The Politics of Religious Freedom in Malaysia
Maryland Journal of International Law, Vol. 29 (2014) 468-491
24 Pages Posted: 30 Sep 2014
Date Written: 2014
Abstract
For the past several decades, Malaysian courts have stood at the center of heated debates concerning freedom of religion. Conventional accounts trace these tensions to the rise of the dakwah (religious revival) movement, which has been the most dynamic social and political trend since the late 1970s. According to this understanding, legal controversies around religious freedom are the result of a clash between competing ideological trends — specifically, a standoff between an ascendant religious movement and a liberal legal order. In this view, conflict is understood as originating from outside the courts. And, framed this way, the question that naturally follows is whether the courts have the ability and resolve to uphold religious liberty, or if they will succumb to popular political pressure. 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.
In general terms, courts are widely understood by scholars, practitioners, and the public at large as institutions that resolve conflict and safeguard fundamental rights such as freedom of religion. But this functional understanding precludes deeper insight into how and why religious liberty cases continually crop up in the Malaysian courts. I suggest that far from resolving conflict, the judicial system is itself a primary source of tension. Instead of resolving legal questions, the judicial system is hard-wired to produce legal controversies anew. Rather than simply arbitrating between contending parties, courts exacerbated ideological cleavages. And instead of assuaging uncertainties, courts in Malaysia repeatedly 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 — repeatedly deliver precisely the opposite result.
In the analysis that follows, I examine two recent cases to show that the politics of religious freedom in Malaysia has little to do with “religion” and far more to do with the inherent ambiguities of religious liberty, coupled with specific institutional features of the Malaysian judiciary. Through an examination of the juridification of religious law and the institutional development of the Malaysian judiciary, I 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.
Keywords: Malaysia, freedom of religion, secularism, religion, Islamic law, liberal rights
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