The last 25 years or so have seen a rise or maybe a reawakening of Englishspeaking scholarship on... more The last 25 years or so have seen a rise or maybe a reawakening of Englishspeaking scholarship on law and religion. American scholars, naturally, have been at work on the interrelations of the religious life and the legal system for much longer than other Anglophones. But evangelical and Catholic revivals, the emergence and subsequent qualification of multicultural policy and lawmaking, and the rise of Islamism and the Age of Terror have combined to prove elsewhere that secularisation is not 'inevitable', and to reveal that, in complex and barely articulated ways, religion serves alongside, outside and inside law as an important social phenomenon that helps to organise our life together.
In May 2017 the Taiwan Constitutional Court ruled the prohibition on same-sex marriage to be unco... more In May 2017 the Taiwan Constitutional Court ruled the prohibition on same-sex marriage to be unconstitutional, and in September 2018 the Indian Supreme Court declared s377 of the Penal Code unconstitutional, thereby decriminalising gay sex. To mark these important changes and explore other possibilities in the region, we, the editors of the Australian Journal of Asian Law, invited scholars to contribute to this special issue on the legal situation for LGBTIQ people in Asia. This issue contains articles about Japan, China, Hong Kong, Taiwan, South Korea, India, Pakistan, Bangladesh, Bhutan, Sri Lanka, Cambodia, Thailand, Myanmar, Malaysia, Singapore, Indonesia, Brunei and the Philippines.
When the Malaysian Prime Minister announced in September 2011 that the time had come to end the s... more When the Malaysian Prime Minister announced in September 2011 that the time had come to end the state of emergency, abolish detention without trial by repealing the feared Internal Security Act, and remove or reform other repressive laws, it seemed that the government might be genuinely committed to progressive, if limited, law reform. However, as this essay demonstrates, the legislative changes fell well short of the reforms that had long been demanded by the Malaysian Bar and civil and political rights campaigners who have rightly been deeply concerned about the health of Malaysian democracy and the erosion of constitutional governance and the rule of law. The essay identifies two impediments to the Prime Minister’s purported goal of transforming Malaysia into an inclusive democracy that respects fundamental human rights and the rule of law: the entrenching of 'emergency legality' within the constitution, and long-standing government tolerance and encouragement of ethno-nationalist politicians who pervert law and the institutions of the state for their own ends by invoking an emergency mentality.
Examining Practice, Interrogating Theory: Comparative Legal Studies in Asia
This chapter explores the question of Islamisation or desecularisation in contemporary Malaysia t... more This chapter explores the question of Islamisation or desecularisation in contemporary Malaysia through an examination and contextualisation of three recent and highly controversial legal cases. It introduces the plural legal system of Malaysia and the contested place of Islam in the legal architecture and governance of the state. The chapter scrutinises the decisions in Moorthy, Shamala and Subashini and explains the predicament of these non-Muslim women. It examines the reactions of Malaysian political and community leaders, lawyers and civil society groups, and the strategies they have adopted to resist Islamisation and press for legal solutions. The chapter analyses the place of religious authority in civil court proceedings in the light of Horowitz's convergence or harmonisation thesis, specifically focusing on the role of the Muslim judges and the rhetoric of judgment in the Shamala High Court decision and the Court of Appeal decision in Subashini . Keywords: civil court; civil society groups; desecularisation; Islamisation; Malaysia; Moorthy ; Shamala ; Subashini
Malaysia exhibits such a high degree of centralization that some scholars argue it may best be cl... more Malaysia exhibits such a high degree of centralization that some scholars argue it may best be classified as a quasi-federation rather than a true federation. The Malaysian Constitution enumerates areas of federal and state legislative competency. Most important areas of law are reserved for federal legislation, though the states of Sabah and Sarwak retain some additional legislative authority due to special conditions on their entry into the Federation. All states may in some cases legislate concurrently with the federal government, but any state legislation that conflicts with federal law is invalid.
Although much has been written about the place of Islam, as law and as religion, in Malaysia, con... more Although much has been written about the place of Islam, as law and as religion, in Malaysia, considerably less attention has been paid to Islamic lawyers ("peguam syarie"). This article undertakes a preliminary examination of a topic that demands closer scrutiny, relying chiefly upon parliamentary acts, state enactments and the rules made pursuant to them, as well as in-depth oral history interviews with Islamic and secular lawyers that were recorded from May through August 2010. It describes the training and practice of Islamic lawyers in one jurisdiction of the federation of Malaysia-the Federal Territories of Kuala Lumpur, Putrajaya and Labuan-making comparisons with other states, particularly the state of Selangor, as appropriate. Comparison is also made with aspects of the training, professional accreditation and ethical regulation of secular lawyers in the parallel civil law system in order to identify the similarities as well as differences between these two forms of legal practice. † † I.
Eschewing theoretical discussion of both "secularism" and the "Islamic state," this article inste... more Eschewing theoretical discussion of both "secularism" and the "Islamic state," this article instead examines situated understandings of these ideas as they emerge in contests about the place of religion in Malaysian law, politics and society, paying particular attention to the views of Malaysian legal professionals. It examines the official positions taken by the peak professional legal organisation (the Malaysian Bar Council) speaking on behalf of its professional constituents and to a wider constituency of Malaysia citizens in order to examine how the organised Bar has used its prestige and expertise to explain and clarify the legal aspects of these issues to the general public and how it has attempted to use its privileged status to foster informed discussion about law reform.
Page 1. Situating Suhakam: Human Rights Debates and Malaysia's National Human Ri... more Page 1. Situating Suhakam: Human Rights Debates and Malaysia's National Human Rights Commission Amanda whiting* I. Introduction A. Overview When the Malaysian government first announced its intention to establish ...
Eschewing theoretical discussion of both “secularism” and the “Islamic state,” this article
inste... more Eschewing theoretical discussion of both “secularism” and the “Islamic state,” this article instead examines situated understandings of these ideas as they emerge in contests about the place of religion in Malaysian law, politics and society, paying particular attention to the views of Malaysian legal professionals. It examines the official positions taken by the peak professional legal organisation (the Malaysian Bar Council) speaking on behalf of its professional constituents and to a wider constituency of Malaysia citizens in order to examine how the organised Bar has used its prestige and expertise to explain and clarify the legal aspects of these issues to the general public and how it has attempted to use its privileged status to foster informed discussion about law reform.
When the Malaysian Prime Minister announced in September 2011 that the time had come to end the s... more When the Malaysian Prime Minister announced in September 2011 that the time had come to end the state of emergency, abolish detention without trial by repealing the feared Internal Security Act, and remove or reform other repressive laws, it seemed that the government might be genuinely committed to progressive, if limited, law reform. However, as this essay demonstrates, the legislative changes fell well short of the reforms that had long been demanded by the Malaysian Bar and civil and political rights campaigners who have rightly been deeply concerned about the health of Malaysian democracy and the erosion of constitutional governance and the rule of law. The essay identifies two impediments to the Prime Minister’s purported goal of transforming Malaysia into an inclusive democracy that respects fundamental human rights and the rule of law: the entrenching of ‘emergency legality’ within the constitution, and long-standing government tolerance and encouragement of ethno-nationalist politicians who pervert law and the institutions of the state for their own ends by invoking an emergency mentality.
The last 25 years or so have seen a rise or maybe a reawakening of Englishspeaking scholarship on... more The last 25 years or so have seen a rise or maybe a reawakening of Englishspeaking scholarship on law and religion. American scholars, naturally, have been at work on the interrelations of the religious life and the legal system for much longer than other Anglophones. But evangelical and Catholic revivals, the emergence and subsequent qualification of multicultural policy and lawmaking, and the rise of Islamism and the Age of Terror have combined to prove elsewhere that secularisation is not 'inevitable', and to reveal that, in complex and barely articulated ways, religion serves alongside, outside and inside law as an important social phenomenon that helps to organise our life together.
In May 2017 the Taiwan Constitutional Court ruled the prohibition on same-sex marriage to be unco... more In May 2017 the Taiwan Constitutional Court ruled the prohibition on same-sex marriage to be unconstitutional, and in September 2018 the Indian Supreme Court declared s377 of the Penal Code unconstitutional, thereby decriminalising gay sex. To mark these important changes and explore other possibilities in the region, we, the editors of the Australian Journal of Asian Law, invited scholars to contribute to this special issue on the legal situation for LGBTIQ people in Asia. This issue contains articles about Japan, China, Hong Kong, Taiwan, South Korea, India, Pakistan, Bangladesh, Bhutan, Sri Lanka, Cambodia, Thailand, Myanmar, Malaysia, Singapore, Indonesia, Brunei and the Philippines.
When the Malaysian Prime Minister announced in September 2011 that the time had come to end the s... more When the Malaysian Prime Minister announced in September 2011 that the time had come to end the state of emergency, abolish detention without trial by repealing the feared Internal Security Act, and remove or reform other repressive laws, it seemed that the government might be genuinely committed to progressive, if limited, law reform. However, as this essay demonstrates, the legislative changes fell well short of the reforms that had long been demanded by the Malaysian Bar and civil and political rights campaigners who have rightly been deeply concerned about the health of Malaysian democracy and the erosion of constitutional governance and the rule of law. The essay identifies two impediments to the Prime Minister’s purported goal of transforming Malaysia into an inclusive democracy that respects fundamental human rights and the rule of law: the entrenching of 'emergency legality' within the constitution, and long-standing government tolerance and encouragement of ethno-nationalist politicians who pervert law and the institutions of the state for their own ends by invoking an emergency mentality.
Examining Practice, Interrogating Theory: Comparative Legal Studies in Asia
This chapter explores the question of Islamisation or desecularisation in contemporary Malaysia t... more This chapter explores the question of Islamisation or desecularisation in contemporary Malaysia through an examination and contextualisation of three recent and highly controversial legal cases. It introduces the plural legal system of Malaysia and the contested place of Islam in the legal architecture and governance of the state. The chapter scrutinises the decisions in Moorthy, Shamala and Subashini and explains the predicament of these non-Muslim women. It examines the reactions of Malaysian political and community leaders, lawyers and civil society groups, and the strategies they have adopted to resist Islamisation and press for legal solutions. The chapter analyses the place of religious authority in civil court proceedings in the light of Horowitz's convergence or harmonisation thesis, specifically focusing on the role of the Muslim judges and the rhetoric of judgment in the Shamala High Court decision and the Court of Appeal decision in Subashini . Keywords: civil court; civil society groups; desecularisation; Islamisation; Malaysia; Moorthy ; Shamala ; Subashini
Malaysia exhibits such a high degree of centralization that some scholars argue it may best be cl... more Malaysia exhibits such a high degree of centralization that some scholars argue it may best be classified as a quasi-federation rather than a true federation. The Malaysian Constitution enumerates areas of federal and state legislative competency. Most important areas of law are reserved for federal legislation, though the states of Sabah and Sarwak retain some additional legislative authority due to special conditions on their entry into the Federation. All states may in some cases legislate concurrently with the federal government, but any state legislation that conflicts with federal law is invalid.
Although much has been written about the place of Islam, as law and as religion, in Malaysia, con... more Although much has been written about the place of Islam, as law and as religion, in Malaysia, considerably less attention has been paid to Islamic lawyers ("peguam syarie"). This article undertakes a preliminary examination of a topic that demands closer scrutiny, relying chiefly upon parliamentary acts, state enactments and the rules made pursuant to them, as well as in-depth oral history interviews with Islamic and secular lawyers that were recorded from May through August 2010. It describes the training and practice of Islamic lawyers in one jurisdiction of the federation of Malaysia-the Federal Territories of Kuala Lumpur, Putrajaya and Labuan-making comparisons with other states, particularly the state of Selangor, as appropriate. Comparison is also made with aspects of the training, professional accreditation and ethical regulation of secular lawyers in the parallel civil law system in order to identify the similarities as well as differences between these two forms of legal practice. † † I.
Eschewing theoretical discussion of both "secularism" and the "Islamic state," this article inste... more Eschewing theoretical discussion of both "secularism" and the "Islamic state," this article instead examines situated understandings of these ideas as they emerge in contests about the place of religion in Malaysian law, politics and society, paying particular attention to the views of Malaysian legal professionals. It examines the official positions taken by the peak professional legal organisation (the Malaysian Bar Council) speaking on behalf of its professional constituents and to a wider constituency of Malaysia citizens in order to examine how the organised Bar has used its prestige and expertise to explain and clarify the legal aspects of these issues to the general public and how it has attempted to use its privileged status to foster informed discussion about law reform.
Page 1. Situating Suhakam: Human Rights Debates and Malaysia's National Human Ri... more Page 1. Situating Suhakam: Human Rights Debates and Malaysia's National Human Rights Commission Amanda whiting* I. Introduction A. Overview When the Malaysian government first announced its intention to establish ...
Eschewing theoretical discussion of both “secularism” and the “Islamic state,” this article
inste... more Eschewing theoretical discussion of both “secularism” and the “Islamic state,” this article instead examines situated understandings of these ideas as they emerge in contests about the place of religion in Malaysian law, politics and society, paying particular attention to the views of Malaysian legal professionals. It examines the official positions taken by the peak professional legal organisation (the Malaysian Bar Council) speaking on behalf of its professional constituents and to a wider constituency of Malaysia citizens in order to examine how the organised Bar has used its prestige and expertise to explain and clarify the legal aspects of these issues to the general public and how it has attempted to use its privileged status to foster informed discussion about law reform.
When the Malaysian Prime Minister announced in September 2011 that the time had come to end the s... more When the Malaysian Prime Minister announced in September 2011 that the time had come to end the state of emergency, abolish detention without trial by repealing the feared Internal Security Act, and remove or reform other repressive laws, it seemed that the government might be genuinely committed to progressive, if limited, law reform. However, as this essay demonstrates, the legislative changes fell well short of the reforms that had long been demanded by the Malaysian Bar and civil and political rights campaigners who have rightly been deeply concerned about the health of Malaysian democracy and the erosion of constitutional governance and the rule of law. The essay identifies two impediments to the Prime Minister’s purported goal of transforming Malaysia into an inclusive democracy that respects fundamental human rights and the rule of law: the entrenching of ‘emergency legality’ within the constitution, and long-standing government tolerance and encouragement of ethno-nationalist politicians who pervert law and the institutions of the state for their own ends by invoking an emergency mentality.
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Papers by Amanda Whiting
instead examines situated understandings of these ideas as they emerge in contests about the place
of religion in Malaysian law, politics and society, paying particular attention to the views of
Malaysian legal professionals. It examines the official positions taken by the peak professional
legal organisation (the Malaysian Bar Council) speaking on behalf of its professional constituents
and to a wider constituency of Malaysia citizens in order to examine how the organised Bar has
used its prestige and expertise to explain and clarify the legal aspects of these issues to the general
public and how it has attempted to use its privileged status to foster informed discussion about law
reform.
instead examines situated understandings of these ideas as they emerge in contests about the place
of religion in Malaysian law, politics and society, paying particular attention to the views of
Malaysian legal professionals. It examines the official positions taken by the peak professional
legal organisation (the Malaysian Bar Council) speaking on behalf of its professional constituents
and to a wider constituency of Malaysia citizens in order to examine how the organised Bar has
used its prestige and expertise to explain and clarify the legal aspects of these issues to the general
public and how it has attempted to use its privileged status to foster informed discussion about law
reform.