It is a truth universally acknowledged that religion, in the possession of man, causes division, conflict, and even war. Well, not quite, says Tamir Moustafa. In his new book, Constituting Religion: Islam, Liberal Rights, and the Malaysian State, he points to the role of law and courts in enabling and catalyzing such conflict by creating the conditions and forum for contestations over religion. In the course of adjudication, courts constitute those very contestations.

The book intersects with recent scholarship on how constitutional design choices lead to contestations over religion (e.g., Asli Bâli and Hanna Lerner (2017); Benjamin Schonthal (2016); Dian A. H. Shah (2017)). Moustafa’s focus is different, however, as it focuses on what happens after constitutionalization. “Judicialization of religion,” he argues, is a distinctive phenomenon that should be differentiated from the judicialization of politics, conventionally understood as the way in which courts and judges increasingly dominate the making of public policies. For Moustafa, judicialization of religion refers to the condition where courts increasingly adjudicate questions and controversies over religion, thereby entrenching the idea of an official religion, and/or rendering judgment on the appropriate place for religion in the legal political order. Moustafa’s definition is aligned with a broader idea of judicialization as the increased presence of judicial processes and court rulings in political and social life.

The book’s focus on judicialization builds upon Moustafa’s earlier work on the subject and indeed deepens it. However, unlike his earlier works that examine how and why authoritarian regimes coopt courts to ensure regime-preservation, this current book interrogates the process of how judicialization comes about and how judicialization could exacerbate political and social conflict. Judicialization is seen as an outcome of social contestation in which the state is implicated but not necessarily the main driver of such contestations. Certain segments of government appear to be captured by—or at least lean toward—one position over another, yet Moustafa’s extensive fieldwork research supports the idea that judicialization is not a one-dimensional phenomenon. Rather, it is constituted by a variety of actors and shaped by multiple interests. Accordingly, he suggests that it would be too simplistic to see the many constitutional law cases concerning the role of Islam in Malaysia, and the public discourse arising from these cases, as a straightforward collision between ascendant religious movements and liberal legal order. Instead, in a country with a strong tradition of judicial review and a fairly independent bar, like in Malaysia, judicialization should be seen as a multidimensional phenomenon arising from sociopolitical contestation of a multitude of actors, some in government, over the role of Islam in the Malaysian state.

In examining a range of cases arising from the interpretation of the constitutional provision delineating the jurisdictions between the Syariah and the civil courts (Article 121(1A)), as well as provision designating Islam as the religion of the Federation (Article 3(1)), Moustafa’s book challenges oft-made assumptions about the actors involved in championing particular ideas about Islam/religion in any state. In the Malaysian case, there is often an assumption of a clear divide between Muslims (supposedly in favor of a more muscular role for Islam) and non-Muslims. Indeed, judicial decisions in Malaysia appear to also conform to this divide, as Muslim judges tend to interpret the constitution to give Islam a more robust position in the constitutional order, whereas non-Muslim judges appear to favor individual freedoms and a narrower position for Islam. However, a Muslim/non-Muslim divide would be far too simplistic. For instance, the Federal Court judgment in Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak was written by a Malay-Muslim judge for a bench composed mainly of Malay-Muslim judges. This case contains the strongest reassertions of the civil courts’ judicial power and affirmed their higher status as a courts of inherent jurisdiction as opposed to the religious courts that are mere creatures of statute. This was a highly anticipated case about whether the constitution requires the consent of both parents (and not just one parent) for conversion of minors. The Federal Court asserted, for the first time since 1999, that it retains jurisdiction to determine legal questions concerning Islam.

However, a limitation of a book like Moustafa’s that employs the lens of religion to examine a complex jurisdiction like Malaysia is a propensity to under-value other sources of identity that contribute to the contestation over religion. Here, I discuss two —race and language. First, the divisions arising from religion—Muslim/secular; Muslim/non-Muslim; state/non-state, etc.—are furthermore complicated when we introduce the element of race-based (or ethnic-based) nationalism. While Moustafa acknowledges that, overall, the intertwining of race and religion is a crucial phenomenon in Malaysia, the role of race is given rather short shrift in the book. He explains that this is because the ascendant political cleavage is articulated in terms of religion more than race. That might be so in some instances, but race is never far behind in public discourse over Islam. In Malaysia, Muslims continue to be referred to as “Malay-Muslim.” The Malaysian Federal Constitution defines a Malay as, inter alia, one who professes Islam. Indeed, one of the most telling phrases articulated in the infamous Lina Joy v Majlis Agama Islam Wilayah apostasy case discussed in Moustafa’s book is this: “As a Malay, the plaintiff remains in the Islamic faith until her dying days.” There are many more instances of race being the dominant frame of contestation in Malaysia, including the recent brouhaha over the new Malaysian government’s failed attempt to ratify the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which further demonstrates that race continues to be a strong social cleavage in Malaysia. The 2018 shock election of Pakatan Harapan, a new multiethnic coalition that broke the stranglehold of the previous Barisan Nasional alliance dominated by the Malay nationalist party (UMNO) may propel race further into the center of the debate.

Secondly, language. The choice of language in communication reflects not only the perspective of the speaker but also the speaker’s targeted audience. In Malaysia, different language is used in different cases and mediums when discussing religion. Moustafa alludes to this when he mentions that his fieldwork focused not just on press coverage in major English language newspapers but also in newspapers in other languages, especially in the Malay language. However, more could have been done with this. He could have also engaged with the choice of language in judicial decisions. Fascinatingly, several crucial decisions concerning the role of Islam in Malaysia have been written in Malay, the most significant being the majority judgments in the Federal Court case of Lina Joy. There, the majority judgments denying the appeal to have Lina Joy’s conversion recognized were written in the Malay language, while the dissenting judgment in support of the appeal was written in the English language.

Even more fascinating is the case of Meor Atiqulrahman bin Ishak & Ors v Fatimah bte Sihi & Ors, a seemingly obscure High Court case, which essentially overruled established precedent giving Islam a limited role within the constitutional order. This is one of the earliest and most radical attempts to establish a broad role for Islam in the Malaysian constitutional landscape, but interestingly has not been given as much attention in academic writings. This is even though the High Court’s interpretation of Article 3(1) was crucial in shifting the jurisprudence on what it means to declare Islam to be the religion of the Federation. In Meor, the High Court declared that Islam is superior over all other religions in Malaysia and further that Article 3(1) imposes obligations on the government to promote Islam so as to maintain its superior place in Malaysian society. The lack of attention given to the case could be because of its status as a High Court case whose ruling was ultimately overruled by the Court of Appeal and the Federal Court of Malaysia. However, another possibility is that it was written only in the Malay language. Only the headnotes were written in English, and they do not reflect the radical jurisprudential shift in the judgement. Interestingly, the High Court’s reasoning has become the basis for an expansive view of Islam in public law in subsequent cases, including Lina Joy.

Language has also become an important area of contestation in Malaysia, exemplified by the case of Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri,where the court upheld a government prohibition on the Catholic Church in using the word “Allah” in their Malay language publications. The judgment endorses the view that the government can restrict the use of certain Malay words to only Muslims. This is a highly problematic position since Malayis the constitutionally-designated “national” language. This decision is often analyzed from the perspective of religious freedom, but it also throws up difficult questions about equal citizenship and the right to use a national language. Since the Malay language is traditionally seen as the language of the Malay community, this intertwining of language with religion reflects an ideology that the Malaysian state is to be defined in terms of one race (Malay), one language (Malay), and one religion (Islam).

Accordingly, a more holistic examination of the contestations in Malaysia concerning the place of Islam requires also an understanding that this is a competition between those who champion the idea of an ethnic nation based on one language, one race, one religion, and those who affirm a civic nation able to accommodate a plurality of languages, races, and religions. I have previously argued that it is important to also understand that the contestation over religion is shaped by opposing ideologies about the Malaysian “nation.” This goes beyond personal identity; indeed, there are Malay-Muslims who strongly support a limited interpretation of the place of Islam in the Malaysian constitutional state, just as there are non-Malay-Muslims who agree with an expansive space for Islam. The struggle is ultimately one for the constitutional identity of the Malaysian state.

Moustafa’s book provides vital insights into understanding the contestation over Islam in Malaysia as being driven by multiple actors and their strategies. Any limitations on its case study are perhaps understandable considering that it seeks to engage in a broader conversation about judicialization of religion. The book thus should be seen as containing important, even if incomplete, pieces of the puzzle to understand the judicialization of religion, both in Malaysia and in general.