"Are you religious?" my Uygur Muslim host asked me over dinner in Tashkent.

"I am not sure I know what that means," I replied (or not).

The week before, a self-proclaimed 'secular, non-extremist' friend in Kuala Lumpur threw me the question, "Aren't you secular?"

If I had answered, "I'm vegetarian," it would not have made any difference as there are really no right answers as we begin to think critically about these matters. Perhaps what is more important is the journey of discovery prompted by these questions.

I remember being a voice in the wilderness when a little more than a decade ago, I chose to make a stand in the regional work on women's human rights by arguing for working within the framework of Islam. The proposal was seen as both audacious and perverse.

"You are playing into the hands of the fundamentalists." They speak from the collective experience of South Asia which has a longer history of struggling with religion (Hinduism and Islam) in the public domain.

"I am a believer," said a well-known Muslim career activist, now with the UN, "but your best bet for empowerment lies with human rights and not religion."

In turn, I had found the opposition from human rights activists, strange. The respect for human rights I should think would include the freedom of belief. Consequently it should be the right of any group to work within a religious framework if that is so desired as part of a religious consciousness and a strategy to develop consensus on rights.

Reference point

The support for such a proposal does not emanate from any kind of hegemonic impulse. Islamic law has become part of the psyche of belief in Islam as epitomising the essentials of the faith. A revisit of the original premises is imperative for any change. Islam becomes the reference point. Islam (with its concrete references, thus the framework of Islam) is the site of the struggle.

The point of critique raised by colleagues of playing into the hands of the fundamentalists may be relevant in so far as both fundamentalists and reformers claim the same site. Raising challenge from the religious framework and challenge from the human rights perspective should not be seen as mutually exclusive strategies, they are options depending upon the situation at hand.

Syariah is used in the Malaysian context as a reference to Islamic law without distinction between the Divine injunctions (not necessarily law) and the opinions or interpretations of early jurists. The latter were concretised as

fiqh (also known as 'law'). The belief that law is Islam and Islam is Islamic law has prevailed upon the Muslim (Sunni) mind so much so that the believer equates fiqh (opinions of jurists concretised as law) as the word of God.

Consequently the believer is perceived to be legally and morally incapable of agency or choice. Thus Malaysian Muslims even today are apprehensive about raising any challenge to Islamic law.

Muslim authorities at the federal and state levels (even where the opposition rules) appear to be more concerned about regulating on who is or is not a Muslim rather than address the implications of Islam and Islamic law in the public sphere of a plural society.

For a time I was aware of being set adrift by colleagues in the movement, as a pseudo-activist or fundamentalist wannabe. People are polite but will not have any real engagement with developing the strategical framework for change. They are, however, generous with the been-there-done-that dire warnings.

Personal law

The picture is not so rosy on the side of the 'fundamentalists' and the general Muslim populace Any challenge to traditional fiqh (Islamic legal tenets as developed by jurists in the 7th to 9th century Arabian peninsula some 100-200 years after the death of Ali, the last of the Rightly-Guided Caliph according to the Sunni school) is hazardous from the word 'go'.

In countries where religion has some kind of public role supported by the state or strong interest groups wielding political power, challenge to these legal opinions, equated as God's law, may spell your demise or ostracism in the name of blasphemy, deviancy or whatever appears politically convenient at the moment.

Malaysia in its theoretical construct as a nation state based on the supremacy of the written constitution does not purport to make Islamic law as the basis of the public law of Malaysia. Islam is also not confined to rituals and ceremonies as some of us would like to believe, in reply to current assertions of Islamic statehood.

Islamic law that is applicable is personal law, meaning that Islamic law applies to Muslims. The personal Islamic law applicable to Muslims is mainly family law.

Under British rule the "religion and custom of the natives" refer to Muslim family law, religious rituals and ceremonies (for e.g. looking at the moon to signal the onset of Ramadan ), remained relatively undisturbed.

(Islamic commercial law was allowed to flourish in parts of the disintegrating Ottomon empire. Islamic commercial law went through a period of development during colonial rule. In this regard, the Islamic banking system as a species of Islamic commercial law is 'contemporarised').

Although historically Malays have experienced Hinduism, Islam was recognised as the religion and custom of the natives. Muslim family law survived as a traditional feature of the Malay states which was absorbed in the Merdeka Constitution of 1957 as state law.

Towards the middle of the1980s and early 1990s Malaysia was set on an Islamisation of laws agenda. The main players include Pusat Islam, the state religious authorities and Syariah Courts, and the International Islamic University.

The family law is codified (including various opinions of the Sunni school) with evidence and procedural laws. Article 121(1A) was added to the Federal Constitution in 1988, initially presumed to prevent the conflicts of law (between Islamic and civil law) through the dual jurisdiction assumed by the civil courts over Islamic family law matters.

Then came the 'protection of Islam' laws, incorporated initially as family laws, then separated as Islamic criminal laws ( Jinayah ). The latter is perceived as law relating to the personal status of Muslims, although arguably they reflect the increasing incursion into the public life of Muslims as they are not strictly (personal) family law matters.

Minimum standards

The proposal of the Islamic state agenda would envision by virtue of its name more than just an Islamisation of the personal law of Muslims, applied over Muslims as state law. I suggest that we begin mapping principles or setting some minimum standards to ensure the protection of our civil liberties from state intrusion.

Firstly, it is only practical that any Islamisation programme for Malaysia must be premised on shared notions of justice. As an example, the Islamic banking system appears a viable alternative. It is accepted by non-Muslims based on some consensus as to its viability and commercial value. More importantly, Muslims and non-Muslims have a choice to resort to Islamic banking or not. There are no criminal sanction to non-compliance!

Secondly, an Islamisation programme cannot be an imposition of Islamic law to non-Muslims. If there are matters which offend the civil liberties of non-Muslims under the Constitution or under universal standards of human rights, such an imposition is unconstitutional and undemocratic. It is also arguably unIslamic as Muslims are reminded to obtain covenants and agreements with non-Muslims.

Following from this second principle, we must allow challenge in the political arena as part of the consensus of nation building. Any infringement of a civil liberty on this second principle must be also capable for challenge in our courts based on principles of human rights (which may include our own shared notions of justice. This may sound superfluous if we operate from the premise that our shared notions of justice accord with human rights principles and vice-versa).

Thirdly, it should be open to Muslims to challenge any Islamic law (personal and public law) which impinges upon rights universally accepted as human rights. This recourse should not be limited to non-Muslims only. In this case, Muslim activists and civil society groups have been engaged in developing universal standards in recent years such as the Vienna Declaration and Programme of Action in 1993 (for Human Rights) and the Beijing Platform for Action 1995 (Women).

Shared notions of justice

Human Rights documents are examples of shared notions of justice. If we are to locate a Muslim principle of deriving a juridical point, human rights standards form urf or custom, not quite unlike the aml (practice) of Medinah which founding jurists would consult in deriving their opinions.

As a corollary to the third point, Muslims must begin to work on an adequate reform methodology as regards Islamic law. Muslims must move from bemoaning problems to forging an adequate reform methodology that would be compatible with principles of constitutionalism, criminal justice, international law and human rights (An-Naim, Towards an Islamic reformation, 1990, Amina Wadud, Women and Qur'an , 1992. Wadud argued for a reform based on a hermeneutical model for women's rights).

There are times when I find it futile to offer an alternative discourse. It reminds me of the Malay adage, mencurah air di daun keladi , there is no seepage, the water merely rolls off the surface of the yam leaf. Perhaps we should just sit pretty and wait for the revolution that would get all our behinds burnt before political will of the elite and sleeping masses is galvanised towards reform.