Islam, Law and the State in Southeast Asia: Malaysia and Brunei: Volume 3

Islam, Law and the State in Southeast Asia: Malaysia and Brunei: Volume 3, I.B. Tauris, 2012

Posted: 20 Oct 2013

See all articles by Timothy Lindsey

Timothy Lindsey

Centre for Indonesian Law, Islam and Society, Melbourne Law School

Kerstin Steiner

La Trobe Law School; Law School, The University of Melbourne

Date Written: 2012

Abstract

Southeast Asia has the world’s largest Muslim population - Indonesia alone is home to more Muslims than the entire Middle East - yet nowhere in the region has a theocratic government emerged. Instead, Southeast Asian Islam is characterised by heterodox local traditions. Muslim societies today are torn between radical Islamist reformers calling for Syari’ah law and secular governments using law to contain and co-opt it. The result is a tension between state laws and institutions and Islamic alternatives.

These three volumes provide an account of this complex contest across contemporary Indonesia, Singapore, Malaysia and Brunei in a comprehensive form not attempted for decades.

Drawing on extensive new research and fieldwork, these three volumes provide an up-to-date account of the interaction of Islamic legal traditions and modern laws across contemporary Indonesia, Singapore, Malaysia, and Brunei, in a comprehensive and detailed form not attempted for several decades. In systematic way that allows for country comparison, the volumes cover areas as diverse as legal doctrine, substantive laws, judicial decision-making, the administration of religion, intellectual debate, state policy development and an extensive range of selected case studies.

This, the third volume in the Islam and Laws in Southeast Asia series, traces the development by colonial and successor states of a unique ‘Anglo-Malay madhhab’ in Malaysia and Brunei, countries that both apply a complex hybrid body of positive law to their Malay Muslim majorities.

In Malaysia, a dual legal system of the civil and religious courts by which secular courts kept the final say on appeal maintained the dominance of the Anglo-common law tradition inherited from colonialism. This system - similar to that developed in Singapore - was challenged in 1988, when Article 121(1A) of the Federal Constitution was amended to make civil and religious jurisdictions mutually exclusive. A narrow class of Islamic personal and family disputes were specifically reserved for the Syariah Courts, leaving the civil courts jurisdiction over the remaining ‘laws of the land’.

The controversies originally caused by what has proved to be an uncertain division of jurisdiction have since increased, exacerbated by the legal nexus between Muslim and ethnic Malay identity and the entrenched economic and legal privileges that Malays continue to enjoy. The debate has spilled out in disputes over issues including apostacy and conversion, inter-religious marriage, divorce and religious education. This process, together with criticism of secularism by Muslim groups including PAS, the Islamic opposition party, has led to challenges to the plural and essentially secularist nature of the Malaysian federation and the complex religious and racial political understandings that underpin it.

In the past, Islamic law in Brunei largely followed developments elsewhere in the Malay worlds, particularly in Malaysia. In more recent times, however, Brunei has begun to follow an independent path, with the government promoting ‘Islamicization of the law’ pursuant to the concept of a monarchy based on Malay Islamic principles as a unifying national force.

This new, state-driven politicisation of Islam has resulted in the rapid growth of a state-sanctioned culture of Islamisation in Brunie. This has manifested through fresh Islamic regulation and the creation of new or reformed Islamic institutions under the auspices of the crown.

Keywords: Islam, Religion, Malaysia, Brunei, State and law

Suggested Citation

Lindsey, Timothy and Steiner, Kerstin, Islam, Law and the State in Southeast Asia: Malaysia and Brunei: Volume 3 (2012). Islam, Law and the State in Southeast Asia: Malaysia and Brunei: Volume 3, I.B. Tauris, 2012, Available at SSRN: https://ssrn.com/abstract=2342509

Timothy Lindsey

Centre for Indonesian Law, Islam and Society, Melbourne Law School ( email )

Melbourne Law School
185 Pelham Street
University of Melbourne, VIC, 3010
Australia
+61 3 834 48134 (Phone)
+61 3 8344 4546 (Fax)

Kerstin Steiner (Contact Author)

La Trobe Law School ( email )

La Trobe University
Bundoora, VIC 3083 3142
Australia

Law School, The University of Melbourne ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

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