Jaclyn L Neo

This symposium sets out the law and practice of constitutional amendment in Southeast Asia. Contributions:
1. Jaclyn Neo & Bui Ngoc Son, Expanding the Universe of Comparative Constitutional Amendments in Southeast Asia.
2. Dian A.H. Shah, Post-Soeharto Constitutional Amendment in Indonesia: Promises and Pitfalls
3. Jaclyn Neo & Andrea Ong, Making the Singapore Constitution: Amendments as Constitution-Making
4. Ratana Taing, Constitutional Change and Amendment in Cambodia
5. HP Lee, Richard Foo, & Amber Tan, Constitutional Change in Malaysia
6. Dan Gatmaytan, Constitutional Change as Suspect Projects: The Philippines
7. Andrew Harding, Constitutional Amendment and Problems of Transition in Myanmar
8. Khemthong Tonsakulrungruang, Constitutional Amendment in Thailand: Amending in the Spectre of Parliamentary Dictatorship 
9. Yaniv Roznai, Constitutional Amendability and Unamendability in South-East Asia
10. Rosalind Dixon, (Why) Comparative Constitutional Amendment in Southeast Asia

This article takes a contextual approach to analyzing judicial engagement with the doctrine of unconstitutional constitutional amendments. It argues that in assessing judicial reception of the basic structure doctrine, and the content of the constitutional identity that such a doctrine seeks to preserve, a normative universalist or even functionalist approach is not sufficient. Instead, such a doctrine should be justified and understood contextually. It is necessary to contextualize constitutional identity in order to give it a robust character, rather than assuming a set of characteristics most often associated with liberal democratic constitutionalism and without understanding the political, social, and economic conditions in which the constitution operates. This article thus uses the example of Malaysia and how the courts have engaged with the basic structure doctrine to show how a contextual approach could have greater explanatory effect, including on why certain issues are more strongly contested in some countries than in others. Modern constitutions embody foundational agreements on how to organize power and establish a political order. A typical constitution today sets out the form of government , the limits of government, and oftentimes, the goals for the exercise of governmental power.  It is theoretically the source of all legal governmental powers and authority. However, does a constitution have core characteristics that are so fundamental to its identity that any amendment to these should be strongly resisted or even declared 'unconstitutional'? In other words, are there certain structural or * Associate Professor,

Modern states regulate religion. The degree and nature of regulation tend to depend on the state’s precise constitutional commitments, its historical and contemporary relationship with religion, as well as other factors such as religious demographics and ideologies. For instance, in confessional states, religion is regulated as part of the governmental framework, whether through the imposition of conditions as a prerequisite to the allocation of funding, or through direct state provision of religious services such as the building of religious institutions and the administration of religious bureaucracies. Even in a strictly separationist state where there is an adamant insistence on the separation of state and religion, the state’s regulatory powers are often exercised to control or to shape religious activity, including through its powers of registration and taxation. Indeed, the regulation of religion is not only a reality but often considered a necessity in many states. This is especially so because in most, if not all, societies, religion remains a critical aspect
of social as well as political life. The state has to encounter religion and vice versa.

Thinking about the regulation of religion nonetheless requires an expanded concept of regulation. Indeed, the edited volume Regulating Religion: Case Studies from Around the Globe approaches the idea of regulating religion as “legal efforts to exert social control over such groups, especially through court cases, but also with selected major legislative attempts to regulate religious groups.” Another author defines regulating religion as “any treatment and practice from the state apparatus toward religious groups, or religious beliefs, or religious symbolism in a particular given nation-state based on the prescribed system of laws.” This use of the term regulation differs from the narrower conception of regulation that is commonly used in scholarship on the regulatory state. That scholarship tends to see regulation as the activities of an independent regulatory agency, set up by or facilitated by the government, to exercise regulatory functions outside of governmental functions, typically focusing on efficiency maximization. In contrast, there is now increasing recognition that regulation is a polycentric exercise that not only involves public actors and targets economic activities but also does more. Accordingly, in this chapter, I propose a modified version of what Koop and Lodge has proposed as an essence-based definition of the regulation of religion. I define regulation of religion as the intentional intervention in the activities of religious individuals and communities, whether direct or indirect, through binding law or otherwise, and whether conducted by a public sector or private sector actors.

Adopting an expanded idea of regulation, this chapter sets out a preliminary framework for inquiry. It argues that such a focus on regulation pluralizes and complexifies the state’s relationship with religion, extending the analysis beyond the traditional constitutional law and private (family) law approaches. It then identifies a range of regulatory approaches and provides illustrations of how these approaches are used to understand the regulation of religion. Lastly, it examines the regimes of regulation as differentiated by liberal versus nonliberal constraints. In doing all of these, it must be conceded that this chapter takes as its starting premise that the state does regulate religion, rather than whether the state can or should regulate religion.

This article examines the role of regulation in advancing a robust or “covenantal” pluralism in Singapore. I argue that a commitment to pluralism requires a regulated space where law provides a critical expressive role in setting out the boundaries of appropriate conduct as well as in modifying social norms. This is crucial to ensure that the dominant values of the religious majority do not hegemonize the common spaces to the exclusion of religious minorities. I examine the use of religious harmony laws in Singapore and its potential for framing the top-down aspect of the concept of covenantal pluralism.

This introduction to a special issue in the University of Western Australia Law Review contextualises developments in religious freedom contestation in Australia within comparative and global trends. It points to recent challenges to the core claims of religious freedom, highlighting three emergent areas of conflict, and argues that religious freedom continues to be salient and important for all, though particularly for religious minorities. It calls for more serious and respectful discourse between opponents and proponents of religious freedom.

Religious harmony is an idea more commonly invoked in Asian countries, many of which are closely associated with non-individualistic or non-liberal approaches to law, ethics, and politics, than in Europe. As a constitutional norm, religious harmony not only directs state action involving the management of religious diversity but also has the potential to legitimate state action. As a result, harmony, including its subspecies of religious harmony, could be and has been criticized for imposing and legitimating an ideology of control over society, particularly over marginalized groups. While this is the case, I argue in this Article that religious harmony can mean many things and can be used in a myriad of ways that go beyond simply as a tool for state control. Religious harmony is not only a legal/constitutional principle, but has also become inter-nalized as a social norm. Its regulating function extends to inter group relations and further grounds group demands on the state, thus imposing state obligations. To draw out the multiple and complex dimensions of religious harmony as a constitutional principle and social norm, I use Singapore, a self-avowed non-liberal communitarian state, as the primary case study in this Article.

This introductory article to our special section on Constitutional Amendment in Southeast Asia offers a justification and overview. We observe that while constitutional amendment has received significant attention recently, this rich scholarly enterprise has lacked a focus on Asian jurisdictions. Accordingly, our special section on Southeast Asian countries, which showcases constitutional amendment practices in Cambodia, Indonesia, Malaysia, Myanmar, Philippines, Singapore, and Thailand, seeks to fill a gap in the state of the scholarship. The lack of a voice on Asia in comparative constitutional law scholarship on amendments overlooks the contributions that these practices could offer to a more robust and perhaps more self-critical view of current scholarship. This is especially since formally amending the constitution has been the primary mode of constitutional change in many Southeast Asian countries.

This article examines and theorizes the practice of constitutional amendments in Singapore. We argue that within the Singapore context, one can identify two important but qualitatively different exercise in constitutional amendments. The first is between 1979 and 1991, which involves foundational amendments which should be seen more properly as a constitution-making, rather than as a constitution-amending exercise. The second is the period post-1991, which involves “tweaks” to the Constitution; these changes do not fundamentally change the constitutional system already in place, but seek to calibrate the system for a variety of reasons involving efficiency and political interest entrenchment.
Thus, amendments to the Constitution between 1979 and 1991 should be seen as a long process of accretion that gradually brought about a Constitution that could be said to have attained its character as a supreme law. This is reflected not only in political discourse but also in constitutional jurisprudence. This article thus examines how the constitution has been changed through the amendment process, interrogates the discourse over the amendments, and evaluates the final outcomes in Singapore.

This essay introduces the Special Issue of the Journal. It discusses how changing religious demographics and heightened religious plurality are challenging existing thinking about, and patterns of, state-religion relations and the nature of the 'secular state'. The essay briefly surveys each of the papers in the Special Issue and highlights that one of the key lessons that emerges from the papers is the importance of context. As the contexts evolve, fresh thinking and new arrangements would be needed.

This article examines judicial engagement with the idea of separation of powers in Singapore. It identifies and analyses three judicial doctrines that are explicitly justified by the courts as being underpinned by the separation of powers. These are the doctrine of the exclusivity of judicial power, the doctrine of the presumption of constitutionality and the doctrine of judicial review. In analysing these doctrines and how the courts have employed the separation of powers to justify them, this article points to differing conceptions of separation, namely separation as autonomy of the different branches of government, separation as deference to the political branches and separation as judicial control of the other branches of government.

The guarantee of religious freedom appears in almost all modern constitutions. One critical constitutional question that has arisen relates to how the term “religion” or “religion or belief” should be interpreted. This definitional question is crucial as it determines which religion, religious beliefs, and practices would fall within the scope of constitutional protection. Where definitions are used to draw boundaries, this raises significant questions as to what would constitute an appropriate definition. It also raises issues concerning the competence of a non-religious court imposing its views on religion on religious adherents, especially where their subjective viewpoints differ. This article critiques this definitional conundrum using religious freedom cases in Singapore and Malaysia. It examines the use of a definition of religion as well as the essential practice test to exclude constitutional claims. Furthermore, this article advocates for a deferential approach to the definitional questions, albeit a limited one where constitutional claims are further subject to a second-stage inquiry as to the legitimacy or appropriateness of the state-imposed restrictions.

The now familiar passage in Chng Suan Tze v Minister for
Home Affairs asserting that all power has legal limits has been
declared to be a principle of legality that functions as a “basic
principle” in constitutional and administrative judicial
review. This article provides a close examination of case
jurisprudence in Singapore to determine exactly how this
passage has influenced the development of this area of law.
Specifically, it argues that while the principle of legality has
been used to justify and expand reviewability of both
statutory and constitutional executive powers, there is scope
to develop the principle to further extend the scope of
reviewability as well as to justify a more robust approach to
judicial review in Singapore.

This article examines the normative force and limits of Article 22 of the ASEAN Human Rights Declaration (AHRD) to advance the right to freedom of thought, conscience and religion among ASEAN Member States. It argues that efforts to advance this freedom based on the AHRD are likely to be hampered by two constraints, one external to the document and one internal. The external challenge is the lack of a coherent baseline consensus upon which to build a core understanding of the content of the right due to competing visions of freedom of religion among Member States. The internal constraint stems from various provisions within the AHRD that appears to grant states significant discretion in defining the content and scope of human rights. In examining these constraints, this article seeks to inform a broader enquiry as to the AHRD’s potential as a regional human rights instrument.

A significant number of countries explicitly or indirectly recognize deity or God in their constitutions. Express recognition may be found in either the preamble and/or the operative text. There is indirect recognition of deity when the constitution refers to a religion, a religious institution, or designate that the head of State must be a member of a specific religion. Such arrangements implicitly associate the constitution with deity since religions proclaim, at its core, some belief in the divine. Different constitutional issues are implicated in constitutions that expressly recognize deity as compared to those that proclaim the principle of secularism or more specifically the separation of state and religion. Such secular constitutions tend to focus on how much autonomy the state’s legal and political order should have from religious influence. State entanglement with religious institutions and religious law would typically be seen as violating the constitutional principle of secularism. In contrast, in constitutions that expressly recognize deity, there is less of a fixation with political and legal autonomy from religion, but with how much of such entanglement would be permissible before it transgresses upon individual rights. Consequently, constitutional recognition of deity could more easily legitimate practices that may impinge upon individual rights. This is by no means always the case. In some countries, constitutional recognition could lead to greater liberties for religious adherents as the state is not preoccupied with emptying the public sphere of religious influence, which could lead to situations where religious individuals and groups become shut out of public discourse (Stout 538; Taylor 49). That said, the express recognition of deity may make the constitutional system less accommodative of religious diversification as such diversification, often the result of immigration, would be seen as a threat to the national identity, which is closely intertwined with religious identity (Modood). While constitutions that adhere to the principle of secularism or more specifically the separation of state and religion would have to find a way to bridge the gap between the legal-political commitment to religious diversity and the possible resistance to such diversity on the societal level, constitutions that expressly recognize deity could provide a legitimate basis to openly deny equal rights to persons who are from different religious backgrounds. As such, the challenge in constitutions that recognize deity is to balance such recognition and the legal-political advantages that such recognition gives to the dominant religion with fundamental rights such as freedom of religion and equal citizenship.

Ensuring the appropriateness of the majority principle in electoral systems for the accommodation and enfranchisement of political minorities is a crucial endeavour, especially in societies characterized by cleavages such as race/ethnicity, religion, language, etc. Majoritarianism tend to overlook the need to accommodate political minorities who risk being permanently disenfranchised when their voting choices persistently do not produce the outcomes they desire or that, as candidates, they may not receive the sufficient amount of support to be elected. Such political imbalances are particularly acute in societies where identity-based cleavages are a factor, even a main factor, influencing political choices. This article examines one modification of a simple plurality system to include ethnic minority candidates in the elected chamber. The Group Representation Constituency, which has been implemented in Singapore since 1988, designates certain constituencies as group constituencies where candidates contest as a team. It is aimed at ensuring ethnic minority representation in Parliament as there has to be at least one minority candidate in each team. Using this scheme as the primary case study, I examine some ways in which minority inclusion systems can navigate the dilemma of ensuring political inclusion while not entrenching identitarian distinctions.

It is sometimes thought that non-liberal regimes are inimical to religious freedom, even if secular. This Article argues against this view. It holds that a non-liberal order that does not fully commit to state neutrality, but permits the regulation of and interference with religion, can nonetheless be protective of religious freedom if the secularism that it practices has the following four characteristics: (1) a rejection of political dominance by any one religious group; (2) citizenship should not be conditioned on a person's religious identity; (3) the recognition of an individual right to religious freedom, even if such a right is not regarded as fundamental; and (4) a commitment to protect religious freedom as part of the public good. One such important public good is the peaceful coexistence of religious groups. This Article, then, examines how a commitment to peaceful coexistence could provide some protection to religious freedom and employs Singapore as a key case study to draw out the potential and the limitations of such a secular but non-liberal approach.

Oxford Journal of Law and Religion 2016; doi: 10.1093/ojlr/rww044

The Singapore constitution has often been described and analysed as secular but in a qualified manner. This, I argue, is because commentators have applied the dominant paradigm of secular constitutionalism as (institutional) separation in examining Singapore’s constitutional practice. Singapore defies this constitutional model because of its close entanglement with religion. In this article, I apply two different analytical models to better capture and evaluate Singapore’s secular constitution. Specifically, I argue that the political discourse in Singapore has centred upon the ideal of neutrality and equal treatment of all religions. This conforms to a model that I call secular constitutionalism as equality. However, the legal jurisprudence shows a divergent approach whereby secular law, norms, and authority are prioritized, often lexically, over religious ones.

Among the many important rights affirmed under the Association for South East Asian Nation (ASEAN) Human Rights Declaration (AHRD) is the fundamental right to freedom of thought, conscience, and religion. This article examines the role of ASEAN in advancing religious freedom in the region as well as the AHRD’s potential in creating a normative baseline for the promotion and protection of the right. I first identify the state of religious freedom in some ASEAN Member States to illustrate the existing gap between domestic state practice and international standards on religious freedom. Next, I argue that the socio-political phenomena of rising politicization of religion and religious nationalism in the region create problematic dynamics for any efforts to advance religious freedom here. This is then followed by an examination of the AHRD itself, where I argue that ASEAN’s role and potential in advancing religious freedom is constrained by the textual deficiencies of the AHRD. Lastly, I argue that ASEAN is further limited by a lack of available mechanisms, as a regional institution, to provide a strong normative framework on human rights as well as its persistent espousal of the principle of non-interference.

The realisation of the almost universally accepted ideal of equality as a legal doctrine is complicated by the fact that differentiation is an inherent part of regulation in the modern state. In Singapore, the courts have regarded the Constitution's injunction for the equal protection of the law to be a relative, rather than an absolute, concept. Differentiating laws therefore only has to satisfy a reasonable classification test in order to pass constitutional muster. This article argues that despite recent judgments elaborating upon the scope and meaning of the equality clause, there remains at least three areas in need of further judicial elucidation. It further argues that the reasonable classification test as it now stands is sufficiently capacious for the courts to read substantive content into the equality provision should a suitable case arise in the future.

In 2012, the Heads of State of ASEAN Member
States signed the ASEAN Human Rights Declaration
(“AHRD”), uniformly affirming and committing to
respecting, promoting, and protecting human rights
and fundamental freedoms in the region.1
In the
Preamble to the AHRD, ASEAN governments stated
their “commitment to the Universal Declaration of
Human Rights, the Charter of the United Nations,
the Vienna Declaration and Programme of Action,
and other international human rights instruments
to which ASEAN Member States are parties.” This
pledge towards realizing the human rights and
fundamental freedoms of the people of ASEAN
Member States reiterates one of the fundamental
purposes of ASEAN as stated in the ASEAN
Charter, and further strengthens ASEAN’s political
commitments as set out in the ASEAN Community
Blueprints.

The present study seeks to contribute to this
discussion by providing an overview of state practice
on the freedom of thought, conscience, and religion
across ASEAN, and highlighting serious issues of
religious persecution and conflict for ASEAN’s
attention. This report provides a critical analysis of
recent significant events, through which ASEAN,
its Member States, and civil society organizations
can reflect on both the progress made and the
challenges that need to be addressed to ensure that
this aspiration is fulfilled.

On 19 March 2015, the State Assembly of Kelantan, one of the 13 states of the Malaysian Federation, unanimously passed amendments to the 1993 Syariah (Sharia) Criminal Code, providing for the implementation of a range of Islamic criminal law punishments (hudud) in the state.  This analysis argues that there are grave constitutional implications should the hudud law be implemented and there would be reverberating effects throughout Malaysian society for Muslims and non-Muslims. Implementing the hudud law would set Malaysia’s multi-religious society on a dangerous trajectory of repression and fragmentation.

This article examines the evolution of state–religion relations in Malaysia from a secular constitutional democracy with Islamic symbols to one where Islam as the religion of the federation is becoming a public doctrine, influencing norm-creation and norm-critique. It identifies a normative convergence between the Syariah and the secular courts on the content of religious freedom and the imperative to maintain a closed community. In this regard, this paper locates this development within a wider movement to reverse the priority of secular norms over Islamic ones. It analyses the attendant social, legal, and political factors influencing these developments and considers their implications for the equal rights of non-Muslim citizens and the ideal of a democratic Malaysian state.

This article examines the legal framework regulating unskilled and low-skilled migrant workers
in Singapore. It argues that the current legal framework discriminates against these migrant
workers and conceptualizes them as undesirable for inclusion in the wider society. This, it is
contended, is premised on the assumption that migrant workers could be sequestered from the
local population to some extent. This article provides some challenges to this assumption,
highlighting instead some of the broader social and political consequences of this exclusionary
legal framework. Consequently, it is argued that a more inclusive and integrationist approach
is needed, and some positive developments are highlighted.

This article examines a recent Court of Appeal judgment upholding the government’s prohibition of a Catholic publication from using the word “Allah” against the backdrop of Malaysia’s public discourse on Islam and its role in Malaysian state and society. I argue that one can situate and comprehend the judgment as appealing to and realizing a conception of Islam as ethnic identity, which departs from the conception of Islam as a universalist religion. I show how this conception has been gradually constructed in Malaysia’s public discourse, by identifying a (until now) marginal line of judicial precedents that foreshadowed the Court of Appeal’s judgment. Lastly, I highlight the ways in which the judgment affects minority rights and prospects for integration in Malaysia, even as it raises critical questions about Malaysia’s proclaimed status as a moderate and modern Islamic society.

This article revisits and reflects upon the role of the constitutional head of state in times of democratic changes. This article makes this proposition through an examination of the 2009 constitutional crisis in Perak, one of Malaysia’s constituent states. Although the events occurred on the state level, the present uncertain conditions of Malaysian politics since the General Elections of 2008 mean that the same issues could arise on the federal level if a political turnover arises in the next imminent elections. There has never been a change of government at the federal level in Malaysia. It takes a mature and responsible politician to gracefully accept electoral losses. This becomes harder when political power and its attendant benefits have been vested for a long time. The critical questions for constitutional lawyers therefore are these: how does the constitution manage and guide political transitions, and can the constitutional framework constrain political attempts to prevent democratic change from occurring? In whom does the constitution repose the power or functions to ensure a smooth and peaceful transition of government, which secures the electoral choices of the political sovereign — the People of Malaysia?

Accordingly, this article argues that in light of democratisation, there is a need to clarify the boundaries and relationship between the popular sovereign and the symbolic sovereign within Malaysia’s constitutional framework. In response to the questions posed above, this article argues that the head of state’s role is an extremely important one in times of democratic transitions, and that this role must be exercised with circumspect and in line with the choices of the political sovereign—the People ofMalaysia. The head of state is a gatekeeper for the Rakyat.

At the heart of constitutional interpretation is the struggle between, on the one hand, fidelity to founding meanings, and, on the other hand, creative interpretation to suit the context and needs of an evolving society. This book considers the recent growth of constitutional cases in Singapore in the last ten years. It examines the underpinnings of Singapore’s constitutional system, explores how Singapore courts have dealt with issues related to rights and power, and sets developments in Singapore in the wider context of new thinking and constitutional developments worldwide. It argues that Singapore is witnessing a shift in legal and political culture as both judges and citizens display an increasing willingness to engage with constitutional ideas and norms.

This chapter addresses the salient and, at the time of writing, highly topical question of whether and how anti-hopping laws (sometimes also known as anti-floor crossing provisions) could temper the excesses of political fragmentation and secure greater political stability between elections. Our analysis takes a comparative approach in reviewing the impact of anti-hopping laws in several countries with a parliamentary system based on the British or ‘Westminster’ model, in which the support of the majority of members of Parliament (MPs) determines who gets to form the government of the day.  This comparative analysis serves to illuminate the critical question that this chapter grapples with, namely whether and how such a law could contribute to democratic stability in Malaysia.

This chapter examines the evolution of the Malaysian judiciary’s engagement with the basic structure doctrine. I argue that this engagement should be seen in the context of the judiciary’s relationship with the political branches. Indeed, it suggests that where there is a relationship of mutual respect between the judiciary and the political branches, the judiciary has been less willing to adopt the basic structure doctrine. However, in the aftermath of a constitutional crisis in 1988 that seriously undermined judicial independence, the judiciary had largely chosen not to challenge the political branches. During this period, the basic structure doctrine did not feature in judicial reasoning. However, in more recent times, particularly since 2010, the judiciary has started to assert its judicial authority and one of the ways in which it has done so is by engaging with and embracing (though tentatively at first) the basic structure doctrine. Indeed, at the heart of the debate about the applicability of the basic structure doctrine in Malaysia is a contestation about a core aspect of Malaysia’s constitutional identity, whether as a parliamentary supremacy where the judiciary is subordinate to parliament (and even the executive), or constitutional supremacy where the judiciary is coequal to the other branches of government.

This chapter examines the legal framework regulating immigration in Singapore. It provides specific focus on economic migration into Singapore, and how that regulatory framework differentiates between unskilled / low-skilled migrant workers, on the one hand, and skilled professionals and technicians, on the other. The former are treated as temporary workers while the latter as potential citizens. As such, unskilled or low-skilled workers only qualify for work visas under the Work Permit scheme, which is designed to be temporary in nature and with no path to permanent residency or citizenship. This contrasts with the visa regime under the Employment Pass or S Pass schemes, which provides a path to citizenship. As such, migrant workers not only experience de jure disadvantages due to their immigration status but also de facto disadvantages due to their socioeconomic condition.

The question of how to manage diverse religious communities within a single political community for social peace is a recurring one. If one accepts that religious differences are permanent features of societies, and could not and should not be eliminated by force (expulsion or genocide) or overcome by coercion (forced conversion), formulating systems of governance to manage different religious communities within the nation-state becomes imperative.  Historically, several systems of religious governance of multicultural polities have been practiced. The Ottoman millet system is one such system, whereby recognized religious communities were granted jurisdictional autonomy over a limited area of personal law. The millet system is still practiced in some form in certain former Ottoman territories. In contrast, within the Anglo-European context, secular governance (either in emphasizing separation or in emphasizing even-handedness among different religious groups) became the dominant approach to address religious difference. Secular governance posits that peaceful coexistence could be established if states develop a unified form of political authority that was differentiated and furthermore neutral as among rival religious communities. 

In this chapter, I argue that the primary organizing factor in the state’s structure of governance of religious communities is whether they are regarded as private or public subjects of regulation. The consideration of whether religious communities are conceptualized as private actors or public actors is integral for the purposes of organizing structural approaches to the regulation of religious communities in multicultural polities. This itself reflects whether the state conceptualizes society as being a community of individuals or of ‘nations’. Where religious communities are private actors, they are treated like associations and their members interact with the state primarily as individuals. Where religious communities are treated as public actors, the communal aspect of those communities tends to be emphasized, often over the individual interests within the community. Consequently, the primary regulatory approach towards private religion tends to be one of self-regulation, in addition to general statutory regulation. In comparison, where religious communities are treated as public actors, the state relies on a broader range of regulatory approaches, namely religion-specific statutory regulation, co-regulation, in addition to self-regulation. This article therefore examines the particular challenge of multicultural polities, introduces the modes and dimensions of regulation, dominant approaches to regulating religious communities as public or private subjects, and lastly, the ideological postures that determines the regulatory reach of the state.

The right to religious freedom is “the oldest of the internationally recognized human rights”  and arguably one of the most complex and controversial rights.  Besides being entrenched in international and regional human rights treaties, the right to religious freedom is also widely included in most constitutions in the world  and this includes those in Asia. Formally, constitutions of all Asian countries, except for Brunei and the Maldives, recognize the right to freedom of religion.  These constitutional provisions range from the most extensive such as the Philippines’ which states that “[t]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed”,  to the narrower such as in Lao PDR where the constitution only guarantees the right to belief. Article 43 of the Lao constitution merely states that “Lao citizens have the right and freedom to believe or not to believe in religions”.  In contrast, Brunei, which is the only absolute monarchy in Asia, merely states in its constitution that “all other religions may be practiced in peace and harmony by the persons professing them”,  which suggests that religious profession and practice are permissible but not as of right. The constitution of Maldives does not include any provision providing for freedom of religion; while the constitution guarantees the right to freedom of thought, of communication of opinions and expression, this is subject to the qualification that the exercise of this right is to be exercised “in a manner that is not contrary to any tenet of Islam”.

The text of the constitutional provision addressing religious freedom is an important but only one factor determining the levels of protection in a country. However, de jure provisions do not necessarily translate to de facto protection.  As Madeley observes, in most cases, “constitutional promises of religious freedom provide only a distally uncertain indication of actual conditions pertaining to religious freedom and unfreeedom.”  A variety of factors affect the level of legal protection of religious freedom. These include the constitutional relationship between state and religion, the type of political regime, its stability,  and the regime’s commitment to international human rights treaties. In addition, socio-historical factors that also affect the levels of religious freedom protection include religious demography, the nature of the dominant religion, as well as the historical relationships among religious groups. 

Asia thus presents a challenging and fascinating region for the study of religious freedom. Asian states diverge widely in terms of their constitutional state and religion arrangements, ranging from states that are hostile to religion to those that merely distance themselves from religion to those that adopt a particular religion as the state religion. Within the region, political arrangements also differ widely; from liberal democracies, authoritarian democracies, socialist or communist regimes, and to absolute monarchies. Added to this mix is the demographic range; Asia is the most religiously diverse regions in the world. According to a comprehensive 2014 Pew Research study, half of the world’s most religiously diverse countries are in the Asia-Pacific region.  The study ranked Singapore, Taiwan, and Vietnam as the top three most religiously diverse countries in the world, while South Korea, China, and Hong Kong are among countries with very high levels of religious diversity. Others in the region have high or moderate levels of religious diversity. Indeed, only a handful of Asian countries are ranked with low levels of religious diversity: Timor-Leste (East Timor), the Philippines, Thailand, Cambodia, Pakistan, and Bangladesh.  Religious demography can have significant impact on religious freedom. Jonathan Fox’s recent study of Southeast Asia, for instance, focuses on the type of majority/plurality religion, whereby he argues that “patterns of religious freedom differ significantly based on the country’s largest religion.”  His study concludes that there is religious regulation, religious discrimination, and support for religion is strong in Muslim-majority countries (i.e. Brunei, Indonesia, and Malaysia) and weak in Christian-majority countries (i.e. Papua New Guinea, the Philippines, and Timor Leste) in Southeast Asia. There is however no consistent patter among Buddhist majority or plurality countries that he identifies (i.e. Cambodia, Laos, Myanmar, Singapore, Thailand, and Vietnam). 

Recognizing that there are these manifold and complex factors, this chapter however focuses on the intersections of constitutional state-religion arrangements and the scope of religious freedom protection in countries in Asia. It takes the position that religious freedom claims are critically shaped by constitutional arrangements of state and religion, and suggests four broad groupings to organize the various Asian jurisdictions. The purpose of identifying these broad groupings is to highlight the main religious freedom questions that have been the main focus in various Asian jurisdictions. These are not issues that are unique to Asian jurisdictions, but an analysis that takes the Asian experience as the starting point is crucial so as not to obscure particular contexts within the region. It should here be clarified that while the analysis identifies formal arrangements reflected in the constitutional text, it takes seriously actual constitutional practice.

(Forthcoming in Human Rights Law Review)

This article examines the normative force and limits of article 22 of the ASEAN Human Rights Declaration ('AHRD') to advance the right to freedom of thought, conscience, and religion among ASEAN Member States. It argues that efforts to advance this freedom based on the AHRD is likely to be hampered by two constraints-one external to the document and one internal to the document. The external challenge is that there is no baseline consensus upon which to build a core understanding of the content of the freedom of thought, conscience, and religion due to competing visions of freedom of religion. The internal constraint stems from the various provisions within the AHRD that appears to grant states significant discretion in defining the content and scope of human rights. In examining these constraints, this article seeks to inform a broader enquiry as to the AHRD's potential as a regional human rights instrument.

Codification of judicial ethics is taking an increasingly prominent place in the working of the judiciary. It has been observed that ‘[o]ne of the means whereby the links between independence and impartiality can be articulated is in the setting of minimum universal standards to protect judicial independence and thereby preserve judicial impartiality’. While there is no uniformity in the form and content of such judicial codes of conduct, there is at least some commonality in that they tend to prescribe standards of appropriate judicial behaviour while also asserting some features guaranteeing judicial independence. Broadly speaking, judicial codes can serve multiple objectives. Here, we identify four of them. First, a judicial code may serve as rules for a self-regulatory mechanism to ensure that judges comprehend their duties and act ethically (eg rules against conflict of interests and for the avoidance of corrupt practices) (‘self-regulatory function’). Second, a judicial code may serve as a bulwark for the judiciary to assert its independence against the other branches of government (‘assertive function’). Third, a judicial code may serve to communicate to the public the rules of proper conduct that it can and should expect from the judiciary. In this regard, such a code serves an important purpose of empowering the public and enhancing its confidence in the judiciary (‘public confidence function’). Fourth, a judicial code may be used as a way for the rest of government to control judicial conduct (‘governmental control function’).

 These functions are likely to overlap, although each targets a different audience and thus structures a different conversation. In its self-regulatory function, a code’s main target audience is judges. It provides them with a written basis for asserting peer pressure or even internal sanctions on one another. In its assertive function, a code provides judges with a written basis for objecting to real and/or perceived interference and incursions into their independent and impartial conduct of the administration of justice. In its public confidence function, a code provides the framework for the relationship between the judiciary and the public, communicating to the public the type and scope of proper judicial conduct. It thus plays an educative role and also provides the public with a potential basis for requiring compliance by the judiciary. Lastly, a judicial code for governmental control serves as a directive to the judiciary and could be seen as effectively subordinating judicial power to the other branches of government. This last objective must be distinguished from the other three because it has the greatest potential to interfere with judicial independence.

 The type of function that a judicial code of conduct is envisaged to serve within a jurisdiction reflects the values that underpin the judicial system. As Devlin and Dodek point out in the Introduction, the values of the judicial system serve as a foundation for the entire judicial edifice. Employing the regulatory pyramid as proposed by Devlin and Dodek, judicial codes of conduct are part of the processes through which the judiciary is maintained, channelled or restrained. Codes of conduct give form to the core values of the judicial system. While they are not strictly speaking institutional, since not all judicial codes establish bureaucratic forms to address breaches, codes of conduct are crucial in that they help to institutionalize good practices that advance the values of the judicial system. Judicial codes that are most obviously process oriented are those that serve the self-regulatory, assertive and governmental control functions. Interestingly, the public confidence function is oriented towards another wall of the regulatory pyramid, which are the outcomes.

 This chapter examines the use and disuse of judicial codes of conduct by investigating the curious case of Malaysia. Malaysia first prescribed a Judges’ Code of Ethics in 1994, and then replaced it in 2009 with a more extensive code which established a procedure for complaints and investigation beyond the previous procedure. The codes primarily served the objectives of self-regulation and in restoring public confidence. However, because the codes were passed by Parliament in the wake of incidents involving executive incursions and charges of corruption, it is arguable that these codes also serve the purpose of governmental control of the judiciary. In studying the establishment of a judicial code of ethics in Malaysia, this chapter examines the functions codes of ethics can and do have within the country’s broader legal, political and social context. It further analyses the adoption and use of codes of ethics in Malaysia using the regulatory pyramid proposed by the editors. Specifically, it considers the values that are supposedly underpinned by the codes, the role that the codes has played in maintaining the judiciary, and the desired outcomes.

The Singapore constitution has often been described and analyzed as secular but in a qualified manner. This, I argue, is because commentators have applied the dominant paradigm of secular constitutionalism as (institutional) separation in examining Singapore's constitutional practice. Singapore defies this constitutional model because of its close entanglement with religion. In this article, I apply two different analytical models to better capture and evaluate Singapore's secular constitution. Specifically, I argue that the political discourse in Singapore has centered upon the ideal of neutrality and equal treatment of all religions. This conforms to a model that I call secular constitutionalism as equality. However, the legal jurisprudence shows a divergent approach whereby secular law, norms, and authority are prioritized, often lexically, over religious ones.

The now familiar passage in Chng Suan Tze v Minister for Home Affairs asserting that all power has legal limits has been declared to be a principle of legality that functions as a “basic principle” in constitutional and administrative judicial review. This article provides a close examination of case jurisprudence in Singapore to determine exactly how this passage has influenced the development of this area of law. Specifically, it argues that while the principle of legality has been used to justify and expand reviewability of both statutory and constitutional executive powers, there is scope to develop the principle to further extend the scope of reviewability as well as to justify a more robust approach to judicial review in Singapore.

The question of how to manage diverse religious communities within a single political community for social peace is a recurring one. If one accepts that religious differences are permanent features of societies, and could not and should not be eliminated by force (expulsion or genocide) or overcome by coercion (forced conversion), formulating systems of governance to manage different religious communities within the nation-state becomes imperative. Historically, several systems of religious governance of multicultural polities have been practiced. The Ottoman millet system is one such system, whereby recognized religious communities were granted jurisdictional autonomy over a limited area of personal law. The millet system is still practiced in some form in certain former Ottoman territories. In contrast, within the Anglo-European context, secular governance (either in emphasizing separation or in emphasizing even-handedness among different religious groups) became the dominant appr...

Almost ten years after its accession to the Convention on the Elimination of Discrimination against Women ("CEDAW") in 1995, Malaysia submitted its first periodic report to the Committee on the Elimination of Discrimination against Women ("CEDAW Committee") in April 2004. This report was a combined initial and second report; the reports were due in 1999 and 2003. Under article 18 of CEDAW, parties are to submit reports on the "legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of [CEDAW] and on the progress made" within one year of accession and thereafter at least every four years. The CEDAW Committee considered Malaysia's report at its 35th session in May 2006, and provided its concluding comments on 31 May 2006. Twenty eight non-governmental organisations submitted a joint report ("NGO Shadow Report") to the CEDAW Committee, critiquing the government's report, identifying...

This article examines the intersection of religious freedom and minority protection within the Asian context. It argues that, to the extent that a focus on minority protection draws greater attention to the collective and communitarian dimensions of religious practice, it has the potential to enrich the discourse on religious freedom protection. I identify three areas of possible convergence—first, where a minority-focused regime leads to a richer understanding of the intersections between culture, language, and religion; secondly, where a focus on minority protection leads to positive measures by the state to protect religious minorities; and thirdly, where a minority regime founds a right of religious minorities to political participation. Nonetheless, I will also point out that there are limits to minority protection. It may even be a double-edged sword, as it serves to reify differences with the rest of society and risks permanently marginalizing the group as a minority. This co...

This article takes a contextual approach to analyzing judicial engagement with the doctrine of unconstitutional constitutional amendments. It argues that in assessing judicial reception of the basic structure doctrine, and the content of the constitutional identity that such a doctrine seeks to preserve, a normative universalist or even functionalist approach is not sufficient. Instead, such a doctrine should be justified and understood contextually. It is necessary to contextualize constitutional identity in order to give it a robust character, rather than assuming a set of characteristics most often associated with liberal democratic constitutionalism and without understanding the political, social, and economic conditions in which the constitution operates. This article thus uses the example of Malaysia and how the courts have engaged with the basic structure doctrine to show how a contextual approach could have greater explanatory effect, including on why certain issues are more...

Religious harmony is an idea more commonly invoked in Asian countries, many of which are closely associated with non-individualistic or non-liberal approaches to law, ethics, and politics, than in Europe. As a constitutional norm, religious harmony not only directs state action involving the management of religious diversity but also has the potential to legitimate state action. As a result, harmony, including its subspecies of religious harmony, could be and has been criticized for imposing and legitimating an ideology of control over society, particularly over marginalized groups. While this is the case, I argue in this Article that religious harmony can mean many things and can be used in a myriad of ways that go beyond simply as a tool for state control. Religious harmony is not only a legal/constitutional principle, but has also become internalized as a social norm. Its regulating function extends to inter group relations and further grounds group demands on the state, thus imp...

This chapter evaluates a variety of movement and border control measures in Asia and considers how these responses demonstrate the persistence of territorial sovereignty and the nation-state in a highly globalized world. It situates the discussion within broader debates about borders—open, closed, even shifting. The chapter then provides a preliminary framework for analyzing movement and border control measures across Asia. This framework employs three binaries for analyzing state control: territoriality (internal/external controls); nationality (citizens/aliens); and directionality (entry/exit). Ultimately, governmental responses to Covid-19 highlight both the independence and interdependence of states in a globalized world. The widespread closure of borders to outsiders and insiders demonstrates that classical Westphalian notions of the nation and state borders persist, even while being transformed by ever-more-innovative technologies. The willingness of governments to shut their ...

The dialogue metaphor has become a central feature in theorising about constitutional law and practice in recent times. Through an emphasis on collaboration and balance of constitutional power between the judicial and political branches of government, dialogists prefer systems where courts initiate a conversation on constitutional issues and the political branches are given the final say. There are now increasing endeavours to extend the application of the dialogue metaphor to common law jurisdictions in Asia, albeit in a distinctively minimalist form. This paper discusses the extension of the theory to Singapore. It critiques the justification offered for the application of the dialogue metaphor to Singapore, including the argument that, in contrast with a system of strong form judicial review, judicial minimalism is desirable to avoid political retaliation against the local courts. The paper analyses recent examples of judicial-political interactions to highlight the absence of su...

In a seminal 1986 article, John Griffiths argues that state legal pluralism, as opposed to state/nonstate legal pluralism, is “weak” legal pluralism. State legal pluralism refers to the coexistence of and interaction of distinctive legal systems which are nonetheless administered by the state; that is, the coexistence of state-state laws or official-official laws. It is juxtaposed against “strong” legal pluralism, which involves the coexistence within a social group of legal orders which do not belong to a single “system.” It has been argued that state legal pluralism is “weak” because it ultimately adheres to the basic ideology of legal centralism. This suggests that state legal pluralism is ultimately controlled by the dynamics of unification and subordination. This chapter suggests that the reality may be far more complex. While institutions such as religious courts operate within the context of state legal pluralism and could indeed be co-opted into the state system, once they a...

It is sometimes thought that non-liberal regimes are inimical to religious freedom, even if secular. This Article argues against this view. It holds that a non-liberal order that does not fully commit to state neutrality, but permits the regulation of and interference with religion, can nonetheless be protective of religious freedom if the secularism that it practices has the following four characteristics: (1) a rejection of political dominance by any one religious group; (2) citizenship should not be conditioned on a person’s religious identity; (3) the recognition of an individual right to religious freedom, even if such a right is not regarded as fundamental; and (4) a commitment to protect religious freedom as part of the public good. One such important public good is the peaceful coexistence of religious groups. This Article, then, examines how a commitment to peaceful coexistence could provide some protection to religious freedom and employs Singapore as a key case study to d...

This chapter evaluates a variety of movement and border control measures in Asia and considers how these responses demonstrate the persistence of territorial sovereignty and the nation-state in a highly globalized world. It situates the discussion within broader debates about borders-open, closed, even shifting. The chapter then provides a preliminary framework for analyzing movement and border control measures across Asia. This framework employs three binaries for analyzing state control: territoriality (internal/external controls);nationality (citizens/aliens);and directionality (entry/exit). Ultimately, governmental responses to Covid-19 highlight both the independence and interdependence of states in a globalized world. The widespread closure of borders to outsiders and insiders demonstrates that classical Westphalian notions of the nation and state borders persist, even while being transformed by ever-more-innovative technologies. The willingness of governments to shut their ex...

The realisation of the almost universally accepted ideal of equality as a legal doctrine is complicated by the fact that differentiation is an inherent part of regulation in the modern state. In Singapore, the courts have regarded the Constitution’s injunction for the equal protection of the law to be a relative, rather than an absolute, concept. Differentiating laws therefore only has to satisfy a reasonable classification test in order to pass constitutional muster. This article argues that despite recent judgments elaborating upon the scope and meaning of the equality clause, there remains at least three areas in need of further judicial elucidation. It further argues that the reasonable classification test as it now stands is sufficiently capacious for the courts to read substantive content into the equality provision should a suitable case arise in the future.

“If it wasn’t crystal clear before today, it is now: the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has the force of law in Malaysia”:2 the Joint Action Group for Gender Equality (JAG) proclaimed in response to a seminal gender discrimination case decided in 2011.3 Following the judgment in Noorfadilla Binti Ahmad Saikin v. Chayed bin Basirun (Noorfadilla), the plaintiff, an aspiring schoolteacher, became the first person to successfully sue the Malaysian government for gender discrimination. The High Court of Shah Alam held that the government violated the plaintiff ’s constitutional right to equality when it revoked her appointment as a relief schoolteacher. While

The year 2017 was dominated by the elected presidency – constitutional amendments made to the presidency, the operationalization of those amendments, and challenges to them. These implicated important constitutional questions concerning amendment as well as right/access to political participation. These developments and others critically impact constitutionalism, broadly understood as the doctrine of limited government. The analysis below employs constitutionalism, rather than liberal democracy, as the framework for the evaluation of constitutional progress in 2017. Liberal democracy, as an ideological category that emphasizes individual autonomy over other public goods, is a problematiccategory that has itself been challenged in recent times. Mark Tushnet’s proposed category of authoritarian constitutionalism is a hybrid of (liberal) constitutionalism and authoritarianism, of which Singapore is his archetypal example where “liberal freedoms are protected at an intermediate level, a...

We were delighted to receive the invitation from Professor Anton Cooray to be co-guest editors of this issue of the Journal of International and Comparative Law. We have chosen separation of powers as the special theme. The reasons are obvious. The separation of powers is today an integral part of constitutional theory and practice, and is at the core of the democratic polity. Montesquieu articulated a now self-evident proposition when he wrote that when all powers are concentrated in the same person it gives rise to a dictatorship: “There would be the end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise these three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”1 By no means was Montesquieu the only theorist with the insight that dividing powers is crucial to prevent absolutism and tyranny. John Locke, for instance, was also concerned with separating powers, alth...

This article revisits and reflects upon the role of the constitutional head of state in times of democratic changes. It argues that the head of state in the Westminster system of parliamentary democracy plays an important gatekeeping function on behalf of the political sovereign, the People of Malaysia. This argument is made through an examination of the 2009 constitutional crisis in Perak (one of Malaysia’s constituent states). Although the events occurred on the state level, Malaysian politics have been in flux since the General Elections of 2008, and the same issues could arise on the federal level if a political turnover arises in the next general elections. There has not been a change of government at the federal level in Malaysia, and thus the critical question of how the constitution manages and guides political transitions has never been put to test there. This article investigates this question by examining the role of the constitutional head of state, arguing that the head...

The discrepancy between how Singapore ranks in terms of the rule of law vis-à-vis democracy raises a fascinating puzzle. How does a country rank so highly on rule of law indexes but score so poorly on democracy indexes? More importantly, what does this say about the relationship between the rule of law and democracy? This chapter examines three cases concerning the right to be represented in Singapore, employing them as useful devices to consider some of the more thorny issues concerning the relationship between the rule of law and democracy in a communitarian dominant party state like Singapore.

The prioritisation of security over individual liberty has been part of Malaysia’s constitutional design. Article 149 of the Federal Constitution sanctioned Malaysia's draconian preventive detention laws, the 1960 Internal Security Act (ISA). The ISA is detrimental to individual liberties, empowering the executive to preventively detain persons deemed as threats to national security for indefinite periods of time. Until recently, the executive’s broad discretionary powers are reinforced by a judicial attitude which was deferential to executive wisdom on national security matters and justified by the valorisation of security concerns. The 2008 decision of Raja Petra bin Raja Kamarudin v Menteri Hal Ehwal Dalam Negeri (‘‘RPK’’) however signifies a shift in judicial attitude and a reversal of the prioritisation of security over rights. Rather than deferring to the literal intention of Parliament to restrict judicial review, which earlier courts had, the High Court in RPK chose inst...

In 2005, the archaic laws of sedition were summoned to counteract speech considered offensive to racial and religious groups in Singapore. Under the Sedition Act, it is seditious to, inter alia, promote feelings of ill-will and hostility between different races or classes of the population. In a later case involving religious proselytisation, a Christian couple was charged and convicted of sedition under the same section. This article examines this new phenomenon. It investigates the manner in which these laws have been employed and jurisprudentially developed to restrain speech on race and/or religion in Singapore. The article argues that the current state of the law is highly problematic for its adverse impact on free speech as well as for its conceptual confusions with alternative bases for restraining speech. It contends that failure to extricate the existing conceptual confusions is adverse to free speech and community integration in the long run. A three-fold legal framework i...

Definitions, by their nature, include and exclude. When one defines what is, it inevitably excludes what is not. Legal definitions furthermore could be used as “a form of control in determining the range of potential beneficiaries who may claim an entitlement.” This article critiques the use of definitional tests in religious freedom adjudication. It examines the use of a definition of religion to deny constitutional protection to religious beliefs and practices that fall outside that definition, as well as a jurisprudential innovation of the definitional test, which is the essential or integral practice test that has been employed by some courts in Asia. I argue that definitional tests have to take into account the religiously pluralistic conditions in which the constitution operates, and under those conditions, a deferential approach that relies primarily on the self-definition of the religious claimant is to be preferred. Such an approach would caution the courts from imposing an...

I first encountered Andrew Harding’s work as a young law student when I became fascinated with Malaysian constitutional law. Harding’s exegeses on public law and Islam (e.g., Andrew Harding, “Islam and Public Law in Malaysia: Some Reflections in the Aftermath of Susie Teoh’s Case” (1991) 1 M.L.J. xci, and Andrew Harding, “The Keris, the Crescent and the Blind Goddess: The State, Islam and the Constitution in Malaysia” (2002) 6 Singapore Journal of International and Comparative Law 154) shaped my early understanding of Malaysian constitutional law, state and religion. His Geertzian approach to law draws out the complexity and anomalies of the pluralistic, post-colonial, and democratising Malaysian state. This perceptive local knowledge pervades his latest book, The Constitution of Malaysia: A Contextual Analysis, where he surveys the past, scrutinises the present, and meditates on the future of Malaysian constitutional law. It is part of the Constitutional Systems of theWorld series,...

As a former British colony, Singapore has a legal system that is very much influenced by British common law and constitutional ideas, while operating within a social-political context that is shaped by Islam, which was the majority religion in the region, and a nascent constitutional-legal culture that sits apart from more liberal legal traditions. Within this context, Singapore’s legal system is distinctly and self-avowedly pluralistic, as it seeks to accommodate traditional legal systems in the form of Muslim personal laws, while resisting developments in the common law that are viewed as ‘foreign’.

This article examines the intersection of religious freedom and minority protection within the Asian context. It argues that, to the extent that a focus on minority protection draws greater attention to the collective and communitarian dimensions of religious practice, it has the potential to enrich the discourse on religious freedom protection. I identify three areas of possible convergence-first, where a minority-focused regime leads to a richer understanding of the intersections between culture, language, and religion; secondly, where a focus on minority protection leads to positive measures by the state to protect religious minorities; and thirdly, where a minority regime founds a right of religious minorities to political participation. Nonetheless, I will also point out that there are limits to minority protection. It may even be a double-edged sword as it serves to reify differences with the rest of society and permanently marginalize the group as a minority. This is even if ...

The discrepancy between how Singapore ranks in terms of the rule of law vis-à-vis democracy raises a fascinating puzzle. How does a country rank so highly on rule of law indexes but score so poorly on democracy indexes? More importantly, what does this say about the relationship between the rule of law and democracy? This chapter examines three cases concerning the right to be represented in Singapore, employing them as useful devices to consider some of the more thorny issues concerning the relationship between the rule of law and democracy in a communitarian dominant party state like Singapore.

This article explores the social-political environment within which Islamic discourse in relation to human rights and duties takes place within Malaysia, with a focus on women's rights issues. Malaysia, as an acknowledged 'moderate' Muslim majority state, provides an instructive case study, particularly with its accession to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1995, with reservations which were partially withdrawn in 1998. In 2001, the constitution was amended to directly prohibit gender discrimination. Despite these advancements, inegalitarian practices remain and are often justified by reference to Islamic values and culture. In recent years, robust public debate about Islam and women's rights, voiced from multiple perspectives, has surfaced as participants seek to influence the law and policy on women's issues. There is no uniform perspective on these issues and this article demonstrates the diversity of vi...

This essay introduces the Special Issue of the Journal. It discusses how changing religious demographics and heightened religious plurality are challenging existing thinking about, and patterns of, state-religion relations and the nature of the ‘secular state’. The essay briefly surveys each of the papers in the Special Issue and highlights that one of the key lessons that emerges from the papers is the importance of context. As the contexts evolve, fresh thinking and new arrangements would be needed.

This Article introduces the German Law Journal’s Special Issue on “Solidarity in Diversity? State Responses to Religious Diversity in Liberal and Non-Liberal Perspectives”. The major countries in comparative focus are Germany and Singapore, both self-avowedly secular countries that face the challenge of religious diversity: Singapore, from inception, and Germany, through more recent developments. A key issue the Article raises concerns liberal approaches towards regulating religion; it argues that the liberal model, taking Germany as an example, may serve as a productive starting point for comparative analysis, as the liberal focus on individual religious freedom impacts managing religious diversity, shapes national cultural identity, models of secularism and social solidarity. This is compared with non-liberal approaches, as exemplified in Singapore practice, where a more communitarian outlook underpin more interventionist approaches whereby public interests and the common good ten...

This article examines the legal framework regulating unskilled and low-skilled migrant workers in Singapore. It argues that the current legal framework discriminates against these migrant workers and conceptualizes them as undesirable for inclusion in the wider society. This, it is contended, is premised on the assumption that migrant workers could be sequestered from the local population to some extent. This article provides some challenges to this assumption, highlighting instead some of the broader social and political consequences of this exclusionary legal framework. Consequently, it is argued that a more inclusive and integrationist approach is needed, and some positive developments are highlighted.

This article revisits and reflects upon the role of the constitutional head of state in times of democratic changes. It argues that the head of state in the Westminster system of parliamentary democracy plays an important gatekeeping function on behalf of the political sovereign, the People of Malaysia. This argument is made through an examination of the 2009 constitutional crisis in Perak (one of Malaysia’s constituent states). Although the events occurred on the state level, Malaysian politics have been in flux since the General Elections of 2008, and the same issues could arise on the federal level if a political turnover arises in the next general elections. There has not been a change of government at the federal level in Malaysia, and thus the critical question of how the constitution manages and guides political transitions has never been put to test there. This article investigates this question by examining the role of the constitutional head of state, arguing that the head...