All across Asia, it seems as though individuals are defined by the religious community to which they belong. In Europe, the traditional view was set out by Clermont-Tonnerre during the French revolution, where he famously said that nothing would be given to the Jews as a nation, but everything would be given to them as individuals.Footnote ¹ In Asia, however, this approach is hardly practicable – indeed, it is barely even comprehensible. In many ways, the increasing tendency towards identity being expressed in religious terms has substituted for, or actually perhaps added to, ethnicity as a defining factor in a region already known for its extreme diversity. Ethnic differences are toxic enough, but adding religion to the mix makes them potentially highly dangerous. Religion is therefore a powerful force that can dictate the outcomes of conversations about rights in general (not just freedom of religion but, for example, freedom of assembly and association, entitlement to education, or the use of a language), as well as how constitutionalism itself is conceptualized.

At the very moment our deliberations proceeded in Colombo, news came through of a decision by the Indonesian Constitutional Court that awarded to indigenous communities a constitutional right of freedom to practise their animistic religions.Footnote ² This occurred in a society that – although ostensibly secular officially – recognizes six religions and (now) animism. Thus, in this example, the status of an entire community, or rather, a group of communities, is being defined by religion, as opposed to, say, culture, land rights, or political representation. It is a potent example of why law-and-religion studies are so important for constitutionalism in Asia. We have to examine carefully the relationship between religion and the constitution in order to make sense of almost anything having constitutional significance. This is what was attempted in the discussions in Colombo, and in this commentary my purpose is to strike what I hope is a helpful stance towards the many interesting and valuable things that were said on this subject.

As is often the case with this kind of discussion, there was a fascinating tension between what was asked by the convenors and how that was interpreted or handled in the particular context of the subject matters of the various contributions. Arif Jamal was right to stress in his comments that context is all-important.Footnote ³ It is only by looking at the questions posed in different contexts that we can properly formulate the questions that led us to these contexts in the first place. The conference concept note, for example, made mention of the heuristic device of ‘formal legal contests’ as a way of flushing out the manner in which constitutions deal with religion. This is reasonable in the sense that if we look at litigation, we ought to find already prepared for us by lawyers and judges careful and extensive reasoning concerning the issues in which we are interested in. The causation and the logic are on the face of the record: constitutional provisions are interpreted in a particular manner, having a specific impact on a religious community or communities. And we might well assume that what comes to litigation is a fair reflection of what society comes to experience as a set of typical problems. What goes around comes around.

Of course, there may be more going on than is set out on the face of the record, and there may be constitutional positions on which we can only speculate. For example, when we debate the basic structure doctrine, do we assume that this basic structure includes religion? Matthew Nelson’s contributionFootnote ⁴ addresses this issue in relation to India and Pakistan, but he also seeks to apply the arguments to Sri Lanka. In a similar vein, Ameya Balsekar interrogates the relationship between constitutional order and religion in India in light of religious tensions.Footnote ⁵ In Eugénie Mérieau’s assessmentFootnote ⁶ of Thailand we see how, despite the absence of any overt provision entrenching Buddhism as the national religion, the influence of Buddhism on the state and constitution as a lived experience is indisputable.

As an example of the operation of context, in Dian AH Shah’s assessmentFootnote ⁷ of Malaysia we find a cluster of cases concerning custody applications in the context of conversion to Islam of one spouse to a marriage, the question being, what effect does that have on the religion of the children and in turn, on the custody rights of the spouses in a divorce situation? This, in turn, implicates the major issue of the jurisdiction of the Syariah courts in relation to the civil courts, a pressing and peculiarly Malaysian question. In Rehan Abeyratne’s contribution,Footnote ⁸ on the other hand, we find a discussion of educational rights, which are never far away from inter-religious disputes. By looking at these cases, we find some answers, albeit problematical ones, to the issue of inter-religious relations under constitutional government. This issue is gone into at greater length in relation to Malaysia, Indonesia, and Sri Lanka in Dian AH Shah’s book that was also launched on this occasion.Footnote ⁹ Benjamin Schonthal’s book on Sri LankaFootnote ¹⁰ was also launched, and it too takes formal legal contests to mean litigation regarding religious rights and examines those for answers about the constitutionalization of religious rights.

This approach does not, however, work for all jurisdictions, and rather than being forced into answering what might have seemed either irrelevant or lacking in explanatory potential, other papers presented at the conference pursued diverging avenues of inquiry in their search for explanatory traction. These may or may not have a solid connection to the idea of ‘formal legal contests’ in the sense outlined above. This idea makes a number of assumptions. The first is that such contests typically take place in the courts. The second is that, as such, they reveal the state’s formal reasoning concerning religious status and the incidents thereof. In a common law country, this may well be so; but in a civil law country where judicial reasoning may be more limited, it may well not be so, notwithstanding the Indonesian case referred to above.Footnote ¹¹ Similarly, in a transitional country with weak judicial processes such as Myanmar,Footnote ¹² we may well have to look for other heuristic devices or even frame the questions quite differently.

For these reasons, some contributions have focused on what seemed to be more relevant in the particular context. Thus, Alfitri’s articleFootnote ¹³ on Indonesia takes another approach of asking how far the state does, or should, regulate the details of Islamic religious compliance. What, he asks, determines and justifies the extent of penetration of state regulation of religion? Why are some things regulated (for example, halal certification) while others (for example, riba – the charging of interest) are not? And, why are some religions assisted (for example, financial provision for the hajj) while others are not? Given the fact that six religions are recognized, with Islam having prominence only because 85 per cent of Indonesians are Muslims – a fact that is not really reflected in the Indonesian constitution – why are other religions not subject to regulation? We could of course ask such a question right across the board – that would be one valid heuristic device. We could ask what the state regulates and why it does so? We could also ask what the juridical basis is for such regulation. In Jaclyn Neo and Arif Jamal’s contributionFootnote ¹⁴ on Singapore, we find what it looks like if the state is prepared to go far in regulating religious expression in ways that might seem to some to be contrary to the freedom of expression. Yet, given that Singapore has more religions represented in its population than any other country in the world, lessons may be drawn from this example of how to prevent, rather than resolve, conflict.

Similarly, Pham Thi Thanh Huyen’s assessment of VietnamFootnote ¹⁵ deals with quite a different context, but it is also concerned with how the state regulates religion; in her analysis, we find the state having to decide how to categorize – for bureaucratic purposes – the adherents of a particular local sect, the Bani. Nyi Nyi Kyaw’s evaluationFootnote ¹⁶ of Myanmar takes a much broader view, looking at the problematical relations between Islam and Buddhism, but also zeroes in on the enactment of laws that entrench Buddhism within Myanmar’s family-law system. Here, the legal contest is formal in the sense of relating to written law, but also informal in the sense of relating to societal relations more generally. The latter type of contest is assumed to explain the former.

Looking broadly, therefore, at how the authors’ remit has been interpreted in this exercise I discern four different approaches. These naturally overlap to some extent in some of the contributions.

The first is to look at religious litigation and how it deals with pressing issues of religion and constitutional rights and status. A second is to look at informal legal contests – contests that take place outside the process of litigation, for example in a constitution-making process, as evidenced in the contributions on Myanmar, Afghanistan, Sri Lanka, and the Maldives.Footnote ¹⁷ Here, we might try to explain why litigation is not the preferred process for resolving the issues. A third approach is to examine state regulation in the administrative sense, as discussed above. A fourth approach is to look at the issue of religion and constitutionalism from the perspective of the separation of church and state. It is noticeable that only the article on the PhilippinesFootnote ¹⁸ addressed this issue, and it concludes that this separation, looked at from the context of marriage equality, is illusory. How different the discussion would be if it were on European cases, where this separation is deeply rooted and still a source of controversy?

Naturally, these approaches will tend to overlap in many ways. Regulation may give rise to religious conflict and that conflict may take place in the courts as well as elsewhere. In Benjamin Schonthal’s example from Sri Lanka, the question was: does a Buddhist monk have a right to a driving licence?Footnote ¹⁹ Such a question carries many implications both in and beyond the courtroom. Gehan Gunatilleke’s articleFootnote ²⁰ on Sri Lanka points to the need to find non-legal and non-state solutions to inter-religious violence.

A four-stage approach along these lines could perhaps provide an alternative approach to considering constitutionalism in the purest sense of compliance with constitutional norms – one that does not rely just on formal legal contestations based on the application of law. This could be taken as involving an analysis of the situation in terms of demand, supply, and consumer protection. In the constitutional process there will inevitably be winners, losers, and also impacts on others who are not directly involved.

The first question might then be: who is making the demand for constitutional change or applications, and why? This is relevant to the processes of constitution-making, and also of constitutional interpretation. We can see this process clearly in the articles on AfghanistanFootnote ²¹ and Sri Lanka. The former cautions that constitution-making is perhaps a dangerous moment in which to try to resolve deep divisions over religion.

Second, it is concerned with the supply side, the state’s response to the demand: does meeting the demand only create further demands or accusations of partiality? Does denying it lead to disaffection and conflict? I suggest here that it is important to be mindful of the implications of how religious statements are framed by the adherents of the religion in question. For example, if ‘Islam is a complete way of life’, are other religions then incomplete in some respect? Does ‘Buddhist monks are not be concerned with the mundane’ mean they cannot function as ordinary members of society?

In this context, we could build on the insights of Patrick Glenn whose book Legal Traditions of the World contains, amongst many insights, important discussions on how various traditions, including religious ones, deal with other traditions.Footnote ²² This is both important and largely neglected in the demand-and-supply issue. It is both a question of theological principle, so to speak, and of practical political practice. What do the internal conversations regarding these communities’ demands imply? What are they able to input generally to the common good, based on their theology or philosophy? An important issue here will of course be whether religious inputs have any status beyond that of non-religious or individual inputs. Here, it is highly relevant to accept that different religions do not simply answer the same questions in different ways, so that the relevant space can be filled by interchangeable religions. In fact, religions offer different answers to different questions, and the scope of their belief systems may well be different in type and extent, not just content. This makes fair regulation and appropriate dispensation quite hazardous.

Third, we can ask whether the consumer (the citizen or groups of citizens) is adequately protected by the outcomes that demand and supply would have produced. Here, we need to address the content of constitutional rights, especially freedom of religion.

Lying behind all of these issues is an important question of causation. The papers presented were replete with verbs such as ‘imply’, ‘drive’, ‘yield’, ‘steer’, and ‘matter for’. These are all statements about causation. But, we need to be careful not to confuse causation and correlation. Correlated factors might have a common, external cause. For example, is conflict really caused by religious insult, or by economic deprivation? Debate around these issues is replete with untested and often self-serving assumptions about causation.

Finally, I raise two issues that emerge from a consideration of religion in relation to constitutionalism. The first is an issue about the actual content of freedom of religion. This right is highly problematic in practice, and I think especially so in Asia with its communitarian approach to religion (the point where we came in). The assumption, and in some cases the actual decision, amounts to deciding that freedom of religion is the freedom of religious communities to enforce a self-determined orthodoxy on its members. The Catholic Herald case,Footnote ²³ discussed by Dian AH Shah, is a prime example of this, but there are many more. In that case, a Malay-speaking group of Catholics was prevented from using their traditional name for God (‘Allah’), which had been in use by Christian minorities in Muslim-majority countries for centuries; the ban was imposed in the name of public order, because the majority group would be offended. The reasoning of the appellate courts in Malaysia was that the use of this word was not an essential part of the practice of Catholicism. However, in the context of a constitutional right to freedom of religion, it would appear more relevant to ask why the group should not be allowed to practise their religion in their own way. All religions have minority groups with different customs, beliefs, practices, texts, and languages. If freedom of religion allows the established group to enforce its own preferences in this way, then freedom of religion is a paradox: freedom is actually being denied rather than enforced. In freedom of religion we need to ask: who has this freedom and why do some people appear to enjoy it while others do not? Freedom to implement religious oppression is not freedom in any good constitution.

The second issue is also a paradox. Some constitutions provide that one religion has primacy over others, or enjoys a special status. In other cases, this appears to be the fact even if not specifically provided by the constitution. It is also repeatedly a claim that religions make across Asia. That much importance is attached to this is shown by the contributions that discuss the attempts to claim such primacy.Footnote ²⁴

This primacy is often accompanied by the claim that freedom of religion applies, and that therefore, nobody is discriminated against. Yet, if primacy means anything at all, which it must do if people have fought for its inclusion, then it must necessarily involve treating other religions or belief systems at a lower level of status, protection, or provision – which is unarguably discriminatory. To return to the Catholic Herald case, the Malaysian Court of Appeal in that case held that where the constitution provides that ‘Islam is the religion of the Federation, but other religions may be practised in peace and harmony’, it means that those other religions may be practised, provided they do not disturb the practice of the majority religion.Footnote ²⁵ This is the kind of reasoning that may well come about if one religion is given primacy over others without due attention to the significance of freedom of religion or even explanatory provisions.

In this brief commentary, I have not attempted to do justice to the fascinating and high quality papers presented – all of which have provided excellent insights into the subject. Rather, I have tried to suggest approaches that could be usefully applied to an examination of constitutions and national legal systems in Asia.