Malaysia and Indonesia are the two biggest Muslim-majority countries in Southeast Asia. The ways in which their respective constitutions address the majority religion (Islam), however, are very different. The Federal Constitution of Malaysia provides Islam as the ‘religion of the Federation’, while in Indonesia, a special constitutional recognition for the majority religion was explicitly rejected during the constitution-making process. Instead, the religion clause provides that the state is ‘based on the belief in the one and only God’. Malaysia institutionalized a federal arrangement in matters implicating Islam – individual states in the Federation retain a measure of autonomy in legislating, regulating and administering Islamic law. On the contrary, religious affairs in Indonesia remain under the jurisdiction of the national government. This paper interrogates the relationship between constitutional design, religious pluralism and its impact on religious freedom.
In the past decade, the Supreme Court of Pakistan (SCP) has dealt with several blasphemy cases. In many cases, the person accused of blaspheming is murdered by vigilantes. In some cases, the killers appeal their sentences on the basis that avenging blasphemy is a religious duty, immune to punishment. In this paper, I examine why courts capitulate to populist demands to spare the life of convicts in some cases, while in other cases they do not. I argue that courts reject appeals to Islam as a broad legal principle when such appeals undercut the state’s monopoly to speak authoritatively about Islam and undermine its authority to delineate the role of Islam in the constitutional system. Through an examination of two high-profile blasphemy- related cases, I demonstrate that the SCP has effectively nullified recent attempts to invoke religious legal arguments. In doing so, I argue that the SCP has advanced a new narrative about the limits of Islamic provisions of Pakistan’s constitution.
During Fiji’s 2012 constitution-drafting process, the Christian State debate repeated as a site of public division. Whereas the constitution commission, the military regime, liberal Christians and Hindu and Muslim Indo-Fijians argued a secular state was necessary to secure political equality and freedom to all Fiji’s citizens, many indigenous iTaukei demanded the establishment of Christianity as the national religion. Yet in the public hearings, it was often the term ‘secularism’ itself that prevented dialogue and entrenched a mutual suspicion. This is because in Fiji ‘secularism’ is contronymic. It refers to (at least) two separate meanings that are contradictory: secularism-as-fairness and secularism-as-materialism. Arguments would rage about ‘secularism’ and yet often they were at entirely crossed-meanings. Moreover, it was often to the political advantage of elites on either side, secularists and nationalists, to perpetuate this contronymic confusion.
In the works of 18th century comparative constitutional lawyer Montesquieu, the existence and use of lese-majeste laws was the ultimate marker of “oriental despotism”. Today, lese-majeste laws remain in use in various Southeast Asian countries to protect sacred monarchs, most prominently so in Thailand, but also in Brunei or Malaysia – and it was recently introduced in Cambodia. This paper seeks to explore the relationship between Lese-majeste and sacred Kingship in Southeast Asia, and reflect on possible distinctive “Southeast Asian” characteristics of such relationship.
Since 2006, Thailand’s democracy has been in serious decline. Political power is allocated to a small elite whose control of Thai politics become increasingly pervasive and entrenched. Thailand’s constitutional design is influenced by two forces; the liberal democratic ideas and the traditional Buddhist values. And the latter is prevailing over more recent developments. Buddhism is not, contrary to conventional wisdom, ascetic and otherworldly. Actually, it contributes significantly to illiberal elements of Thai constitutional law. This article attempts to understand the influence of Buddhism through, first, Buddhist theologies, and second, the Sangha.