, where a person has been tried or has faced any proceedings 43 The two BN opposition members also voted in favor of the bill. For further analysis and comment on the hudud issue, see Mohammad Hashim Kamali, Punishment in Islamic Law: An Enquiry into the Hudud Bill of Kelantan (Kuala Lumpur: Institut Kajian Dasar, 1995). This book is more accessibly summarized in Mohammad Hashim Kamali, 'Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan, Malaysia', Arab LQ 203 (1998); and in Mohammad Hashim Kamali, above note 7, ch 7. See also Mohamed Imam, 'Islamic Criminal Law in Malaysia: Federal-State Jurisdictional Conflict', [1994] Malaysian Current Law Journal xxix; Ahmad Ibrahim, 'Suitability of Islamic Punishments in Malaysia', (1993) IIUM Law Journal Sariqah (theft); hirabah (robbery); zina (unlawful carnal intercourse); qazaf and al-li'an (accusation of zina which cannot be proved); syurb (consumption of intoxicating drink); irtidad or riddah (apostasy); liwat (anal intercourse between males or between male and female); musahaqah (sexual gratification between females); ittiyan almaitah (necrophilia); ittiyan albahimah (bestiality). 45 S 3 of the bill added (illogically perhaps?): 'Provided that where a hudud or a qisos offence cannot be punished with the hududor qisos punishment respectively because it cannot fulfil the conditions to attract such punishment, the offence shall become a ta'zir offence and be punished accordingly'. This would appear to contradict a basic concept of constitutionalism: the rule of law requires that punishment only be imposed for the commission of a distinct offence recognized by the law, and forbids retrospective criminalisation. 46 During the passage of the Bill, the Government of Kelantan relented on the applicability of hudud to non-muslims, having announced previously that it would apply.

23 6 Sing JICL Keris, Islam and the Blind Goddess under the Enactment, he may not be subjected to proceedings in respect of the same or similar offence provided in the Penal Code (being a federal Act based on common law principles). A chorus of dismay met the passing of this hudud law, not just from lawyers, non-muslim groups and political parties, but also Muslim groups such as the Sisters in Islam, who objected vigorously to the discriminatory effect of several provisions against women. 47 The hudud law was even accused by some (who perhaps had their tongues firmly in cheek and were attempting as they saw it to call the Kelantanese bluff) of being insufficiently Islamic in that it did not apply automatically to non-muslims. The issue placed the federal Government in a politically difficult position: it was concerned to isolate PAS, its main Malay rival, and appear to be fully Islamic. Thus it maintained a policy of Islamisation, apparent, as has been indicated above, in the fields of commerce and banking, and education, which had begun in the early 1980s. At the same time, it did not wish to compromise economic growth, especially in circumstances in which its moral legitimacy might well be questioned from an Islamic standpoint. 4 8 It could not support hudud law without placing great pressure on the inter-racial, inter-religious nature of the ruling BN coalition itself and alarming the non-muslim minorities on whose support it increasingly depends; but it could not oppose hudud law without appearing to Muslims to be un-islamic as alleged by PAS. PAS itself had the problem of satisfying non-muslims that the hudud laws would not be applied to them and that this was not part of a campaign to upset the balance of forces that had been reached with the 1957 social contract. Currently, the uncomfortably near example of Indonesia is a warning of what might go wrong in Malaysia if too much change occurs too quickly, and PAS too has to garner the support and confidence of the non-muslims who support its BA coalition partners. At the same time it has to deliver to its Muslim supporters on its promises regarding the hudud laws. While the Indonesian legislature (August 2002) has rejected a proposed constitutional amendment 47 See Rose Ismail (ed), Hudud in Malaysia: The Issues at Stake (Kuala Lumpur: SIS Forum, 1995). This book also gives various points of view on the implementation of hudud law. 48 This raises an interesting question: Whence proceeds legitimacy in Malaysia? Is it traditional/ Islamic, charismatic, legal-rational, or economic/ pragmatic? One could argue that all of these are relevant to legitimacy, or perhaps cynically that those in power will use any or all of these forms of legitimacy according to the circumstances of its coming into question. But undoubtedly the traditional/ Islamic basis has long since been disassociated from the traditional monarchy, ie, the Islamic seems to be far more important than what is traditionally Malay.

24 Singapore Journal of International & Comparative Law (2002) requiring the syariah to be applied to Muslims, PAS has secured passage of a series of Islamic laws in Terengganu, including a hudud law on the Kelantan pattern. 4 9 The Kelantan hudud law, having been assented to by the Sultan, is now law in Kelantan, or would be but for its unconstitutionality." The State has no power to pass general criminal laws in the purported exercise of Islamic jurisdiction; its power to enact criminal laws can only exist by way of enforcement of Islamic personal laws; the general power over criminal law is a federal matter. As was seen above, the hudud law makes extensive provision in respect of matters in principle within the scope of the Penal Code, as opposed to making criminal provision merely in respect of religious doctrine and authority. If this were not the case, then since Islam is a way of life covering every conceivable subject matter, the State would have no limits to its legislative power, because any exercise thereof could be claimed to be in execution of Islam. A petition under Article 128 of the Federal Constitution, which gives jurisdiction to the Federal Court to determine disputes concerning state/federal powers is currently before the Federal Court, which seeks to have the Kelantan hudud law, and by implication the Terengganu hudud law too, declared unconstitutional." The Constitution, ever the political scapegoat, has thus now emerged as a convenient obstacle for both sides in the dispute. The Federal Government is able to assert its legitimacy in opposing the hudud law; the State Government is spared the enormous problems inherent in implementing the hudud law. 2 The Federal Government's ideological dilemma over this matter was resolved originally by saying that it would 'not oppose' a constitutional amendment designed to validate hudud laws. It did not, however, say it would actively promote such an 49 The following were passed in 2001: Syariah Criminal Procedure (Terengganu) Enactment; Syariah Court Evidence (Terengganu) Enactment; Syariah Criminal Offences (Terengganu) Enactment; Syariah Court Civil Procedure (Terengganu) Enactment; Administration of Islamic Religious Affairs (Terengganu) Enactment; Syariah Court (Terengganu) Enactment. 50 At least in the view of the present author. The matter is now being tested in litigation. 51 Interestingly, the Federal Government has intervened on behalf of the petitioner. 52 It would appear that the Terengganu Government expects the police to assist in enforcement of the hudud law. It is an interesting question whether the police would seek and abide by the Attorney-General's opinion as to the validity of the hudud law. The notion that the police would in practice respond to reports lodged in respect of violations of the hudud law seems far-fetched. There are also many practical problems in implementation: for example, how and bywhom would hudud punishments be executed?

25 6 Sing JICL Keris, Islam and the Blind Goddess amendment, and was safe in the assumption that a two-thirds majority would be well beyond the reach of the promoters of such an amendment. More recently it has been open in its complete opposition to the hudud law, describing it as impractical, outmoded and oppressive. In Terengganu, there was initially in 1999 no proposal on the part of the new PAS Government there to revive the hudud issue, even though its stated position is one of maintaining consistency between the states. Instead the Government adopted popular measures such as abolition of road-tolls and urban parking meters, and lifting [sic] a ban on pig rearing. Its attention was instead concentrated on implementing the concept of hisba, which has been presented in voter-friendly style as simply the 'constitutionalist' concept of 'ombudsman' in Islamic garb. The idea was to expose corruption and abuses of power by the previous (BN) administration. The Hisba Committee, a committee of the State Executive Council (the cabinet), is chaired by Tun Salleh Abas, a former Lord President of the Supreme Court, who was controversially dismissed from that post in the thick of a constitutional crisis over the judiciary in Legislation to give effect to hisba is currently being drafted, but the Committee is active in reporting instances of state inactivity or abuse of power. Although it is historically and conceptually as well as linguistically anomalous to equate hisba (or muhtasib, the official who enforces hisba) with 'ombudsman',. this juncture illustrates very well the ways in which Islam and constitutionalism, given imagination and reformist intent, could actually merge, and are not always necessarily in opposition. Hisba is simply far too broad a concept to apply literally and ab initio to modern government, because a vast array of bureaucracies now give effect to the notion or intention of hisba, namely the active implementation of the Islamic ideals of fair-dealing and public interest in the marketplace, as set out in classical sources such as Ibn Taymiyya. 53 Thus instead of attempting to fulfil the remit of, or effectively replace, this vast and complex structure built up over a century or two, it makes sense to rework hisba as a device for ensuring that the structure does its job properly, and to use the eyes and ears of the public to further this aim. Thus hisba, or at least muhtasib, becomes in effect 'ombudsman': the Hisba Committee will bring to account state officials or organs that fail to do their duty according to law and policy. In a developing country with uneven contours of public administration, this kind of institution is urgently needed. 53 See, eg, M Holland, and Kurshid Ahmad, Public Duties in Islam: the Institution of the Hisba (Leicester, UK: Islamic Foundation, 1982).

26 Singapore Journal of International & Comparative Law (2002) Some discussion has also taken place in Terengganu relating to the levying of kharaj, or a land tax, on non-muslims. This has proved highly controversial, but essentially the idea is to tax both Muslims and non- Muslims equally on their land and its produce in such a way as to increase agricultural productivity. Although the term kharaj smacks historically of the oppression of non-muslims by the Islamic state, in fact the idea is to use kharaj for the benefit of non-muslims and the proceeds would be kept in a separate account for non-muslim purposes, rather than being lost in the Consolidated Fund. Muslims would pay zakat and this would be an exact mirror image of kharaj, ie, calculated on the same basis and kept in a separate account for the benefit of Muslims. It should be noted that such provisions would arguably not contravene the principle set out in Article 11(2) of the Constitution, noted above: 'No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own'. It could be argued nonetheless that a kharaj law would contravene other provisions of the Constitution. Whatever the position, the proposal appears to have been put aside due to adverse publicity,5 4 and PAS appears to have recognized this as a 'gaffe'. As an indication that this picture of liberalising Islam may not be completely straightforward, it should also be mentioned that the Terengganu Chief Minister, Hadi Awang, has twice proposed in Parliament a bill providing for the death penalty for Muslims who apostatise; and was instrumental in the hudud episode. This has become a further issue between PAS and the BN, and in fact it is the BN-controlled state of Perlis where the first steps to 'deal with' the 'problem' of apostasy have been taken with the passing of the Islamiah Aqidah Protection 54 Adverse publicity is a considerable problem for PAS. The BN's control over the media, and a general ignorance on the part of West-coast Malaysians and foreigners of conditions in the East-coast states, which the author visited in March and May 2000 and July 2002, results in a great deal of misinformation in both local and foreign media. It is commonly reported that men and women have to queue separately in shops; that alcohol and gambling are prohibited; that women are required to adopt full purdah; that tourists and foreign investors are fleeing the area; that tourists are harassed as to dress code on the beaches; that there is an 11 pm curfew in town centres; and that pork cannot be sold in the shops. These statements are all either completely untrue or represent egregious or distorting half-truths. Most PAS policies are being pursued through a consensual, rather than legalistic approach. PAS's own journal, Harakah, is available only to PAS members and has been restricted to two issues a month. It is therefore difficult for PAS to counter adverse publicity.