11/

INTRODUCTION
A
long with other countries that have experienced immigration policies estab-
lished by British colonial power (for example Mauritius, Trinidad and Tobago,
Guyana, Fiji, etc.), Malaysia is often colorfully called a rainbow nation because of its
heterogeneous ethnic makeup. At their independence, these societies elites had to
face this complex reality and develop very unusual models of nation and citizenship,
which were quite unlike the ones originally conceived in Europe. Unfortunately,
until now these models and their realization have been hardly taken into consid-
eration owing to an Orientalistic prejudice that we will delve into subsequently.
By analyzing the specic type of legal pluralism in Malaysia, we wish to show how
problems linked to ethnic, religious, and economic diversity have been governed
since independence. In actual fact, this means questioning how the permanently
precarious coexistence among the three ethnic groups (Malay, Chinese, and In-
dian) that make up this rainbow nation has been managed.
In brief, by presenting the case of Malaysia (and, to some extent, with references to
the cases of Singapore and Indonesia), we intend to highlight the following points.
Te actual juridical manifestation of dierentiated citizenship is legal pluralism,
which is State-guaranteed and based on the combination of three dierent juri-
dical traditions and sensibilities: the Western one expressed in British common
law, Islamic law, and customary law represented by the adat law. Te latter,
however, plays a considerably marginal role in peninsular Malaysia.

THE POLITICAL GOVERNANCE

OF MULTICULTURALISM AND THE
QUESTION OF LEGAL PLURALISM:
LAW AND RELIGION IN
PENINSULAR MALAYSIA
\!STAN GO!ANO`
*
Christian Giordano, Chair of Social Anthropology, University of Fribourg
118
\!STAN GO!ANO
Because there is no unied and consistent juridical corpus, this form of legal
pluralism apparently calls into question the universal validity of one of the most
deep-rooted Occidental myths: the laws unitariness and consistency as a prere-
quisite of a fair justice, i.e., rational, impartial, reliable and predictable, as Max
Weber had already highlighted.
Legal pluralism is not based solely on equality, i.e., equal rights, but rather on the
latters equivalence. As the outcome of an institutional social contract between
the various ethnic communities, this equivalence is acknowledged, though not
always shared individually. Te Occidental agenda based on liberal principles
and ideals can no longer be regarded as the only valid one, provided of course
that some of its elements, such as basic individual rights, essential rules of ju-
stice, and fundamental standards of deliberative democracy, are guaranteed and
respected.
Legal pluralism must be conceived as an agonistic process which includes com-
petition, tensions, and conicts, as well as permanent negotiations and com-
promises between the groups involved in the struggle for the recognition of
their rights in general and those of dierence in particular.
LEGAL PLURALISM IN PENINSULAR MALAYSIA:
BRITISH COMMON LAW, ISLAMIC LAW AND
CUSTOMARY LAW
G
iven the divergent opinions of anthropologists and sociologists, formulating
a comprehensive denition of legal pluralism is no easy task. We may howev-
er distinguish between a minimalist, or restricted, and a maximalist, or broadened,
denition. Tis is why Norbert Rouland, concurring with John Griths, speaks
about a version faible and a version forte (Rouland, 1991: 124125, Griths, 1986,
Woodman, 1998, Vanderlinden, 1993, Vanderlinden, 2003). In the former case
he simply refers to
lexistence, au sein dune socit dtermine de mcanismes juridiques dirents
sappliquant des situations identiques (Rouland, 1991: 124).
In which case, as Etienne le Roy adds, this would mean that
pluralit de solutions sappliquant une situation identique lintrieur dun ordre
juridique qui ne peut, le plus souvent implicitement tre qutatique (Le Roy, 2003: 8).
To dene legal pluralisms version forte we must start from the idea that

11'
1 IOTCA GOV!NANC O ^UTCUTU!ASM AN T (USTON O IGA IU!ASM
les dirents groupes sociaux voient se croiser en leur sein des multiples ordres juri-
diques: le droit tatique, mais aussi celui que produisent dautres groupes, droits qui
peuvent concider ou diverger (Rouland, 1991: 125).
If, in accordance with the interpretative paradigm put forward by Max Weber we
consider the actors perspective, then legal pluralism can be dened as
la situation dans laquelle un individu peut, dans une situation identique se voir
appliquer des mcanismes juridiques relevant dordres juridiques dirents (Van-
derlinden, 2003: 31).
At this level of denition both points of view are wanting, though for dierent
reasons. Te version faible is intrinsically ethnocentric because it implies that law
exists only along with a State and denies the existence of juridical mechanisms in
societies without a State, also known as segmentary or headless societies. Custom-
ary laws that the State does not acknowledge (such as Kanun in Albania or the
Barbaricina vendetta code in Sardinia or the corresponding one formerly in use in
Corsica) are also deemed to be outside the law. Terefore, the law would be an in-
dication of civilization resulting from evolution, i.e., from societys advancement.
Te inherent risk of the version faible lies in barring forms of law beyond the states
context, thus letting itself be tempted by legal centralism. Te inherent risk of the
version forte instead, is a much too radical relativist perspective by which any type
of social rule becomes law to all intents and purposes. And if everything becomes
the law, then nothing is law.
From a formal standpoint, legal pluralism in Malaysia is denitely an expression
of the version faible because, as an essential characteristic and an integral part of
the States juridical system, it is State-guaranteed. Terefore, in line with Gordon
Woodman, it can be dened as a form of State Law pluralism (Woodman, 1998).
Te following diagram illustrates the structure of the judicial system and, as men-
tioned in the introduction, the role of the three juridical traditions (common law,
Islamic law, and adat customary law) that characterize the entire countrys legal
pluralism.
120
\!STAN GO!ANO
DIAGRAM 1 : CURRENT JUDICIAL SYSTEM IN MALAYSIA
(INCLUDED PENINSULAR MALAYSIA, SARAWAK, SABAH)
Source: Lee, 2005: 31
Te diagram in itself indicates that the current judicial system, as the institutional
manifestation of the pluralism inherent to the juridical system of Malaysia, in
particular peninsular Malaysia, is the outcome of British colonial engineering in
the Crown Colonies (Singapore, Malacca and Penang) and especially in the Malacca
peninsula protectorates that were governed by indirect rule. Concerning peninsular
Malaysia, we can observe that Islamic law carries some weight, given especially
the Syariah Courts, while adat customary law (in comparison to what applies in
Sarawak or Sabah) is relegated to the judicial hierarchys lesser ranks, i.e., to the
lowest courts, which we could call village courts presided by a penghulu (penghulu
actually means village chief ). Yet, the leading role of common law, which appar-
ently at least reigns sovereign in all High Courts, is conspicuous.
Federal Court
Court of Appeal
High Court in Malaya High Court in Sabah and Sarawak
Native Court
&
Syariah Court
Syariah Court
Sessions
Court
Magistrates
Court
Small Claims
Court
Penghulus
Court
Sessions
Court
Magistrates
Court
Small Claims
Court
Federal Court
Court of Appeal
High Court in Malaya High Court in Sabah and Sarawak
Native Court
&
Syariah Court
Syariah Court
Sessions
Court
Magistrates
Court
Small Claims
Court
Penghulus
Court
Sessions
Court
Magistrates
Court
Small Claims
Court
121
1 IOTCA GOV!NANC O ^UTCUTU!ASM AN T (USTON O IGA IU!ASM
At this point we could infer that the current juridical system and its judicial struc-
ture are solely due to the proper application of the Constitution, which experts
unanimously dene as secular though it acknowledges Islam as the countrys o-
cial religion and concurrently ensures full freedom of worship to all other religious
faiths (Art. 3, 1). Tough formally correct, this stance fails to take account of the
many historical legacies inherited from the colonial law enforced by the British.
In his classic text Legal Pluralism. An Introduction to Colonial and Neo-Colonial
Laws in which he analyzes comparatively the legal pluralism of colonial juridical
systems, B. M. Hooker has keenly observed that the interaction between the dif-
ferent components of these systems is in itself asymmetrical and, to some extent,
vertical. Tis means that legal pluralisms of colonial origin incorporate a structure
of hierarchies and normative and institutional priorities by which there are domi-
nant, or hegemonic, juridical and judicial sets and others which are servient, or
subordinate (Hooker, 1975: 454 .).
Yet, this analytical dierentiation between dominance and servience suitably char-
acterizes the postcolonial legal pluralism of Malaysia and peninsular Malaysia es-
pecially. Precisely because the current juridical and judicial system derives from
colonial law, nowadays as in colonial times common law of British origin remains
the undisputed dominant component. For the same reason, Islamic law, and still
more the adat customary law, play a servient role in relation to common law.
Pointing out this asymmetrical and partially vertical interaction between dominant
law and servient law within legal pluralism is not an irrelevant detail as it is actu-
ally very useful to understand the present dynamics and current tensions within
Malaysias pluralistic juridical and judicial system. But we will delve into this aspect
later when we discuss the specic claims aimed at obtaining a greater recognition
of Islamic law in the context of legal pluralism.
Te current greater importance of Islamic law in relation to the adat customary
law, as the diagram clearly shows, is a further colonial legacy, as anthropologist
Michael Peletz points out. In fact, there is ample documentation that the British
opted for and promoted Islamic law while endeavoring to restrict customary laws
jurisdiction as much as possible in present-day peninsular Malaysia. Despite the
classic Occidental prejudices against Kadi-justice (Peletz, 2002: 49), the British
deemed Islamic law as being more civilized, rational, reliable and predictable than
adat, which instead was considered rudimentary, besides being too fragmented,
localistic, and thus episodic and random. Owing to this conviction, the British
colonial administrators themselves, especially between 1880 and 1890, sought to
replace the adat customary rules and institutions in the sultanates of the Malacca
122
\!STAN GO!ANO
peninsula with a judicial apparatus and laws of Islamic derivation (Peletz, 2002:
48 .). Te function of undang the customary law representative- was replaced
by the kadi (Peletz, 2002:). Tus, the kadi obtained jurisdiction especially over the
so-called religious oenses and the various branches of family law (including rights
of inheritance).
Te fact that colonial authorities chose to promote Islamic law over the adat cus-
tomary law was welcomed enthusiastically, particularly by the elites, yet engen-
dered some misgivings and opposition at a local level, especially in regions with
matrilineal societies (for example, the Minagkabau around Malacca) whose inheri-
tance customs were acknowledged and guaranteed by the adat but not provided
for in Islamic law.
Essentially, this tendency to promote Islamic law at least in some elds continued
during all the remaining colonial period. Te British persistently strove to develop a
coherent and standardized structure of Islamic jurisdictional rules and institutions
applicable to all present-day peninsular Malaysia, even though solely sectional and
relevant to the Muslim population only. Te promulgation of the Muhammadan
Laws Enactment in 1904 followed by analogous decrees and the 1949 project to
institute the Council of Islamic Religion and Malay Custom headed by a mufti were
signicant steps in this endeavor to reorganize an important element of colonial
laws legal pluralism. Tis brief description highlights also that adat, though still
mentioned, was being relegated to an increasingly secondary role.
Along the same lines, at the dawn of independence in 1957 the Department of Is-
lamic Religion (Jabatan Agama Islam) was created, and, as the name itself indicates,
any reference to adat had been denitively removed.
Since independence to present-day however, Islamic law continues to be a servient
element of Malaysias plural legal system. Peletz properly highlighted this subservi-
ence by pointing out that Islamic magistrates have been limited by a State-control-
led system of legal pluralism, which, bound by the constitution, must guarantee the
recognition of all ethnic-religious dierences. Te State subjects only the Muslims
to Islamic law, i.e., nearly exclusively the Malay who represent barely more than
one half of the countrys population. Moreover, as far as civil law is concerned,
Islamic jurisdiction is limited to family law, i.e., to marriage, divorce, alimony,
adoption, child custody and support, inheritance practices and the resulting prop-
erty relations (Peletz, 2002: 66). As far as criminal law is concerned, Islamic laws
competence is restricted to sex crimes, such as khalwat (illicit proximity), adultery
and rape, breaking fast during Ramadan, and not paying religious alms (trah and
zakat). However, it is competence of the kadi to punish the crime of propagation of
false doctrine (Peletz, 2002: 66).
12J
1 IOTCA GOV!NANC O ^UTCUTU!ASM AN T (USTON O IGA IU!ASM
An Islamic magistrate has also far less options than lay judges as far as formal sanc-
tions are concerned. Te kadi can admonish (a recalcitrant husband who refuses
to pay his wifes and childrens support, for example) and can exact nes. Instead,
he can seldom recur to physical sanctions such as imprisonment or, in case of very
serious oenses, to thrashing (Peletz, 2002: 67). Yet, to enforce sanctions the kadi
must turn to the federal police who, in principle, may not enforce the sentence
should it be deemed contrary to constitution, as occurred at the beginning of 2000
in a sensational case which we shall analyze further. Accordingly, there is always the
risk that the kadis rulings may remain a dead letter.
Finally, we need to add that the recognition and application of Islamic laws rules
and sanctions are not a federal matter, since they fall under the jurisdiction of the
single States of the Federation of Malaysia. Teir opinions and standpoints regard-
ing specic institutions vary considerably owing to the specic concepts of Islam
propagated by each Sultan and Governor assisted by their respective religious advi-
sors. Consequently, this state of aairs may paradoxically be dened as a pluralism
within pluralism.
Given the above, the system of legal pluralism in present-day Malaysia is ultimately
fully embedded in British common law tradition while 90% of the laws currently
in force according to very reliable estimates- hail directly from the United King-
dom or are based on British precedents. For this reason the Malaysian Bar Council
speaks of an essentially English system by which, as a commentator adds, an Eng-
lish barrister licensed to practice in Malaysia is immediately at home.
PRESENT-DAY DYNAMICS OF LEGAL PLURALISM IN
PENINSULAR MALAYSIA BETWEEN SECULARITY AND
RELIGION: THE CURRENT APOSTASY CONTROVERSY
:
o far we have overviewed some of the basic formal, thus institutional, aspects of
legal pluralism in peninsular Malaysia. Tis type of analysis, though important
in order to grasp the juridical and judicial systems structure, could be too static.
Tis holds true especially in a country where political-institutional arrangements,
including the legal set-up, which guarantee the political management of multi-
culturalism, and thus the preservation of national cohesion as well, are constantly
shifting owing to the permanent tensions and negotiations between separate ethnic
communities. Terefore, we can observe actual practices i.e., performances, as
Victor Turner would say that engender a permanent uidity and eventually lead
to a revision of what may seem unchangeable because institutionally ratied.
124
\!STAN GO!ANO
Our preliminary observation consists in highlighting that in peninsular Malaysia,
within the present context of legal pluralism, some political-religious circles of the
Malay community, implying Muslim ones, are currently striving to render Islamic
religious law less servient, thus less subordinate, compared to the dominant and
hegemonic secular common law of British origin. Terefore, we can observe the
strategy of nibbling away slices of juridical and jurisdictional competences of the
common law. In response to these eorts, secular law advocates, belonging mainly
though not only to the other ethnic-religious communities (Indian and Chinese),
employ counterstrategies aimed at curtailing Islamic laws expansion, which, in
their opinion, is an attack on religious freedom, on the foundations of the social
contract amongst the groups, on the rukun negara doctrine and thus on national
cohesion itself.
An interesting illustration of the above is the controversy about the legal recogni-
tion of the crime of apostasy, clearly concerning Muslims only, which for some
years now has been inaming the souls of members of Malaysias dierent ethnic-
religious and civic constituents. We need to point out that the notion of apostasy
in this country has a limited meaning because it essentially implies abandoning
Islam for another religion.
Finally, the case of apostasy is also politically signicant since it caused a remark-
able conict in opinion that could eventually lead to a disruptive breach within the
Malay collectivity itself, i.e., between the Muslim bumiputera.
In line with the above, to this day the recognition and punishment of the crime of
apostasy, which is within the ambit of Islamic law, is the exclusive competence of
the single States of the Federation of Malaysia. Tis situation has practically given
rise to a vast array of doctrinal interpretations and consequently to dierent sanc-
tions from State to State. Jurist Mohamed Azam Mohamed Adil highlights the
patent lack of legislation uniformity concerning apostasy by describing in detail
the situation in four States of peninsular Malaysia (Pahang, Perak, Melaka and
Terengganu) in which abandoning Islam is a criminal matter (Mohamed Adil,
2007). In all these States, the prevalent punishments are either monetary or re-
quire reeducation, i.e., internment in a rehabilitation community, somewhat akin
to our drug-addict rehabs. Pahang instead, a sultanate on the east coast renowned
for its religious traditionalism, has a remarkably severe legislation that, on paper at
least, provides for corporal punishments (i.e., whipping of not more than six strokes).
Bear in mind that in 1993 and 2002 the legislative Assembly of Kelentan and of
Terengganu, other sultanates on the east coast of peninsular Malaysia, opted for
the Hudud Laws, which sanction the death penalty for apostasy, though they have
never undertaken to actually enforce them. To this day, death penalty has remained
12
1 IOTCA GOV!NANC O ^UTCUTU!ASM AN T (USTON O IGA IU!ASM
a dead letter due to the federal governments rm opposition as well as the federal
polices forceful protest and its decision to not persecute the oenders. Terefore,
for the time being, these are purely theoretic decisions with no consequences in
judicial practice.
We also need to add however that some States, such as Negeri Sembilan, for exam-
ple, legally authorize abandoning Islam. In line with this principle, the authorities
of this sultanate on the western coast have even introduced a juridical procedure
for those who wish to abandon Islam. Te apostate candidate, if we may call him
so, must submit a formal petition to the syariah court, which will refer the case to a
jurist (mufti). Te candidate will then have 90 days time to reconsider, or literally
to repent, and will have to attend meetings where he will be given advice for the
purpose of reeducation. Should the petitioner repent during these three months,
his le will be closed. Should there be any hope of repentance the le will be ad-
journed. Instead, if the candidate perseveres in his intent and provides legitimate
arguments, the syariah court will grant his petition. Te court will then issue a
certicate of apostasy that allows the person who abandons Islam to register his
new religious status on the ocial records.
We can easily imagine that Negeri Sembilan because of this juridical specicity has
become rather a hub for all the requests of those Malay Muslims who wish to aban-
don Islam. Yet, the phenomenon seems to be quite a modest one. Between 1993
and 2003, only 84 petitions were submitted of which 16 approved, 29 rejected and
39 adjourned. Tough legalized, apostasy is still an extraordinary juridical action
and above all a severely reprehensible one, both morally and socially. Nonetheless,
though extremely dicult, apostasy is possible, thus being of service to the classic
argument based on juridical precedent.
Mohamed Azam Mohamed Adil, as an expert of Islamic law (Mohamed Adil
2007), reckons that the practice adopted in Negeri Sembilan is a suitable solution
for supporters of secularism and religion alike in the entire territory of Malaysia for
the following two reasons:
1. Religious freedom guaranteed by the federal Constitution is nonetheless en-
sured, since Muslims, despite specic restrictions, are allowed to abandon Is-
lam without having to fear monetary or corporal punishments, some of which
would indeed violate human rights.
2. Te institution of mandatory counseling, in force also in Singapore (a non-
Islamic yet legally pluralistic State owing to its ethnic-religious diversity), is
often successful since in nearly 90% of the cases Muslims who underwent this
procedure chose to stay within Islam.
12o
\!STAN GO!ANO
Yet, despite this Singaporean version of the egg of Columbus, present also in Negeri
Sembilan and currently appreciated by authoritative Australian experts as well, the
situation in peninsular Malaysia remains quite indenite and disputable, due to
the fact that apostasy is no longer solely a ne theological dispute or a problem of
legal pluralism but has also become a major political issue concerning the nature
of the State itself.
To illustrate this political signicance we shall now analyze the world-famous case
of Lina Joy.
Lina Joy was born in 1963 to a Malay family, thus a Muslim one, and was given
the name Azalina binti Jailani. Around 1990 she started to attend a Catholic com-
munity where she met a young man of Indian origin whom, in 1998, she decided
to marry according to the Christian rite. For this reason, she was baptized at the
Church of Our Lady of Fatima in Kuala Lumpur and changed both her rst and
last names. In 2000, she applied to the National Registration Department (NRD)
to obtain identication papers reecting her new data. Tis oce acknowledged
the name change, but did not amend her religious aliation on her new papers.
Consider though that only Malays identication papers quote religious aliation,
which, depending on viewpoint, is either seen as a mark of distinction or as a heavy
discrimination in comparison with the other ethnic communities, which are reli-
giously neutral before the civil authorities.
After having failed to obtain the deletion of the religious aliation from her new
papers, Lina Joy decided to appeal to a court because without this amendment she
could not legally marry her husband-to-be according to the Christian rite.
In Malaysia, marriage with a Muslim, male or female, can be celebrated only if the
partner belonging to dierent religion converts to Islam. According to my male
and female sources, all of whom are not originally Muslim and are currently mar-
ried to Muslims, in most cases there is absolutely no problem involved. Indeed,
whoever decides to marry a Muslim accepts conversion as an obvious sine qua non.
If, after all, one has misgivings about taking this step, then there must be some-
thing wrong in the relationship; therefore, nding a partner belonging to another
religion might be more sensible.
Lina Joys ordeal began with her petition to the judicial authorities since the inter-
mediate civil courts rejected her petition on the grounds of the matter pertaining
to the religious court. Petition after petition, the case nally reached the Federal
Court, the countrys highest. On May 30, 2007, Lina Joys appeal was rejected
by a minimum margin (two to one) on the grounds of apostasy falling under the
exclusive jurisdiction of Islamic Courts and not civil jurisdiction, thus conrming
the previous rulings.
12/
1 IOTCA GOV!NANC O ^UTCUTU!ASM AN T (USTON O IGA IU!ASM
Tis ruling obviously stirred up a hornets nest of heatedly diverging standings.
Being an anthropologists, my concern is not whether this ruling limits religious
freedom, thus violating human rights, as several critics uphold. Tis appears to be
an Occidental issue regarding normative ethics, thus it is anthropologically irrel-
evant. Likewise, I am not too concerned about whether a Muslim may or may not
commit apostasy, as this is a matter of theology and Islamic law, thus, I certainly
cannot expect to have the requisite expertise in this eld.
Te anthropologically relevant aspect is the dynamics triggered by the ruling with-
in Malaysias pluralistic legal system. One member of Lina Joys counsel has aptly
objected from a juridical point of view that the Federal Court has solely addressed
the question of apostasy
as an Islamic question simplicter rather than a constitutional matter (Kirby,
2007).
Tis statement apparently endorses the thesis that the highest court, as such, could
have legitimately ruled otherwise. In fact, article 4 of the Constitution establishes
the Federal Courts supremacy over all other laws, while article 3 guarantees reli-
gious freedom, thus also the option to change ones creed. Te jurists remark also
expresses the fact that, despite the formal blunders which Lina Joy, willingly or
not, is responsible for during her entire proceedings, the Federal Courts ruling
fails to comply with the hierarchy and system of precedence that characterize Ma-
laysias legal pluralism ever since the Constitution was promulgated. Terefore, the
anthropologist faces an interesting issue of authority, which, as Leopold Pospil
sustained, is one of the fundamental cornerstones of any form of law (Pospil,
1971).
Authority as the capacity to enforce ones ruling and concurrently to obtain compli-
ance, is denitively transferred from the civil to the religious section of Malaysias
system of state legal pluralism. Drawing again from Pospils theoretic observation,
in the matter of apostasy the principle of universal validity, thus of the so-called
intention of universal application as well, and the power to decree sanctions (within
the competence of Islamic law of course) are also transferred.
Accordingly, I believe that Lina Joys case, by way of the Federal Courts ruling,
clearly exemplies how the transfer of competence from the jurisdiction of com-
mon law to that of Islamic law may occur. Trough these shifts in juridical and
jurisdictional authority, we can observe how the adjustments between dominant
and servient law occur within a pluralistic legal system. Tese accommodations,
therefore, actually tend to lessen the vertical relationship between the various sec-
128
\!STAN GO!ANO
tions of legal pluralism inherited from the colonial period and adopted after inde-
pendence.
CONCLUSIONS: DIFFERENTIATED CITIZENSHIP
AND LEGAL PLURALISM
1
he dynamics inherent to systems based on legal pluralism and on its internal
contradictions between civil and religious sphere, clearly give rise to strong
inter- and intra-community tensions in rainbow societies, since they fuel the fear of
a redenition of the specic concept of dierentiated citizenship resulting from the
social contract on which legal pluralisms very existence relies.
Considering that there are other cases in Malaysia substantiating the above-men-
tioned shift from civil to religious law, which of course concerns only the Muslim
bumiputera, i.e., the Malay, the case of Lina Joy is emblematic precisely because it
set o an unusually lively debate. It would appear that this case has been the means
to take stock of the current state of legal pluralism in Malaysia and the prospective
repercussions on its own model of dierentiated citizenship.
Te non-bumiputera, essentially Hindu Tamil and Buddhist/Taoist Chinese, are
mainly concerned that one of the cornerstones of the social contract between eth-
nic communities, i.e., as they see it, the individual and collective right to profess
ones own religion guaranteed by article 3 of the Constitution, could be threatened.
Te right to freedom of religion and to express, preserve and promote ones own
culture, along with the tacit acknowledgement of the non-bumiputeras actual eco-
nomic supremacy in exchange for the granting of specic social rights (established
by article 153 of the Constitution and by the New Economic Policy launched after
the May 13, 1969 ethnic riots) and the actual, though not formal, supremacy of
the bumiputera (Muslims and non-Muslims) in politics are the irrevocable terms of
the delicately balanced agreement between the various ethnic communities. Tey
are also the fundamental criteria that dene the dierentiated citizenship actually
in force in social practices. Te above-mentioned agreement, along with this type
of citizenship, have guaranteed, and still guarantee this Southeast Asian countrys
remarkable socio-political stability and startling economic success, from independ-
ence to this day. Bringing into play a materialist or a mechanistic approach, by
which the socio-political stability would chiey be the outcome of economic de-
velopment, would be specious.
Te several Muslim bumiputera, especially those of urban extraction, have a dier-
ent though not opposite stance. Tey advocate an Islam called hadhari, or a civi-
12'
1 IOTCA GOV!NANC O ^UTCUTU!ASM AN T (USTON O IGA IU!ASM
lizational Islam. What this rhetorical rather than actual formula indicates is rather
hazy and contradictory. To begin with however, it is the expression of a refusal to
politicize religion and consequently of wanting to avoid extending religious laws
jurisdiction indiscriminately. Terefore, there is a resolve to not destroy legal plu-
ralisms current structures. Moreover, should rulings such as the one issued in Lina
Joys case increase, other sections of the Malay community fear a religion-based
self-tribalization or self-racialization which would ultimately encourage a paradoxi-
cal and unacceptable self-discrimination. Hence, the Malay community is the one
currently at risk of splitting into several segments.
Yet, the dierences between the bumiputera and non-bumiputera and those within
the Malay community itself are also evidence of a dynamic civil society, albeit one
predominantly founded on an ethnic basis. Tese contrasting views about juridical
practices also substantiate the permanent uidity inherent to Malaysias multicul-
tural society as well as the current dynamism of its pluralistic legal and jurisdic-
tional structure. Despite systemic and societal contradictions, inconsistencies and
paradoxes, which characterize the entire country and thus the quality of its legal
pluralism, Malaysia, thanks to the multicultural bricolage, continues to work rather
well and in the main can still be regarded as a decent society (Margalit, 1996).
Tis leads us to conclude, that although the Malaysian bricolage is denitely nei-
ther exemplary nor, worse still, exportable, European models of citizenship and
imagined judicial monolithism, apparently so consistent and based on the indi-
vidualistic doctrine of liberal universalism, are likewise not applicable elsewhere
and probably not even in Europe itself.
BIBLIOGRAPHY
Griths, John, 1986, What is Legal Pluralism? In Journal of Legal Pluralism, 24: 155
Hooker, Michael B., 1975, Legal Pluralism: An Introduction to Colonial and Neo-Colo-
nial Laws, Oxford (Clarendon Press)
Kirby, Michael, 2007, Fundamental Human Rights and Religious Apostasy, Te Grith
Lecture 2007, Queensland Conservatorium, Grith University, November 16
th
2007,
cf. www.webdiary.com.au or www.malaysianbar.org.my/speeches/
Lee, Mei Peng, 2005, General Principles of Malaysian Law, Shah Alam & Oxford (Penerbit
Fajar Bakti Sdn. Bhd & Oxford University Press)
Le Roy, Etienne, 2003, Le pluralisme juridique aujourdhui ou lenjeu de la juridicit, in :
Le Roy Etienne, (d.), Les pluralismes juridiques, Cahiers dAnthropologie du droit
2003: 717.
1J0
\!STAN GO!ANO
Margalit, Avishai, (1996), Te Decent Society, Cambridge and London (Harvard Univer-
sity Press).
Mohamed Adil, Mohamed Azam, 2007, Restrictions in Freedom of Religion in Malay-
sia: A Conceptual Analysis with Special Reference to the Law of Apostasy, in Muslim
World Journal of Human Rigths, 4, 2: 124.
Peletz, Michael. G., 2002, Islamic Modern: Religious Courts and Cultural Politics in Ma-
laysia, Princeton NJ (Princeton University Press).
Pospil, Leopold, 1971, Anthropology of Law. A Comparative Teory, 1974, New York,
Evanston, San Francisco, London (Harper & Row Publishers).
Rouland, Norbert, 1991, Aux conns du droit. Anthropologie juridique de la modernit,
Paris (Odile Jacob).
Vanderlinden, Jacques, 1993, Vers une nouvelle conception du pluralisme juridique, in:
Revue de la Recherche juridique Droit prospectif: 573583.
Vanderlinden, Jacques, 2003, Trente ans de longue marche sur la voie du pluralisme juri-
dique, in: Le Roy, Etienne, (d.), Les pluralismes juridiques, Cahiers dAnthropologie
du droit 2003: 2134.
Woodman, Gordon R., 1998, Ideological Combat and Social Observation: Recent Debate
about Legal Pluralism, in: Journal of Legal Pluralism, 42: 2158.