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Published online by Cambridge University Press: 01 January 2025
A secular approach has dominated federal studies, perhaps because there seems a natural fit between federalism and secularism. However, the federal systems or practices of Asia bring that close association into question, and the federal accommodation of religious demands has not been examined fully. This article focuses on how religion has been approached, accommodated or resisted in federal and quasi-federal states in Asia. We select India, Malaysia, Pakistan, Myanmar, Sri Lanka and Nepal as cases. We first explore the relationship between federalism, secularism and religion, and find that secular values at the point of federalisation played an important role in federalism's establishment, but that they were later modified in the practice of federal accommodation of religion. We also identify and examine the federal governance of religious diversity, which features three types of accommodation—centrally-based, unit-based and group-based accommodation—with accommodative practices sometimes being for the benefit of a majority religion, and sometimes for a minority one.
The authors would like express their sincere thanks to Ron Levy, Mark Tushnet and the anonymous reviewer for their constructive comments and suggestions.
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9 Ahmed T el-Gaili, ‘Federalism and the Tyranny of Religious Majorities: Challenges to Islamic Federalism in Sudan’ (2004) 45 Harvard International Law Journal 503, 519 (citations omitted).
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13 We exclude Confucianism and its societies as it is not a religion in a strict sense. We will not cover Christian countries such as the Philippines and East Timor as they are not federal countries, and moreover, the literature has already covered Christianity and federalism well.
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20 The Constitution of the Republic of the Philippines (Philippines) art III s 5.
21 The Constitution of the Kingdom of Bhutan (Bhutan) art 2 s 2, art 3 s 1, art 9 s 20, sch 1.
22 The Constitution of the Democratic Socialist Republic of Sri Lanka (Sri Lanka) art 9; Constitution of the Republic of the Union of Myanmar (Myanmar) art 361.
23 Constitution of the Kingdom of Thailand (Thailand) s 67.
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31 The argument is that Western liberal states consider religion to be a matter of truth, and the incorporation of secularism into Indian governance has given rise to Hindu-fundamentalism, which ‘persecutes other religions on the basis of truth’: Ten Chin Liew, ‘Secularism and its Limits’ in Michael Heng Siam-Heng and Ten Chin Liew (eds) State and Secularism: Perspectives from Asia (World Scientific, 2010) 7.
32 Reuters, ‘India's Supreme Court Suspends Ban on Sale of Cows for Slaughter’, New York Times (online), 11 July 2017 <https://www.nytimes.com/2017/07/11/world/asia/india-cows-slaughter-beef-leather-hindu-supreme-court-ban.html>.
33 ‘Public Opinion on Draft Constitution: States, Religion, Citizenship, Govt Main Concerns’, Kathmandu Post (online), 22 July 2015 <http://kathmandupost.ekantipur.com/news/2015-07-22/public-opinion-on-draft-constituion-states-religion-citizenship-govt-main-concerns.html>.
34 The Constitution of Nepal (Nepal) art 4 s 1 [Nepal Law Society, International IDEA and UNDP trans <https://www.constituteproject.org/constitution/Nepal_2015.pdf?lang=en>].
35 See Muhammad Ali Jinnah, ‘First Presidential Address to the Constituent Assembly of Pakistan’ (Speech, 11 August 1947) <http://www.columbia.edu/itc/mealac/pritchett/00islamlinks/txt_jinnah_assembly_1947.html>.
36 Ishtiaq Ahmed, ‘The Pakistan Islamic State Project: A Secular Critique’ in Michael Heng Siam-Heng and Ten Chin Liew (eds), State and Secularism: Perspectives from Asia (World Scientific, 2010) 185.
37 Constitution of the Islamic Republic of Pakistan (Pakistan) annex (‘Objectives Resolution’).
38 Islamisation has appeared to gain greater credence, especially after the coming to power of General Zia-ul-Haq in 1977.
39 Singh and Kukreja, above n 15.
40 Ahmed, above n 36.
41 Federal Constitution of Malaysia (Malaysia) art 3 s 1.
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56 The enhancement of sharia law and the increase of Islamic bodies have contributed to this.
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59 The Constitution of Nepal (Nepal) sch 6 item 18.
60 Ibid.
61 See Constitution of India (India) art 371A.
62 See, eg, ibid art 25 s 2(b) explanation II which states that ‘the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion’.
63 Constitution of the Republic of the Union of Myanmar (Myanmar) sch 2 item 7(e)(i).
64 Federal Constitution of Malaysia (Malaysia) sch 9 list II item 1.
65 Ibid sch 9 list IIA item 13.
66 The possibility and practice of unit-based accommodation of religion is by no means unique to Asia. However, in most cases outside of Asia, federal unit-based accommodation is (1) directed towards the accommodation of different denominations of the same overarching religious tradition, (2) an outcome of the ‘coming together’ process of previously independent states (that are seeking to maintain their identity and autonomy), and (3) within an overarching secular state (with the exception of the United Arab Emirates). For example, Switzerland is secular at the federal level, but ‘regulation of the relationship between church and state is the responsibility of the Cantons’ (Federal Constitution of the Swiss Confederation (Switzerland) art 72(1)) and some still recognise official churches (eg, the Constitution of the Canton of Bern (Bern, Switzerland) officially recognises three Christian churches (art 121)). Initially, some of the federal states in the US retained official (Christian) religions, yet these were phased out by the early 1800s. Utah, which has an overwhelming Mormon majority, establishes a strict separation between Church and state (see Constitution of Utah art 1 s 4), which was partly a condition of entering into the (secular) federation of the US.
67 See Bhargava, above n 6, 9.
68 Peter J Awn, ‘Indian Islam: The Shah Bano Affair’ in John Stratton Hawley (ed), Fundamentalism and Gender (Oxford University Press, 1994) 63; Subrata K Mitra and Fischer, Alexander, ‘Sacred Laws and the Secular State: An Analytical Narrative of the Controversy over Personal Laws in India’ (2002) 1(3) India Review 99Google Scholar.
69 Ghosh, Partha Sarathy, The Politics of Personal Law in South Asia: Identity, Nationalism and the Uniform Civil Code (Routledge, 2007)Google Scholar 9–10.
70 Ahmed, Farrah, ‘Personal Autonomy and the Option of Religious Law’ (2010) 24(2) International Journal of Law, Policy and the Family 222CrossRefGoogle Scholar.
71 Ghosh, above n 69; Than, Marlar, Current Legal Framework on Islamic Family Law in Myanmar (Burma Library, 2015)Google Scholar.
72 See Durga Lal KC, ‘Constitution will be Amended Again: Dahal’ Kathmandu Post (Kantipur Publications, 2016).
73 See High Level State Restructuring Commission, Recommendation Report of the High Level Commission for State Restructuring (Majority Report) (2011) <http://www.spcbn.org.np/index.php?action=resources>.
74 Constitution of the Islamic Republic of Pakistan (Pakistan) art 51 s 4.
75 See Constitution of the Republic of the Union of Myanmar (Myanmar) art 17 s 3.
76 Asia is not entirely unique in providing special rights on the basis of religion. For example, Nigeria's Constitution has prohibited the government from declaring a state religion (art 10), but incorporated a system of Islamic personal law, including Sharia Courts. However, the Asian approach is unique because of its prevalence across the region, and its placement within contexts and institutions that privilege majority religions.
77 Modood, above n 12.
78 Tikekar, Maneesha, ‘Non-Muslims in an Islamic Republic: Religious Minorities in Pakistan’ in Ghosh, Lipi (ed), Political Governance and Minority Rights: The South and South-East Asian Scenario (Routledge, 2009) 121.Google Scholar