Case Names: Lina Joy v. Religious Council of the Federal Territories, Shamala v. Jayaganesh
Contributing Author: Tamir Moustafa
Synopsis: This module contains the text and analysis of two of the most controversial judgements in contemporary Malaysia. Historical context and legal/political analysis help to make sense of the origin and evolution of the cases, from the court of law to “the court of public opinion.”
Summary: Tamir Moustafa’s case study on the Lina Joy and Shamala v. Jayaganesh cases illustrates the complex and often surprising ways that majority and minority groups both assert claims to religious freedom and how particular legal and normative arrangements internal to liberal rights discourse often exacerbate rather than resolve the frequency and intensity of these legal dilemmas.
Introduction to the Politics of Religious Freedom in Malaysia: follow this link for a more complete introduction to Politics of Religious Freedom in Malaysia.
Lina Joy v. Religious Council of the Federal Territories lasted for nearly a decade and became a public spectacle at home and abroad. The case concerned a woman who sought state recognition of religious conversion. In litigating Joy’s right to religious freedom, her attorneys argued restrictions on conversion violated her right to religious freedom, a right enshrined in Article 11 of the Malaysian Constitution, which states (in part) that “Every person has the right to profess and practice his religion….” But Joy’s opponents invoked another clause from the same article, which states that “Every religious group has the right…to manage its own religious affairs….” This second set of attorneys also claimed the right to religious freedom, but they argued that Article 11 is meant to safeguard the ability of religious communities to craft their own rules and regulations free from outside interference, including rules of entry and exit.
Shamala v. Jayaganesh concerned a custody battle over children in the aftermath of a husband’s conversion and divorce. The husband and wife fell under different court jurisdictions following the conversion and they each managed to secure custody orders from these alternate jurisdictions which came to opposite conclusions about the custody of the children. Worse still, neither parent was able to contest the competing court order directly as the result of legal standing requirements. As with Lina Joy, Shamala v. Jayaganesh produced a political crisis and became a focal point for competing politicians and civil society groups, each rallying around the banner of “religious liberty.”
Context-Sensitive Analysis of the Cases:
- Tamir Moustafa, “The Politics of Religious Freedom in Malaysia” Maryland Journal of International Law, vol. 29 (2014) 468-491.
Tamir Moustafa’s article, “The Politics of Religious Freedom in Malaysia” provides the historical and institutional context to make sense of these cases. He shows that the show that the politics of religious freedom in Malaysia has little to do with “religion” per se, and far more to do with specific institutional features of the Malaysian judiciary and the ambiguities of “religious freedom.” Through an examination of the juridification of religious law and the institutional development of the Malaysian judiciary, he show that the root causes of these controversies are not of recent vintage, but rather were set in motion under British colonial rule more than a century ago.
Background on Religious Tradition
- Charles Hirschman, “The making of Race in Colonial Malaya: Political Economy and Racial Ideology,” Sociological Forum, Volume 1, Issue 2 , pp 330-361.
Historical background on the creation of racial/religious categories of law in colonial Malaysia.
- Tamir Moustafa, “Judging in God’s Name: State Power, Secularism, and the Politics of Islamic law in Malaysia,” Oxford Journal of Law and Religion, Vol. 3, No. 1 (2014), pp. 152–167
Historical background on the codification and institutionalization of Islamic law in Malaysia.