Vol. 28 No. 7 (December 2018) pp. 97-101CONSTITUTING RELIGION: ISLAM, LIBERAL RIGHTS, AND THE MALAYSIAN STATE, by Tamir Moustafa. New York: Cambridge University Press, 2018. 206pp. Paper $29.99. ISBN: 978-1-108-43917-6
Reviewed by Steven D. Schaaf, Department of Political Science, The George Washington University. Email: stevenschaaf@gwu.edu.
How and why do debates regarding the role of religion in society end up being adjudicated in the courthouse? And what are the consequences of using law and courts to resolve religious disputes? Tamir Moustafa’s CONSTITUTING RELIGION: ISLAM, LIBERAL RIGHTS, AND THE MALAYSIAN STATE explores these questions through a rigorous analysis of the judicialization of religion in Malaysia. This book is an impressive undertaking, contributing to a diverse body of research on comparative judicial politics (Ferejohn et al 2009; Helmke and Rios-Figueroa 2011; Kapiszewski et al 2013), social and legal mobilization (Zemans 1983; McCann 1994; Anderson 2006; Arrington 2018), and the relationship between the religious and secular in social and political life (Gill 2001; Grzymala-Busse 2012; Fox 2015).
CONSTITUTING RELIGION keenly articulates a puzzle that deserves more attention in political science: in many countries, particularly majority-Muslim countries, state law and courts are used to codify religious principles, construct boundaries between religious and secular spheres, and regulate religious practice. The concept of religion broadly encompasses all “systems of beliefs or practices oriented toward the sacred or supernatural” (Smith 1996). But the courthouse is a very specific forum, one in which disputes tend to be expressed in a unique legal jargon, rendered as an adversarial conflict with a binary outcome, subject to the technicalities of judicial procedure, constrained by standards of admissible evidence, and resolved through the application of state law, rather than divine law. Hence, it is odd that courts should ever emerge as institutions for adjudicating conflicts of a sacred or supernatural nature. By investigating the judicialization of religion in Malaysia, Moustafa’s work takes an important step forward in evaluating how the judicial toolkit lends itself to construing and resolving sensitive political and social disputes.
Moustafa theorizes that religion becomes most heavily judicialized under the following conditions: (1) religion is tightly regulated – with the implication being that such regulations are established through law; (2) judicial empowerment and public access to the judiciary are high; (3) constitutions make dual commitments to both religion and liberal rights; and (4) different legal regimes apply to different communities. Of course, CONSTITUTING RELIGION is a theory-building project, not one that aims to test each of these conditions empirically (p. 63). The main strength of the book is Moustafa’s detailed and contextualized analysis of the Malaysian case; the theory it develops is heavily attuned to Malaysian history and the complexities of Malaysia’s political environment. But some of this theoretical richness becomes blurry when the insights Moustafa derives from the Malaysian case are conceptualized in more general – and generalizable – terms.
For instance, when stated broadly as an independent variable, the first factor promoting the judicialization of religion appears a bit too on-the-nose. If religion is tightly regulated by law, it seems apparent that the judiciary – being charged with interpreting and applying state law – should be more active in religious affairs. At the same time, Moustafa’s analysis of the Malaysian case does quite a bit more than say “the legalization of religion facilitates its judicialization.” In fact, some of CONSTITUTING RELIGION’s most compelling insights come from explaining how religion came to be so heavily regulated by Malaysian law in the first place.
In Chapter Two, Moustafa traces the legal regulation of religion and the centralization of [*98] religious authority in the Malaysian state back to institutions originally established in the British colonial period. This chapter includes a fascinating discussion of how after independence, the Malaysian state repackaged “Anglo-Muslim law” and “Muslim courts” inherited from colonial times as “Islamic law” and “Sharia courts” even though such institutions were originally defined by their application to Muslim subjects as opposed to their roots in the Islamic Sharia (p. 38). Moustafa’s analysis shows that explaining the judicialization of policy often requires delving far into the past, charting how legal institutions created in one period can outlive the rulers or regimes under which they first emerged, and grow to acquire new – frequently unintended – political roles. In this sense, CONSTITUTING RELIGION has much in common with scholarship on historical institutionalism in political science (Steinmo et al 1992; Thelen 2003; Hacker 2004; Hall 2010), though it does not engage with this literature directly, perhaps missing an opportunity to expand its audience and scholarly contribution.
Chapter Three explores Malaysia’s development in two areas: (1) dual constitutional commitments to both religion and liberal rights; and (2) a bifurcated judicial system, with separate courts dealing with personal status law for Muslims and non-Muslims. Each of these factors, which Moustafa theorizes as increasing the judicialization of religion, is also shown to have a long and quite contingent historical trajectory. Constitutional compromises made in the 1950s, for instance, resulted in a legal framework that enshrined individual rights alongside the communal rights of religious groups. Moustafa contends that – despite their original intent – such compromises “sowed the seeds for protracted legal battles decades later” (p. 57). CONSTITUTING RELIGION further traces the establishment of separate personal status courts for Muslims and non-Muslims back to agreements made between the British and Malay Sultans in the 19th century, which were later incorporated into the Malaysian Federal Constitution. Even the legal definition of Malay citizens as Muslims, which determines the population over which the Sharia courts exercise jurisdiction, has its origins in land laws legislated by the British in the early 1900s (p. 50).
Moustafa’s deep dive into the historical evolution of Malaysian legal institutions provides a refreshing alternative to functionalist theories of comparative judicial politics. Rather than assuming the political role of the judiciary is the result of intentional and strategic institutional design, CONSTITUTING RELIGION shows how the judicialization of religion in Malaysia is a rather unexpected byproduct of the evolution, drift and repurposing of legal institutions that emerged decades – sometimes centuries – in the past (Streeck and Thelen 2005).
Having established the historical context through which religion in Malaysia became so highly legalized and judicialized, Chapter Four analyzes a series of Malaysian court cases to illustrate what the judicialization of religion looks like in practice. Once judicialized, religious disputes in Malaysia are dealt with not as conflicts over the supernatural or divine, but rather as matters of state law and bureaucratic regulation. In Moustafa’s account, questions of religious doctrine are generally less important to Malaysian courts than identifying which judicial body ought to exercise jurisdiction over a case, and whether litigants in the case followed appropriate administrative procedures (such as receiving Sharia Court approval to certify conversion out of Islam). Hence, judicializing a religious dispute often entails translating that dispute into non-religious terms and having it resolved according to state regulations and legal technicalities instead of religious principles.
At first glance, technicalities of law and judicial procedure may appear mundane or unconnected to the issues that most interest political scientists. CONSTITUTING RELIGION demonstrates that this is not the case. Individuals who use the judiciary to remedy their grievances or pursue their rights must first be able to articulate their claims in a way that the courts deem justiciable. Moustafa shows that sometimes, the peculiarities of judicial procedure make this an impossible task. In the case of SHAMALA V. JEYAGANESH, for example, rules of jurisdiction prevented Shamala [*99] Sathiyaseelan from using the civil courts to nullify the conversion of her children from Hinduism to Islam, as the High Court ruled the case could only be filed in the Sharia judiciary. At the same time, rules of standing prohibited Sathiyaseelan from filing such a case in the Sharia courts because she was not herself a Muslim (p. 87). CONSTITUTING RELIGION draws attention to the possibility that even in conditions of high judicial independence and empowerment, legal technicalities and judicial red-tape may preclude individuals from resorting to the courts to correct breaches in the rule of law or prevent the violation of individual rights. This is a significant insight, which merits further consideration in scholarship on the enforcement of legal and constitutional rights, the development of rule of law, and the judicialization of political and social issues.
The consequences of adjudicating religious conflicts in the courts extend beyond simply interpreting them in legal-bureaucratic terms. Extending prior work on legal mobilization (Zemans 1983; McCann 1994; Aks 2004; Anderson 2006), Chapter Five illustrates how the litigation of religious disputes in Malaysia often serves as a focal point for broader movements of political activism and contestation. Liberal rights activists and religious conservatives mobilized around religious lawsuits to push for broader legal and political reforms. This observation alone establishes an important link between the judicialization of politics and the dynamics of political contention (Tarrow 1994; McAdam et al 1996; McAdam et al 2004). But Moustafa goes a step further, demonstrating that the way religious disputes are rendered in the courthouse can also affect how religious claims are perceived by the public and articulated by activists and civil society groups.
CONSTITUTING RELIGION shows that in Malaysia, litigation involving religious disputes is generally interpreted by the public in terms of a zero-sum dichotomy between liberal rights and religious rites. And the political and social activism that coalesced around these disputes constructed a similar “rights versus rites” binary (p. 91). While conflict between religious doctrine and liberal rights is neither inherent nor essential, Moustafa finds that the judicialization of religion played an important role in constituting the two as adversarial in the Malaysian public sphere. This is due to a confluence of factors, notably: (1) the tendency for courts to define and adjudicate disputes as binary conflicts; (2) the adversarial positioning of guarantees for individual rights and protections for religious groups on opposite sides of litigation; and (3) an ambiguous division of jurisdiction between Malaysian civil courts and Sharia courts, which mapped religious lawsuits onto a sensitive structural tension between secular and religious law.
Moustafa’s work reveals that the judicialization of religion in Malaysia has impacts that extend far beyond the courthouse itself. Through the course of litigating religious claims, actors who lack any significant religious expertise – judges, lawyers, litigants, etc. – actively deploy state law to construct and define the boundaries of broader religious conflicts, often in patently non-religious terms (p. 122). In this way, the judicialization of religious disputes can feed back into the way these disputes are politicized in society at large. This in turn affects how the public understands sensitive religious issues, whether social movements coalesce around those issues, and how activists articulate their grievances and goals. Courts can sometimes be black boxes, with internal procedures that are either invisible, incomprehensible or unimportant to non-legal actors. But as CONSTITUTING RELIGION demonstrates, they can also serve as forums for constituting, reshaping and transmitting the policy issues they adjudicate throughout the public sphere.
Moustafa is upfront in acknowledging the limitations of generalizing his conclusions beyond the Malaysian case (p. 10). Yet, CONSTITUTING RELIGION highlights a number of questions that present fruitful avenues for future cross-national research: Which areas of domestic policy get judicialized and which do not? When and how does the historical evolution of legal institutions affect the judicialization of politics? How does variation in judicial structures and procedures affect the way [*100] different policy conflicts are articulated and resolved in the courthouse? And under what conditions can court cases and verdicts affect broader processes of social and political mobilization? CONSTITUTING RELIGION represents a thorough and engaging exploration of these questions in the context of Malaysia, which will prove informative to readers interested in political science, law and courts, Islam and liberal rights, and religious contention.
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CASES:
SHAMALA SATHIYASEELAN V. DR JEYAGANESH C MOGARAJAH & ANOR. 2 MALAYSIAN LAW JOURNAL 2004: 648-660.
© Copyright 2018 by author, Steven D. Schaaf.
