The Juridification of Race and Religion

Cases: Lina Joy v. Religious Council of the Federal Territories; Shamala Sathiyaseelan v. Jeyaganesh C. Mogarajah

Case SynopsesMalaysian courts have stood at the center of heated debates concerning freedom of religion. Especially  striking is that protagonists on both sides of the controversy invoke “religious freedom” and that both sides call upon the state to secure these alternate visions of religious freedom. At issue are arguments over individual freedom of religion versus community rights to manage their own religious affairs without state interference. Courts do not simply arbitrate between contending visions but exacerbate the uncertainty and indeterminacy around the meaning and content of “religious freedom.” This module examines two cases that show how law and courts repeatedly exacerbate the conflicts they are purportedly instruments to resolve.

Decided in April 2001, the Malaysian case Lina Joy v. Religious Council of the Federal Territories lasted for nearly a decade and became a public spectacle at home and abroad. The case concerned a woman who sought state recognition of her conversion from Islam to Christianity.  In litigating Joy’s right to religious freedom, her attorneys argued that restrictions on conversion violated her right to religious freedom, a right enshrined in Article 11 of the Malaysian Constitution, which states (in part) that “Every person has the right to profess and practice his religion….”  Joy’s opponents invoked another clause from the same Article, which states that “Every religious group has the right…to manage its own religious affairs….”  This second set of attorneys also claimed the right to religious freedom, but they argued that Article 11 is meant to safeguard the ability of religious communities to craft their own rules and regulations free from outside interference, including rules of entry and exit.

Decided in April 2004, the Malaysian case Shamala v. Jayaganesh concerned a custody battle over children in the aftermath of a husband’s conversion and divorce. The husband and wife fell under different court jurisdictions following the conversion and they each managed to secure custody orders from these alternate jurisdictions which came to opposite conclusions about the custody of the children. Worse still, neither parent was able to contest the competing court order directly as the result of legal standing requirements. As with Lina Joy, Shamala v. Jayaganesh produced a political crisis and became a focal point for competing politicians and civil society groups, each rallying around the banner of “religious liberty.” This case module originated in the work of Tamir Moustafa.

Art by Lee Kyung-Lim. Photo credit: Tennyson Lee.

Sources

High Court Case on State Recognition of Conversion

Lina Joy v. Religious Council of the Federal Territories
Analyses

Ambiguities of Religious Freedom

Tamir Moustafa, “The Politics of Religious Freedom in Malaysia,” Maryland Journal of International Law 29, no. 1 (2014): 468-91.
Context

Law, Religion, & Race

Charles Hirschman, “The Making of Race in Colonial Malaya: Political Economy and Racial Ideology,” Sociological Forum 1, no. 2: 330-61.

Islamic Law in Malaysia

Tamir Moustafa, “Judging in God’s Name: State Power, Secularism, and the Politics of Islamic law in Malaysia,” Oxford Journal of Law and Religion 3, no. 1 (2014): 152–67.