Colonial intervention in the Muslim world created a breach in the historical development of Islamic law. It is this breach that Muslims today attempt to recover. This breach is also perceived as a destruction of Islamic power and identity.

Many Muslim countries and former colonies adopt constitutions from European examples. Egypt adopted a constitution based on the Belgium model in 1923. Iran did the same in 1907.

Malaysia has a Westminster-type constitution based on parliamentary democracy in 1957. Islam is declared as the religion of the federation but other religions may be practised in peace and harmony in any part of the federation.

In calling for a return to Islam whether by agitating for an Islamic state (Hadi Awang of PAS) or by way of Islamisation of laws (BN-Umno), we would have to deal with the modern nation state structure that was built during the colonial period.

It is inconceivable and unsettling for us to think of replacing the existing nation state model with something else. If that is a desired objective, the next model has to meet the test of democracy and constitutionalism. Any change without consent is unacceptable.

What happens is, most countries retain the structure of the nation state with a revival of Islamic law. Thus the contemporary Islamic state is often a modern nation state ruled by Islamic law. There are serious intellectual flaws to this, according to contemporary observers.

The notion of state and the citizen underpins the concept of the modern nation state. Muslim tradition did not develop any concept of the state, which is a territorial entity that is sovereign and whose authority is binding on the ruler and the ruled. Muslim tradition conceives of the Islamic order as the rule of Islamic law and the Muslim community (the ruler and the ruled).

Both the ruler and the ruled in Muslim tradition assume a unity of purpose following the dictates of justice to win divine favour and avoid punishment in the hereafter. The modern debate which reproduces infinite variations on the citizen's negotiation with the state is not explored. Writings post the Iranian revolution for example would feature discussions on civil society.

The modern nation state proclaims itself to be the sole repository of legal authority. This is the sovereignty of the state. Law becomes law only through the will of the state when it is enacted by the legislative body. In Islamic theory, Islamic law precedes the state. The Islamic tradition does not recognise the state as the sole legal authority.

No conceivable plan

Malaysia does not appear to have any conceivable plan to do away with the modern nation state structure. A modern nation state is committed to principles of constitutionalism (separation of powers, checks and balances and human rights).

Writers do not deny that Islam supports the principles of constitutionalism in that there are sufficient principles to support and develop mechanisms for promoting and sustaining the rule of law.

What is being done in Malaysia to enhance the role of the state as the legal authority and to overcome the legal pluralism of interpretations is to reduce the interpretations into a standard code or positive law passed by the legislature.

This mechanism reduces the authority of the jurist who is accustomed to the plurality of legal schools and their autonomy. There are several schools of thought in Islam and there are several sects giving rise to multiple but equally authoritative interpretations.

However, the codification of particular interpretations deny rights and freedom to others. It is no comfort when the state Islamic law only codifies Sunni views of the main four schools of thought. Shiah Muslims are 'the other'. It is naive to sing the rhetoric that Islamic law applies to Muslims when some other Muslims are denied their freedom.

Muslims whose beliefs and actions do not conform to the main schools fall prey to several criminal law provisions on deviancy, blasphemy, insulting Islam and apostasy. Three Shiah Muslims last December were incarcerated for two years under the Internal Security Act (ISA). They are allegedly a threat to national security and public order.

Thus our own experiment is not entirely flawless as we face seemingly irreconcilable tensions and divisions even within the Muslim community itself. Interpretations on freedom of religion and women's rights not developed in traditional interpretation are not included. The Islamic law so codified has no real response to the issues of the conflict of laws between Islamic law and civil law.

The traditional mechanism of resorting to the jurist or to variant opinions of other (non-Sunni) schools or even a new ijtihad (independent reasoning) to cover an exigency of a hard case is not available under the present scheme.

Judicial review reposes only in the (civil) High courts. The power of judicial review makes the Judiciary distinct from Parliament or the Executive. The power of judicial review includes the power to declare a law as unconstitutional.

The High Court in theory is placed in a position under the Federal Constitution to ensure that a law made by the legislature, whether at federal or state level, is in conformity with the Constitution. The state syariah (Islamic) court has no power of judicial review.

The jury is still out whether our High Courts will exercise its powers of judicial review in relation to Islamic law which does not accede to other established and equally authoritative interpretations (not included as part of the state law) or even fresh ijtihad . We have not in any case tested our law (civil and syariah ) to be in conformity with human rights standards.

The counter-revolution

The Iranian revolution touted as a return to the Islamic ideal is currently undergoing a counter-revolution from the Iranian people after some 20 years.

Abdolkarim Soroush, Iranian Islamic political philosopher and theologian, allegedly a counter-revolutionary is a prolific writer in Farsi. He has published one book in English. ( Reason, Freedom and Democracy in Islam . Oxford.2000).

He gave an insight of the revolution in his book. "I clearly realised that those who led our revolution had not thought beyond the downfall of the tyrannical regime of the Shah.

"Thus they have no appreciation of such issues as global economy, modernity, information-driven administration. They sincerely believed that if only rulers were just and well-meaning, society would follow its 'natural' course.

"The founders and rulers of the revolution were and still are, mostly professional orators. To many of them success means delivering an impressive sermon.Needless to say this does not contribute to substantive progress."

According to Soroush, all free societies whether they are religious or non-religious are humane. Totalitarian societies abide neither divinity nor humanity.

"We cannot evade rational, moral and extra-religious principles and reasoning about human rights, myopically focusing on nothing but the primary text and maxims of religion in formulating our jurisprudential edicts."

"Just by being humane is the condition of the truth of religion, so it will have to be the condition of the legitimacy of the government as well. Observing human rights guarantees not only the democratic character of a government, but also its religious character."

We do not have any clear idea of Hadi Awang's version of what he thinks PAS should do with the Islamic state proposal. We have an idea of where the Islamisation of laws under the BN government has taken us.

The challenge to some of these state laws which impinge on human rights and freedoms has not been quite successful. The call for law reform in Islamic family law, freedom of religion, conversions and the conflict of laws have not had adequate support since the mid-1980s.

As long as political parties are hell-bent on prioritising the capture of power over addressing these practical problems on the ground in an intelligent manner, there will be no vote on the Islamic state or more experiments which deny us our freedoms.