1One of the fascinating but seldom-explored phenomena in comparative constitutional studies is the growing reliance on constitutional courts in the non-secular world to contain religion and advance a relatively moderate interpretation of sacred texts. That courts in expressly “separationist” regimes of state-and-religion take an overall religion-limiting stance is not surprising. French jurisprudence on religious issues has consistently defended what some have called an assertive model of secularism. The American constitutional system continues to uphold a formally secular political order in one of the most religious societies in the West. [1] Likewise, the Supreme Court of India has maintained and advocated a secularist vision of the Indian Constitution amid a markedly religious setting and increased political presence of Hindu and Muslim religiosity. [2] Its jurisprudence on personal status law has sounded a clear voice for uniformity and standardization in that domain. In all of these settings, however, religion-taming jurisprudence is what the formal constitutional order warrants, and the same could be said of those liberal democracies which do not formally commit to full-fledged secularism but combine corporatist models of state-church co-operation with strong religious freedom provisions. [3] A notably harder challenge to the constitutional containment of religion is posed by constitutional orders that explicitly feature strong establishment of religion or that draw upon religious ascription for collective identity building.

2Strikingly, current comparative constitutional scholarship seldom addresses constitutional jurisprudence in such religion-infused settings. To begin with, compared with the wealth of typologies, scales and descriptions of varying models of secularism within the so-called liberal democratic model, the religio-political variation within the world of strong constitutional establishment of religion is still not well captured. Furthermore, unlike the burgeoning literature on the political and constitutional place of religion in the West, there are few comparative accounts of constitutional jurisprudence in settings that defy the ideal of separating religion and state along private/public lines. Even within the growing literature on the political role of courts and judges, attention to constitutional law and courts in religion-laden settings has been minimal. [4] To the extent that high courts in such settings are studied, it is almost exclusively in the context of the regime-supporting role of judicial review in authoritarian polities and the “window dressing” role of judicial review in enhancing international reputation and credibility of governments. [5] Few scholars study the constitutional domain in religion-laden settings as an effective means for constructing an ascriptive, religion-based collective identity and national meta-narrative while at the same time bringing religion under state control and disarming it of its potentially radical edge.

3Elsewhere, I explored the evolving role of constitutional law and courts as religion-taming agents in countries that feature full constitutional endorsement of Islam as the single state religion and its establishment as “a” or “the” source of legislation (meaning that legislation must comply with principles of that religion). [6] In this article, I turn to examine the scope and nature of this phenomenon in Israel and Malaysia – two complex constitutional settings that occupy the largely uncharted middle-ground between a strict separation of religion and state (e.g. France or the United States), and a full-fledged “constitutional theocracy” (e.g. Iran or Saudi Arabia).

4Dissimilar as they may appear at the outset, the constitutional orders of Israel and Malaysia feature some key resemblances. Israel defines itself as a Jewish and democratic state. Much has been written about this duality: that is, how logically plausible it may be, given the fact that non-Jews make up approximately one-fifth of Israel’s citizenry, and how these two foundational tenets may be translated into a fairly coherent set of guidelines for public life. To add further complication, Israel sees itself as a homeland for the entire world Jewry and draws on religious ascriptions to assign a nationality marker of identity (Le’om) to each of its citizens. This is then used as a legal foundation for a political system that combines democratic and civil rights for all of its citizens with a structured dominance of a single ethnic group (Jews) to the detriment of others. [7] A comparable constitutional framework exists in Malaysia. Islam is constitutionally enshrined as the religion of the Federation. Although freedom of religion is formally protected, each of the thirteen states may propagate the teachings of Islam. To further complicate matters, and mirroring aspects of Israeli law, Malaysian law draws on religious ascriptions to establish what has been termed ethnic democracy. Although more than one-third of Malaysia’s population consists of non-Muslims, ethnic Malays (Bumiputra or “sons of the soil”), generally Muslim, are granted constitutionally entrenched preferential treatment in various aspects of public life over members of other ethnic groups. Malay citizens who convert out of Islam are no longer considered Malay under the law and hence forfeit the Bumiputra privileges afforded to Malays under the Constitution. In other words, Malaysia is a country of all its citizens yet at the same time a country that privileges its Muslim citizens over the non-Muslim ones, all while fostering a national meta-narrative of inter-ethnic peace and harmony.

5The article proceeds in four main steps. I begin with a brief survey of the relevant social and constitutional framework for understanding the status of religion in Israel. Next, I examine landmark constitutional jurisprudence that deals with the clash between Israel’s constitutional principles and religious identity, most notably rulings on foundational questions such as “Who is a Jew?” and conversion to Judaism, the balance between claims of religion and general principles of constitutional law, and the jurisdictional autonomy of religious tribunals in personal status matters. Then, I draw some comparisons with Malaysia – one of the countries that have been grappling with a similar set of existential dilemmas pertaining to religion, ethnicity, nation building, and modern constitutional law. In the third part of the article, I highlight tensions between religious identity and constitutional principles in Malaysia before turning to their judicial resolution in the fourth part.

6I conclude by offering some general observations about the role of constitutional law and courts in mediating the foundational tension between the rule of law and the rule of God in polities that defy the Franco-American doctrine of strict separation of religion and state. Although the constitutional endorsement of religion may reflect genuine aspirations and affirm religion- or ethnicity-based collective identities, it may also be seen as an effective means for containing or domesticating religion by bringing it under constitutional control. It neutralizes religion’s revolutionary sting, ensures state input in the translation of religious precepts into guidelines for public life, helps mutate sacred law and utilize religious discourse to serve nation building and regime legitimacy interests, and, above all, assists in bringing an alternative, even rival, order of authority under state supervision.

7As the comparative analysis of canonical constitutional jurisprudence of religion in Israel and Malaysia suggests, there are considerable differences in the interpretive approaches and practical solutions adopted by the two countries’ respective high courts in dealing with core questions of religion and state. However, despite the dissimilarities, there are some striking parallels in the way in which these courts (as well as constitutional courts in other religion-laden settings) have positioned themselves as important religion-harnessing forces, relative to the context within which they operate. The common jurisprudential inclination to advance a “nationalized”, state-endorsed variant of religion, makes the constitutional domain in both settings an attractive site for those who object to the expansion of religion-based morality and oppose stricter application of sacred precepts in public life.

Law and religion in Israel: the social and constitutional framework

8Since the establishment of the State of Israel, a fundamental – and unresolved – collective- identity issue has been whether the country is a medinat hok (a state based on civil or secular law) or a medinat halakhah (a state based on Jewish law). Israel’s constitutional system is based on two fundamental tenets: the state is Jewish and democratic. It is this commitment to the creation of an ideologically plausible and politically feasible synthesis between particularistic (Jewish) and universalistic (democratic) values that has proved to be the major constitutional challenge faced by Israel since its foundation. [8] Reaching such a synthesis is especially problematic given that non-Jews – primarily Muslims, Christians, and Druze – constitute approximately one-fifth of Israel’s citizenry (excluding the Palestinian residents of the West Bank and Gaza Strip). The tension between a commitment to democratic values and a commitment to religion/ethnicity-based collective identity manifests itself in various aspects of public life, most notably in the area of public funding and allocation of goods and opportunities. One of the main vehicles for pro-Jewish preferential treatment in Israel has been the requirement of military service as a proviso for receiving various government funds and benefits. Because most non-Jews are not drafted while all Jews are (including the exempted ultra-Orthodox, who officially have their draft deferred), military service provides a proxy for ethnic discrimination against Arabs in access to welfare, housing, education, employment, or other forms of direct assistance granted to those who serve.

9Even within the Jewish population, the exact meaning of Israel as a “Jewish” state has been highly contested. Not only do opinions differ sharply on whether Jews are citizens of a nation, members of a people, participants in a culture, or coreligionists, but even among adherents of the last opinion – arguably the most established of these constructions – there are widely divergent beliefs and degrees of practice. These adherents range from the ultra-Orthodox to millions who define themselves as “traditional” (Masorti or Shomer Masoret) and include those who pursue a fully secular lifestyle yet celebrate their children’s bar/bat mitzvah and acknowledge the Jewish high holidays.

10Nevertheless, for a host of historical and political reasons, the Orthodox stream of the Jewish religion has long enjoyed the status of being the sole branch of Judaism formally recognized by the state. This exclusive status has enabled the Orthodox community to establish a near monopoly over the supply of religious services – a lucrative business entailing countless civil service jobs at the national and municipal levels, monitoring of business compliance with legalized, religion-infused standards, and handling of religious ceremonies ranging from circumcisions to weddings to burials. It has also enabled the Orthodox community to impose rigid standards on the process of determining who is a Jew – a question that has crucial symbolic and practical implications because, according to Israel’s Law of Return, Jews who immigrate to Israel are entitled to a variety of benefits, including the right to immediate full citizenship. All of this has taken place even though more than two-thirds of the world’s Jews, on whom Israel relies for essential symbolic, material, and strategic support, continue to live outside Israel and do not subscribe to the Orthodox stream of Judaism.

11To further complicate things, over the last four decades there has been a continuous decline in the political power and representation of Israel’s historically hegemonic, secular-socialist Ashkenazi constituencies (mostly Jews of European descent, often with Western cultural propensities, and – at least during the first few decades of statehood – better off socio-economically compared with Mizrahi Jews, who are mostly of North African and Middle Eastern origin). This decline of the Ashkenazi cultural and political establishment was accompanied by a corresponding rise of new or hitherto marginalized groups, some of which (most notably residents of Jewish settlements in the West Bank and religious Mizrahi residents of development towns and socio-economically underdeveloped urban neighborhoods) are strong advocates for Jewish tradition. [9] The expansion of the electorate by the addition of approximately one million newly arrived immigrants from the former Soviet Union and elsewhere (roughly 15% of Israel’s population) – many of whom support extreme nationalist parties – also contributed to destabilizing the Labor movement’s historical grip on political power. As the largely secular Ashkenazi elite’s disproportionate influence over the country’s important political decision-making arenas has been increasingly challenged, its willingness (if not eagerness) to transfer crucial religion-and-state questions from the political arena to the Supreme Court of Israel (SCI) has likewise increased. [10] Given the Court’s record of adjudication, as well as its judges’ educational background and cultural propensities, Israel’s left-leaning, relatively cosmopolitan bourgeoisie can safely assume that its worldviews and policy preferences with regard to constitutive questions of religion and state will be less effectively contested. This has resulted in the transformation of the SCI into a (if not the) crucial present-day forum for addressing the country’s most fundamental collective-identity quandaries. In the process, the SCI has become a bastion of “reason” and “sanity” for Israel’s “enlightened public” – a criterion frequently used by the Court throughout the 1990s to determine the “reasonableness” of specific acts. This court-constructed “public” closely conforms to the characteristics of the old Ashkenazi establishment at the center of the Zionist consensus and shares its world views and policy preferences.

Contemporary constitutional jurisprudence of religion in Israel

12Since the late 1980s, the SCI has pursued a distinctly liberalizing agenda in core matters of religion and state, ranging from the curtailment of the exclusive jurisdiction of the rabbinical courts in matters of personal status and the erosion of the Orthodox monopoly over the provision of religious services, to the liberalization of rules pertaining to vehicular traffic bans in religious neighborhoods and commercial activity on the Jewish Sabbath, the solemnization of marriage, and kashrut (kosher) and shmita (land sabbatical) laws. In an important case involving blatant ethnic segregation policy by an ultra-Orthodox all-girl school in the predominantly religious West Bank settlement town of Emmanuel (the segregation was justified by school authorities as addressing the distinct needs of two separate religious streams), the Court ruled (2009) that although the right to cultural pluralism in education is recognized by Israeli law, religious affiliation as a basis for autonomous schooling is not an absolute right when it collides with the overarching right to equality. [11] In 2011, the SCI held in another landmark case that gender segregation in public buses operating in several ultra-Orthodox towns was unlawful. [12] Bus companies offering services (so-called mehadrin buses, meaning “embellished”, often used among Jews to signal stringency in the context of following God’s commandments) in religious neighborhoods were ordered to carry anti-segregation signs indicating that all passengers were allowed to choose any seat, except seats designated to the disabled. Granted, the actual implementation of some of these rulings has been protracted and often considerably less decisive than the Court’s rulings. In most cases, political pressures and on-the-ground realities make pragmatic compromises more effective than principled legal reasoning. Realities aside, however, the Court’s jurisprudential voice has been quite clear.

13A cornerstone of the Court’s liberalizing treatment of religion has been the issue of non-Orthodox conversion to Judaism and the related question, “Who is a Jew?” As explained earlier, the matter has significant symbolic, political, and legal implications resulting from Israel’s self-definition as a Jewish state and the importance of the Law of Return. As early as 1969, the Court ruled (5 –4) in Shalit v. Minister of Interior in favor of Binyamin Shalit’s claim that the government could not use the strict “who is a Jew” test of the Halakha alone to define a person’s nationality. [13] Shalit, a Jew born in Israel and an officer in the Israeli navy, married a non-Jewish woman in Scotland. He brought his wife back to Haifa, where two children were born to them. The Ministry of the Interior refused to register the children as Jews on Shalit’s request because the Halakha stipulates that the mother’s religion is the sole determinant of the children’s religion. Following the Court’s ruling that the Halakhic test may not be the only applicable one, a more pluralistic approach was adopted, whereby specific circumstances may warrant registration of children as Jewish even if their mother is not. Beyond the specifics of the case, the Court’s ruling in Shalit may thus be seen as a major judicial statement on the place of Halakha in Israeli law and policy.

14In 1989, the SCI held that for purposes of immigration, any person who converted to Judaism outside Israel, whether under the auspices of an Orthodox, Conservative, or Reform religious institution, was automatically entitled to all the rights of an oleh (Jewish immigrant), as stated in the Law of Return and the Citizenship Law. [14] In 1995 the SCI was once again drawn into the muddy waters of identity politics. This time the question before the Court was whether a person who underwent non-Orthodox conversion in Israel was entitled to automatic citizenship based on the right of return in the same way in which someone who converted outside Israel would be. The court avoided giving a clear answer while explicitly reaffirming its 1989 ruling validating non-Orthodox conversions made abroad. [15]

15Following this ruling, an increasing number of non-Jewish persons residing in Israel (primarily foreign workers and non-Jewish immigrants from the former Soviet Union) went abroad to pursue non-Orthodox conversion to claim the benefits awarded by the state to those newcomers recognized as Jews. In response, the Ministry of the Interior (controlled at the time by the religious Shas Party, representing mainly religious Mizrahi Jews of North African and Middle Eastern origin) renewed its refusal to recognize Reform and Conservative conversions to Judaism made abroad, despite the SCI’s ruling. In 2002 the Court responded with a historic decision (9 –2) reaffirming non-Orthodox conversions to Judaism performed abroad. [16] In another landmark ruling on the subject (2005) the Court agreed (7 –4) to recognize non-Orthodox “bypass” conversions to Judaism performed de jure abroad but de facto in Israel. [17] It held that a person who came to Israel as a non-Jew and, during a period of lawful residence there, underwent conversion in a recognized Jewish community abroad would be considered Jewish. In its judgment the Court stated:

16

“The Jewish nation is one […] It is dispersed around the world, in communities. Whoever converted to Judaism in one of these communities overseas has joined the Jewish nation by so doing, and is to be seen as a ‘Jew’ under the Law of Return. This can encourage immigration to Israel and maintain the unity of the Jewish nation in the Diaspora and in Israel.”

17Few could articulate the Zionist-nationalist (and anti-Orthodox) view of Judaism in present-day Israel more potently.

18Thus it is hardly surprising that in 2009 the Court (in a decision written by the then Chief Justice Dorit Beinisch) went on to apply equal-opportunity principles and order the government to fund non-Orthodox conversion study programs, just as it has been funding Orthodox conversion programs. In 2012, the Court confirmed the validity of thousands of conversions to Judaism that had been previously annulled by the Orthodox-controlled rabbinical court system for being allegedly too lenient or insincere. [18] These conversions, mainly by immigrants from the former Soviet Union, were initially validated by special conversion courts established by the government to circumvent the rabbinical courts’ stringent requirements that were seen as deterring immigrants from converting.

19Another pinnacle of the SCI’s liberalizing jurisprudence in matters of religion and state is its subjection of the religious courts’ jurisprudential autonomy in matters of personal status to the general principles of administrative and constitutional law, most notably due process and gender equality. This has had far-reaching implications in areas as diverse as family and personal-status law, representation in statutory religious bodies, and gender equality in the religious labor market. In Israel, no unified civil law applies to all citizens in matters of marriage and divorce. Instead, for various political and historical reasons (the roots of contemporary Israeli family law go back as far as the Ottoman Empire’s pre-modern millet system), the courts of the different religious communities hold exclusive jurisdiction over marriage, divorce, and directly associated personal-status matters. A number of other personal-status matters may be adjudicated through the rabbinical court system (controlled by Orthodox Judaism) if the involved parties consent to such extended jurisdiction. Muslim, Christian, and Druze courts also have exclusive jurisdiction over the personal-status affairs of their respective communities.

20Since the mid-1990s the SCI has gradually been attempting to limit the authority exercised by religious courts. The most important SCI judgment regarding these matters was rendered in 1995 in the Bavli case. [19] In several earlier decisions, the SCI ruled that religious tribunals must comply with provisions of concrete laws pertinent to their operation and jurisdictional boundaries. In its ruling in Bavli the SCI expanded considerably its overarching review of religious tribunals’ jurisprudence by holding that all religious tribunals, including the Great Rabbinical Court, are statutory bodies established by law and funded by the state; in principle, all aspects of their judgments are thus subject to review by the Supreme Court. Although the SCI recognized the special jurisdictional mandate awarded to Jewish, Muslim, Christian, and Druze courts by the legislature, it nevertheless asserted its power to impose fundamental constitutional norms on their exercise of authority. Rabbinical court officials have responded by publicly asserting their resistance to the idea that the Supreme Court, as a secular entity, possesses the authority to review their adjudication, which rests on religious law. Some have gone so far as to declare their intention to ignore the Court’s ruling in Bavli, which they perceive as an illegitimate intrusion into their exclusive jurisdictional sphere. The Supreme Court was not impressed.

21On the basis of its landmark decision in Bavli, the SCI went on to overturn at least two dozen other rabbinical court and Shari’a court rulings for not conforming with general principles of Israel’s constitutional and administrative law, including gender equality, reasonableness, proportionality, natural justice, and procedural fairness. In Katz (1996), the Court held that the rabbinical courts were not authorized to declare an individual who refused to have a civil matter adjudicated by the rabbinical court excommunicated or ostracized. The majority opinion stated that because the rabbinical court system is a public organ that exists by force of law and draws its authorities from the law, it could only exercise those prerogatives vested in it by law. [20] A year later, the SCI overturned a rabbinical court decision that held that a divorced father who had become religious was entitled to decide where his children would be educated, even though his wife, who remained secular, had been granted custody of the children. [21] In 1998, the Court overturned another rabbinical court decision that had forced a divorcee to send her son to a religious school at the demand of her ex-husband. [22] In a similar spirit, the SCI ruled in 2001 that the rabbinical courts were unauthorized to decide on a request by a man to prohibit his ex-wife from letting their children spend time with her lesbian partner. [23]

22An effective illustration of this trend is the Court’s ruling in Plonit (“Jane Doe”) v. The Great Rabbinical Court (2008). [24] Section 5 of the Property Relations between Spouses Law (Hok Yahasei Mammon bein Bnei Zug 1973, amended in 1995) states that in case of divorce, the couple’s assets will be split evenly between the two spouses regardless of the formal registration status of these assets. However, Section 8 of that law grants courts the authority to determine “special circumstances” in which an uneven split may be justified. In Plonit, a woman who married her husband in 1985 had an extramarital affair in 2003 that eventually brought about the breakup of her marriage. The Great Rabbinical Court ruled that the wife’s unfaithful behavior constituted “special circumstances”, and that the husband was entitled to more than half of the couple’s assets.

23On appeal, the SCI used its reasoning in Bavli to overturn the ruling. It accepted the wife’s argument that the Great Rabbinical Court ruling did not comply with earlier SCI decisions, which stated that adulterous behavior may justify neither a departure from the presumption of an even split nor a retroactive negation of the adulterous spouse’s rights to accumulated property in the years before his or her extramarital affair. Even more importantly, the SCI stated decisively that the two systems are not parallel, but unitary. As such, rulings of the rabbinical court system, including rulings of the Great Rabbinical Court, are subject to review by the Supreme Court and must comply with pertinent jurisprudential principles established by the SCI over the years. One can hardly think of a greater blow to the rabbinical court system’s jurisdictional autonomy. In this charged jurisdictional tug-of-war, then, not only are substantive values at stake but also questions of institutional competency and a battle over who has the last word in resolving such disputes. Similar tensions are identified below in the context of Malaysian law and religion jurisprudence.

24Although the SCI has pursued a distinctly liberalizing and gender-equalizing agenda in core matters of religion and state, it has also sought to protect the Zionist-nationalist version of Israel’s “Jewishness” pillar of collective identity. In a landmark ruling in the Citizenship Law/Family Unification case (2006), the SCI upheld (in a divided 6 –5, 263-page decision) a temporary amendment to the new Citizenship and Entry to Israel Law, which imposed age restrictions on the granting of Israeli citizenship and residency permits to Arab residents of the Occupied Territories who marry Israeli citizens. [25] Because the practice of marrying Palestinians is far more common among Israel’s Arab minority, the law limiting family unification and spousal naturalization effectively singles out Arab citizens while maintaining the demographic balance in favor of members of Israel’s Jewish population, who seldom marry Palestinians and whose noncitizen spouses are often naturalized by way of marriage to an Israeli (Jewish) citizen. The dividing line between the majority and dissenting opinions was between the six justices who favored the first tenet in Israel’s self-definition as a Jewish and democratic state and the five justices (including then Chief Justice Aharon Barak) who gave priority to the second. In 2012, the Court upheld (6 –5) the law’s final version. The outgoing Chief Justice Beinisch sided with the dissenting opinion, arguing that the law denied Israeli-Arabs’ equal opportunity to family life. However, the majority ruled that “the right to a family life does not necessarily have to be realized within the borders of Israel.” The court’s incoming Chief Justice, Asher Grunis, wrote that “human rights cannot be enacted at the price of national suicide” (referring to what has been termed in Israeli public discourse as “the demographic threat” to the Jewish character of the state). In a widely-reported decision in 2013, the SCI went on to rule that religious affiliations (e.g. “Jewish”, “Muslim” etc.) listed in Israeli citzens’ state-issued identity cards may not be replaced by more inclusive and generic ones (e.g. “Israeli”). While the Court acknowledged that “the natural place for these discussions isn’t in the courtroom, but rather in other arenas of public debate and academic writing”, it nonetheless held that there was no place to unite the different ethnicities living in Israel under a new and inclusive category of nationality, as allowing citizens to relinquish ethnic or religious identity in the population registry would undermine Israel’s nature as a Jewish state. [26]

25At any rate, the landmark SCI rulings in the Identity Card or the Citizenship Law/Family Unification cases were certainly not the first time the nature of Israel’s Jewish character has been tested in court against other fundamental constitutional values. In the Meatrael affair, one of the first post-1992 cases dealing with the normative foundations of Israel, a prima facie contradiction was raised between the constitutional right to freedom of occupation and Israel’s primary character as a Jewish state. Meatrael, a private company that intended to import non-kosher meat products into Israel, appealed to the SCI against the refusal of the Ministry of Religious Affairs to license the company to do so. The company argued that the Ministry’s decision violated its constitutional right to freedom of occupation. The Ministry’s refusal was based on the claim that Israel’s Jewish character was one of the state’s supreme constitutional norms and thus had priority over any other norm. [27]

26In its first decision on the case the Court declared the refusal of the Ministry of Religious Affairs unconstitutional because it contradicted the principles of the new Basic Law by infringing the company’s right to engage in any legal economic initiative. Subsequently, under pressure from religious parties, the Basic Law was amended (in the spirit of the Canadian “notwithstanding clause” – Section 33 of the Charter of Rights and Freedoms) to allow for future modifications by ordinary laws endorsed by an absolute majority of Knesset members. An amendment forbidding the import of non-kosher meat was subsequently enacted in 1994. On the basis of the new 1994 Meat Law the government renewed its refusal to license the import of non-kosher meat. In response, Meatrael appealed to the Supreme Court again, arguing for its constitutional right to engage in any legal economic initiative. This time the Court ruled against the company on the basis of the reasonableness of the new Meat Law, in light of the amendments made to the Basic Law. Behind this decision, however, lay immense political pressure for the Court to prevent any further erosion of the conception of “Israel as a Jewish state” as the highest constitutional norm. In spite of its somewhat anticlimactic ending – the legislature ultimately managed to circumvent judicial scrutiny of its decision – the Meatrael affair clearly illustrated the SCI’s commitment to breaking the religious establishment’s monopoly over the definition of Judaism and provision of religious services.

27A closely related frontier of secular/religious struggle is the scope of religious authorities’ prerogative over the issuance of kashrut (kosher; meaning “fit” or “legitimate” for consumption according to Jewish dietary and food-preparation restrictions) certificates by the Chief Rabbinate. Historically the Chief Rabbinate has refused to issue kashrut certificates for businesses that either deal with both kosher and non-kosher foods or sell only kosher food but violate other religious norms (e.g., they operate on the Sabbath, engage in indecent acts, or deal with businesses that do not keep kosher). This practice draws on a rather expansive reading by the Chief Rabbinate of its legal mandate to consider “exclusively kosher food norms” when issuing such certificates. In a series of rulings in the last two decades the Court came to the rescue and compelled the Chief Rabbinate to issue kosher food certificates to businesses that sell kosher food regardless of their other practices. This line of rulings reached a peak in 2002 when the SCI harshly criticized the Chief Rabbinate for its continuous misuse of authority and irresponsible contempt of court rulings in illegally denying kashrut certificates to kosher meat producers trading with merchants of non-kosher foods. [28] Once again the Court stressed that the Chief Rabbinate and the entire rabbinical court system were, first and foremost, statutory bodies created through state laws, and consequently the decrees and verdicts issued by these bodies must conform with state laws and constitutional norms, even when they contradicted religious customs.

28These jurisprudential outcomes are hardly surprising given the Court’s personal composition, which with very few exceptions has been similar to the country’s historically powerful circles in its demographic characteristics. The vast majority of SCI justices through the years, and all ten chief justices since the Court’s establishment in 1948 have been of Ashkenazi origins, most of whom hold advanced degrees from universities in Germany, France, the UK or the US. The single Arab-Israeli Supreme Court judge to date was appointed in 2003. Moreover, the occupants of the customary chair reserved for a religious judge on the Supreme Court have traditionally been distinguished legal academics or longtime civil servants whose views about state-and-religion relations are much closer to the mainstream Zionist canon than to ultra-Orthodox Judaism, much less other minorities in Israeli society. [29]

29In the meantime, and outside the courtroom, the political control over judicial appointments to religious tribunals has tightened. In 2008, for the first time in Israel’s history, three new Great Rabbinical Court judges (dayanim) were sworn in during a ceremony held at the official residence of the president of Israel and took the same oath of office that is taken by civil court judges. Prior to that event, appointees to the rabbinical court system had been sworn in at the Chief Rabbinate. The “relocation” to the president’s home and the justice minister’s dominance in the appointments process itself reflect the transfer of ministerial authority over the religious court system from the Ministry of Religious Affairs to the Ministry of Justice. It also symbolizes the greater significance that the state authorities assign to bringing the religious court system under full, non-sectarian government oversight.

Law and religion in Malaysia: social and constitutional framework

30Israeli and Malaysian jurists alike may begrudge the comparison, but there is a considerable resemblance in the relations between constitutional law and religious difference in the two countries. Akin to Israel, Malaysia provides a captivating yet seldom explored illustration of the subtle religion-taming function of constitutional jurisprudence. Malaysia, despite its vast socio-economic disparity, is one of Asia’s economic tigers and a major tourist destination. Its capital, Kuala Lumpur, is one of Asia’s most bustling business centers – home of the landmark Petronas Twin Towers, as well as the Menara Kuala Lumpur, currently the world’s fifth-tallest telecommunications tower. Putrajaya, Malaysia’s new administrative capital next to Kuala Lumpur, features a fully electronic government, matching with its neighboring planned city Cyberjaya, in accordance with former prime minister Mahathir bin Mohamad’s vision of Malaysia as the “Japan of the Islamic world”. [30]

31At the same time, however, the Malaysian political sphere, at both the state and federal levels, has undergone substantial Islamization over the last four decades. The Islamic dakwah (“religious revival”) movement emerged in the mid-1970s. The Pan-Malaysian Islamic Party (Parti Islam Se-Malaysia, PAS) has been gaining political support and clout since the 1980s. It enjoys strong support in the overwhelmingly Muslim and largely conservative states of Kelantan and Terengganu and to a somewhat lesser degree in the more mixed states of Kedah (bordering southern Thailand), Penang, and Selangor. In the 2008 general elections, a coalition of PAS and its allies (the Pakatan Rakyat coalition, PKR), won 82 of the 222 seats, whereas the governing National Front (Barisan Nasional, BN) coalition won 140 seats. The difference in actual votes was very slim: approximately 4.1 million votes for the BN coalition (or 50.1%) and approximately 3.8 million votes for the Pakatan Rakyat coalition (46.4%). The trend intensified in the hotly contested 2013 general elections, when the PKR (led by the colorful and charismatic Anwar Ibrahim) received the majority of the popular vote (approximately 5.6 million votes or 50.9%), whereas the BN, headed by PM Najib Razak, garnered approximately 5.25 million votes or 47.3% of the popular vote. Nonetheless, as a result of Malaysia’s rather peculiar electoral system, the BN has still managed to secure 133 seats in the 222-seat parliament as opposed to 89 seats won by the PKR.

32Over the past two decades, PAS has positioned itself as a party that aims to reorient the Malaysian polity and constitution on Islamic legal theory derived from the primary sources of Islam, the Qur’an, Sunna, and Hadiths. It is viewed as a counter-establishment, “periphery against the center” voice in Malaysian politics. In contrast, the National Front BN coalition, led by the historically hegemonic United Malay National Organization (UMNO) – the establishment party – adopts the more mainstream Islam Hadhari doctrine (a moderate or “civilizational” Islam), which PAS sees as based on a watered-down, compromised, and secularized understanding of Islam. This has brought to the fore the constitutional status of Islam as Malaysia’s state religion and as a marker of Malay collective identity.

33The rise of political Islam has affected the mainstream moderate establishment. Even politicians affiliated with the BN must now resort to “religious talk” in their appeal to the Islamic vote. The former prime minister of Malaysia, Mahathir bin Mohammad of the corporate nationalist UMNO, the largest political party in Malaysia and the pillar of the BN coalition, declared in September 2001 that the country was an Islamic state (negara Islam), not merely a country that had endorsed Islam as its official religion. This was the rhetorical pinnacle of a concentrated effort by the Mahathir government, starting in the mid-1980s, to harness and co-opt the symbolic power of Islam for regime legitimacy and nation-building purposes through the advancement of an institutionalized, state-sponsored religious agenda in education, culture, and politics. [31] The broad Islamization of Malaysian public life is also reflected in an increasing number of ultraconservative rulings by the National Fatwa Council, Malaysia’s top clerical Islamic body. Two 2008 examples are an edict that girls who act like boys, or women dressing and behaving like men, violate the tenets of Islam, and the more ethnically charged ruling that the practice of yoga could corrupt Muslims because it involves not just physical exercise but also includes Hindu spiritual elements, chanting, and worship. Prime Minister Abdullah Ahmad Badawi of the UMNO moved to contain the damage, telling the national news agency Bernama that Muslims could continue doing yoga as a type of physical exercise but should refrain from the spiritual chanting.

34The Constitution of 1963 establishes Malaysia as an Islamic state blended with liberal principles (dare we say “Islamic and democratic”?) where “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation” (Article 3), and where “every person has the right to profess and practice his religion and to propagate it” (Article 11.1). Furthermore, “every religious group has the right to manage its own religious affairs” (Article 11.3), whereas state law (and, in the Federal Territories of Kuala Lumpur and Labuan, federal law) “may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam” (Article 11.4). To further complicate matters, Malaysian law draws on religious ascriptions to establish what has been termed ethnic democracy, where, despite the existence of some ethnic power-sharing mechanisms and an accompanying façade of interracial harmony, Malay political dominance is ensured. Core elements of the political system are organized so as to benefit members of the Malay ethnic group to the detriment of others, and members of minority ethnic groups are not granted proportional access to power. Although Islam is constitutionally enshrined as Malaysia’s state religion, over one-third of Malaysia’s population consists of members of other denominations, mainly Buddhists, Hindus, and Christians. However, ethnic Malays (Bumiputra), virtually all Muslim, are granted constitutionally entrenched preferential treatment in various aspects of public life over members of other ethnic groups (Article 153 of the constitution). Malay citizens who convert out of Islam are no longer considered Malay under the law and hence forfeit the Bumiputra privileges afforded to Malays under Article 153. In other words, much like Israel, Malaysia is torn between its simultaneous political and constitutional commitment to a particularist vision and a universalist vision of the good society.

Judicial harnessing of religion in Malaysia

35In the face of this growing Islamization, Malaysia’s establishment-supporting judicial elite turned to constitutional division of powers between the federal and state governments to effectively block governments led by religious parties in the states of Kelantan and Terengganu from instituting Qur’an- and Sunna-based hudood and qisas (retaliation) law as the basis for their criminal code. Although the Kelantan State Assembly passed the Syariah (Malay for “Shari’a”) Criminal Enactment in 1993, it has yet to be implemented, mainly because criminal law is in federal hands. According to the Federal Constitution, Syariah courts do not have jurisdiction over offenses “except in so far as conferred by federal law”; state authorities can only legislate for Islamic offenses “except in regard to matters included in the Federal List” (e.g., criminal law and procedure). What is more, Article 75 provides: “If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.” Finally, item 4(k) in the list of matters falling under federal jurisdiction provides that “[a]scertainment of Islamic Law and other personal laws for purposes of federal law” is a federal matter.

36Although the power to create and punish offenses against the precepts of Islam has been assigned by the constitution to the states, Syariah courts have jurisdiction only over persons professing the religion of Islam. Further, the enactment of hudood as state law runs counter to Article 11 (freedom of religion), which has been interpreted to protect individuals against prosecution on the basis of choice of religion. What is more, Article 8 provides that every citizen is equal before the law, hence rendering the blanket application of hudood laws arguably unconstitutional because they discriminate against non-Muslims and women. Finally, as the Malaysian Federal Court – the country’s supreme court since 1985 – has observed on numerous occasions, Malaysian public law is secular, and unless the Federal Constitution is amended to reflect the Syariah law as the supreme or basic law, this remains the case. The Federal Constitution has not been amended to reflect that position. Article 4(1) still declares that the Federal Constitution is the supreme law.

37The religious-secular duality embedded in the Malaysian legal system is further reflected in the changing jurisdictional interrelation between the civil and Syariah courts. Muslims (and non-Muslims who marry Muslims) are obliged to follow the decisions of Syariah courts in matters concerning their religion, most notably marriage, inheritance, apostasy, conversion, and custody. Historically the civil and Syariah courts existed side by side in a dual court structure established at the time of Malaysia’s independence, with the prevalent understanding that Syariah courts were subordinate to the civil courts and that the common law was superior to other laws. In a landmark ruling in 1984, the Federal Court, then known as the Supreme Court of Malaysia, held that the common law had not been ousted or otherwise affected by the introduction of the Federal Constitution and that it would allow secular courts to resolve legal issues even where the parties to the case were Muslims. [32] However, in 1988 an amendment to the constitution, Article 121(1A), was introduced by the UNMO government in an attempt to appease the dakwah movement, and address the intensifying calls for a greater role for Islam in public life; it provided that civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts”.

38Even after the 1988 amendment the civil court system continued to view Syariah courts as subordinates and, at any rate, subject to general principles of administrative and constitutional law. The civil courts consistently interpreted the jurisdictional boundaries between the two court systems so as to prevent the expansion of the Syariah court system. Likewise, the Malaysian Bar Council has continued to argue that Article 121(1A) does not exclude the supervisory review power of the Federal Court. However, because Islam has become a major political force in Malaysia, taking an anti-Islamist stand on the question of jurisdictional boundaries is no longer a feasible option for the Court. It has opted instead for a strategy of mixed messages and vagueness. Several landmark rulings illustrate this trend.

39With respect to the challenge of religious attire in the public sector, the Federal Court (and the Supreme Court of Malaysia before it) has taken a measured approach. In the leading case on the matter, the Supreme Court applied the “mandatory practice test” to determine that the wearing of purdah (a veil-like head and neck cover) by a Muslim woman while on her public service work may be restricted by law since it is not an indispensable practice within Islam. [33] In 2006, the Federal Court of Malaysia upheld the constitutionality of the School Regulation Act (1997), which prohibited the wearing of the turban (serban) as part of the school uniform, since “this ‘practice’ was of little significance from the point of view of the religion of Islam”. [34] The court made clear that if the practice in question is compulsory or “an integral part” of the religion, courts should give more weight to it, but that since it is not, they should assign it less weight.

40More contested is the matter of conversion. The Lina Joy case (2007) raised the question of Syariah courts’ jurisdictional authority over apostasy in a case of conversion out of Islam. [35] Ms. Lina Joy, who was born Azalina Jailani, claimed to have converted from Islam to Christianity and argued that her conversion was protected by the right to freedom of religion under Article 11 of the constitution. Because of this, she claimed that she had the right to convert to Christianity without being designated as apostate. However, the National Registration Department refused to change her name or her religious status as they appeared on her identity card on the grounds that the Syariah court had not granted permission for her to renounce Islam. In other words, Lina Joy questioned the hierarchy of three core tenets of Malaysian constitutional order: Shari’a court jurisdiction over conversion, individual religious freedoms, and the ethnic issue (conversion out of Islam undermines one’s Bumiputra status). Following a long legal battle, the case reached the Federal Court of Malaysia, which ruled (by a 2 –1 vote) in May 2007 that approvals of conversions out of Islam fall under the exclusive jurisdiction of the Syariah court system. In other words, the Court refused to limit the jurisdictional boundaries of Syariah courts in Malaysia, even at the cost of infringing on general principles of freedom of religion or formal gender equality.

41However, only two months later the Federal Court sent a somewhat different message in the Latifa Mat Zin case (2007), an inheritance dispute that raised the question whether the applicable law was the Islamic law of gifts (hibah) or the federal law of banking or contract. [36] Although the Court sided with the claimant, holding that Islamic law should apply in the particular situation under dispute, it also stated clearly that “[i]n case an application to the syariah court is resisted on the ground that the syariah court has no jurisdiction in the matter, let me answer that question right now. Interpretation of the Federal Constitution is a matter for this court, not the syariah court. [If] this court says that the syariah court has jurisdiction, [then] it has.” [37]

42The court’s cautious navigation through this politically charged jurisdictional quagmire continued in the Subashini case (2007). [38] The originally Hindu husband of a Hindu woman converted to Islam in 2006 and went on to convert their elder son as well. The husband then applied to the Syariah court to dissolve the couple’s civil marriage and to obtain custody of both their sons. The Federal Court, in another 2 –1 equivocal ruling, held that the civil court has jurisdiction over marriage and divorce, as well as over custody of children in a civil marriage, even when one spouse has converted to Islam, because the original marriage took place when both parties were Hindus. At the same time, the Court held that the consent of only one parent was sufficient for a conversion of the children to be lawful. To support its ruling, as well as to increase the legitimacy of this and several other contested decisions, the Court cited several solicited opinions of respected religious scholars. These opinions and their authors’ academic credentials (including their postsecondary degrees, the institutions of higher learning they attended, and their main publications) were cited in great detail by the Court, presumably to signal the Court’s respect for sacred law. At any rate, the Court granted a partial victory to each side of the dispute, compounding the jurisprudential ambiguity. Or, to be more colloquial, it threw each side a chewy bone, while jurisprudential wishy-washiness reigned. What better way to maintain the Court’s legitimacy while avoiding the possible wrath of influential stakeholders from both sides?

43The matter of single-parent consent for the conversion of a child continues to be a hot-button issue in Malaysian constitutional politics. In July 2013, to pick a recent example, the High Court of Malaya in Ipoh (Perak) voided the Muslim conversion certificates of three Hindu minors, as the certificates had been issued based on a unilateral request of the children’s originally Hindu, now converted-to-Islam father, and without their Hindu mother’s knowledge or consent. The court cited principles of natural justice; breach of Perak legislation which required the children to be present at the time of the purported conversion ceremony; Malaysia’s obligation under international law; and, most importantly, the Federal Constitution as prescribing a mother’s equal right to raise her children according to her faith. Specifically, the Court held that the right to “life” and “liberty” protected by Article 5, and the right to practice one’s religion in Article 11(1), included within it a right to determine one’s child’s religious upbringing and education. [39]

44In the same year that both Lina Joy and Subashini were decided, a Catholic newspaper in Malaysia used the word “Allah” to refer to God in its Malay-language edition. A controversy arose regarding who may use the word “Allah”: whether it is an exclusively Muslim word (as some Muslim leaders in Malaysia suggest) or a neutral term referring to One God that may be used by all regardless of their religion as the newspaper argued. A law was enacted in the 1980s to ban the use of the term in reference to God by non-Muslims but had seldom been enforced prior to 2007. On 31 December 2009, the High Court in Kuala Lumpur ruled that the ban on non-Muslims using the word “Allah” to refer to God was unconstitutional as it infringed on freedom of expression and freedom of religion principles. The court went on to state that the word “Allah” is the correct word for “God” in various Malay translations of the Bible and that it has been used for centuries by Christians and Muslims alike in Arabic-speaking countries. This ruling was viewed by radical Islamists as a legitimation of deceitful attempts to convert Muslims to Christianity. Riots and church burning followed. The government appealed the High Court ruling, and the implementation of the decision was suspended until the appeal had been heard. In October 2013, Malaysia’s Court of Appeal (in a three-judge, all-Muslim bench) upheld the ban on the use of the term “Allah” in reference to God by non-Muslims. In supporting the government’s position (lest we forget: this is the government of a country that purports to be a polity of all of its members), the judges stated that the usage of the name “Allah”, “is not an integral part of the faith and practice of Christianity. From such finding, we find no reason why the respondent [the Catholic newspaper, R.H.] is so adamant to use the name ‘Allah’ in their weekly publication. Such usage, if allowed, will inevitably cause confusion.” [40]

45The blurred jurisdictional matrix in Malaysia has given rise to a jurisdictional tug-of-war, or “battle of courts.” Aided by increased public support, Syariah courts in several states have begun to suggest that they are authorized to interpret relevant aspects of the constitution itself (i.e., to go beyond the interpretation and application of Shari’a law). In its judgment in the Abdul Kahar bin Ahmad case (2008) the Federal Court dismissed – in an atypically decisive tone – an argument that the 1988 amendment and, in particular, Article 121(1A) conferred jurisdiction on Syariah courts to interpret the constitution in matters falling under the jurisdiction of such courts. The Federal Court stated:

46

“Before the jurisdiction of this court is excluded it must be shown that the Syariah Court has jurisdiction over the matter first. That is not the case here […] The constitutionality of any law, whether a law made by Parliament or by the Legislature of a State […] is a matter for this court to decide, not the Syariah High Court.” [41]

47The Majlis Agam Islam of Selangor – that state’s Islamic council – argued that Article 121(1A) granted full and exclusive jurisdiction to the Syariah court to decide whether a practice falls within the precepts of Islam regardless of its constitutionality. In other words, the Syariah court suggested that the matter of jurisdiction itself should be decided under Shari’a law. The Federal Court countered by ruling that “nowhere in the Constitution is there a provision that the determination of Islamic Law for the purpose of interpreting the Federal Constitution is a matter for the State Legislature”. [42] The court held that Article 121(1A) was not inserted “to oust the jurisdiction of this court in matters that rightly belong to it”. [43] The entire realm of the constitutionality of state law, however Shari’a-based it may be, can be decided only by the Federal Court.

48But the secular/religious courtroom jurisdictional war in Malaysia goes on. In 2009, an ideal opportunity for the Federal Court to shore up its jurisdiction presented itself. [44] A Muslim couple sought to divorce. A dispute emerged between the husband and the wife about the distribution of their assets. What made this rather common scenario unique was that a major asset under dispute was a registered company of which the wife’s share was 8%. Whereas under Article 121(1A) the Syariah court has full jurisdiction over asset allocation in divorce, this case involved a registered company, whose operation and disintegration are governed by commercial law, not by religious directives. The wife turned to the civil court system to seek an injunction against dilution or dissipation of her company holdings by her husband. The husband claimed that the issue was incidental to the main dispute, which fell squarely under the Syariah court’s jurisdiction. In a brief but forceful ruling by Chief Justice Zaki Tun Azmi (with four other justices concurring), the Federal Court held that a minority shareholder in a registered company has a right to take derivative action to protect the interest of the company. Therefore, the wife was acting in an attempt to protect her interest in the company as a shareholder, not as a wife. What is more, Chief Justice Zaki Tun Azmi went on to turn the jurisdictional situation on its head rather brilliantly, so as to favor the wife. He stated that at the conclusion of the proceedings before the Syariah court, the wife might well be entitled to more than her registered 8% portion in the company. Therefore, if the Court were to limit the civil injunction to only that percentage of the company’s value, “in effect this court would already be deciding that the wife is only entitled to that portion of the monies. This court has no such jurisdiction”. As to the wife’s rights in the Syariah court, Tun Azmi wrote, “I would not like to make any comments. It is left to the relevant forum to decide.” [45]

49In short, the Malaysian Federal Court has used constitutionally enshrined principles of federalism alongside other intepretive innovations to block attempts to expand the ambit of Shari’a law. Operating within an increasingly Islamic political environment, it has been wrestling with the harmonization of constitutional and Shari’a law on a case-by-case basis. Although it has been sending mixed messages with regard to the scope and nature of the 1988 constitutional amendment that established the exclusive jurisdiction of Syariah courts in personal-status matters, it has also asserted its authority vis-à-vis the religious establishment as the sole and ultimate interpreter of Malaysia’s Federal Constitution.

50The close ties between the statist-nationalist elite and the Malaysian judiciary are easily discerned. In 1988 Malaysian Lord President Tun Salleh Abas and a number of Supreme Court judges were suspended and later dismissed in reaction to the Court’s antigovernment position in an electoral crisis in 1987. The Constitution was amended to remove direct reference to judicial power. The Malaysian judiciary has been under close political control ever since. Consider, for example, the professional biography of Zaki Tun Azmi, who served as the Chief Justice of Malaysia’s Federal Court (the highest court of the country) from 2008 to 2011. His father, Tun Azmi Mohamed, was also Chief Justice (then Lord President) from 1966 to 1974. Like father, like son: Zaki received an elite legal education in both English and Malay. For years he served as legal adviser to the ruling UNMO – the main political force advocating a moderate, inclusive version of Islam – before becoming the first lawyer directly appointed a judge of the Federal Court in September 2007. Three months later, Zaki Tun Azmi was appointed president of the Court of Appeal, and in October 2008, following the end of Datuk Abdul Hamid Mohamed’s term due to mandatory retirement, Zaki was appointed Chief Justice. When Zaki retired in 2011, a new Chief Justice was appointed: Tun Arifin bin Zakaria. Educated at the University of Sheffield (UK) and at King’s College, the University of London, CJ Zakaria served in a host of senior positions in the UNMOcontrolled government of Malaysia, including as legal counsel to several key federal ministries, prior to his elevation to the bench. At a time when the very essence of Malaysia as an Islamic state is hotly contested in the political sphere, the UNMO and supporters of its moderate, “civilizational” vision of Islam know that the likelihood of the Federal Court and its Chief Justice adopting a notably more conservative position on state-and-religion matters is slim.

51A further indication of the Malaysian judicial elite’s position on Shari’a may be seen in a rare lecture at Harvard University by former Chief Justice Tun Abdul Hamid Mohamed, delivered only weeks after his retirement from the Court and his replacement by CJ Zaki Tun Azmi in October 2008. [46] Malaysia’s federal courts, Mohamed opined, should not interpret Shari’a law but, when necessary, analyze the “precepts of Islam” within a constitutional context. On such questions, he said, the federal courts ought to welcome affidavits from Islamic scholars in order to clarify questions that range outside constitutional doctrine. Rejecting an originalist reading of Islamic law, Mohamed insisted that there could be “even better and more Islamic laws than existed at the time of the Prophet”. If the Prophet had prescribed traffic laws relevant to the technology of the seventh century, he explained, it would be ridiculous to follow them today. Similarly, he said that he could not find any source to justify Shari’a law’s codification of slavery. Given these examples, he claimed, the test for interpreting whether a law was Islamic ought to lie not in seeking its original expression, but in evaluating whether it contradicted the religion’s broad principles. This articulation represents a distinctly Malaysian living-tree interpretive approach. Islamic banking and finance, fields that have exploded in recent years, would not be possible without such flexible reasoning, Mohamed concluded. He also went on to express optimism that the number of judges and lawyers in Muslim-majority countries who were adept at blending Shari’a law with common law and general principles of constitutional law would grow.

Conclusion: the effects of constitutionalizing religion

52Constitutional law and courts are important mechanisms for mediating religion-andstate relations. As is well known, the eighteenth century saw the emergence of a doctrine of separation of church and state, advocated by Enlightenment thinkers as a means of confining dangerous and irrational religious passions to the private sphere. Whereas the public sphere was portrayed as the realm of reason, the private sphere began to be regarded as the realm of faith, superstition, and other such non-verifiable beliefs. In creating its characteristic division between secular public space and religious private space, European secularism sought to shuffle religious ritual and discipline into the private realm. [47] This distinction, however reductionist and otherwise problematic, has come to be identified as the secularist state’s defining marker.

53Perhaps counter-intuitively, the opposite model – constitutional establishment of religion – may also be used as a mechanism for the harnessing of religion. In religious-laden polities that draw on ascriptive classifications to define their collective identity, the constitutionalization of religion allows the state and its pragmatist leaders to elicit most of the nationbuilding, foundational meta-narratives, and legitimacy-enhancing benefits of enshrining religion as an aspirational source of collective identity. At the same time, it brings religion under state (constitutional) control and subjects the translation of religious precepts into guidelines for public life to the overarching authority of the state’s constitutional order. In that respect, the constitutionalization of religion “formats” and domesticates religion in a way that maintains its benefits for the aspirational state, while attempting to disarm it of some of its potentially radical edge. Whether this is done through a friendly takeover, a hostile bid, or through some other way, the constitutional establishment of religion and its interlocutors supports the statist project of bringing religion under check and utilizing it for nation-building purposes.

54That courts in expressly “separationist” regimes of state-and-religion (e.g., France) take an overall religion-limiting stance is not surprising. A notably harder challenge to the constitutional containment of religion is posed by constitutional orders that feature a central place for religion. However, as this brief exploration of constitutional law and religion in two religion-infused polities indicates, even in such settings the constitutional domain has advanced a relatively moderate understanding of religion’s place in law and public life. A look at the actual constitutional jurisprudence of religion in Israel and Malaysia (as well as in other similarly situated constitutional settings) reveals that despite the considerable dissimilarities in context, there are some striking parallels in the way in which the constitutional courts have positioned themselves as important religion-taming forces relative to the political setting within which they operate. [48] As we have seen, the Federal Court of Malaysia has used constitutional principles of federalism to block the implementation of religious legislation at the state level, and while making concessions with regard to civil/religious court jurisdictional boundaries, it has effectively asserted its exclusive authority as the ultimate interpreter of the constitution. The Supreme Court of Israel has meanwhile responded to the increased tension between Israel’s dual commitment to cosmopolitan and particularistic values by subjecting the jurisprudence of religious courts to the general principles of administrative and constitutional law. This may suggest that the constitutional domain’s antagonism toward alternative interpretive hierarchies, most notably religion and its interlocutors, is a universal phenomenon that manifests itself even in the least likely (“most difficult”) of settings.

55There are obvious instrumental and overtly political ways in which regimes maintain control over the judicial system, and the constitutional order more generally, so as to minimize the risk to prevalent worldviews and powerful interests. Patterns of legal education and judicial appointments to high courts are merely two examples. However, there seem to be embedded structural and epistemological reasons for the religion-taming tilt of constitutional jurisprudence, even in polities in which a given religion is granted constitutional recognition as a pillar of collective identity. The very logic of constitutional law, with its reasoned set of core tenets, prevalent modes of interpretation, and embedded emphasis on overarching state authority, makes it an attractive enterprise to those who wish to contain religiosity and assert state authority over religious texts, world views, and interpretive hierarchies. Constitutional law as it has been spreading rapidly throughout the world over the last half-century has an “elective affinity” to use Max Weber’s term, with bureaucratic forms of domination and power, and thus fits well with the modern statist project. The fact that law emanates from the state is translated into state-appointed judges’ principled reluctance to treat the organs of the state as subordinate to non-state, purportedly God-given religious directives. [49] Constitutional courts, even in religion-infused settings, are inherently unsympathetic toward alternative hierarchies of authority and adjudication, which they constantly strive to bring under check. [50] There is a certain centralizing, “seeing like a state” tilt to their outlook. [51] The important role of rights provisions and jurisprudence in contemporary constitutional discourse, alongside the ever-increasing cross-jurisdictional fertilization in that area and the formation of a transnational epistemic community of jurists, adds to constitutional law’s cosmopolitan appeal. The combination of earthly interests and systemic a-religious judicial propensities is conducive to religion-harnessing jurisprudence – endorsing on the one hand yet effectively limiting on the other. This may explain why constitutional law and courts have become a favourable domain for those who oppose radical religion and seek to bring it under check. As we have seen, the complex labyrinth of constitutional law and religion in Israel and Malaysia – apparently idiosyncratic in many respects – provides vivid illustration of precisely that trend.