Citing Gender: Constituting the Muslim Woman in Malaysia

Abstract

In 2006, two Malaysian courts, making determinations in cases involving Muslim women leaving Islam, came to contradictory verdicts. One court was the civil federal jurisdiction of the Malaysian Court of Appeals, and the other a syariah state jurisdiction in Negri Sembilan, applying hukum syara' (the Malaysian version of Islamic law). The first of these cases, Lina Joy, is perhaps the best known Malaysian court case worldwide, involving a woman whose petition to have her conversion from Islam to Christianity recognised by the state, in order that she might marry her Christian fiancé, was denied on the grounds of her race. To be 'Malay', according to Article 160(2) of the Malaysian constitution, is to be 'a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom.' 1 The 2001 judgement on Lina Joy argued, 'a person as long as he/she is a Malay and by definition under Art. 160 cl. (2) is a Malay…cannot renounce his/her religion at all.' 2 In the second case, Nyonya Tahir, decided later that same year, a Malay woman was declared shortly after her death by the Syariah High Court of Negri Sembilan to have left Islam, allowing her body to be released to her family for burial beside her Chinese husband in a Buddhist cemetery. 3 Studies of gender and justice have often shown that broad questions of constitutional law and the identity of the state tend to be fought over the lives and bodies of women. These cases about religious identity began as matters of the administration of everyday lifemarriage, family life, death-then quickly became contests over a state's control of the religious identity of its subjects, emerging as matters of apostasy and test cases of the religious identity of the Malaysian state itself. 4 Yet explanations of these developments in

Competing Allies: Legal Pluralism, and Gendered Agency in Mumbai’sShariaCourts

“…Even scholarship that questions the idealization of statist conceptions of the law does not tell us very much about the power dynamics between non-state actors who exercise adjudicatory power within a framework of legal pluralism (Solanki 2011;Redding 2014). Scholarship on legal pluralism, family law, and state power in other postcolonial contexts shows a similar preoccupation with the manifestation of state power (Peletz 2002(Peletz , 2020Agrama 2012;Hussin 2017). In Muslim-majority countries such as Egypt and Malaysia, the state has become more and more involved in the legal regulation and gradual institutionalization of Islamic courts adjudicating marriage, divorce, and maintenance payments of Muslims through the twentieth century (Peletz 2002(Peletz , 2020Agrama 2012;Hussin 2017).…”

“…32. Field notes, Mumbai, February 26, 2018 Competing Allies 529 and non-state adjudicatory forums (Galanter 1981;Moore 1993;Randeria 2006;Sharafi 2014) and the gradual institutionalization of family law adjudication forums through an expansion of state power (Peletz 2003(Peletz , 2020Agrama 2012;Hussin 2017). In contrast to the narrative of institutionalization of family law adjudication forums in Muslimmajority contexts in parts of the Middle East and South East Asia, the Indian case provides us with an opportunity to expand socio-legal exploration into how non-state actors interact and share power.…”