Abstracts and Papers from Jakarta Symposium
Puja Kapai
The Doctrine of Substantive Equality and the Democratisation of Diversities
The coexistence of cultural and religious minorities in liberal democratic systems presents various complexities, particularly in the context of applying the law to everyone equally. Minority groups within such states often struggle when they reach out for justice or are subject to the general legal system. Many theorists have tried to address the plight of the minorities and some of the complexities presented. Liberal theorists have sought to predicate rights on the core principles of the common good and individual autonomy whilst others have debated the liberal’s dilemma. Theorists of multiculturalism have also attempted to develop models of accommodation of group rights and offered a communitarian critique to liberalism. However, others yet have pointed to the critical failures of multiculturalism.
One critique leveled against liberals and multiculturalists alike has been directed at their flawed assumption about the homogeneity of a society and its cultural attributes. This has been particularly problematic for theorists of multiculturalism who, until recently, overlooked the plight of minorities within minorities and the critical effects that the intersectionality of multiple experiences of marginalization has on issues relating to identity.
This paper traces some of the recent developments in the discourse on democratic deliberative mechanisms and civic responsibility in the context of citizenship and minority rights and argues that the application of the doctrine of substantive equality is critical to address and account for the politics and effects of history, gender, race, ethnicity, and other experiential marginalizations of the minority community. Through the review of the various models that have been recently proposed to democratize diversity, this paper argues that the doctrine of substantive equality is an effective and useful tool which helps account for and explain some of the gaps in existing deliberative theory, for example, impartiality, reasonableness, imperialism, group representation and obstacles to a consensus-building model
for democratic deliberation. The paper concludes with illustrations of how, through individual uses of the doctrine, existing models for deliberative democratic politics can be advanced to the next level with a view to empowering minorities and encouraging them to engage in their civic responsibilities.
Prof. Mohammad Hashim Kamali
Islamic Interfaces With Constitutionalism in Malaysia
This presentation begins with an introductory remark on the Malaysian mosaic and a birds-eye view it offers of some of the facets of diversity and pluralism in the make-up of Malaysian society. The discussion proceeds, in the succeeding two sections, with a general profile of Islam, which is the majority religion, and then on the role of ethnicity and race as a factor of Malaysian life and its perennial preoccupation respectively. The succeeding two segments examine the references to Islam in the constitution of Malaysia, and then the ‘special position,’ of the Malays in that constitution respectively. This latter consists essentially of an affirmative action measure to overcome the problematics of social justice and the predicament of the disadvantaged majority in the country. The application of Islamic law, or Shariah, in Malaysia is the subject of a separate section that follows. The discussion continues to review some of the minority issues that feature prominently in the discourse of ethno-religious pluralism of Malaysia and how the government and civil society address them. Then follows a section ‘Contextualising the Christian faith’ on how the Christians of Malaysia are trying to discard the perception that Christianity in Malaysia is burdened with the legacy of colonialism. One other particular issue that features separately in this presentation is over the use of certain Islamic words and expressions by Christian speakers and writers and some of the solutions proposed to address this potential area of inter-religious misunderstanding. What follows next is a review of the Islamic state debate over the last few decades in Malaysia and the responses it has invoked from non-Muslim individuals and representative bodies in the country. The last section provides an overview of diversity and pluralism in Islam: how ethno-religious diversity is featured in the scriptural sources of the religion, and whether Islam provides space for recognition of the religious other within a predominantly Muslim populace. The essay ends with a conclusion. (Full paper)
Prof. Azyumardi Azra
Constitutional Agency and the Transmission of Faith: The Indonesian Experience
Indonesia is not an Islamic State, nor is Islam the official religion of the state. However, given the fact that the vast majority of Indonesian population is Muslim, one could love to assume that the constitution of Indonesia State gives only a limited room for diversity, particularly in religion.
In contrast, the Indonesian Constitution of 1945, that is still in effect today despite four times amendments in the post Soeharto period—recognizes the importance of faiths as well as diversity of the faiths. This can be seen for instance in the Preamble of the 1945 Constitution, which in the very first paragraph states that the independence of Indonesia is a blessing of God Almighty. The Indonesia people had struggled during colonial period, but following the end of World War Two, after a series of bloody wars for independence, Indonesia with the blessing of God Almighty finally achieved its long-fought independence.
The Indonesian 1945 Constitution also makes the belief in One Supreme God as one of the five pillars of the Indonesian state. As a result, the state now recognizes six religions (Islam, Catholicism, Protestantism, Hinduism, Buddhism, and Confucianism) practised by the faithful. One of the consequences of this constitutional arrangement is the formation of a Ministry of Religious Affairs in the Cabinet since the time of First Cabinet that was formed after the declaration of independence on August 17, 1945.This paper is an attempt to discuss the politics of constitutional recognition of religious diversity in Indonesian context. The paper will also discuss political processes adopted in the course of Indonesian history. Finally, this paper will discuss some consequences of the constitutional arrangements in the country. (Full paper)
Maria Chin binti Abdullah
Constituting Women’s Rights in Malaysia
Lina Joy, a Muslim converted to Christianity in 1998, sought for her constitutional right to practise the religion of her choice. According to the Law Reform (Marriage and Divorce) Act 1976, Lina could not register with the Registrar of Marriage as long as Islam is on her identity card, which means she is legally a Muslim. The National Registration Department (NRD) had, in October 1999, accepted the reason given (the change of religion) and changed her original name, Azlina Jailani, to Lina Joy.
Article 3 (1) of the Federal Constitution declares that “Islam is the religion of the Federation”… and that “all other religions may be practiced in peace and harmony”. The Constitution provides for a federal-state separation of legal systems between a federal civil law system and a state Islamic law system.
However, in modern state Malaysia, the contestation between civil liberty rights and cultural and religious rights are increasingly being negotiated, and at times intensely. Part of the tension is related to the dual relationship which was created by a constitutional amendment to Article 121 (1a) in 1988 that separates the powers between the civil and syariah laws. It has forced the government to respond as in the arrest and destruction of the Sky Kingdom cult in Trengganu in 2005, and in the fights to claim bodies, and to the extent of body snatching by religious authorities who allegedly claim that the deceased had converted into Islam.
Other constitutional issues have arisen. The ambiguity that arises when a husband converts into Islam - the rights of the non converting spouse is silent in civil laws. The case of Shamala and many similar cases brought to the public space, debates on issues over the jurisdiction of the civil and syariah courts in dealing with issues of religion, the legal responsibilities of the converted spouse in terms of maintenance and the right over the parents over their children’s religion. Another example is the recent case of a part-time model, Kartika Sari Dewi Shukarno, who was sentenced to whipping for consuming alcohol. Issues, such as, can a Federal prison execute the whipping? The victimisation of Kartika violates constitutional guarantees of equality and non-discrimination under Article 8(2) of the Federal Constitution. Yet, there is conflict where Federal law prohibits the whipping of a woman while syariah permits it. This also brings up the question - is it the duty of the state to turn all moral issues into a crime against the state or should such matters be left at the personal domain?
This paper will discuss the challenges as these are unresolved issues which go beyond the infringement of religious freedom but touches on citizens’ constitutional rights within a modern nation state. And, claiming women’s rights is constantly a battlefield as it is being contested and marginalised within a patriarchal interpretation of the laws.
These long overdue issues demand discussions and resolutions, but not only from the government but also require the understanding and respect from the diverse and multicultural Malaysian citizens. (Full paper and PowerPoint)
Dr. Bipin Adhikari
Space for Language: Constitutional Engineering for National Consent in Nepal
Nepal is in the process of drafting a new constitution through an elected Constituent Assembly (CA). Like many countries in the world, it is also concerned about the need to preserve its cultural and linguistic diversity according to the best formula that one can think of in the face of competing claims of different communities and cultures. In this context, the CA Committee on the Determination of Grounds of Social and Cultural Solidarity has already proposed an inclusive multilingual language policy for the purpose of national debate.
The preliminary draft on the issue provides that all native languages spoken in Nepal are national languages. It is the obligation of the state to ensure equal protection, promotion and development of all national languages. Every native language community has the right to experience their linguistic identity and their relationship with it in dignified ways. Featuring additional changes, the draft recognizes Nepali — the present official language of Nepal — as the official language of the central government. Along with Nepali, each province has been given the competence to decide how many provincial languages it wants as its official languages. The local units within the provinces may also employ the local language of the area as the official language for their particular region as per the law enacted by the respective provincial legislature.
The committee draft also provides that the official language of the central government shall be the language to be employed for the communication between the centre and the provinces. There are two exceptions, however. First, a province may decide to communicate with the centre in one of the languages it has approved for official business within the province. Secondly, the provinces are to conduct their official business with each other in the official language of the centre and any other language to be mutually agreed upon between them.
Finally, according to a draft provision, the central government may choose to recognize a language that fulfils certain required standards as its official language upon the recommendation of the language commission. The only requirement is that such a recommendation be passed by a simple majority of the central legislature.
The challenge now is to see whether this country can sustain what it has proposed; and also find out whether the multilingual policy in its effect benefits the long deprived indigenous languages of Nepal. (Full paper and PowerPoint)
Hon. Khimlal Devkota
Why a Secular Republican Constitution for the Former Last Hindu Kingdom of Nepal?"
Nepal is currently engaged in a constitution making process which will produce the Himalayan nation’s first secular republican constitution. Considering the history of constitution making in Nepal, the inclusive nature of the current process makes it unique-especially when viewed in traditional and historical terms.
Following the conquest and consolidation of the Nepali territories by King Prithvi Narayan in 1768, Nepal was transformed into a religious state with Hinduism legitimized as the official religion. Hindu texts became the basis of law and the country’s socio-political and economic development was anchored in Hindi values, despite the existence of other religious norms, cultures and values. Nepali kings were revered both as symbols of Nepali unity and as divine monarchs. The king personified the state, its religion and all institutions revolved around him. In this context, constitution making also remained an elite-driven process remote-controlled by the monarch.
Such was the status-quo until the Janandolans- the Nepali equivalent of the people power revolution clamoring for democracy that abolished the 238 year old monarchy and established a secular republican state in 2006. This paper and presentation will analyze the socio-economic and political factors that resulted in the Janandolans, and how the popular movement transformed the Nepali political and constitutional landscape. A second analysis will address the main arguments shaping and informing the choice for a secular republican state following the peoples’ revolution and how this has been operationalized in the current draft constitution in particular, and the constitution making process as a whole. Finally, the paper will evaluate the impact of these developments in the light of current economic, social and political conditions in Nepal and highlight lessons that can be learned from the Nepali experience. (Full paper and PowerPoint)
Shireen Hassim
Designing Equality: The Constitution and Gender Equality in South Africa
The persistent, and in some cases growing, gap between indicators of women’s political empowerment and those of women’s social and economic development must surely be one of the most significant development puzzles of our time. Women’s inclusion in the state is a widely noted outcome of political liberalization, often accompanied by constitutionally mandated quotas and legislative requirements to include women in policy-making. In a wide range of countries, women’s political access has been facilitated by the use of deliberate strategies ranging from formal and informal quotas to reserved seats. Disillusionment with national gender machineries has given way to optimism about what can be achieved through quotas. Institutions that seemed to be resistant to women’s claims would be dealt a significant exogenous shock by the entry of a critical mass of women, forcing policy shifts in ways that the bureaucratization approach failed to produce. Additionally (perhaps more importantly), the strategy of quotas appears to promise the reappearance of politics in the area of gender policy, reversing the trend that turned gender equality into a thin, technical process driven by meeting narrow targets.
Yet, while women have gained significant access to state bureaucracies and legislatures, particularly in developing countries, access and inclusion do not appear to have delivered the kinds of equality outcomes that many would like to see. Feminist scholarship remains confounded by the question of how and when claims for gender equality are facilitated and or constrained by engagement with the state. Put another way, why has the apparent redistribution of power not resulted in a redistribution of goods? This paper addresses the question by focusing on the ways in which the inclusion of women has been facilitated in South Africa. The paper lays out the key hypotheses that are offered to explain women’s relationship to political power and the state in different parts of the world. I focus on the relationship between equality activism and the broader political system within which this activism is located. Here I want to expand the debate beyond the politics of women’s organizations to consider the ways in which electoral and party systems shape the range of possibilities for the use of integrationist strategies. I argue that these institutions set the parameters within which the representation of women is advanced. In cases where political parties are strongly institutionalized and well-entrenched in the population, they are the pre-eminent vehicles for policy influence. However, in situations where they are weakly developed and have not established their legitimacy, other formal institutions such as traditional authorities, or informal patriarchal social norms may limit their effectiveness. In such instances, pursuing overwhelmingly state-centric strategies to advance equality may be limited.
Nikki Naylor
Constructing and Deconstructing the Rainbow Nation: The South African Equality Experience 1996 — 2009
South Africa has emerged from a dark chapter in our history that saw race, culture, gender, religion and the quest for development undermined and re-written by race within an apartheid system. South Africa’s historic moment in terms of transitioning to democracy was largely shaped through an extended process of domestic negotiations, which resulted in the first democratic elections in 1994. The Constitution-making process represented an historic compromise between the white apartheid regime and liberation movements of the country. Therefore, in examining the manner in which the many subsequent challenges facing the country have been resolved one must have regard to and appreciate this negotiated compromise and the constraints it created. Since 1994 the construction of a post-democratic South Africa has been done constitutionally, as a “national project,” geared toward realizing Mandela’s dream of forging a sense of nationhood in the form of the ‘rainbow nation,’ which incorporates and respects different genders, races, cultures and religions. Likewise, the challenges of diversity and multiculturalism have been addressed, primarily, in constitutional terms. This paper aims to examine how successful this rainbow-building project has been by looking at the equality framework at an institutional, jurisprudential and humanitarian level.
Equality, it has been held, lies at the heart of the Constitution and is one of its foundational values. The Constitution ascribes a particularly important role to equality, both as a good in itself and as a powerful tool of national reconciliation. This paper explores how this equality paradigm has played itself out within the country over the last fourteen years. I do so by examining the institutions, policies and judicial reform that has taken place to guarantee and promote substantive equality. I also spend some time examining the darker, more sinister aspects of the rainbow nation, which threaten the very foundation of our democracy. The paper analyzes both the critical role that the Constitutional Court has played in developing equality but also the vacillating, sometimes destructive role of the Court when it comes to gender equality. I also examine the Chapter 9 institutions and policies that have been put in place to give effect to equality before proceeding to consider the impact this has had on the real lives of South Africans be it in the area of sexual orientation, violence against women or African customary law.
In the final analysis it is argued that identify formation, as well as the myth of the rainbow nation have served to discursively create a national identity that has been top-down in its Constitutional process and has hampered implementation. Perhaps true reconciliation has been foregone in place of a simplified and somewhat candy-coated myth of peace, reconciliation and equality that has served to reconcile those on the inside whilst pitting them against those on the outside. This does not necessarily mean that the Constitutional drafting process and all its institutions, policies and intentions should be discarded. It does, however, mean that the reality of ordinary people and their lives in a post-apartheid society are more complex than the drafting of a progressive Bill of Rights and that we should not give up in our quest for that illusive pot of gold but rather strengthen and mobilize more people to believe in its very existence. (Full paper and PowerPoint)
Raul Avila Ortiz
Constitutions Empowering Women in Latin America: The case of Mexico
Over the last decade, the Mexican process of democratization led to include the gender quota provision into the electoral and party systems. Moreover, before that, affirmative policies had been put in place at national and sub-national levels. Even though some positive results have been reached because of those measures, the country still shows complex structural and institutional policy issues which have to be solved in order to consolidate a truly constitutional democratic state, one in which, among other aspects, gender equality becomes ordinary matter.
On one hand, there is the “context” variable, which includes historic, international, social, economic, political, legal, and cultural patterns and dynamics that public policy has to assume, process, and preserve or modify either.
On the other, there is a set of specific institutional variables, operating within the sphere of the political system, that have to be properly arranged and managed in order to effectively produce positive gender policy outcomes in seeking to guarantee electoral and political gender equality. Of course, both “context” and “institutional” variables are closely related.
Under the above premises and in accordance with the Terms of Reference for the Symposium, paper and presentation will be divided into three parts:
First, a brief diagnosis of structural and institutional factors which led to adopt not only electoral but also multisectorial and multidimensional gender policies will be offered. This picture will show both selected quantitative and qualitative data and interpretations to quickly and better understand XX Century Mexican modernization process. Besides, that picture will help to grasp the social and political environment in which late XX and early XXI Centuries women movements and actors set the political agenda to bring the gender issue into the Constitution.
Second, institutional arrangements on electoral quotas and women under-representation in non elective offices will be illuminated. Current status of women political rights, the structure of government bodies in charge of gender policies, and the enduring problem of the weak enforcement mechanisms will be described. Constitutional gaps that impede wider and effectively women representation, such as the still incomplete and fragile institutional structure of democratic warranties, will be explained.
Third, an evaluation of pro-gender institutions´ and policies´ performance on both the electoral and extra-electoral arenas will be presented. This part will consider the outcomes from July 2009, Mexican federal and local elections in terms of women representation, as well as an assessment of the existing and potential women leadership that can support the gender agenda to overcome in the near future institutional barriers limiting women social and political inclusion. (Full paper)
Hon. Sunil Pant
New Gender in the Constitution: Pathways for Transgender and Third Gender Individuals.
Traditionally, the concept of third gender is not alien in Nepal and South Asia: many gods and goddesses are believed to be third gender in nature. Transgender/Transsexual/Third gender are called Persons of Third Nature, especially in Hindu and Buddhist tradition and mythology.
In the constitutional context, Nepal’s draft constitution in providing for Citizens and Citizenship Identification has suggested recognition of third gender citizens and rights to have Citizenship Identification according to gender identity. Gender-neutral terminologies are used while defining rights to family, rights to marriage, so that no discrimination is ensured to third genders. Non discrimination grounds have been included in Gender (Gender is defined as woman and man and Third gender now). This paper argues that the constitutionalization of new identities based on sex or gender that are otherwise socially or politically denied has created political and civil space for those who claim such identities in the case of Nepal.
In developing the paper, a legal analysis of the legitimization of third gender in the context of the current constitutional reforms in Nepal will be preceded by a historical analysis of third gender as conceptualised in Buddhist and Hindu mythology. It will then examine the socio-political ramifications of these changes and how it has impacted Nepali citizens of the third gender and their relationship with other Nepali of the mainstream.
In writing the paper, data will mainly be sourced from judicial decisions, particularly the Nepali Supreme Court decision of December 21 2007 authorising the Nepali government to issue citizenship identification to persons of the third gender, legal texts and working documents for the draft Nepali constitution as well as my experience as a member of the Constitutional Assembly’s Fundamental Rights Committee (Full paper and PowerPoint)
Prof. Wilfrido V. Villacorta
Towards Addressing the Majority- Minority Conflict in Mindanao: Politics and Dynamics of Constitutional Design and Implementation
The Muslim communities of the Philippines were not fully subjugated during the Spanish and American colonial periods. In the late sixties, the Moro National Liberation Front began their fight for a “Moro nation.” Another armed group, the Moro Islamic Liberation Front, was formed in 1977.
They adopted the term “Moro,” to dramatize their victimization and marginalization. It was the pejorative term used by the Spaniards to refer to Muslims. In the Philippines, indigenous peoples and Filipino-Muslims are not called ethnic groups, because they belong to the same race and language family as that of the majority population.
Despite several peace talks and peace agreements, military conflict has persisted in Mindanao and has taken its heavy toll on thousands of non-combatants.
The objectives of the paper are (1) to examine the factors that led to constitutional recognition of the right to autonomy of Muslim communities in Mindanao; (2) to analyze the constitutional institutions and processes aimed at establishing the autonomy of Muslim communities in Mindanao; and (3) to evaluate the consequences of constitutional provisions intended to institutionalize the autonomy of Muslim communities in Mindanao.
This paper will draw from documents and studies that have been made on the issue, as well as the author’s experiences as a framer of the 1987 Constitution. The Constitutional Commission was convened after the People Power peaceful revolution that overthrew the authoritarian regime of Ferdinand Marcos.
The 1987 Constitution created autonomous regions in areas in Mindanao which are predominantly Muslim, as well as in the Cordilleras (the largest mountain range in northern Luzon, which is home to many indigenous communities). It was stipulated that these autonomous regions will operate “within the framework of this Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines.”
The Congress was directed to frame an organic act for each autonomous region. The law will provide legislative powers over (a) administrative organization, (b) creation of sources of revenues, (c) ancestral domain and natural resources, (d) personal, family and property relations, (e) regional urban and rural planning development, (f) economic, social and tourism development, (g) educational policies, (h) preservation and development of the cultural heritage, and (i) such other matters as may be authorized by law for the welfare of the people of the region.
The 2008 Memorandum of Agreement on the Ancestral Domain Aspect would have given substance to the spirit of the 1987 Constitution. It recognizes that a Bangsamoro (Moro Nation) identity is a birthright of all Muslims and indigenous peoples of Mindanao. It likewise affirms the existence of the Bangsamoro homeland, which is not part of the public domain. However, the Philippine Supreme Court ruled that the content, process and concept of the Memorandum of Agreement are unconstitutional. (Full paper and PowerPoint)
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