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The Law and Politics of Religion and Constitutional Practices in Asia

  • Dian A H SHAH (a1)
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LLB (Warwick), LLM (Duke), SJD (Duke). Assistant Professor, Faculty of Law, National University of Singapore. I would like to thank Associate Professor Dan Puchniak (Director of the Centre for Asian Legal Studies), Dr Mario Gomez (Executive Director of the International Centre for Ethnic Studies), Mrs Gisela Elsner (Director of the Rule of Law Programme Asia, Konrad-Adenauer-Stiftung), as well as the CALS and ICES staff for their support and assistance in organizing the ‘Religion and Constitutional Practices in Asia’ conference in Colombo. I am also grateful for the generous financial support from CALS, and for the invaluable contributions of participants at the conference.

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1. Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ 545 (Federal Court).

2. Law Reform (Marriage and Divorce) Act 1976 (Act 164).

3. Indira Gandhi (n 1) 603. The Court held that conversion is ‘a momentous decision affecting the life of a child’ and under such circumstances, it is ‘undoubtedly in the best interests of the child that the consent of both parents must be sought’.

4. See for eg, Subashini a/p Rajasingam v Saravanan a/l Thangathoray [2008] 2 MLJ 147 (Federal Court); Pathmanathan Krishnan v Indira Gandhi Mutho [2016] 1 CLJ 911 (Court of Appeal).

5. See for eg, Lina Joy v Majlis Agama Islam Wilayah Persekutuan [2007] 4 MLJ 585 (Federal Court); Pathmanathan a/l Krishnan (also known as Muhammad Riduan bin Abdullah) v Indira Gandhi a/p Mutho [2016] 4 MLJ 455 (Court of Appeal); Kassim @ Osman bin Ahmad v Dato’ Seri Jamil Khir bin Baharom, Menteri di Jabatan Perdana Menteri (Hal Ehwal Agama Islam) [2016] 7 MLJ 669 (High Court).

6. Indira Gandhi (n 1) 573. Interestingly, the Court also noted three principles in a Westminster-model constitution (such as the Federal Constitution) that are part of the basic structure of the constitution: (1) the separation of powers; (2) the rule of law; and (3) the protection of minorities. ibid 583.

7. ibid 576. Art 121(1A) of the Federal Constitution provides that civil courts shall have no jurisdiction in matters that are exclusively within the Shariah jurisdiction. The Court noted that ‘the perception that both courts (civil courts and Syariah courts) should exercise a mutually reciprocal policy of non-interference … maybe somewhat misconceived and premised on an erroneous understanding of the constitutional framework in Malaysia’.

8. ibid 588.

9. See Eugénie Meriéau, ‘Buddhist Constitutionalism in Thailand: When Rājadhamma Supersedes the Constitution’, this Special Issue, xx.

10. Gehan Gunatilleke, ‘The Constitutional Practice of Ethno-Religious Violence in Sri Lanka’, this Special Issue, xx.

11. ibid, xx.

12. See Matthew Nelson, ‘Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the Constitutional Politics of Religion’, this Special Issue, xx.

13. ibid xx.

14. ibid xx.

15. Constitution of the Islamic Republic of Afghanistan 2004, arts 2 and 3 (2004 Constitution of Afghanistan).

16. See ibid and 1973 Constitution of Pakistan, art 227.

17. 1945 Constitution of Indonesia, art 29(1).

18. See s 67 of the Constitution of Thailand, Buddhist Era 2560 (adopted on 6 April 2017) (2017 Constitution of Thailand) and art 9 of the 1978 Constitution of Sri Lanka.

19. ibid.

20. Raphael Pangalangan, ‘Relative Impermeability of the Wall of Separation: Marriage Equality in the Philippines’, this Special Issue, xx.

21. The Preamble of the Constitution of India 1950 (1950 Constitution of India) proclaims India as a ‘socialist secular democratic republic’.

22. Shayara Bano v Union of India, AIR 2017 SC 4609 (Supreme Court of India).

23. See Rehan Abeyratne, ‘Privileging the Powerful: Religion and Constitutional Law in India’, this Special Issue, xx.

24. Superintendent of Post Offices v Babu (2007) 2 SCC 337.

25. Shameema Rahman and Wendy Zeldin, ‘Burma: Four “Race and Religion Protection Laws” Adopted’ (The Library of Congress, 14 September 2015) <www.loc.gov/law/foreign-news/article/burma-four-race-and-religion-protection-laws-adopted/> accessed 10 December 2018.

26. Federal Constitution, art 11(4).

27. Lina Joy v Majlis Agama Islam Wilayah Persekutuan [2007] 4 MLJ 585 (Federal Court).

28. Menteri Dalam Negeri v Titular Roman Catholic Archbishop of Kuala Lumpur [2013] 6 MLJ 468 (Court of Appeal).

29. For an account of the constitution-making history behind art 3 of the Federal Constitution, see Dian AH Shah, Constitutions, Religion and Politics in Asia: Indonesia, Malaysia and Sri Lanka (CUP 2017) ch 2.

30. Titular Roman Catholic Archbishop (n 28).

31. Gunatilleke (n 10) xx.

32. See the discussion on the Nineteenth Amendment Bill case in Jayampathy Wickramaratne, Fundamental Rights in Sri Lanka (2nd edn, Stamford Lake Publication 2006) 933–934. The Nineteenth Amendment Bill sought to impose tighter restrictions on religious freedom by prohibiting, for eg, the conversion of Buddhists into other religions and to install Buddhism as the official state religion. See Nineteenth Amendment to the Constitution (Private Member’s Bill), Gazette of the Democratic Socialist Republic of Sri Lanka (29 October 2004), arts 9.1 and 9.5.

33. Gunatilleke (n 10) xx.

34. See Schonthal, Benjamin, ‘Securing the Sasana through Law: Buddhist constitutionalism and Buddhist-interest litigation in Sri Lanka’ (2016) 50(6) Modern Asian Studies 1966.

35. Meriéau (n 9) and Alfitri, ‘Religion and Constitutional Practices in Indonesia: How Far Should the State Intervene in the Administration of Islam?’, this Special Issue xx.

36. It is generally understood within the Muslim community that a child bearing the surname ‘bin Abdullah’ (when his father’s name is not ‘Abdullah’), is a child born out of wedlock.

37. See A Child v Jabatan Pendaftaran Negara [2017] 7 CLJ 533 (Court of Appeal).

38. Fernando Fong, ‘Home Ministry, NRD to follow National Fatwa Council’s ruling on surname of illegitimate children’ New Straits Times (Kuala Lumpur, 29 July 2017) <www.nst.com.my/news/nation/2017/07/262043/home-ministry-nrd-follow-national-fatwa-councils-ruling-surname> accessed 21 December 2018.

39. However, Pangalangan observes that there are signs of change in selected areas of law. Pangalangan (n 20) xx.

40. Alfitri (n 35) xx.

41. Shazwan Mustafa Kamal, ‘At RM810m, is Jakim’s budget bloated? New minister says no’ (Malay Mail, 7 July 2018) <www.malaymail.com/s/1649721/at-rm810m-is-jakims-budget-bloated-new-minister-says-no> accessed 21 December 2018.

42. Melissa Crouch, ‘Constitutionalism, Religion, and Inequality: Perspectives from Asia’, this Special Issue, xx.

43. ‘TH lodges police reports against former Chairman, CEOs and senior management’ The New Straits Times (Kuala Lumpur, 30 November 2018) <www.nst.com.my/business/2018/11/436156/th-lodges-police-reports-against-former-chairman-ceos-and-senior-management> accessed 20 December 2018.

44. Donald L Horowitz, ‘Democracy in Divided Societies’ (1993) 4(4) Journal of Democracy 18.

45. See Center for Policy Alternatives (CPA), ‘Attacks on Places of Religious Worship in Post-War Sri Lanka’ (CPA March 2013) 60 <www.cpalanka.org/attacks-on-places-of-religious-worship-in-post-war-sri-lanka/> accessed December 2018.

46. Gunatilleke (n 10) xx.

47. Shamshad Pasarlay, ‘Constitutional Incrementalism in a Religiously Divided Society: A Case Study of Afghanistan’, this Special Issue, xx.

48. Alfitri (n 35) xx.

49. A study finds that there are at least 400 of such shariah regulations in Indonesia. Approximately 40% of these regulations are couched in terms of regulating ‘morality’, while 60% address ‘Islamic teachings’. See Buehler, Michael and Muhtada, Dani, ‘Democratization and the diffusion of shari’a law: Comparative insights from Indonesia’ (2014) 24(2) South East Asia Research 261, 266 . See also Buehler, Michael, The Politics of Shari’a Law: Islamic Activists and the State in Democratizing Indonesia (CUP 2016) .

50. See Shah (n 29) 130–131.

* LLB (Warwick), LLM (Duke), SJD (Duke). Assistant Professor, Faculty of Law, National University of Singapore. I would like to thank Associate Professor Dan Puchniak (Director of the Centre for Asian Legal Studies), Dr Mario Gomez (Executive Director of the International Centre for Ethnic Studies), Mrs Gisela Elsner (Director of the Rule of Law Programme Asia, Konrad-Adenauer-Stiftung), as well as the CALS and ICES staff for their support and assistance in organizing the ‘Religion and Constitutional Practices in Asia’ conference in Colombo. I am also grateful for the generous financial support from CALS, and for the invaluable contributions of participants at the conference.

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Asian Journal of Comparative Law
  • ISSN: 2194-6078
  • EISSN: 1932-0205
  • URL: /core/journals/asian-journal-of-comparative-law
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