66 Pages Posted: 12 Dec 2018
Date Written: 2018
Theocracies are typically thought to be born through constitutional revolution, not evolution. This Article explores a subtler phenomenon of constitutional transformation involving the place of religion in a constitutional order through less transparent means of constitutional change. This Article offers an account of this phenomenon, which it calls “stealth theocracy.” It focuses on the fundamental alteration of a constitution’s religious or secular character through informal change by judicial and political actors, rather than through formal mechanisms like constitutional amendment or replacement. This Article explores this phenomenon by focusing on Malaysia as one of its clearest exemplars, before broadening its lens to consider its implications for other constitutional systems, as well as wider understandings on the place of religion and courts within a constitutional order. It examines how the elevation of Islam’s constitutional position has moved the Malaysian state from its secular foundations to an increasingly religious order. Courts are the main agents of this phenomenon: judicial mechanisms—like jurisdictional deference to the religious courts and judicial Islamization of the secular courts—have fueled a profound shift toward a more theocratic constitutional order.
This Article fills a void in the existing scholarship, which has left the establishment and expansion of the place of religion outside of formal constitutional mechanisms underexplored, by providing an account of a more subtle transformation of a constitution’s religious character by stealth. This Article also challenges the prevailing view of courts as secularizing institutions that constrain the rise of theocratic governance. It tells an inverse story of courts acting as theocratizing forces that expand religion’s role in the public order. Finally, the account it provides has implications for broader understandings on constitutional change, constitutional design, and constitutional identity.
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