Uniting Force?

‘Asian Values’ & the Laws

14th Asian Law Institute Conference
Hosted by University of Philippines, College of Law (UP)

Conference Venue: Novotel Manila Araneta Center

Conference Dates: 18 & 19 May 2017, Thursday & Friday

COVER PAGE FOR PAPER SUBMISSION

Religion, Asian Values, and Constitutional Practices in Malaysia

and Sri Lanka
Dr Dian Shah
National University of Singapore
dian.ahshah@nus.edu.sg

Note:

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Submissions may be made separately to the Asian Journal of Comparative Law. Please refer to their website at
http://law.nus.edu.sg/asli/asjcl.html. The decision to publish will be made independently by the journals’ editorial
boards, not the conference organisers or ASLI.

For ASLI Secretariat Use Only

Date of Presentation Thursday, 18 May 2017
(delete where applicable): Friday, 19 May 2017

Panel Assigned: A1
Abstract

This paper explores the interaction between religion and constitutional

practices in Malaysia and Sri Lanka and examines the extent to which they
reflect the centrality of ‘Asian Values’ in the constitutional and human rights
discourse. In these countries, religion was a key factor in driving nationalist
and anti-colonial consciousness. Religion is also intimately tied with ethnic
identities, entangled with constitutional law, and remains a crucial tool for
social and political mobilization.

Managing religious cleavages is therefore an arduous task, particularly in

cases where competing rights and interests are at stake. The need to protect
public order and inter-religious harmony in an environment where religious
nationalism is rising is not to be taken lightly, given the history of ethnic
and/or religious conflict. However, balancing this against fundamental
liberties and the principle of non-discrimination has not always been a smooth
and well-managed exercise.

To understand the patterns in these countries, this paper will uncover key
cases implicating religious freedom, examine how different groups express
their disagreements and political concerns in such cases, and assess how
state institutions respond to these contests. By extension, it will illuminate an
understanding of the drivers behind the contests between different religious
groups and whether state policies and practices on religion serve to
ameliorate or deepen religious divisions on the ground.

This paper argues that state responses towards religious freedom issues
reflect a prioritization of public order and concerns over protecting (majority)
religious sensitivities. In some ways, this has allowed religious nationalist
movements to prevail, shaping the constitutional and human rights discourse
in a majoritarian-centric direction and raising questions about the protection
of minorities. By investigating formal legal contests as well as social norms
and practices involving religion, this paper offers rich comparative insights on
how constitutional arrangements implicating religion are lived, practiced, and
understood both in the society and in governance.

Speaker Bio

Dian A. H. Shah is a Research Fellow at the Centre for Asian Legal Studies,
NUS and a Senior Lecturer at UM Law Faculty. Before obtaining her doctorate
from Duke University Law School in 2014, she earned an LL.M and LL.B from
Duke University and Warwick University, respectively. Her research interests
span the fields of constitutional history, comparative constitutional law, and
human rights. Dian's work centers on the interaction between law, religion,
and politics in Malaysia, Indonesia, and Sri Lanka. She is currently completing
a monograph on “Constitutions, Religion, and Politics in Asia” (forthcoming
Cambridge University Press, 2017).