Pro-Muslim tilt in Malaysia's courts
Observers say civil courts often defer to Islamic courts on key issues.
Kuala Lumpur, Malaysia — An Islamic court ruled last week that a Malaysian man receive a Muslim burial, despite insistence by most of his family that he hadn't converted to Islam. His son, a Muslim, maintained that he had.
Such cases have become more common in Malaysia, whose leaders tout their multiracial democracy as a model of Islamic moderation and economic success. It's a claim echoed by American diplomats and Muslim intellectuals seeking a credible counterpoint to extremist voices in the Islamic world.
But the promises of religious and ethnic pluralism that nurtured a generation of Malaysians have begun to unravel. A pro-Muslim shift among lawyers and judges is alarming Christians, Hindus, and other non-Muslims who make up about 40 percent of the population. The remainder are predominantly ethnic Malay-Muslims, who benefit from affirmative-action programs to redress historic economic disparities.
Diplomats, lawyers, and religious leaders say that Malaysia's race-based coalition government – a power-sharing formula unchanged since independence in 1957 – is failing to address growing ethnic tensions fed by pro-Malay discrimination and a growing stress on Islamic governance. Minorities are largely invisible in the ranks of police, military, and civil service, while schools are increasingly segregated by race and language.
Although religious worship is freely practiced in Malaysia, Christians complain they can't get permits to build churches. Last month, a Roman Catholic newspaper was barred by the government from using "Allah" – "god" in the Malay language – to refer to a Christian God. The previous month, tens of thousands of Indian Hindus clashed with ethnic-Malay riot police during a heated rally over alleged social and religious discrimination.
The tensions haven't led to mass unrest, though, allowing Malaysia to continue advertising its stability to foreign investors. Its capital, Kuala Lumpur, displays new suburbs linked by smooth highways and a modern skyline.
Critics argue that pro-Malay policies introduced in 1971 have served their purpose, while antagonizing minorities. But government officials defend the race-based allocation of resources. "Without political stability and socioeconomic stability and consensus-based principles, there's not enough to distribute," says Nor Mohamed Yakcop, second finance minister.
The sharp end of the religious wedge is Malaysia's legal system. Assertive Islamic shariah courts, backed by Muslim bureaucrats, have forced civil courts to retreat on sensitive issues such as interfaith conversions. Lawyers say several recent judgments have eroded the civil rights of non-Muslims and highlighted a creeping Islamization in a secular judiciary.
A prominent case in 2006 pitted a Hindu widow against Islamic authorities who claimed the body of her husband, an Army corporal, for a Muslim burial. A civil court declined to rule on whether he had converted to Islam, deferring to the shariah court. Last year, a court refused to uphold a Malay woman's conversion to Christianity.
"We can't depend on the judiciary. Every case where a Muslim is involved in a dispute, the outcome isn't favorable for us," says A. Vaithilingam, a Hindu community leader.
Also troubling, say lawyers and analysts, is conservatives' reaction to public debate on such issues. A proposed interfaith commission was shelved in 2005 after Islamists objected to the inclusion of liberal Muslim organizations.
Far from confronting these extremists, Malaysian leaders have resorted to media blackouts on sensitive topics. Deputy Prime Minister Najib Razak tried to end the debate last July by saying that Malaysia was an Islamic state, not a secular state, raising eyebrows among constitutional lawyers.
The judiciary has also been tainted by graft allegations and political tampering. A royal commission began hearings on Jan. 14 into corruption in the appointment of judges.
Malik Imtiaz Sarwar, a human rights lawyer, traces the shift in the judiciary to the 1980s when the government tried to outdo political opponents by promoting Islam among civil servants and judges. At the same time, a purge of judges and a constitutional amendment to reinforce the jurisdiction of shariah courts removed a secular brake on Malay-Muslim policymakers. "We've let the tiger out of the cage, and we're trying to catch it by the tail," says Mr. Imtiaz.
Aides to Prime Minister Abdullah Badawi say he's aware of the sensitivity of recent legal judgments but won't intervene in shariah courts. A better way, they say, is to gradually appoint senior federal judges who will defend civil safeguards on religious freedom.
Mr. Badawi, an Islamic scholar who took office in 2003, said at a UN conference this month that Islam respected cultural and religious diversity, and that Muslim governments should put social justice before popularity. "A true Muslim will also not abdicate the principle of fairness in managing ethnic relations even if it makes him somewhat unpopular within his own ethnic community," he said.
But his actions in office haven't spoken as loudly, says Bridget Welsh, a professor at John Hopkins University. "What you're seeing is a serious deterioration of race relations."