Malaysia Legal Pluralism Final Version Eng

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IntroductIon

Along 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 specific 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.

The actual juridical manifestation of differentiated citizenship is legal pluralism, which is State-guaranteed and based on the combination of three different juri-dical traditions and sensibilities: the Western one expressed in British common law, Islamic law, and customary law represented by the adat law. The 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

Christian Giordano*

* Christian Giordano, Chair of Social Anthropology, University of Fribourg

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Because there is no unified 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 law’s 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 latter’s equivalence. As the outcome of an institutional social contract between the various ethnic communities, this equivalence is acknowledged, though not always shared individually. The 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 conflicts, 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 difference in particular.

leGal PluralIsM In PenInsular MalaysIa: BrItIsh coMMon law, IslaMIc law and custoMary law

Given the divergent opinions of anthropologists and sociologists, formulating a comprehensive definition of legal pluralism is no easy task. We may howev-

er distinguish between a minimalist, or restricted, and a maximalist, or broadened, definition. This is why Norbert Rouland, concurring with John Griffiths, speaks about a version faible and a version forte (Rouland, 1991: 124–125, Griffiths, 1986, Woodman, 1998, Vanderlinden, 1993, Vanderlinden, 2003). In the former case he simply refers to

“l’existence, au sein d’une société déterminée de mécanismes juridiques différents s’appliquant à des situations identiques” (Rouland, 1991: 124).

In which case, as Etienne le Roy adds, this would mean that

“pluralitè de solutions s’appliquant à une situation identique à l’intérieur d’un ordre juridique qui ne peut, le plus souvent implicitement être qu’étatique” (Le Roy, 2003: 8).

To define legal pluralism’s version forte we must start from the idea that

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The Political Governance of Multiculturalism and the Question of Legal Pluralism

“les différents groupes sociaux voient se croiser en leur sein des multiples ordres juri-diques: le droit étatique, mais aussi celui que produisent d’autres groupes, droits qui peuvent coïncider 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 defined as

“la situation dans laquelle un individu peut, dans une situation identique se voir appliquer des mécanismes juridiques relevant d’ordres juridiques différents” (Van-derlinden, 2003: 31).

At this level of definition both points of view are wanting, though for different reasons. The 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. Therefore, the law would be an in-dication of civilization resulting from evolution, i.e., from society’s advancement.

The inherent risk of the version faible lies in barring forms of law beyond the state’s context, thus letting itself be tempted by legal centralism. The 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 definitely an expression of the version faible because, as an essential characteristic and an integral part of the State’s juridical system, it is State-guaranteed. Therefore, in line with Gordon Woodman, it can be defined as a form of State Law pluralism (Woodman, 1998). The 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 country’s legal pluralism.

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DIAGRAM 1 : CURRENT JUDICIAL SYSTEM IN MALAYSIA (INCLUDED PENINSULAR MALAYSIA, SARAWAK, SABAH)

Source: Lee, 2005: 31

The 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 hierarchy’s 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 CourtSyariah Court

Sessions Court

Magistrates Court

Small Claims Court

Penghulu’s 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 CourtSyariah Court

Sessions Court

Magistrates Court

Small Claims Court

Penghulu’s Court

Sessions Court

Magistrates Court

Small Claims Court

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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 define as secular though it acknowledges Islam as the country’s offi-cial religion and concurrently ensures full freedom of worship to all other religious faiths (Art. 3, § 1). Though 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. This 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 ff.).

Yet, this analytical differentiation 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 Malaysia’s pluralistic juridical and judicial system. But we will delve into this aspect later when we discuss the specific claims aimed at obtaining a greater recognition of Islamic law in the context of legal pluralism.

The 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 law’s 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

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peninsula with a judicial apparatus and laws of Islamic derivation (Peletz, 2002: 48 ff.). The function of undang –the customary law representative- was replaced by the kadi (Peletz, 2002:). Thus, the kadi obtained jurisdiction especially over the so-called religious offenses and the various branches of family law (including rights of inheritance).The 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 fields continued during all the remaining colonial period. The 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. The 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 significant steps in this endeavor to reorganize an important element of colonial law’s legal pluralism. This 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 definitively removed.Since independence to present-day however, Islamic law continues to be a servient element of Malaysia’s 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 differences. The State subjects only the Muslims to Islamic law, i.e., nearly exclusively the Malay who represent barely more than one half of the country’s 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 law’s competence is restricted to sex crimes, such as khalwat (illicit proximity), adultery and rape, breaking fast during Ramadan, and not paying religious alms (fitrah and zakat). However, it is competence of the kadi to punish the crime of propagation of false doctrine (Peletz, 2002: 66).

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An Islamic magistrate has also far less options than lay judges as far as formal sanc-tions are concerned. The kadi can admonish (a recalcitrant husband who refuses to pay his wife’s and children’s support, for example) and can exact fines. Instead, he can seldom recur to physical sanctions such as imprisonment or, in case of very serious offenses, 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 kadi’s rulings may remain a dead letter.

Finally, we need to add that the recognition and application of Islamic law’s rules and sanctions are not a federal matter, since they fall under the jurisdiction of the single States of the Federation of Malaysia. Their opinions and standpoints regard-ing specific institutions vary considerably owing to the specific concepts of Islam propagated by each Sultan and Governor assisted by their respective religious advi-sors. Consequently, this state of affairs may paradoxically be defined 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

So far we have overviewed some of the basic formal, thus institutional, aspects of legal pluralism in peninsular Malaysia. This type of analysis, though important

in order to grasp the juridical and judicial system’s structure, could be too static. This 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. Therefore, we can observe actual practices – i.e., performances, as Victor Turner would say – that engender a permanent fluidity and eventually lead to a revision of what may seem unchangeable because institutionally ratified.

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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. Therefore, we can observe the strategy of nibbling away slices of juridical and jurisdictional competences of the common law. In response to these efforts, secular law advocates, belonging mainly though not only to the other ethnic-religious communities (Indian and Chinese), employ counterstrategies aimed at curtailing Islamic law’s 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 inflaming the souls of members of Malaysia’s different 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 significant since it caused a remark-able conflict 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. This situation has practically given rise to a vast array of doctrinal interpretations and consequently to different 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

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a dead letter due to the federal government’s firm opposition as well as the federal police’s forceful protest and its decision to not persecute the offenders. Therefore, 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. The 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). The 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 file will be closed. Should there be any hope of repentance the file will be ad-journed. Instead, if the candidate perseveres in his intent and provides legitimate arguments, the syariah court will grant his petition. The court will then issue a certificate of apostasy that allows the person who abandons Islam to register his new religious status on the official records.

We can easily imagine that Negeri Sembilan because of this juridical specificity 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. Though legalized, apostasy is still an extraordinary juridical action and above all a severely reprehensible one, both morally and socially. Nonetheless, though extremely difficult, 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 specific restrictions, are allowed to abandon Is-lam without having to fear monetary or corporal punishments, some of which would indeed violate human rights.

2. The 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.

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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 indefinite and disputable, due to the fact that apostasy is no longer solely a fine 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 significance 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 first and last names. In 2000, she applied to the National Registration Department (NRD) to obtain identification papers reflecting her new data. This office acknowledged the name change, but did not amend her religious affiliation on her new papers. Consider though that only Malays’ identification papers quote religious affiliation, 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 affiliation 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 different 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, finding a partner belonging to another religion might be more sensible.Lina Joy’s 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 finally reached the Federal Court, the country’s highest. On May 30, 2007, Lina Joy’s 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 confirming the previous rulings.

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This ruling obviously stirred up a hornet’s 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. This 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 field.

The anthropologically relevant aspect is the dynamics triggered by the ruling with-in Malaysia’s pluralistic legal system. One member of Lina Joy’s 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).

This 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 Court’s supremacy over all other laws, while article 3 guarantees reli-gious freedom, thus also the option to change one’s creed. The jurist’s 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 Court’s ruling fails to comply with the hierarchy and system of precedence that characterize Ma-laysia’s legal pluralism ever since the Constitution was promulgated. Therefore, the anthropologist faces an interesting issue of authority, which, as Leopold Pospíšil sustained, is one of the fundamental cornerstones of any form of law (Pospíšil, 1971).

Authority as the capacity to enforce one’s ruling and concurrently to obtain compli-ance, is definitively transferred from the civil to the religious section of Malaysia’s system of state legal pluralism. Drawing again from Pospíšil’s 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 Joy’s case, by way of the Federal Court’s ruling, clearly exemplifies how the transfer of competence from the jurisdiction of com-mon law to that of Islamic law may occur. Through these shifts in juridical and jurisdictional authority, we can observe how the adjustments between dominant and servient law occur within a pluralistic legal system. These accommodations, therefore, actually tend to lessen the vertical relationship between the various sec-

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tions of legal pluralism inherited from the colonial period and adopted after inde-pendence.

conclusIons: dIfferentIated cItIzenshIP and leGal PluralIsM

The 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 redefinition of the specific concept of differentiated citizenship resulting from the social contract on which legal pluralism’s 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 off 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 differentiated citizenship.

The 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 one’s own religion guaranteed by article 3 of the Constitution, could be threatened.

The right to freedom of religion and to express, preserve and promote one’s own culture, along with the tacit acknowledgement of the non-bumiputera’s actual eco-nomic supremacy in exchange for the granting of specific 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. They are also the fundamental criteria that define the differentiated citizenship actually in force in social practices. The above-mentioned agreement, along with this type of citizenship, have guaranteed, and still guarantee this Southeast Asian country’s 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 chiefly be the outcome of economic de-velopment, would be specious.

The several Muslim bumiputera, especially those of urban extraction, have a differ-ent though not opposite stance. They advocate an Islam called hadhari, or a civi-

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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 law’s jurisdiction indiscriminately. Therefore, there is a resolve to not destroy legal plu-ralism’s current structures. Moreover, should rulings such as the one issued in Lina Joy’s 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 differences 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. These contrasting views about juridical practices also substantiate the permanent fluidity inherent to Malaysia’s 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).

This leads us to conclude, that although the Malaysian bricolage is definitely 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

Griffiths, John, 1986, What is Legal Pluralism? In Journal of Legal Pluralism, 24: 1–55

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, The Griffith Lecture 2007, Queensland Conservatorium, Griffith University, November 16th 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 aujourd’hui ou l’enjeu de la juridicité, in : Le Roy Etienne, (éd.), Les pluralismes juridiques, Cahiers d’Anthropologie du droit 2003: 7–17.

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Margalit, Avishai, (1996), The 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: 1–24.

Peletz, Michael. G., 2002, Islamic Modern: Religious Courts and Cultural Politics in Ma-laysia, Princeton NJ (Princeton University Press).

Pospíšil, Leopold, 1971, Anthropology of Law. A Comparative Theory, 1974, New York, Evanston, San Francisco, London (Harper & Row Publishers).

Rouland, Norbert, 1991, Aux confins du droit. Anthropologie juridique de la modernité, Paris (Odile Jacob).

Vanderlinden, Jacques, 1993, Vers une nouvelle conception du pluralisme juridique, in: Revue de la Recherche juridique – Droit prospectif: 573–583.

Vanderlinden, Jacques, 2003, Trente ans de longue marche sur la voie du pluralisme juri-dique, in: Le Roy, Etienne, (éd.), Les pluralismes juridiques, Cahiers d’Anthropologie du droit 2003: 21–34.

Woodman, Gordon R., 1998, Ideological Combat and Social Observation: Recent Debate about Legal Pluralism, in: Journal of Legal Pluralism, 42: 21–58.

Documents

Malaysia Legal Pluralism Final Version Eng