This chapter will explore briefly some of the dimensions of recent Women's “rights” claims in Malaysia. Its main focus is the complex and often tense relationships among a range of women's nongovernmental organizations (NGOs), the “soft-authoritarian” state, and the powerful cultural particularisms embedded in the Malaysian modernity project. Across the region, recent social transformations have seen political claims of many kinds erupting, especially a range of claims made in the language of “rights”. In Malaysia, dramatic economic and political changes have produced a reshaping of the spaces within which women can act politically as gendered agents, with concerted activism relating to domestic and sexual violence. The last few years have seen a more proactive push by women's organizations, a change that one participant there has labelled a move from activism to political empowerment (Martinez 2000). In this initiative, rights claims on the state and on sections of “civil society” for a complex array of women's rights have become prominent within a wider momentum for reform, with an apparent growing willingness to make local versions of more “universal” rights claims. But, the pressures of ethno-nationalism and support for ideas about an alternative “Asian way” to becoming modern have produced especially complex terrains for such rights claims. This chapter is particularly interested in the ways in which such rights claims have been reconfigured, reframed, and reworked in the recent conjunctures, in complex dialogues with state, religion, and everyday practices.

Clive Kessler was one of the last doctoral students of the late Sir Raymond Firth, who had been one of the first anthropologists to study Kelantan. Firth offered his students insights into the major traditions of European anthropology through his teachers, Malinowski and Sir James Frazer, and through his association with Marcel Mauss. Sir Raymond's lifetime (1901–2002) spanned the entire twentieth century and he witnessed change in all its aspects. These included changes in the theoretical approaches to the study of anthropology, which Kessler has outlined in a tribute he wrote after Sir Raymond's death.

In his tribute, Clive Kessler explains how Sir Raymond's work presented questions which are fundamental to the social sciences, ranging beyond the boundaries of individual disciplines. According to Kessler, Firth's work posed clearly the fundamental questions about the status of homo economicus, within analytical frameworks, as a theoretical construct and, within the world of social experience and action, as a social construct; about the relation between the two, especially within those processes of socio-cultural as well as economic transformation known as modernization and development. The central question posed here is whether modernization, or what we more often refer to as “globalization”, is necessarily culturally homogenizing — something no anthropologist sensitive to the rich diversity of Firth's “human types” can regard with equanimity — or whether it is possible to achieve “modernity” and to find embodiment for economic and social rationality within a variety of cultural traditions and civilizational forms.

These questions are central not only to the chapters in this book but also to Malaysia's leaders and economic planners. Professor Shamsul's chapter emphasizes the crucial importance of knowledge, particularly of the social sciences, to many aspects of the modern nation-state. He also points out that if both the nation-state and social science are operating effectively, their relationship will be one of tension. While the state has to pursue functional, developmental goals, the social sciences have humanistic and “emancipatory as well as instrumental goals”(see Shamsul in this volume). In his view, to be most useful to the long-term interests of the nation-state, social scientists need to be able to draw from the elements of a vigorous civil society, which is not totally dependent on the state.

Introduction

Exercises in authority building are intrinsically related to the quest for state-making. Moreover, the expansion of modern state institutions in itself is a highly political process and the effects of this process are similarly political. In a Muslim society, Muslim leaders readily utilize the idiom of religion to engage with such a process of state-making. Various Islamic actors — over a wide ideological spectrum — strive for the attainment of a vision of state and nation on both ideological and institutional fronts. Some aspire to the creation of an “Islamic state” — based on the Islamic canons and tradition. Others adopt a less dogmatic approach to establish authority based on religious-inspired moral principles.

In a more modern context, this contestation over the nature of the state, as Clive Kessler elegantly showed in his classic study on Muslim-Malay politics in Kelantan, is transferred into the arena of party politics (Kessler 1978). What the outcomes of these contestations are, as Kessler emphasizes elsewhere, depends not on the irrevocable influence of doctrinal forms, but on historically, sociologically, and ideologically determined patterns of political agency (Kessler 1979).

The jurisdictional expansion and institutionalization of the Islamic (Syariah) judicial mechanism in Malaysia offer an intriguing case for examining the process of state-making. A reform drive in he Syariah judicial apparatus since the 1980s, spearheaded by the UMNO (United Malays National Organization) (which has dominated government) has brought about an unprecedented institutional development on the constitutional, legislative, and administrative fronts. The apparatus of the Syariah courts was upgraded, with their jurisdiction expanded within the country's still essentially “secular” judicial system. This apparent “Islamization” trend has corresponded with the organizational expansion of the state machinery administering Syariah matters, including the increased employment of better-qualified Syariah personnel. One important overall effect of this process is the rise of highly institutionalized state mechanisms regulating Islamic agencies and actors.

One of Professor Clive Kessler's lesser known accomplishments is a mastery of Kelantan Malay. This colourful dialect of standard Malay is laconic but rich in earthy metaphors, direct and subtle at the same time, and for non-Kelantanese Malays and foreigners alike, a challenge to their forbearance and tolerance. The people of Kelantan, in general, make few concessions to outsiders and take pride in their independence of spirit and behaviour. Undaunted by this reputation, the young Kessler chose as his “case study” the township of Jelawat in rural Kelantan and lived among the people of Jelawat for almost two years. He observed not only their history, politics, religion, economy, and culture but also learned their language, without which a true insight into Kelantanese life would not have been possible. From this intense experience was distilled one of the classic works of Southeast Asian anthropology, Kessler's Islam and Politics in a Malay State: Kelantan 1838–1968, a work which has become a benchmark for studies of Malay society.

In part motivated by the failure of the “old paradigms” of social science to engage with social reality, Clive Kessler argued for an integrated and holistic approach which “seeks to draw together, as complementary aspects of the same reality, class and culture, ‘material’ and ‘ideal’ factors, ‘existence’ and ‘consciousness’” (Kessler 1978, p. 19). In his first book, Kessler develops the methodology which he has maintained and refined in later writing. As he himself describes it:

“Hei Tuhan! Ajarlah aku perkara yang aku masih jahil” (Tuan Guru Nik Aziz Nik Mat)

This chapter focuses mainly on the tafsir (Quranic exegesis) by the Murshid'ul Am (Spiritual Leader) of the Pan-Malaysian Islamic Party (PAS), Tuan Guru Nik Aziz Nik Mat. It attempts to analyse the various ways and means through which the Quran has been interpreted, recontextualised and communicated by the spiritual leader of PAS to his own domestic audience and political constituency, the Malay-Muslims of Kelantan.

By using the tools of discourse analysis, the chapter will show just how and why the tafsir by Nik Aziz has the appeal that it does to his local constituency and how it manages to communicate both religious and political meanings that are relevant and understandable to the local audience. It is also important to note that Nik Aziz's use of the vernacular and localized idiom is unique in Malaysia: no other recognized ulama has ever attempted a localized reading of the Quran in this way. Furthermore, the political slant that is clearly apparent in these tafsir is also another factor that accounts for their appeal and continued relevance to the intended audience. It is this dimension of religio-political culture, and the cultural mediation of religion and politics, that will be the main concern of the chapter.

This collection of essays has been prepared as a tribute to Clive S. Kessler, Professor of Sociology at the University of New South Wales for over twenty years and former member of staff of the London School of Economics and Political Science, University of London (1969–70), and Barnard College, Columbia University, New York (1970–80). He has been a visiting academic at the Institute for Advanced Study, Princeton; the Institute for Advanced Study, Berlin; the Institute for Malaysian and International Studies, Universiti Kebangsaan Malaysia; and the Faculty of Asian Studies, The Australian National University. In the year 2000, the Australian Academy of the Social Sciences recognized his outstanding contributions to the disciplines of Anthropology and Sociology by electing him a Fellow.

The breadth of Professor Kessler's research interests reflects his immense scholarship, and the depth of his published work is testimony to his intellectual engagement with the major works of Western critical theory. Historical anthropology, peasant societies, Islamic social theory, and the anthropology of Muslim societies, religious symbolism, social and sociological theory, comparative studies of the Abrahamic faiths (Judaism, Christianity, and Islam) and, more recently, globalization are all areas on which he has written. He has also published about Hannah Arendt's views on organized Zionism, the Asian Values debate, the state and civil society, and Palestinian–Israeli relations in carefully argued pieces which demonstrate his extraordinary and ongoing commitment to a just and civilized world.

The chapters in this volume, written by colleagues and graduate students, focus on Professor Kessler's analyses of Malaysia. Each essay draws on aspects of his published research, taking his insights as points of departure for new studies. Professor Kessler's ideas and observations are thus extended, complemented and updated in ways which emphasize the depth and extent of his influence on contemporary research on Malaysia.

Just how does the pre-colonial culture of the Malay world influence political behaviour and political experience in Malaysia today? Some analysts seem to imply that little connection exists between the early monarchical forms of the region and modern societies. Harold Crouch (1996), for instance, seldom reaches back before the independence year of 1957 in his influential analysis of the Malaysian political system. Even some historians, although taking pains to examine the character of the pre-colonial social systems of Southeast Asia, make no connection between these and the particular structures of modern societies. Against this view, certain specialists on Southeast Asian political cultures have insisted that ideas about power and government developed in precolonial systems have a direct relevance in the region today. In the case of Malaysia, Syed Hussein Alatas (1972) has led a school of analysts who argue for the “historical continuity of attitudes and values from the feudal period to the present time” (p. 100), identifying in particular a stress on “unflinching loyalty” (p. 108). These analysts have noted the continued importance of royal titles and ceremony in modern Malaysia (Chandra Muzaffar 1979, p. 109) and the continuing stress on the heroic qualities of the Malay feudal model, Hang Tuah (Shaharuddin Maaruf 1984, p. 55). They have even suggested that the first Prime Minister of Malaysia, Tunku Abdul Rahman, provides an instance of the “feudal tradition re-asserting itself”(Shaharuddin Maaruf 1988, p. 127).

As he has done with respect to many other issues, Clive Kessler examines this relationship between past and present political cultures with subtlety and imagination. As he describes it, the relationship is real but deeply problematic. Drawing upon the work of Vivienne Wee, he suggests (in his 1992 essay “Archaism and Modernity in Malay Political Culture”) that the past is like “the image that we see in a rear-vision mirror of a rapidly moving car. As we move forward, we see an image of what we have been through and experienced. But this view of the past is shaped by our direction into the future”(p. 134). Our image of the past, that is to say, is “formed on shifting ground in an ever-moving present”(p. 134).

BOOK I

MARRIAGE LAW

CHAPTER I

GENERAL CONDITIONS

Article 1.

The Definitions

a. Peminangan(proposal) is an effort toward a realization of a marriage between a man and a woman.

b. Wali hakimis a person who gives the marriage appointed by the Minister of Religious Affairs or other official appointed by him, who has the right and authorized to act as a wali nikah;

c. Akad Nikahis a series ofijab(words of delivery) pronounced by the waliand kabul(words of acceptance) pronounced by the groom or his representative on the presence of two witnesses;

d. Maharis a gift from the groom to the bride in the form of goods, money or service which do not contradict to Islamic law;

e. Taklik-talakis a kind of promise read by the groom after an aqad nikah and printed in the Marriage Document. It is a kind of promise guaranteed to a certain condition that might happen in the future;

f. Properties in the marriage or syirkahare possessions which are obtained either individually or by both spouse during the marriage life and hence it is called as joint possessions no matter whose name the registration is on behalf;

g. Children care or hadhonahare activities of nursing, looking after, educating offspring until the age of adolescence or able to self sustain;

h. Perwalianis a mandate or an authority given to a certain person to exercise a legal action as a representative for the interest of and on behalf of an orphan or alive parents who are not capable to perform a legal action;

i. Khulukis a divorce from the demand of the wife side by submitting ransom or iwadlto and agreed by the husband;

j. Mut'ahis a gift from an ex-husband for a wife who has been divorced in a form of goods or money, etc.

The growing discontent under guided democracy and the pressure of deteriorating economic conditions under Sukarno brought about political violence and social conflict on an unparalleled scale in Indonesia's history. This was the opposite of Sukarno's ideal of uniting different ideological stream – nationalism, communism and Islam – under his guided democracy. The abortive coup of September 1965 which was followed by the destruction of the communist party and its anti-religious ideals marked a turning point in the history of the Indonesian nation. While the full story behind the September 30th movement, as it was named thereafter, remains subject to conflicting interpretations, there can be no doubt about the result of the coup. The most important result was the end of the Sukarno era and the emergence of the New Order government.

This article will look at the legal and judicial changes brought about by the New Order government and will seek to analyze the impact of “Pancasila” ideology and “developmentalism” (pembangunan)– the two key words of the New Order regime's basic policy– on Islamic law and institutions, especially the agama(religious) courts. The weakening, and later disappearance, of formal Islamic political parties from the national political stage and the enforcement of singular adherence to “Pancasila” have usually been understood as having suppressed and curbed the progress of Islamic law and institution in the search for national legal system. However, this article will seek to show that those policies and programs, in addition to posing a tremendous challenge to the proponent of Islamic law and institution, at the same time created a valuable opportunity and a favorable climate for Islamic law and its institutions to develop, adapt and participate in the formation of the national legal and judicial system.

THE RISE OF THE NEW ORDER

The political power of Sukarno, who had been nominated as president for life and had dominated the Indonesian political scene since before independence waned considerably soon after the abortive coup. His remaining influence was effectively broken when he kept trying to play down the demands of fast growing counter-movements led by the anti-communist army generals, Muslim organization and student leaders.