Operationalizing and Regulating Religious Freedom: Apostasy and Administrative "Reasonableness" in Malaysia and Beyond

Nelson, Matthew J.; Shah, Dian A. H.

Abstract

As a fundamental human right, religious freedom is commonly associated with the right to choose or change one’s religion (religious self-identification). We use the famous Malaysian case of Muslim-to-Christian convert Lina Joy to examine the operationalization of this freedom—not so much as a negative freedom constraining state power but as a fundamental right tied to administrative procedures underpinning state recognition. From a constitutional perspective, the balance between fundamental rights and administrative power is complex. The legal standards governing administrative procedures for religious conversion vary from country to country and, for our purposes, from state to state even within Malaysia’s federal order. Asking “when do such procedures become ‘unreasonable’ in ways that undermine core human rights protections,” we highlight the historical, constitutional, and political contexts within which Malaysian notions of administrative “reasonableness” unfold. The operationalization of religious freedom as a fundamental right, we argue, hinges on a deeply contextualized understanding of the political contingencies surrounding notions of administrative “reasonableness.”

Citation

Nelson, M. J., & Shah, D. A. H. (2018). Operationalizing and Regulating Religious Freedom: Apostasy and Administrative "Reasonableness" in Malaysia and Beyond. International Journal of Constitutional Law, 16(4), 1293-1321. https://doi.org/10.1093/icon/moy100

• Journal Article Type: Article
• Acceptance Date: Aug 13, 2017
• Online Publication Date: Jan 21, 2019
• Publication Date: Oct 1, 2018
• Deposit Date: Jan 8, 2018
• Publicly Available Date: Jan 8, 2018
• Journal: International Journal of Constitutional Law
• Print ISSN: 1474-2640
• Electronic ISSN: 1474-2659
• Publisher: Oxford University Press
• Peer Reviewed: Peer Reviewed
• Volume: 16
• Issue: 4
• Pages: 1293-1321
• DOI: https://doi.org/10.1093/icon/moy100