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In considering the articles in this Special Issue, I am struck by the importance of a set of factors that, in my view, both run through the articles like a leitmotif, as well as shape the major ‘take away’ lesson(s) from the articles. In this short commentary, I elaborate on these factors and the lesson(s) to take from them through five ‘Cs’: context; complexity; contestation; the framework of constitutions; and the role of comparative law. The first three ‘Cs’ are lessons from the case studies of the articles themselves, while the second two ‘Cs’ are offered as lessons to help take the dialogue forward. Fundamentally, these five ‘Cs’ highlight the importance of the articles in this Special Issue and the conference from which they emerged on the one hand, while on the other hand, also making us aware of what are the limits of what we should conclude from the individual articles. In other words, taken together, the five ‘Cs’ are, one might say, lessons about lessons.
This article explores the constitutional provisions that define the role of Islam and the shariah in Afghanistan’s many constitutions. It highlights that successful Afghan constitutions have always recognized Islam and the shariah and established a method of realizing them, while leaving open the possibility that the government could change its approach to realizing them in the future. Unsuccessful Afghan constitutions, by contrast, have allowed actors at the center to try to realize and interpret Islam in a rigid way that does not allow for ongoing negotiations with actors who would prefer to realize and interpret Islam in a different manner. In other words, Afghanistan’s longest-lived and successful constitutions have not entrenched Islam in a way that imposes the desires of one side of the debate. Instead, they have designed religious provisions in vague and ambiguous terms, thereby deferring to the future the question of what Islam really means and how it should be realized in practice – a strategy that proved considerably effective in preventing conflict over the role of Islam in a severely divided and heavily armed society. Drawing on this insight, the article explores how in overwhelmingly, but diversely, Muslim societies, it is important to create constitutional regimes that recognize Islam but leave room for rival interpretations of Islam. Incremental constitution writing is a useful tool in creating such constitutional regimes.
This article adds nuance to the classical account depicting Thailand as a secularized country by documenting how Buddhism informs constitutional thought and practices in contemporary Thailand. Throughout the twentieth century, Buddhist discourses have been used to bypass constitutional provisions in the name of ‘dhamma’ through the reliance on the rediscovery of the doctrine of the dhammarāja (the righteous King). In the early twenty-first century, a second rebirth of the discourse of the dhammarāja led to a further devaluation of the constitution as the supreme norm. The principles of a righteous King (totsapitrājadhammā) were reconceptualized as a functional equivalent to constitutionalism – as constraining the King’s power. This article first examines how modern lawyers used Buddhism as the vehicle to import Western constitutional ideas into the Siamese polity while reconstructing them as part of a royal legacy through the doctrine of the Ten Royal Virtues. It then turns to an analysis of the ever-increasing enshrinement of Buddhism in successive Thai constitutions since 1932. It concludes with an account of the politicization of the righteous King doctrine and its impact on constitutional practices.
There is vast literature on secularism in India and on the effects of Hindu nationalism on secular constitutionalism. This article takes a different tack. It focuses on cases where minority status is contested or competing rights of minorities are at stake. The article uses three exemplary recent cases to illustrate how judicial doctrines devised to reform discriminatory religious practices or to protect minority interests have, perversely, favoured certain groups at the expense of others. In each area examined, the jurisprudence privileges the more powerful of those interests: the sanctity of Muslim personal law over the rights of Muslim women; Hindu dalits over dalits that converted to other religions; and minority educational institutions over children from ‘weaker’ and ‘disadvantaged’ sections of society. The article concludes by proposing a new jurisprudence of religion and constitutional practice for India, one that takes account of these inequalities and gives meaning to the fundamental rights of the most vulnerable individuals and groups.
In both India and Pakistan, parliament is constitutionally endowed with ‘constituent power’, that is, the power to introduce constitutional amendments via procedures laid down in the constitution itself. Duly promulgated amendments, however, are occasionally struck down when Supreme Court judges see them as violating what the judges themselves define as the ‘essential features’ of each country’s constitutional ‘basic structure’. I trace the migration of basic structure jurisprudence from India to Pakistan, focusing on the ways in which it has elevated the power of judges over that of elected officials in the realm of religion-state relations. Specifically, I highlight the ways in which judicial independence vis-à-vis judicial appointments has been described as an essential feature of each country’s constitution, greatly enhancing the autonomous power of judges to mould constitutional benches that, in turn, define India’s constitutional understanding of secularism and Pakistan’s relationship with Islam.
Ethno-religious violence in Sri Lanka is a chronic problem, and it can be sustained even without the active support of a particular government. This understanding of violence prompts further reflection – both on the factors that drive such violence and the complex relationship between ethnicity, religion, and the Sri Lankan constitution. This article delves into the post-war context in Sri Lanka and examines how and why ethno-religious violence has persisted regardless of the government in power. It is presented in three sections. The first analyzes the current state of ethno-religious violence in Sri Lanka. The second offers a hypothesis on why such violence has persisted despite the democratic transition of January 2015. It argues that democratic transitions alone cannot prevent chronic ethno-religious violence due to certain factors that serve to entrench violence within the country’s constitutional practice. The final section discusses the relationship between ethno-religious relations, the nature of the Sri Lankan constitution, and the space for meaningful constitutional reform. It concludes that the Sri Lankan state – informed by Sri Lanka’s ‘political constitution’ – embodies a certain structural dispensation towards ethno-religious violence. Until this fundamental dispensation is in some way transformed, meaningful religious freedom and power sharing will remain elusive aims.
This article investigates the extent of state intervention in the administration of Islam in Indonesia. The 1945 Constitution of Indonesia does not explicitly recognize or privilege any particular religion. Yet, the boundaries of religion-state relations in the country are often unclear and complex, especially in light of policies and laws that regulate religious life and appear to privilege the dominant religion and its adherents. In this article, I demonstrate the ways in which the state has increasingly interfered in the administration of Islam in Indonesia by focusing on two case studies: the management of Hajj and zakat. However, it is observed that the vague constitutional arrangements on religion in Indonesia provide avenues for interpretations (especially by the Ministry of Religious Affairs) that the state has a constitutional obligation to interfere in the administration of religion and implement religious doctrines; and in the case of Islam, to ‘bureaucratize’ the shariah. This further complicates the exercise of distinguishing between religious doctrines that require state intervention for implementation and those that do not.
The Philippine doctrine on the separation of church and state, while rooted in American constitutional tradition, continues to show vestiges of Spanish colonial rule. The Philippines adopted the union of church and state for three and a half centuries as a Spanish colony, but became a secular state after it was ceded to the United States of America in 1898. The wall of separation has since been maintained in all subsequent Philippine constitutions, only to be compromised in statutes and daily life. That conflict is most evident in marriage, a legal institution openly shaped by canon law. Falcis v Civil Registrar-General, the marriage equality petition pending before the Philippine Supreme Court, seeks to end that practice. But note the irony: while the US Supreme Court in Obergefell v Hodges secularizes marriage and disconnects it from religion, Falcis takes an opposing route in anchoring marriage equality on religious freedom. This article looks at the prospect of that gambit. By contrasting the legal and theological contexts from which Obergefell and Falcis stem, the article shows how the demands of same-sex union and church-state separation are tightly intertwined.