There is no doubt of the importance of religion to constitutional life and politics in Asia. The array of articles in this Special Issue indicates the long-standing and often highly contested relationship between religion and constitutions in the region. Many of the articles are concerned with disputes over religion that arise in the context of majority-minority claims, as well as intra-religious tensions. The articles address a diverse range of majority-minority religious contexts. By population, there are Buddhist majorities in Thailand and Sri Lanka; a Catholic majority in the Philippines; an Islamic majority in Pakistan, Afghanistan, Malaysia, and Indonesia; and a Hindu majority in India. The reason for comparing these diverse contexts is because, regardless of which religion is the majority or minority, there are patterns and trends in how majorities use law against minorities, and how minorities wield law in defense of their religious and social claims to justice.
There are no neat divisions or classifications to describe the relationship between constitutional law and religion in the region, nor of legal traditions more broadly. The common law animates the legal systems of Pakistan, Bangladesh, Malaysia, Singapore, Myanmar, and India, while civil law systems characterize Thailand and Indonesia; and mixed systems exist in Afghanistan. Structuring these legal systems are vastly different constitutional systems and multiple ways of recognizing, or relegating, religion in public and private life. Some constitutions recognize a religion, others acknowledge several religions, and others adopt secularism as a core principle. Yet, there are core themes and ideas that run through and unite these jurisdictions, regardless of differences in constitutional form or religious make-up.
To identify some of these common themes, I reflect on this important and timely collection of contributions in light of the work of the late Professor Dan S Lev (1933-2006). Based in the United States, Lev was a political scientist who primarily spent his career devoted to understanding law and politics in Indonesia, at a time when it was neither particularly popular, easy, nor fashionable.Footnote
1
In many respects, the field of law and religion remains oriented to the United States and Europe. It is only in more recent decades that Islamic law has become an area of scholarly interest, although again this body of scholarship usually privileges the Middle East rather than Asia. Fields such as Buddhism and law are only now gaining momentum,Footnote
2
and so in this respect, scholarship that builds theory from the perspective of Asia remains on the margins of the field of law and religion.Footnote
3
This Special Issue demonstrates that despite the marginality of Asia in the field of law and religion, the relationship between constitutionalism and religion from the perspective of Asia can make an important contribution in theory-building and advancing empirical understanding.
Lev was particularly interested in the politics of law and religion. Today, countries in the region range widely from liberal to authoritarian constitutionalism. For most of Lev’s career, Indonesia was under the rule of Suharto and steeped in authoritarian legality. And yet, he took law seriously and sought to understand where and how law was at work. In particular, he wrote extensively about how advocates for reform and for the rule of law tried to use law and legal institutions to challenge the status quo and to address the large-scale social injustices they were confronted with every day. In the same way, the absence of liberal democracies in many parts of Asia is no reason not to take the study of constitutionalism and religion in the region seriously. I begin by reflecting on Lev’s approach to constitutionalism as a legal process, and the relationship between constitutionalism and power and inequality as a timely reminder of both the perils and promise of constitutionalism for achieving social justice.
I. CONSTITUTIONALISM AS LEGAL PROCESS: LEV’S APPROACH TO LAW AS POWER AND IDEOLOGY
Throughout his life’s work, Lev paid close attention to the relationship between law and politics.Footnote
4
Lev was of the opinion that law and politics are closely intertwined: ‘legal systems are politically derivative and cannot be understood apart from political structures, interests, ideology and the conflicts they incur’.Footnote
5
He conceived of law as a symbolic source of social and political authority.Footnote
6
Lev was interested in the legitimacy of law and the legitimacy conferring function of law. His view was that law is not an autonomous force, but intertwined with politics. His concern was with the political and social bases of institutional continuity and change in legal systems.
The articles in this Special Issue underscore this point: that it is necessary to understand the politics of law, and the politics of religion, to be able to shed light on the dynamics of religion and constitutional law. Many of the contributions focus on the issue of how constitutions change and the role of religion in influencing or shaping the process and outcome of constitutional change.
Lev defined constitutionalism as an environment in which the political process displays a close adherence or orientation to openly stated rules and institutions vested with political power. He suggested that constitutionalism, as a concept of broader applicability than the rule of law, generates a context where the locus of state power is hedged in by accepted law and that this known law works to transform the nature of their political power into a legal source of legitimate authority. Drawing on Max Weber’s work on bureaucracy, Lev argues that ‘[i]n Weberian terms, constitutionalism grows out of the rational-legal form of domination, and is no less a means of political domination than any other’.Footnote
7
His approach shows concern for the ways in which constitutional law may be used to exert control and domination over particular groups and fields of social life, including religion.
Lev identified ‘legal process’ as being at the heart of the concept of constitutionalism. Lev argued that constitutionalism ‘implies that political process, with or without a written constitution, is more or less oriented to public rules and institutions intended to define and contain the exercise of political authority’.Footnote
8
He was quick to acknowledge, however, that this focus on legal process does not mean that it is of primary importance and that little else matters.Footnote
9
Rather, he challenged law’s centrality, suggesting that we can only understand how law matters by considering it in relation to social and political forces.
Lev’s interest in constitutionalism arose directly from his broader concerns about power and ideology. In terms of the relationship between constitutionalism, religion, and inequality, Lev argued that ‘constitutionalism is meaningless without resources of power, in some form, both to achieve it and to sustain it’.Footnote
10
Here, he was pointing to the intersection between constitutionalism and politics, and the necessity for constitutionalism to be upheld and promoted by those in positions of power. This raises a broader question for the articles in this Issue: Where does power lie in disputes and debates over law and religion in Asia? Lev’s work is replete with concern for power. Drawing on his work, we could reflect on the following questions in relation to law and religion: Who has power – state authorities or religious authorities? How is power mediated by law and legal institutions – the constitution, courts, social movements, and religious authorities? Who dominates the resources of power of the state, and by what conditions of authority? To what extent and why are religious groups, leaders, and authorities vying to dominate resources of state power?
Aside from questions of power, another concern evident in Lev’s work is his preoccupation with ideology. While he did not articulate his understanding of ideology explicitly, we can gather from his work that he was speaking of the animating discourses and ideas that had a captivating effect on people and institutions. While his earlier work employs the concept of legal culture,Footnote
11
he later turns away from the use of this concept in favour of a concern for ideology. From his later writings, he suggests that ideology is a more tangible and concrete concept that animates legal process, while legal culture is often too broad and vague to be of analytical use.Footnote
12
We might then ask: Which legal systems in Asia are influenced by, and cement, a particular religious ideology in relation to constitutional law? Are there legal systems that accommodate competing ideologies of religion and constitutionalism and, if so, how? In this Issue, we see at work in the contexts discussed a range of ideologies that animate or challenge constitutionalism – from the ideology of secularism in India to the ideology of a state-led ‘belief in one God’ in Indonesia. This raises the problem of which legal or religious actors have the power to define the scope of these ideologies and how this is done through the legal process.
Lev’s work also has a particular methodological orientation. He suggested that understanding the struggle for constitutionalism in particular contexts necessitates a grounded approach: ‘as the political contentions that bracket constitutionalist demands are local matters, fed by local issues, interests, values and historical circumstances, the outcomes … are comprehensible essentially only in local terms’.Footnote
13
His own work pioneered empirical legal studies in Indonesia, based on extensive field work in an age without the internet. All the contributions in this Special Issue are empirically rich and based on a deep understanding of the local context. Lev would have deeply appreciated this methodological rigour and approach, as he was critical of the ‘vacuity of studies of law in new states that take statutory provisions and legal structures at face value’.Footnote
14
II. CONSTITUTIONAL LAW AS A RESOURCE TO OVERCOME SOCIAL INEQUALITY
Let us first consider Lev’s sobering, if not caustic, comments on the issue of whether, and if so how, constitutional law can address social inequality. In response to this dilemma, Lev was clearly realistic about his expectations for what constitutionalism can or should achieve. In contemplating the injustice and abuse of power in the world, he suggested that constitutionalism does not offer a ready solution to the pressing social challenges of our times. He argued:
[C]onstitutionalism is not an obvious solution to many of the most serious, compelling problems that humanity has to deal with … It does not eliminate economic poverty, or social discrimination, or political abuse, or the incompetence, greed, or stupidity of political leadership … for all these miseries, the only sensible solutions remain relevant knowledge, clearly articulated ideology, and effectively organised power in whatever kind of political structure exists.Footnote
15
While Lev acknowledges in his writings that constitutionalism, at its core, is designed to limit power, he is also concerned with the reality that the poor often fare no better under a constitutional regime than in a non-constitutional one. This is far too evident in a world where the gap between the rich and poor continues to increase dramatically. At the very least, Lev suggests that constitutionalism is something of a neutral device. It is not intrinsically pro-justice. It does not necessarily have inherent capabilities to adequately address the most severe issues facing humankind. Again, he draws his analysis back to the question of power, reflecting that ‘groups without power fare little better in constitutional than non-constitutional regimes’.Footnote
16
He goes on to add that the ‘human rights (however we conceive of them) of the poor are vulnerable in all types of political orders’.Footnote
17
Several of the articles in this Special Issue address concerns of social inequality, particularly when brought about by religion, and the ability of constitutional law to address these issues. In Alfitri’s article on Indonesia,Footnote
18
the hope is that state regulation of zakat (Islamic tithe) will enhance equality by ensuring a fairer social redistribution of resources. Likewise, in India, the constitution and the courts offer hope to those who seek to rally against some of the injustices caused by religion and caste. As Lev has suggested, it is important to identify and carefully consider the hopes that are vested in courts and the constitution.Footnote
19
The contributions in this Issue address how constitutions, the courts, and the bureaucracy are used as part of efforts to generate change in social practices and hierarchy.
A. Reflections from India and South Asia
Several articles address the constellations of religion and constitutionalism in South Asia, including Pakistan, Sri Lanka, and India. Holding the conference in Sri Lanka at a time when constitutional debates are ripe was a reminder of the reality and importance of constitutional reform. The debates over fundamental rights and the religion clause in the Constitution of Sri Lanka, in particular, whether the special provision on Buddhism should remain, be expanded or abolished, brought alive the contested relationship between constitutionalism and religion.Footnote
20
Rehan Abeyratne’s contribution covers a wide historical time period and a range of constitutional cases that showcase the complexity of arguments at the intersection of rights, ethnicity, and religion in India.Footnote
21
Some emphasize the liberating potential of constitutionalism, while others offer a more skeptical view. Abeyratne’s article has the difficult task of intervening in a deep body of scholarly literature that has prompted significant debate on law and religion in India. The necessity of this approach contrasts with some of the other papers presented in the conference that address jurisdictions that are rarely studied and so offer significant empirical insights that will no doubt form the basis of future scholarly debates.
Abeyratne’s article features three cases to suggest that the courts’ efforts to overhaul religious practices that have a negative impact on minorities have in fact done so at the cost to other minority groups. This highlights an important frame of reference for many of the articles in this Issue, which is the lens of majority-minority interests in the approach to constitutions and religion. Who identifies as a majority or minority depends on the context. There are many different variations on majority-minority relations in the region – Islam-Christian, Christian-Islam, Hindu-Muslim, Muslim-Hindu, Buddhist-Muslim, and Christian-Muslim. Yet, the pressing issues raised by intra-religious tensions are now rivaling the more traditional focus on inter-religious relations.
Abeyratne, however, is interested in yet another angle – minority-minority relations, or more specifically, how state institutions weigh up the claims and interests of one minority against another. He explores the challenge of balancing multiple minority interests, which is often complicated by tensions between self-identification and state or court-determined means of religious identification. He also highlights how the courts deal with claims to the right to education and women’s rights in relation to family law in a seminal court case banning the practice of triple talaq. He shows how the position of judges themselves can often be an influential factor in the outcome of a case, for example, with an entirely Hindu bench not hesitating to make determinations on aspects of Islamic law and practice. We need to not only remain attentive to power differentials between minority groups, but find new ways of discerning the potential impact of judicial religious backgrounds on their decision-making in cases concerning religion.Footnote
22
This might also be a fruitful line of comparative inquiry, in terms of whether there are patterns in a judge’s decision-making and their religious background across the region. What is striking about the Indian case, in contrast to many of the other countries discussed in this Issue, is the willingness of judges not only to make determinations regarding which practices are essential to a particular religious faith, but to openly disparage a minority religion.
While this Issue cannot do justice to the wealth of constitutional crises on religion in South Asia, other articles are important for the ways they contrast with the Indian example. In Pakistan, Matthew Nelson demonstrates that the courts uphold an ideal of religious deference in which Islam is preferred as the established religion.Footnote
23
In Sri Lanka, it is the Muslim minorities that often lose out in legal battles over religion.Footnote
24
The example of the ongoing constitutional reform process in Sri Lanka also demonstrates that there are opportunities to reconsider and reconstitute the balance between religious authority and state authority, and between religious power and constitutional power. Fierce reactions to proposed changes to the Buddhism clause by those who either sought to weaken its power or abolish it entirely may instead see the status quo special recognition of Buddhism maintained in Sri Lanka.
B. Reflections on Indonesia and Southeast Asia
Islamic law and legal pluralism have been a primary focus of much socio-legal scholarship in Southeast Asia,Footnote
25
particularly through the pioneering work of MB Hooker.Footnote
26
In Alfitri’s article, he questions the scale and scope of state and judicial intervention in the administration of Islam in the post-Suharto era.Footnote
27
As is evident from the article, zakat is a topic that has become increasingly significant in Indonesia, the world’s largest Muslim-majority democracy and an emerging economy. It focuses on the lucrative dimension of law and religion – the monetary benefits. This raises questions of who stands to gain from the financial benefits of using law to regulate religious practices and what role the state and the courts play in ensuring the fair distribution of these financial gains.
These financial gains take a number of common forms in Islamic countries, such as the halal certification industry, the hajj pilgrimage,Footnote
28
and shariah banking. Alfitri points to the lucrative industry of hajj pilgrimage in Indonesia, and the sheer size and scale of this economic enterprise, its religious obligatory dimensions and its state administrative dimensions. This raises questions about who has a monopoly on religious markets and what is the role of law in regulating these markets, bringing us back to Lev’s concerns with power and ideology.
Many articles in this Issue focus on constitutional change through formal constitutional amendment or informally through judicial interpretation in the courts. The Indonesian case, as exemplified by Alfitri’s article, offers a counterintuitive case. Despite the absence of formal constitutional amendment on religion in the Indonesian Constitution since 2002, it is the change in the political environment and enhanced democratic freedoms that have ironically given greater fuel for religious groups to lobby the government to introduce Islamic law and advocate for state administration of Islamic law.Footnote
29
Alfitri offers a useful summary of the handful of constitutional cases on religion in Indonesia that have addressed questions such as the constitutionality of inter-religious marriage and polygamy, the jurisdiction of the religious courts, and the legality of the blasphemy law. This does raise the possibility of considering these developments from a contrary perspective. With the establishment of the Constitutional Court, Muslims can now challenge the constitutionality of the state’s intervention in the implementation of shariah. Yet, given that there have been so few cases since 2003, does this mean that, overall, the state has managed to balance the regulation of religion in a way that is acceptable, at least to the majority? In other words, we do not yet have a useful explanation for why there are in fact a small number of constitutional cases on religion, despite the increasing regulation of religion by the state.
Alfitri offers several ways of understanding the different interventions by the state: interventions on the interpretation of shariah; interventions in the administration of Islam or of religion in general. He identifies three key characteristics of Indonesia law and religion: first, there are six officially recognized religions and most have their own traditions of religious law, particularly on family law matters; second, Islam is given preferential treatment and status as the religion of the majority, but specifically in areas such as Aceh;Footnote
30
and third, there is also the use of state resources and institutions to regulate religion. It is the third that is the primary focus of Alfitri’s article. Using the language of Lev, Islamic leaders advocating for state administration of zakat have gained power and influence in the post-Suharto era. They have successfully promoted an ideology of state administration of religion that incorporates religious authorities in the process, often allowing them to benefit from any financial gains to be had.
Alfitri also shows how the Indonesian Constitutional Court rejected the argument that the state should implement shariah fully, such as Islamic criminal law. He refers to the debate on the incorporation of shariah in Indonesia, in which scholars like Salim have argued that the contemporary approach in Indonesia in fact mirrors the past ‘reception theory’ that animated Dutch colonial policy. On this approach, ‘the implementation of shariah is officially legitimate only if it has been ratified as national positive law’.Footnote
31
While this is one characterization, the reception theory does not fully account for the many ways in which informal elements of Islamic law influence legal practice. The primary example is fatwa (Islamic legal opinion), which although not recognized as national positive law, has been shown to play a decisive role in court proceedings in criminal prosecutions for blaspheming Islam.Footnote
32
This reality is not satisfactorily explained by the reception theory hypothesis.
Alfitri’s article and several others in this Issue are examples of the importance of religion and politics in Southeast Asia.Footnote
33
There has been a significant focus on Islamic law in Southeast Asia.Footnote
34
There is also now a growing scholarly interest in Buddhism and law, and Thailand,Footnote
35
Myanmar,Footnote
36
and Sri Lanka are rich sources of inspiration for this scholarship. In countries with religious majorities in Southeast Asia, there is also a question of the path dependent nature of religion-constitution arrangements that date to the adoption of a constitution at independence. For Indonesia, the adoption of the Pancasila ideology over Islam in the constitution was an early, yet crucial step, in promoting a broad-based religious identity for the state. In Malaysia, the incorporation of Islam in the constitution has sparked a long-standing controversy over what the provision on ‘Islam is the religion of the Federation’ means and whether Islam is actually the state religion.Footnote
37
In Myanmar, the constitutional recognition of Buddhism as having a special status was a point of contention for more conservative monks who wanted Buddhism to be the state religion, while for minorities who ideally preferred secularism saw it as a necessary, if not entirely satisfactory, compromise. In Singapore, the ruling ideology and its application to religion is, to use Cheesman’s phrase, of the rule of law as ‘law and order’.Footnote
38
That is, executive control reigns supreme and it is a primary means of domesticating and controlling religious expression, practice, and affiliation.Footnote
39
In Singapore, the institutionalization of religion as a means of social control presents, perhaps, a more extreme version of Indonesia’s emphasis on the state administration of religion.
Finally, it is worth noting that the legal battles and contests of the meaning of provisions on religion in constitutions in these articles in fact suggest that there is a growing arena for non-violent forms of religious disputation. Much scholarship in the broader literature on law, religion, and politics has devoted energy to debunking the myth of religious violence, particularly in relation to Islam.Footnote
40
While this is not an explicit theme of the articles in this Special Issue, there is an implicit assumption that religious groups and authorities are often willing to use legal process (as Lev would say), rather than resort merely to violence to solve religious disputes. This is not to say there is no coercion and conflict on religion in the region – clearly, there is. But rather, in the modern state, law is now one resource in contestations over religion and state power.
III. CONCLUSION
The primary focus in the articles on India and Indonesia, South Asia and Southeast Asia, offer some clear lines of comparison in terms of the role and function of courts in deciding upon the relationship between constitutionalism and religion. In India, judges may take it upon themselves to determine the essential practices of religion, showing little deference neither for religious authority nor for minority religions. In contrast, in Indonesia, courts are careful to show deference to religious authority and effectively leave questions of essential practice to the national-level religious councils.Footnote
41
Courts in India have declined to extend fundamental rights review into the realm of personal law. In contrast, the Indonesian Constitutional Court has been willing to consider fundamental rights claims, although it has primarily relied upon the constitutional provisions on the legitimate limitations on rights to justify state regulation and administration of religion.
I have offered Lev’s work on constitutionalism, power, and ideology as one lens through which to explore the law-religion-politics nexus in Asia. Lev’s work raises two key questions about how we study the role of the courts in mediating constitutional disputes on religion. First, to what extent have courts adapted to shifts in social or political conceptions of religion and the state? Second, to what extent have courts played a significant role in encouraging or instigating change in the fundamental relationship between constitutionalism and religion? While Lev can be read as being dismissive of constitutionalism entirely, I think such an approach would miss his point. I suggest, rather, that his argument that constitutionalism does not offer a solution to the critical issues of our time is instead intended as a healthy reality check, and as a dose of realism in terms of what constitutionalism can achieve. In fact, Lev’s approach to constitutionalism can also be understood as something of an invitation: an invitation to continue the struggle to ensure that constitutionalism does respond adequately to issues of injustice and inequality, lest those in power use the legal process for their own gain at the expense of minorities, the poor, vulnerable, and marginalized.
This Special Issue is a significant achievement and leaves us with a rich research agenda to pursue. It has brought together, in conversation and dialogue, scholars whose monographs have made notable impressions in the field of religion and law in Asia, including Dian A H Shah,Footnote
42
Benjamin Schonthal,Footnote
43
and Matthew Nelson.Footnote
44
In a manner characteristic of the Law Faculty of the National University of Singapore, the conference has also shone a spotlight on exciting new research by emerging scholars such as Shamshad Pasarlay’s work on Afghanistan,Footnote
45
Nyi Nyi Kyaw’s work on Myanmar,Footnote
46
Pham Huyen’s work on Vietnam,Footnote
47
Raphael Pangalangan’s work on the Philippines,Footnote
48
and Shamsul Falaah’s work on the Maldives.Footnote
49
I congratulate Dian Shah and the National University of Singapore on another landmark publication, which will generate new conversations and research inquiries into constitutionalism and religion in Asia.
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There is no doubt of the importance of religion to constitutional life and politics in Asia. The array of articles in this Special Issue indicates the long-standing and often highly contested relationship between religion and constitutions in the region. Many of the articles are concerned with disputes over religion that arise in the context of majority-minority claims, as well as intra-religious tensions. The articles address a diverse range of majority-minority religious contexts. By population, there are Buddhist majorities in Thailand and Sri Lanka; a Catholic majority in the Philippines; an Islamic majority in Pakistan, Afghanistan, Malaysia, and Indonesia; and a Hindu majority in India. The reason for comparing these diverse contexts is because, regardless of which religion is the majority or minority, there are patterns and trends in how majorities use law against minorities, and how minorities wield law in defense of their religious and social claims to justice.
There are no neat divisions or classifications to describe the relationship between constitutional law and religion in the region, nor of legal traditions more broadly. The common law animates the legal systems of Pakistan, Bangladesh, Malaysia, Singapore, Myanmar, and India, while civil law systems characterize Thailand and Indonesia; and mixed systems exist in Afghanistan. Structuring these legal systems are vastly different constitutional systems and multiple ways of recognizing, or relegating, religion in public and private life. Some constitutions recognize a religion, others acknowledge several religions, and others adopt secularism as a core principle. Yet, there are core themes and ideas that run through and unite these jurisdictions, regardless of differences in constitutional form or religious make-up.
To identify some of these common themes, I reflect on this important and timely collection of contributions in light of the work of the late Professor Dan S Lev (1933-2006). Based in the United States, Lev was a political scientist who primarily spent his career devoted to understanding law and politics in Indonesia, at a time when it was neither particularly popular, easy, nor fashionable.Footnote 1 In many respects, the field of law and religion remains oriented to the United States and Europe. It is only in more recent decades that Islamic law has become an area of scholarly interest, although again this body of scholarship usually privileges the Middle East rather than Asia. Fields such as Buddhism and law are only now gaining momentum,Footnote 2 and so in this respect, scholarship that builds theory from the perspective of Asia remains on the margins of the field of law and religion.Footnote 3 This Special Issue demonstrates that despite the marginality of Asia in the field of law and religion, the relationship between constitutionalism and religion from the perspective of Asia can make an important contribution in theory-building and advancing empirical understanding.
Lev was particularly interested in the politics of law and religion. Today, countries in the region range widely from liberal to authoritarian constitutionalism. For most of Lev’s career, Indonesia was under the rule of Suharto and steeped in authoritarian legality. And yet, he took law seriously and sought to understand where and how law was at work. In particular, he wrote extensively about how advocates for reform and for the rule of law tried to use law and legal institutions to challenge the status quo and to address the large-scale social injustices they were confronted with every day. In the same way, the absence of liberal democracies in many parts of Asia is no reason not to take the study of constitutionalism and religion in the region seriously. I begin by reflecting on Lev’s approach to constitutionalism as a legal process, and the relationship between constitutionalism and power and inequality as a timely reminder of both the perils and promise of constitutionalism for achieving social justice.
I. CONSTITUTIONALISM AS LEGAL PROCESS: LEV’S APPROACH TO LAW AS POWER AND IDEOLOGY
Throughout his life’s work, Lev paid close attention to the relationship between law and politics.Footnote 4 Lev was of the opinion that law and politics are closely intertwined: ‘legal systems are politically derivative and cannot be understood apart from political structures, interests, ideology and the conflicts they incur’.Footnote 5 He conceived of law as a symbolic source of social and political authority.Footnote 6 Lev was interested in the legitimacy of law and the legitimacy conferring function of law. His view was that law is not an autonomous force, but intertwined with politics. His concern was with the political and social bases of institutional continuity and change in legal systems.
The articles in this Special Issue underscore this point: that it is necessary to understand the politics of law, and the politics of religion, to be able to shed light on the dynamics of religion and constitutional law. Many of the contributions focus on the issue of how constitutions change and the role of religion in influencing or shaping the process and outcome of constitutional change.
Lev defined constitutionalism as an environment in which the political process displays a close adherence or orientation to openly stated rules and institutions vested with political power. He suggested that constitutionalism, as a concept of broader applicability than the rule of law, generates a context where the locus of state power is hedged in by accepted law and that this known law works to transform the nature of their political power into a legal source of legitimate authority. Drawing on Max Weber’s work on bureaucracy, Lev argues that ‘[i]n Weberian terms, constitutionalism grows out of the rational-legal form of domination, and is no less a means of political domination than any other’.Footnote 7 His approach shows concern for the ways in which constitutional law may be used to exert control and domination over particular groups and fields of social life, including religion.
Lev identified ‘legal process’ as being at the heart of the concept of constitutionalism. Lev argued that constitutionalism ‘implies that political process, with or without a written constitution, is more or less oriented to public rules and institutions intended to define and contain the exercise of political authority’.Footnote 8 He was quick to acknowledge, however, that this focus on legal process does not mean that it is of primary importance and that little else matters.Footnote 9 Rather, he challenged law’s centrality, suggesting that we can only understand how law matters by considering it in relation to social and political forces.
Lev’s interest in constitutionalism arose directly from his broader concerns about power and ideology. In terms of the relationship between constitutionalism, religion, and inequality, Lev argued that ‘constitutionalism is meaningless without resources of power, in some form, both to achieve it and to sustain it’.Footnote 10 Here, he was pointing to the intersection between constitutionalism and politics, and the necessity for constitutionalism to be upheld and promoted by those in positions of power. This raises a broader question for the articles in this Issue: Where does power lie in disputes and debates over law and religion in Asia? Lev’s work is replete with concern for power. Drawing on his work, we could reflect on the following questions in relation to law and religion: Who has power – state authorities or religious authorities? How is power mediated by law and legal institutions – the constitution, courts, social movements, and religious authorities? Who dominates the resources of power of the state, and by what conditions of authority? To what extent and why are religious groups, leaders, and authorities vying to dominate resources of state power?
Aside from questions of power, another concern evident in Lev’s work is his preoccupation with ideology. While he did not articulate his understanding of ideology explicitly, we can gather from his work that he was speaking of the animating discourses and ideas that had a captivating effect on people and institutions. While his earlier work employs the concept of legal culture,Footnote 11 he later turns away from the use of this concept in favour of a concern for ideology. From his later writings, he suggests that ideology is a more tangible and concrete concept that animates legal process, while legal culture is often too broad and vague to be of analytical use.Footnote 12 We might then ask: Which legal systems in Asia are influenced by, and cement, a particular religious ideology in relation to constitutional law? Are there legal systems that accommodate competing ideologies of religion and constitutionalism and, if so, how? In this Issue, we see at work in the contexts discussed a range of ideologies that animate or challenge constitutionalism – from the ideology of secularism in India to the ideology of a state-led ‘belief in one God’ in Indonesia. This raises the problem of which legal or religious actors have the power to define the scope of these ideologies and how this is done through the legal process.
Lev’s work also has a particular methodological orientation. He suggested that understanding the struggle for constitutionalism in particular contexts necessitates a grounded approach: ‘as the political contentions that bracket constitutionalist demands are local matters, fed by local issues, interests, values and historical circumstances, the outcomes … are comprehensible essentially only in local terms’.Footnote 13 His own work pioneered empirical legal studies in Indonesia, based on extensive field work in an age without the internet. All the contributions in this Special Issue are empirically rich and based on a deep understanding of the local context. Lev would have deeply appreciated this methodological rigour and approach, as he was critical of the ‘vacuity of studies of law in new states that take statutory provisions and legal structures at face value’.Footnote 14
II. CONSTITUTIONAL LAW AS A RESOURCE TO OVERCOME SOCIAL INEQUALITY
Let us first consider Lev’s sobering, if not caustic, comments on the issue of whether, and if so how, constitutional law can address social inequality. In response to this dilemma, Lev was clearly realistic about his expectations for what constitutionalism can or should achieve. In contemplating the injustice and abuse of power in the world, he suggested that constitutionalism does not offer a ready solution to the pressing social challenges of our times. He argued:
[C]onstitutionalism is not an obvious solution to many of the most serious, compelling problems that humanity has to deal with … It does not eliminate economic poverty, or social discrimination, or political abuse, or the incompetence, greed, or stupidity of political leadership … for all these miseries, the only sensible solutions remain relevant knowledge, clearly articulated ideology, and effectively organised power in whatever kind of political structure exists.Footnote 15
While Lev acknowledges in his writings that constitutionalism, at its core, is designed to limit power, he is also concerned with the reality that the poor often fare no better under a constitutional regime than in a non-constitutional one. This is far too evident in a world where the gap between the rich and poor continues to increase dramatically. At the very least, Lev suggests that constitutionalism is something of a neutral device. It is not intrinsically pro-justice. It does not necessarily have inherent capabilities to adequately address the most severe issues facing humankind. Again, he draws his analysis back to the question of power, reflecting that ‘groups without power fare little better in constitutional than non-constitutional regimes’.Footnote 16 He goes on to add that the ‘human rights (however we conceive of them) of the poor are vulnerable in all types of political orders’.Footnote 17
Several of the articles in this Special Issue address concerns of social inequality, particularly when brought about by religion, and the ability of constitutional law to address these issues. In Alfitri’s article on Indonesia,Footnote 18 the hope is that state regulation of zakat (Islamic tithe) will enhance equality by ensuring a fairer social redistribution of resources. Likewise, in India, the constitution and the courts offer hope to those who seek to rally against some of the injustices caused by religion and caste. As Lev has suggested, it is important to identify and carefully consider the hopes that are vested in courts and the constitution.Footnote 19 The contributions in this Issue address how constitutions, the courts, and the bureaucracy are used as part of efforts to generate change in social practices and hierarchy.
A. Reflections from India and South Asia
Several articles address the constellations of religion and constitutionalism in South Asia, including Pakistan, Sri Lanka, and India. Holding the conference in Sri Lanka at a time when constitutional debates are ripe was a reminder of the reality and importance of constitutional reform. The debates over fundamental rights and the religion clause in the Constitution of Sri Lanka, in particular, whether the special provision on Buddhism should remain, be expanded or abolished, brought alive the contested relationship between constitutionalism and religion.Footnote 20
Rehan Abeyratne’s contribution covers a wide historical time period and a range of constitutional cases that showcase the complexity of arguments at the intersection of rights, ethnicity, and religion in India.Footnote 21 Some emphasize the liberating potential of constitutionalism, while others offer a more skeptical view. Abeyratne’s article has the difficult task of intervening in a deep body of scholarly literature that has prompted significant debate on law and religion in India. The necessity of this approach contrasts with some of the other papers presented in the conference that address jurisdictions that are rarely studied and so offer significant empirical insights that will no doubt form the basis of future scholarly debates.
Abeyratne’s article features three cases to suggest that the courts’ efforts to overhaul religious practices that have a negative impact on minorities have in fact done so at the cost to other minority groups. This highlights an important frame of reference for many of the articles in this Issue, which is the lens of majority-minority interests in the approach to constitutions and religion. Who identifies as a majority or minority depends on the context. There are many different variations on majority-minority relations in the region – Islam-Christian, Christian-Islam, Hindu-Muslim, Muslim-Hindu, Buddhist-Muslim, and Christian-Muslim. Yet, the pressing issues raised by intra-religious tensions are now rivaling the more traditional focus on inter-religious relations.
Abeyratne, however, is interested in yet another angle – minority-minority relations, or more specifically, how state institutions weigh up the claims and interests of one minority against another. He explores the challenge of balancing multiple minority interests, which is often complicated by tensions between self-identification and state or court-determined means of religious identification. He also highlights how the courts deal with claims to the right to education and women’s rights in relation to family law in a seminal court case banning the practice of triple talaq. He shows how the position of judges themselves can often be an influential factor in the outcome of a case, for example, with an entirely Hindu bench not hesitating to make determinations on aspects of Islamic law and practice. We need to not only remain attentive to power differentials between minority groups, but find new ways of discerning the potential impact of judicial religious backgrounds on their decision-making in cases concerning religion.Footnote 22 This might also be a fruitful line of comparative inquiry, in terms of whether there are patterns in a judge’s decision-making and their religious background across the region. What is striking about the Indian case, in contrast to many of the other countries discussed in this Issue, is the willingness of judges not only to make determinations regarding which practices are essential to a particular religious faith, but to openly disparage a minority religion.
While this Issue cannot do justice to the wealth of constitutional crises on religion in South Asia, other articles are important for the ways they contrast with the Indian example. In Pakistan, Matthew Nelson demonstrates that the courts uphold an ideal of religious deference in which Islam is preferred as the established religion.Footnote 23 In Sri Lanka, it is the Muslim minorities that often lose out in legal battles over religion.Footnote 24 The example of the ongoing constitutional reform process in Sri Lanka also demonstrates that there are opportunities to reconsider and reconstitute the balance between religious authority and state authority, and between religious power and constitutional power. Fierce reactions to proposed changes to the Buddhism clause by those who either sought to weaken its power or abolish it entirely may instead see the status quo special recognition of Buddhism maintained in Sri Lanka.
B. Reflections on Indonesia and Southeast Asia
Islamic law and legal pluralism have been a primary focus of much socio-legal scholarship in Southeast Asia,Footnote 25 particularly through the pioneering work of MB Hooker.Footnote 26 In Alfitri’s article, he questions the scale and scope of state and judicial intervention in the administration of Islam in the post-Suharto era.Footnote 27 As is evident from the article, zakat is a topic that has become increasingly significant in Indonesia, the world’s largest Muslim-majority democracy and an emerging economy. It focuses on the lucrative dimension of law and religion – the monetary benefits. This raises questions of who stands to gain from the financial benefits of using law to regulate religious practices and what role the state and the courts play in ensuring the fair distribution of these financial gains.
These financial gains take a number of common forms in Islamic countries, such as the halal certification industry, the hajj pilgrimage,Footnote 28 and shariah banking. Alfitri points to the lucrative industry of hajj pilgrimage in Indonesia, and the sheer size and scale of this economic enterprise, its religious obligatory dimensions and its state administrative dimensions. This raises questions about who has a monopoly on religious markets and what is the role of law in regulating these markets, bringing us back to Lev’s concerns with power and ideology.
Many articles in this Issue focus on constitutional change through formal constitutional amendment or informally through judicial interpretation in the courts. The Indonesian case, as exemplified by Alfitri’s article, offers a counterintuitive case. Despite the absence of formal constitutional amendment on religion in the Indonesian Constitution since 2002, it is the change in the political environment and enhanced democratic freedoms that have ironically given greater fuel for religious groups to lobby the government to introduce Islamic law and advocate for state administration of Islamic law.Footnote 29
Alfitri offers a useful summary of the handful of constitutional cases on religion in Indonesia that have addressed questions such as the constitutionality of inter-religious marriage and polygamy, the jurisdiction of the religious courts, and the legality of the blasphemy law. This does raise the possibility of considering these developments from a contrary perspective. With the establishment of the Constitutional Court, Muslims can now challenge the constitutionality of the state’s intervention in the implementation of shariah. Yet, given that there have been so few cases since 2003, does this mean that, overall, the state has managed to balance the regulation of religion in a way that is acceptable, at least to the majority? In other words, we do not yet have a useful explanation for why there are in fact a small number of constitutional cases on religion, despite the increasing regulation of religion by the state.
Alfitri offers several ways of understanding the different interventions by the state: interventions on the interpretation of shariah; interventions in the administration of Islam or of religion in general. He identifies three key characteristics of Indonesia law and religion: first, there are six officially recognized religions and most have their own traditions of religious law, particularly on family law matters; second, Islam is given preferential treatment and status as the religion of the majority, but specifically in areas such as Aceh;Footnote 30 and third, there is also the use of state resources and institutions to regulate religion. It is the third that is the primary focus of Alfitri’s article. Using the language of Lev, Islamic leaders advocating for state administration of zakat have gained power and influence in the post-Suharto era. They have successfully promoted an ideology of state administration of religion that incorporates religious authorities in the process, often allowing them to benefit from any financial gains to be had.
Alfitri also shows how the Indonesian Constitutional Court rejected the argument that the state should implement shariah fully, such as Islamic criminal law. He refers to the debate on the incorporation of shariah in Indonesia, in which scholars like Salim have argued that the contemporary approach in Indonesia in fact mirrors the past ‘reception theory’ that animated Dutch colonial policy. On this approach, ‘the implementation of shariah is officially legitimate only if it has been ratified as national positive law’.Footnote 31 While this is one characterization, the reception theory does not fully account for the many ways in which informal elements of Islamic law influence legal practice. The primary example is fatwa (Islamic legal opinion), which although not recognized as national positive law, has been shown to play a decisive role in court proceedings in criminal prosecutions for blaspheming Islam.Footnote 32 This reality is not satisfactorily explained by the reception theory hypothesis.
Alfitri’s article and several others in this Issue are examples of the importance of religion and politics in Southeast Asia.Footnote 33 There has been a significant focus on Islamic law in Southeast Asia.Footnote 34 There is also now a growing scholarly interest in Buddhism and law, and Thailand,Footnote 35 Myanmar,Footnote 36 and Sri Lanka are rich sources of inspiration for this scholarship. In countries with religious majorities in Southeast Asia, there is also a question of the path dependent nature of religion-constitution arrangements that date to the adoption of a constitution at independence. For Indonesia, the adoption of the Pancasila ideology over Islam in the constitution was an early, yet crucial step, in promoting a broad-based religious identity for the state. In Malaysia, the incorporation of Islam in the constitution has sparked a long-standing controversy over what the provision on ‘Islam is the religion of the Federation’ means and whether Islam is actually the state religion.Footnote 37 In Myanmar, the constitutional recognition of Buddhism as having a special status was a point of contention for more conservative monks who wanted Buddhism to be the state religion, while for minorities who ideally preferred secularism saw it as a necessary, if not entirely satisfactory, compromise. In Singapore, the ruling ideology and its application to religion is, to use Cheesman’s phrase, of the rule of law as ‘law and order’.Footnote 38 That is, executive control reigns supreme and it is a primary means of domesticating and controlling religious expression, practice, and affiliation.Footnote 39 In Singapore, the institutionalization of religion as a means of social control presents, perhaps, a more extreme version of Indonesia’s emphasis on the state administration of religion.
Finally, it is worth noting that the legal battles and contests of the meaning of provisions on religion in constitutions in these articles in fact suggest that there is a growing arena for non-violent forms of religious disputation. Much scholarship in the broader literature on law, religion, and politics has devoted energy to debunking the myth of religious violence, particularly in relation to Islam.Footnote 40 While this is not an explicit theme of the articles in this Special Issue, there is an implicit assumption that religious groups and authorities are often willing to use legal process (as Lev would say), rather than resort merely to violence to solve religious disputes. This is not to say there is no coercion and conflict on religion in the region – clearly, there is. But rather, in the modern state, law is now one resource in contestations over religion and state power.
III. CONCLUSION
The primary focus in the articles on India and Indonesia, South Asia and Southeast Asia, offer some clear lines of comparison in terms of the role and function of courts in deciding upon the relationship between constitutionalism and religion. In India, judges may take it upon themselves to determine the essential practices of religion, showing little deference neither for religious authority nor for minority religions. In contrast, in Indonesia, courts are careful to show deference to religious authority and effectively leave questions of essential practice to the national-level religious councils.Footnote 41 Courts in India have declined to extend fundamental rights review into the realm of personal law. In contrast, the Indonesian Constitutional Court has been willing to consider fundamental rights claims, although it has primarily relied upon the constitutional provisions on the legitimate limitations on rights to justify state regulation and administration of religion.
I have offered Lev’s work on constitutionalism, power, and ideology as one lens through which to explore the law-religion-politics nexus in Asia. Lev’s work raises two key questions about how we study the role of the courts in mediating constitutional disputes on religion. First, to what extent have courts adapted to shifts in social or political conceptions of religion and the state? Second, to what extent have courts played a significant role in encouraging or instigating change in the fundamental relationship between constitutionalism and religion? While Lev can be read as being dismissive of constitutionalism entirely, I think such an approach would miss his point. I suggest, rather, that his argument that constitutionalism does not offer a solution to the critical issues of our time is instead intended as a healthy reality check, and as a dose of realism in terms of what constitutionalism can achieve. In fact, Lev’s approach to constitutionalism can also be understood as something of an invitation: an invitation to continue the struggle to ensure that constitutionalism does respond adequately to issues of injustice and inequality, lest those in power use the legal process for their own gain at the expense of minorities, the poor, vulnerable, and marginalized.
This Special Issue is a significant achievement and leaves us with a rich research agenda to pursue. It has brought together, in conversation and dialogue, scholars whose monographs have made notable impressions in the field of religion and law in Asia, including Dian A H Shah,Footnote 42 Benjamin Schonthal,Footnote 43 and Matthew Nelson.Footnote 44 In a manner characteristic of the Law Faculty of the National University of Singapore, the conference has also shone a spotlight on exciting new research by emerging scholars such as Shamshad Pasarlay’s work on Afghanistan,Footnote 45 Nyi Nyi Kyaw’s work on Myanmar,Footnote 46 Pham Huyen’s work on Vietnam,Footnote 47 Raphael Pangalangan’s work on the Philippines,Footnote 48 and Shamsul Falaah’s work on the Maldives.Footnote 49 I congratulate Dian Shah and the National University of Singapore on another landmark publication, which will generate new conversations and research inquiries into constitutionalism and religion in Asia.