Muslim-Non-Muslim Marriage: Political and Cultural Contestations in Southeast Asia

3. Private Lives, Public Contention: Muslim-non Muslim Family Disputes in Malaysia

Private Lives, Public Contention in Malaysia 59 59 Chapter 3 PRIVATE LIVES, PUBLIC CONTENTION Muslim-non-Muslim Family Disputes in Malaysia Maznah Mohamad, Zarizana Aziz and Chin Oy Sim INTRODUCTION Conventionally, ethnic riots or recurrent violence are often used as distinct markers of ethnic conflicts in society. However, the prevalence of ethnic tensions can also be evidenced by other processes, such as the inability of legal institutions to resolve everyday conflicts involving family relationships. In Malaysia, this has become an important manifestation of emerging ethnic divides. Recent disputes involving interreligious relationships or Muslim-non-Muslim marriages, as in the Lina Joy, Shamala, and Subashini cases, have brought forth issues of legal significance with enormous political implications. The contentious nature of these cases is being dictated by a larger contest to control and influence reforms within both Islamic and civil law. 03 Muslim_NonMuslim Ch 3 5/4/09, 3:53 PM 59 60 Maznah, Zarizana and Chin The force behind the Islamization movement is not solely provided by the Islamic political opposition, but also by a rising, urban-based Islamic civil society. The latter is driven by a newlyemergent Malay-Muslim middle-class, comprising scholars, professionals, and political activists who are able to mobilize and lobby effectively for Islamic dominance in all aspects of governance, the law being one of the most important institutions of control. This process has posed various problems, not least because it is being waged within a multicultural context, with about 45 per cent of the Malaysian population being non-Muslims. The impetus to Islamize various branches of society may be read positively by its proponents — as a project to re-capture the indigenous elements of history once lost to colonial domination (Horowitz 1994). However, this is not always achievable without grave social costs, one of which is its impact on race relations. As the Malaysian legal system moves closer towards accommodating syariah, the laws, policies, and regulations which emanate from this process have influenced the resolution of interreligious family concerns and disputes. Many of these regulations unequivocally limit the boundaries of interethnic relationships. Together with an unrelenting social movement to carve out an exclusive framework of governance for Muslims, the evolving judicial trend has been extremely divisive. This chapter documents some of the Muslim-non-Muslim cases which have been subjected to the above contestation. It describes the conflict which has arisen between those who advocate Islamic legal predominance in the system on the one hand, and those who rally behind the Constitution against such a dominance on the other. In this environment it is difficult for the judicial system to resolve interreligious family disputes. A just resolution of the three cases described in this chapter is highly improbable. In the Shamala and Subashini cases, there 03 Muslim_NonMuslim Ch 3 5/4/09, 3:53 PM 60 Private Lives, Public Contention in Malaysia 61 are lingering questions as to whether a dual system of court justice will ever allow for the equal treatment of non-Muslims in a Muslim-majority nation. In the Lina Joy case, there is the question of what amounts to fundamental human rights for a Muslim citizen. On a larger plane, these contentious legal cases of interreligious marriage have opened up debates as to who could be considered as the guardians of constitutional liberties in Malaysia — the civil courts, the state, or an incipient people’s movement yet to be born? Our central postulation in this chapter is that the contestation over laws and jurisdictional boundaries inevitably leads to difficulties in resolving interreligious litigations due to an overwhelming pressure to conform to a perceived Islamic hegemony in the system. By quoting at length some of the judgements made in these cases we hope to show how legal opinions seem to be in tandem with this trend, to the detriment of private well-being. BACKGROUND OF STATE ISLAMIZATION The period of Islamic political ascendance in Malaysia coincided almost synchronically with the rise of UMNO, the Malay-Islamic ruling party in Malaysia during the post-1969 years.1 After the 1969 riots, the New Economic Policy (NEP) was implemented as an affirmative action programme for Malays and other indigenous communities. The numerous socio-economic programmes to leapfrog Malay advancement in the fields of urban employment and higher education were all done within a very short period, which proved to be socially and culturally dislocating for the Malays. Between the early 1970s and...