Three cases over the last several years provides a picture of the contours of religious participation in rule of law culture. The first case involved a woman who insists on being known as Revathi Massosai. According to a BBC news story, Ms. Massosai was seized by officials "was seized by the Islamic authorities in January when she went to court to ask that she be registered as a Hindu rather than a Muslim." Jonathan Kent, Malaysia "Convert" Claims Cruelty, BBC News, July 6, 2007. The case pitted Ms. Massosai's personal belief in her membership in the Hindu community against an Islamic Court's application of Islamic law to her to conclude that, because her parents had converted to Islam, she was Muslim as well.
Miss Massosai was born to Muslim converts and given a Muslim name, but she was raised as a Hindu by her grandmother and has always practised that faith. However, under Malaysia's Islamic law, having Muslim parents makes one a Muslim and, as such, one is not allowed to change one's faith or marry a non-Muslim.Jonathan Kent, Malaysia "Convert" Claims Cruelty, BBC News, July 6, 2007. What made the case interesting for the methods used by the Islamic court to help Ms. Massasai embrace the faith Islamic law insisted she could not abandon, even after marrying a Hindu man in 2004 and giving birth to a daughter. Id. For having indicated an unlawful faith, when she sought to have herself officially registered as Hindu, she was
detained and taken to an Islamic rehabilitation centre. Her detention was twice extended to six months, during which time she says religious officials tried to make her pray as a Muslim and wear a headscarf. However, the claim that will particularly shock Hindus is that the camp authorities tried to force her to eat beef.Jonathan Kent, Malaysia "Convert" Claims Cruelty, BBC News, July 6, 2007. Court officials were unmoved. They insisted that Ms. Massasai could be brought about to an appropriate relationship to the faith lawfully assigned to her, whether she thought she had embraced it or not. Officials are now trying persuasion, having placed her in the custody of her Muslim parents.
The second case occurred in late 2005. In that case, the state courts of Malaysia determined that they could not interfere with a determination of the Islamic courts for lack of jurisdiction. The case involved M. Moorthy, a national hero of Malaysia who, in 1997, as a Hindu, he was a member of the first Malaysian team to climb Mt. Everest. Muslim Burial for Malaysian Hero, BBC News, Dec. 28, 2005. It seems, however, that when he died, state Islamic officials jostled the family out of the mortuary in order to insist that Mr. Moorthy be given a Muslim funeral.
It seems that army colleagues of Mr. Moorthy insisted that he had converted to Islam while among friends in the army a year or so before his death. Id. This was apparently not news conveyed to his wife and family. Yet that assertion, it seems was sufficient to convince a Shari'a court that Mr. Moorthy was no longer a Hindu and thus his Hindu family had no authority with respect to the burial. In reaching that decision, Mr. Moorthy's family members were not allowed to give testimony or provide evidence because they were not Muslim. Id. Thus, they felt their only recourse was to the state courts.
The family went to the civil court and argued that Mr Moorthy was a practising Hindu right up to a recent accident when he fell from his wheelchair and lapsed into a coma. But the High Court agreed with government lawyers who argued the civil court had no jurisdiction.Muslim Burial for Malaysian Hero, BBC News, Dec. 28, 2005. And the Hindu relatives of Mr. Moorthy were, apparently, without recourse. And Malaysians have a proper hero.
The later case caused tension within Malaysia and prompted the government to appear to take a different approach in a subsequent case. Jonathan Kent, Malaysia Seeks to Avoid Faith Row, BBC New, Dec. 7, 2006. In this case, "Rayappan Anthony converted to Islam when he took a second wife, a Muslim, in 1990. When that marriage failed, he went back to his first wife, a Christian, and made a formal declaration that he would return to Christianity." Id. But in Malaysia, only a religious court may permit a chance of faith, "and they invariably say no." Id. Again, after death, there is a contest between Islamic authorities and the family of the dead man, each claiming the right to have the man buried in accordance to the rituals of his faith--the one grounding faith on the jurisprudence of Islam, the other grounding faith on a purported renunciation of Islam and return to Christianity.
This presented a negligible legal problem and a large political one. Clearly, on the basis of the ruling in the Moorthy case, the religious courts had jurisdiction and Islamic courts would be permitted to decide whether Mr. Anthony had renounced Islam before his death. But, "Non-Muslims were outraged when Malaysia's civil courts decided they had no jurisdiction and refused to interfere. So, perhaps sensitive to this, the government has given this latest case to the attorney-general, its top civil law officer, instead of the Islamic court." Id. Yet this hardly represents a solution to the problem. "Thousands from the ethnic Malay majority have demonstrated against people being allowed to leave Islam" rejecting calls by religious minorities for neutral fora to decide interfaith disputes. Id.
At first blush, at least for Western sensibilities, something seems askew. After all, here is a case where courts of one faith have been given the authority to decide matters of faith that affect other faiths, and with respect to which the political community will not interfere through the intervention of its own courts. Yet, from another perspective, the Malaysian system evidences the way in which it might be possible to order a rule of law system that is multi jurisdictional, yet which applies law systems not necessarily tied to the political community from within which it operates. It is a system that retains an ordered jurisprudence, and firm divisions of authority between legal systems. And it is a system that respects a hierarchy of law. With respect to those matters committed to religious courts, such courts (and the rules they apply) are superior to those of state (secular) law administered by the Malaysian secular courts. And within the hierarchy of such religious courts, Islamic courts might be vested with supreme authority over the juridico-legal systems of other faiths.
Where faith has a political dimension, as so many in the United States have advocated, a system like Malaysia's evidences a method of incorporating the juridico-legal framework of faith communities within territorially bounded political systems. The results explode the monopoly of law making power of the institutions of the state in favor of transnational faith communities with a power to impose legislative norms on local citizens. Yet it is possible to do this in a way that accords with our understanding of rule of law systems--bound by rules that are enforced by a community through systems of independent courts. And the great insight of the Malaysian experience--states are not a necessary predicate to the existence of rule of law systems, only communities with coercive power over its members is required. The 21st century is one in which the religious question, dormant as a political matter in the West since the 18th century, will revive with a vengeance. Malaysia provides a glimpse at a future that may one day apply in the West.