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  • Singapore Journal of Legal Studies [2009] 52–79


    Thio Li-ann∗

    Religion is almost universally guaranteed as a fundamental liberty and human right, although the scope of religious freedom and understandings of religious identity within secular democracies are informed by the specific model of constitutional secularism practiced. States often evidence an ambivalent attitude towards religion, treating it as Law’s Other, that is, a competing normative system which has regulative force on social behaviour and influences conceptions of citizenship and affective loyalties. This article examines the interpretive method of two secular Asian courts, which are meant to be bastions of impartiality, in negotiating questions of religious identity and religious freedom. It analyses the judicial weighting and balancing of relevant competing factors and considers the varied understanding of what secularity requires and whether the concerns of religious minorities are adequately safeguarded within secular polities where religion remains an important social force.

    I. Introduction

    Freedom of Religion is an integral component of the corpus of core human rights, one rooted in peace treaties dating back to the 17th Century1 and finding expression in numerous constitutions and human rights instruments, such as article 18 of the 1948 Universal Declaration of Human Rights (“UDHR”).2 Religious liberty may be considered the first liberty, the basis of a free society which protects the right of its members to seek answers to fundamental or first order human questions, such as,

    ∗ Ph.D. (Cambridge); LL.M (Harvard); B.A. (Oxford)(Hons), Barrister (Gray’s Inn, U.K.), Nominated Member of Parliament (Eleventh Session); Professor, Faculty of Law, National University of Singapore.

    1 Most famously the 1648 Treaty of Westphalia provided that each prince had the right to determine the religion of his own state (cuius regio, eius religion). For example, Article XXVII states that all those of the Confession of Ausburg (Lutherans) should have “the free Exercise of their Religion, as well in publick Churches at the appointed Hours, as in private in their own Houses.” Full text of the treaty available online: (visited 15 May 2009). See generally Malcolm D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997); Leo Gross, “The Peace of Westphalia, 1648-1948” (1948) 42 A.J.I.L. 20.

    2 Article 18 reads: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. GA Res. 217A(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71. Saudi Arabia abstained owing to problems with articles 16 and 18: Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2002) at 163; Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting & Intent (Philadelphia: University of Pennsylvania Press, 1999) at 258-268.

  • Sing. J.L.S. Courting Religion: The Judge Between Caesar and God in Asian Courts 53

    “who am I” and “where am I going.” It protects the intrinsic value of a free con- science,3 as well as other instrumental values such as religious pluralism4 and the pacific co-existence of faith communities within a broader multi-religious society. One might note that while the juridical status of religious freedom as a constitu- tional or human right is established, the content of this right continues to provoke controversy.5

    Religious freedom is typically apprehended as having an internal dimension (forum internum) and an external one (forum externum). The forum internum relates to freedom of conscience and is absolute while the forum externum relates to the freedom to manifest religious practice which is qualified. A secular civil power has the authority and responsibility to prevent peoples from engaging in terrorist acts in the name of religion if it threatens the public good of maintaining public order.6

    The Constitution does not create a ‘suicide club’7 and the state must justifiably and consistently with the maintenance of religious liberty restrain those religious beliefs which may regard the existence of organised society as an evil, in order to maintain civil government and the continued existence of the community.8 Article 29(2) of the UDHR recognises that the exercise of freedoms is subject to legal limitations but articulates a normative basis for limiting limits on rights by requiring that these limits serve the purpose of respecting “the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

    3 Samuel Gregg said “Religious liberty seeks to guarantee that all are free to consider whether or not there is an ultimate transcendent being whose existence provides a compelling explanation of life” noting that this also entails “that non-believers cannot be forced to worship anyone or anything.”: see Samuel Gregg, “Rendering unto Caesar: New Challenges for Church and State” (Paper presented at the Auditorium, Australian Stock Exchange, 2004) in Sydney, Centre for Independent Studies (Australia) Occasional Papers (2004).

    4 John Locke, A Letter Concerning Toleration, text available online: University of Virginia Library Elec- tronic Text Center (visited 15 May 2009).

    5 E.g., in relation to apostasy issues where courts have denied that religious freedom includes the right to change faith. For example, the Malaysian High Court (Kuala Lumpur) in Lina Joy v. Majlis Agama Islam Wilayah [2004] 2 M.L.J. 119 did not consider that the article 11 guarantee of religious freedom contained the right to conscience: at paras 20-21. So too, the High Court (Kota Baru) in Daud bin Mamat v. Majlis Agama Islam [2001] 2 M.L.J. 390 considered that exiting a religion “is certainly not a religion” and in the absence of an express right to renounce religion, the religious freedom clause did not contain a right for Muslims to change their religions. See generally Thio Li-ann, “Apostasy and Religious Freedom: Constitutional IssuesArising from the Lina Joy Litigation” [2006] 2 M.L.J. i; [2006] 2 M.L.J.A. 1 for an analysis of the High Court decision. For a reply, Shamrahayu A. Aziz, “Apostasy and Religious Freedom: A Response to Thio Li-ann” [2007] 2 M.L.J. i; [2007] 2 M.L.J.A 1. See also Thio Li-ann, “Jurisdictional Imbroglio: Civil and Religious Courts, Turf Wars and Article 121(1A) of the Federal Constitution” in Andrew Harding & H.P. Lee, eds., Constitutional Landmarks in Malaysia (Singapore: LexisNexis, 2007) at 197-226; and Farid Shuaib, “Constitutional Restatement of Parallel Jurisdiction between Civil Courts and Syariah Courts in Malaysia: Twenty Years on (1988-2008)” [2008] 5 M.L.J. xxxiii; [2008] 5 M.L.J.A. 33.

    6 See generally Paul M. Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (NewYork: Cambridge University Press, 2005); Johan D.Van derVyver & John Witte Jr., eds., Religious Human Rights in Global Perspective: Legal Perspectives (Boston: Martinus Nijhoff, 1996).

    7 H.L.A. Hart, The Concept of Law (New York: Oxford University Press, 1961) at 188. 8 Adelaide Company of Jehovah’s Witnesses Inc. v. Commonwealth (1943) 67 C.L.R. 116 at 124-126

    (H.C.A.), per Latham C.J.

  • 54 Singapore Journal of Legal Studies [2009]

    Religious freedom guarantees are typically accompanied by rights limitations sim- ilar to article 29(2) of the UDHR. Within secular democracies, the scope of religious freedom thus implicates the question of the role of the state in relation to religious belief. Secularism9 is itself a protean term, capable of having hostile anti-theistic (anti-religion) or more accommodative agnostic connotations (anti-theocratic).10

    Constitutions may establish provisions influencing how close or distant a faith community is in relation to the state, in terms of official state recognition of the special status of a religion and pecuniary or non-pecuniary forms of state support. There is a range of state-religion models, such as a more accommodationist or co- operationist model, between the two extremes of a theocracy and a strict separationist regime,11 which affects the contours of religious freedom in any given polity. In theocratic regimes, religion and politics are fused; in strict separationist regimes, a doctrinaire secularism antagonistic to religion demands religion’s retreat wherever the state wishes to advance. This sort of militant secularism does not uphold state neutrality towards religion but rather, state bias against religion. As affirmed by the European Court of Human Rights, the Swiss Federal Court held that ‘neutrality’ does not entail “that all religious or metaphysical aspects” be excluded from state activities, underscoring that an irreligious or anti-religious attitude “does not qualify as neutral.”12 The key point is that there are two broad conceptions of secularism with differing degrees of receptivity towards religious belief: first, a ‘thick’ version where ‘secularism’ is a comprehensive substantive humanist or materialist ideology, which is exclusivistic and intolerant of religious belief in seeking political dominance; second, a ‘thin’ version where ‘secularism’ is cast as a framework for ordering the co-existence of mutually irreconcilable beliefs, whether of religious or irreligious origins.13