Constituting Religion: Islam, Liberal Rights, and the Malaysian State (eBook)

TAMIR MOUSTAFA is Professor of International Studies and Stephen Jarislowsky Chair at Simon Fraser University in Vancouver, Canada. His research stands at the intersection of law, religion, and politics. Among other work, he is the author of The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge, 2007) and he is the co-editor of Rule by Law: The Politics of Law and Courts in Authoritarian Regimes with Tom Ginsburg (Cambridge, 2008).

Cambridge University Press (First Edition, 2018)
187 pages


Most Muslim-majority countries have legal systems that enshrine both Islam and liberal rights. While not necessarily at odds, these dual commitments nonetheless provide legal and symbolic resources for activists to advance contending visions for their states and societies. Using the case study of Malaysia, Constituting Religion: Islam, Liberal Rights, and the Malaysian State examines how these legal arrangements enable litigation and feed the construction of a ‘rights-versus-rites binary’ in law, politics, and the popular imagination. By drawing on extensive primary source material and tracing controversial cases from the court of law to the court of public opinion, this study theorizes the ‘judicialization of religion’ and the radiating effects of courts on popular legal and religious consciousness. The book documents how legal institutions catalyze ideological struggles, which stand to redefine the nation and its politics. Probing the links between legal pluralism, social movements, secularism, and political Islamism, Constituting Religion sheds new light on the confluence of law, religion, politics, and society.

Over half of all Muslim-majority countries have constitutions that proclaim Islam the religion of state. Many also require that state law adhere to Islamic law. For instance, the Malaysian Constitution declares that “Islam is the religion of the Federation. …” The Constitution of Pakistan goes further by requiring that state law conform to “the injunctions of Islam as laid down in the Holy Quran… .” And the Egyptian Constitution affirms that “Islam is the religion of the state… and the principles of Islamic jurisprudence are the chief source of legislation.” These sorts of provisions are not likely to change anytime soon. In fact, all the constitutions written in Muslim-majority countries since the turn of the millennium—including those of Afghanistan (2004), Iraq (2005), Somalia (2012), Egypt (2012, 2014), Libya (2013), and Tunisia (2014)—declare Islam the religion of the state. Most of these countries also have substantive laws and regulations that claim fidelity to Islam. This is most common in Muslim family law, but state claims to Islam sometimes extend to other areas, such as criminal law. Whether by way of constitutional proclamations or substantive laws, Muslim-majority states have endeavored to “constitute” Islam.

At the same time, most of these legal systems contain provisions that one expects to find in a liberal legal order, including constitutional guarantees for civil liberties, religious freedom, and equal rights before the law. These dual commitments to Islam and liberal rights are not necessarily at odds. With multiple schools of Islamic thought and jurisprudence, and an ever-expanding corpus of substantive legal opinions, the Islamic legal tradition is diverse, open-ended, and is by no means locked in an inevitable tug-of-war with liberal rights. Moreover, the Islamic legal tradition is only one facet of a complex and multi-layered religious tradition. Nevertheless, dual commitments to Islam and liberal rights provide vital resources—both legal and symbolic—for those who wish to advance contending visions for their states and societies. In diverse contexts, from Egypt to Malaysia to Pakistan, activists have seized upon state religion clauses to push for a more expansive role for Islam in the political order, even while other activists challenge the laws that are legislated in the name of Islam. The result is a “judicialization of religion,” which the author define as a circumstance wherein courts increasingly adjudicate questions and controversies over religion.

Academic and popular accounts tend to frame these struggles as the product of a collision between ascendant religious movements and liberal legal orders. In other words, conflict is understood as originating from outside the legal system. This conception of the problem (religion) and what is at stake (liberty) comes easily because it aligns with the prevailing notion that courts serve as defenders of fundamental liberties and strongholds of secularism. This common assumption is made explicit in one of the most ambitious book-length studies on the topic, Ran Hirschl’s Constitutional Theocracy. Hirschl contends that constitutional review provides an important bulwark against a worldwide trend towards religiosity. He explains that “constitutional law and courts… have become bastions of relative secularism, pragmatism, and moderation, thereby emerging as effective shields against the spread of religiosity and increased popular support for principles of theocratic governance”. Hirschl’s thesis reflects a conventional wisdom that courts safeguard secularism, resolve conflict, and protect fundamental rights.

In contrast with this expectation, a central argument of this book is that legal institutions play important roles in constituting struggle over religion. As suggested in the opening paragraph of this book, the leaders of most Muslim-majority states have sought to constitute Islam by way of state law to harness the legitimating power of Islamic symbolism. But rather than unequivocally shoring up state legitimacy, these provisions frequently open new avenues of contestation.

Building on recent work from socio-legal studies, religious studies, and comparative judicial politics, Constituting Religion examines the judicialization of religion and, crucially, the radiating effects of judicialization on political life. Constituting Religion shows that, far from consistently resolving disputes and defending liberties, legal institutions can intensify controversy and augment ideological polarization. Explanations that start and end with the “problem” of religion, without examining the intervening work of law and courts, will fail to appreciate these conflict-generative functions. Simplified explanations that lay blame on a reified “religion” will fail to grasp the myriad ways that the state is itself implicated in the politics of religion and in modern constructions of religion more generally. Law and courts do not simply stand above religion and politics. Instead, they enable and catalyze ideological conflict. An important objective of Constituting Religion is to make visible the role of courts in constituting the very ideological conflicts that they are charged with resolving. This objective encourages reflection on deeply held assumptions about religion as a perennial troublemaker, and deeply rooted expectations about the role of law vis-à-vis religion. This focus on legal institutions is not meant to minimize the ideological cleavages that have gripped many Muslim-majority countries over the place of religion in the legal and political order. Rather, it is to better understand the role of modern law in catalyzing and fueling those struggles.

Constituting Religion departs from conventional accounts of the law-religion-politics nexus by theorizing the interface between courts and the broader social and political domains in which they operate. This focus on the “radiating effects” of courts contributes to a number of research agendas at the intersection of law, religion, and politics. Here the author wish to highlight two bodies of work in particular: studies of Islamist mobilization and legal studies at the intersection of law and religion. Regarding studies of Islamist mobilization, the lion’s share of scholarly attention is focused on the electoral arena. This attention to electoral politics may spring from a scholarly interest in the way that political participation shapes the trajectory of Islamist parties. And it likely reflects scholarly interest in challenging the “one-man, one-vote, one-time dilemma” that casts a shadow over policy discussions. The relative neglect of law may also stem from an assumption that courts serve as little more than window dressing in Muslim-majority contexts. Whatever the reason, research on Islamist mobilization has paid insufficient attention to courts as a political forum. Among the studies of Islamist litigation that do exist, ideological formation is typically assumed to occur prior to (and exogenous from) engagement with legal institutions.

There is a different lacuna in legal scholarship on the subject. Here, research examines the proliferation of “religion of the state” clauses, or the various ways that courts work to negotiate and reconcile constitutional commitments to both Islam and liberal rights. These doctrine-centric and court-centric approaches are valuable. However, they leave the radiating effects of law almost entirely unexplored. In contrast, this book considers the ways that courts serve as important sites of ideological formation. Beyond the direct legal impact of judicial decisions, Constituting Religion examines the ways that courts provide a platform from which activists can challenge the status quo, attract public attention, and assert broad claims about Islam, liberal rights, and the role of the state.

The arguments developed here are relevant to the experience of many countries, but the author ground a more general theory of the judicialization of religion through a detailed examination of the Malaysian case. Why? Because Malaysia has one of the most tightly regulated religious spheres in the world. The country offers a clear example of the way that leaders of many Muslim-majority states have sought to define and regulate religion through law, and it provides a cautionary tale of the unintended consequences of those efforts. Malaysia provides a striking example of how judicialization can construct religion and liberal rights as binary opposites.

Long defined by its ethnic cleavages, Malaysian politics is increasingly divided by questions and controversies over religion. Tensions have simmered for decades, but a series of high-profile court cases, beginning in 2004, pit the jurisdiction of state-level shariah courts against the federal civil courts. Each of these court cases—dealing with issues of religious conversion, divorce, and child custody—as significant in a legal sense, but their collective impact was felt most strongly outside the courts. The cases generated a flood of media coverage, and they became important focal points in a fierce national debate. Competing groups of lawyers, judges, politicians, media outlets, and civil society groups channeled public discourse into two competing frames. Liberals presented the cases as grave challenges to the authority and position of the civil courts, which they cast as the last bastion for the protection of liberal rights vis-à-vis the dakwah (religious revival) movement. Conservatives, on the other hand, framed the cases as grave threats to the authority and position of the shariah courts, which they cast as the last bastion of religious law vis-à-vis the secular state. Each claim was a mirror image of the other. These “injustice frames” resonated with different constituencies and exacerbated longstanding grievances, even as they shifted political identities and loyalties in new directions.

Academic treatments of these developments nearly always assume a liberal/secularist frame. That is, controversy is attributed to the dakwah movement, the most dynamic social and political trend in Malaysia since the 1970s. While the dakwah movement is certainly an important part of the story, this book suggests a different point of origin: the formulation of “Anglo-Muslim” law in British Malaya. A direct legacy of this legal regime is that state-level shariah courts administer Anglo-Muslim law for Muslims on select matters such as family law, whereas the federal civil courts administer the common law. This bifurcated legal order is premised on a clear division of jurisdiction between federal civil courts and state-level shariah courts. But given the complex social realities of a multi-ethnic and multi-religious society, this legal framework began to produce vexing conundrums.

Shamala v. Jeyaganesh provides a striking example of these difficulties. This case, litigated between 2003 and 2010, concerned a Hindu couple who had been married under the Marriage and Divorce Act, the statute that regulates non-Muslim marriages in Malaysia. Shamala and Jeyaganesh had two children together, but a few years into the marriage Jeyaganesh left Shamala and converted to Islam. As a Muslim, Jeyaganesh was now subject to the jurisdiction of the shariah courts. As a non-Muslim, Shamala remained subject to the jurisdiction of the civil courts. Each managed to secure interim custody orders from these alternate jurisdictions, but the court orders came to opposite conclusions: the shariah court awarded custody of the children to Jeyaganesh, while the civil court awarded custody of the children to Shamala. To make matters worse, because official religious status determines which court one can use, neither parent could directly contest the competing court order. This absurd situation was the beginning of an epic legal battle that remained in the courts—and in the press—for years. The case turned on technical issues of court jurisdiction, rules of standing, and other features of Malaysian judicial process. When discussed by activists and politicians, however, the cases were presented as a zero-sum conflict between religious law and secular law.

As a direct result of Shamala v. Jeyaganesh, liberal rights groups formed a coalition to rally against the erosion of civil court jurisdiction and to “ensure that Malaysia does not become a theocratic state.” Not long after, a broad array of over fifty conservative NGOs united in a countervailing coalition calling itself Muslim Organizations for the Defense of Islam (Pertubuhan-Pertubuhan Pembela Islam) or Defender (Pembela) for short. In its founding statement, Pembela announced that it was mobilizing to defend “the position of Islam in the Constitution and the legal system of this country.” Both coalitions worked tirelessly to lobby the government and to shape public understanding of what was at stake in Shamala v. Jeyaganesh and in dozens of other cases. The two sides found agreement only in the proposition that Malaysia faced a stark choice between secularism and Islam, between rights and rites.

Each side derived legitimacy, purpose, and power from an oppositional stance vis-à-vis the other. Liberal rights activists rallied supporters by sounding the alarm that secularism was under siege and that Malaysia was on the way to becoming an Islamic state. On the other side, conservative organizations rallied support by contending that liberal rights groups wished to undermine the autonomy of the shariah courts and that they worked in cooperation with foreign interests that were intent on weakening Islam. Both groups told the public that Islam and liberal rights were incompatible, and that Malaysians must stand for one or the other. These efforts worked to (re)constitute popular understandings of Islam, liberal rights, and their imagined relationship to one another—this time in starkly adversarial terms.

Constituting Religion drills deep into the Malaysian experience to trace when, why, and how a sharp rights-versus-religion binary emerged, first within the legal system, and subsequently radiating outwards through political discourse and popular legal consciousness. By tracing the development of this spectacle, Constituting Religion shows that the dichotomies of liberal rights versus Islamic law, individual rights versus collective rights, and secularism versus religion are contingent on institutional design and political agency. Malaysian law and legal institutions produced vexing legal questions, which competing groups of activists transformed into compelling narratives of injustice. Examining the legal, political, and social construction of these binaries is not to minimize their significance. On the contrary, this book aims to show how these constructions facilitate the political agenda of some actors while they disempower others, shaping the terms of debate around a host of important substantive issues.

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