Yvonne Tew (Georgetown University Law Center) has posted Malaysia's Invisible Constitution (Published in The Invisible Constitution in Comparative Perspective, Edited by Rosalind Dixon, Adrienne Stone, Cambridge University Press, 2018) on SSRN. Here is the abstract:
Religion has become the great fault line of the Malaysian constitutional order. Contemporary Malaysian politics and adjudication are divided by competing views over the constitutional identity of the modern Malaysian state as secular or Islamic. At the heart of this debate is Article 3(1) of the Federal Constitution of Malaysia, which declares ‘Islam is the religion of the Federation; but other religions may be practiced in peace and harmony’. Over the last two decades, the clause constitutionalizing Islam as the state religion has increasingly been pitted as being in tension with the right of religious freedom guaranteed under Article 11(1). This chapter considers the invisible constitution in connection with the Malaysian Constitution’s religion clauses. It explores the conceptual aspect of the unwritten, extra-textual influences surrounding the interpretation of the religion clauses, and also examines the deeper foundations of the constitutional framework underlying the visible text of Article 3(1).
Malaysia’s religion clauses provide a focal point for examining the invisible constitution in two main ways. The first aspect of invisibility is connected to the expansion of Islam’s position in the constitutional order by political and judicial actors through means outside textual constitutional change. Although the text of Article 3(1) has remained unchanged since the nation’s founding, Islam’s role in the Malaysian Constitution has been expanded through unwritten, extra-textual means in contemporary constitutional discourse. The invisible elevation of Islam’s supremacy in recent decades has taken place through expansive judicial interpretations of Article 3(1) by prioritizing Islam’s place over other constitutional norms. The approach, in effect, amounts to a claim that Article 3(1) gives rise to an implication of Islam’s primacy in Malaysia’s constitutional order. The invisible Islamisation of judicial discourse has also taken place through judges referring to sources beyond the Constitution, like Islamic texts and principles, in judicial reasoning when deciding cases in the civil courts.
A second, contrasting approach to Malaysia’s invisible Constitution is to have recourse to the Constitution’s original framework. Invisibility in this sense refers to the architecture of the Constitution – the overarching constitutional structure and commitments underlying the surface of its visible text. Malaysia’s Constitution came into force at the birth of a newly independent state, setting in place a framework for constitutional governance at the nation’s founding. Those who defend the Constitution’s secular nature argue that constitutional history and the original understanding of the constitutional bargain at the time it was framed are crucial sources establishing the secular basis underlying the text of Article 3(1). Understood properly, these unwritten constitutional fundamentals supply the framework for interpreting the written document. On this account of Malaysia’s invisible Constitution, the secular basis on which the Constitution was founded as well as its structural principles and fundamental rights guarantees are integral to Malaysia’s constitutional core.
Section 13.2 of this chapter begins by setting the background for discussing the Malaysian Constitution’s religion clauses. It describes the constitution-making process behind the constitutional provisions on religion and the growing Islamisation phenomenon in the contemporary Malaysian state. Section 13.3 examines the role of the courts and the constitutional adjudication relating to religion in Malaysia. Section 13.4 discusses the religion clauses and their connection to the invisible constitution in Malaysia. It explores the expansion of Islam’s place in the constitutional order through extra-textual means, as well as the use of constitutional history to uncover the Constitution’s unwritten secular basis. Section 13.5 offers some concluding reflections on the observations gained from the Malaysian example for broader comparative understandings.
