Constitutionalizing Religion and Religious Freedom: A Comparative Study of Indonesia, Malaysia, and Sri Lanka
Date of Award
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
This dissertation examines how and when constitutions may support or undermine the protection of religious freedom in Indonesia, Malaysia, and Sri Lanka. The constitutional arrangements on state-religion relations and religious freedom vary across all three countries under study, but so does the degree of religious freedom violations. For example, in Indonesia and Sri Lanka, there have been violent incidents of societal abuses of religious freedom resulting in deaths, serious physical injuries, and property destruction. Such incidents are uncommon in Malaysia. By contrast, state-enforced restrictions on religion and religious freedom have been more prominent in Indonesia and Malaysia than in Sri Lanka. In all three countries, however, there are instances in which particular constitutional provisions have been invoked to justify, directly or indirectly, violations of religious freedom, especially where minorities are implicated. For instance, in Indonesia, a law that criminalizes ‘deviant’ religious practices and interpretation was justified to advance the values of the Pancasila’s principle of the belief in the one and only God; in Malaysia, there is a growing body of case laws that approve the notion that the constitutional establishment of Islam as the state religion trumps the exercise of religious freedom.
Cases like these illustrate that there has been a divergence from the spirit, purpose, and original understandings behind the constitutional arrangements adopted in all three countries. What explains these trends and the malleability of constitutional provisions guaranteeing the right to religious freedom? This dissertation offers two main arguments. First, the existence of strong political institutions – namely, the judiciary and the executive – that are independent, impartial, and committed to the rule of law is central to the protection of religious rights. The second argument centers on the role of electoral politics. This dissertation shall demonstrate that the lack of political incentives for the protection minorities, exacerbated as it were by the political manipulation of religion, may shape how ruling governments and political parties respond to religious freedom violations.
Shah, Dian Abdul Hamed, Constitutionalizing Religion and Religious Freedom: A Comparative Study of Indonesia, Malaysia, and Sri Lanka (2014) (unpublished S.J.D. dissertation, Duke University School of Law)
Library of Congress Subject Headings
Freedom of religion, Constitutional law