Introduction to the Politics of Religious Freedom in Malaysia
For the past several decades, Malaysian courts have stood at the center of heated debates concerning the freedom of religion. Conventional accounts trace these tensions to the rise of the religious revival movement, which has been the most dynamic social and political trend since the late 1970s. This understanding of the root problem (religious revival) and what is at stake (liberty) comes effortlessly because it matches our taken–for–granted understandings of the role of law and courts in defending fundamental liberties and sustaining secularism. But this functional understanding precludes deeper insight into how and why religious liberty cases continually crop up in the Malaysian courts.
A detailed examination of two of the most controversial cases, Lina Joy v. Religious Council and Shamala v. Jeyaganesh suggests that, far from resolving conflict, judicial systems are sometimes a primary source of tension. Instead of resolving legal questions, judicial systems can be hard-wired to produce legal controversies anew. Rather than simply arbitrating between contending parties, courts have the capacity to exacerbate ideological cleavages. And instead of assuaging uncertainties, courts can instill a tremendous degree of uncertainty, indeterminacy, and anxiety around the meaning and content of “religious freedom.” Ironically, law and courts—the very instruments charged with resolving conflict and safeguarding rights—sometimes deliver precisely the opposite result. This case study builds on the theoretical work of the Politics of Religious Freedom project to trace the life cycle of these cases and to offer a context-rich view of the legal, political, historical and institutional forces that gave rise to these cases and many others like them.
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.
The second case, 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.”
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.
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