Religious Constitutionalism: An Interpretative Reading

Author:Pranoto Iskandar
Position:The Institute for Migrant Rights

Is secularism dead? Many have argued that as a path secularism provides nothing but a dead end. Whether one likes it not, however, it is hard to rationally deny the desirability of having secularity as the ideal condition for national political contestation. From that vantage point, this paper argues that the alternative religious-friendly model that is based on pan-religious values has also... (see full summary)

e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
© 2018 e Institute for Migrant Rights Press
is paper has been presented at the Annual Meeting of the American Society
of Comparative Law: Comparative Law, Faith and Religion—e Role of Faith
in Law, Oct. 26–Oct. 28, 2017, American University Washington College of Law,
Washington D.C. e author gratefully acknowledges the sincere and indispensable
support of Greg Carlson, Beth Lyon, Muna B. Ndulo, Aziz Rana, the Cornell
Farmworker Comparative Law Research team, especially Yu-Jhong Huang, Yuting
Hou, and Leigha Crout, amora Fishel of the Cornell Southeast Asia Program, and
Valerie Hans. As always, Taarna Rhiannon Grimsley has provided the much-needed
reading that saves me from many unnecessary errors. It goes without saying that
without Don Horowitz this paper would not even be written in the rst place and
to Dian Shah who has earnestly made all this happened. e nancial support for
the presentation of this writing is provided by the Cornell Southeast Asia Program.
rEligious ConstitutionalisM
An InterpretIve reAdIng
Pranoto Iskandar
e Institute for Migrant Rights
Is secularism dead? Many have argued that as a path secularism provides noth-
ing but a dead end. Whether one likes it not, however, it is hard to rationally
deny the desirability of having secularity as the ideal condition for national po-
litical contestation. From that vantage point, this paper argues that the alterna-
tive religious-friendly model that is based on pan-religious values has also failed
miserably. In contravention of scholarly orthodoxy, the paper posits secularism
is, in fact, the early Javanese nationalist’s endgame. In fact, secularity is implicit
in the Javanese “political theory,” and, thus, it is natural to assume that for the
early nationalists, secularity was important for the national eort of “getting
to Denmark.” Unfortunately, Indonesia’s temporary accommodation of religion
as a solution to the Islamists insistence has somewhat become fossilized in the
political system. Furthermore, the Indonesian experiment with the moderate
wall of separation has disturbingly encouraged more religious parochialism that
is smuggled through the indigeneity-based claims. More importantly, it has set
the political reform back.
Keywords: Secularism, Constitutionalism, Freedom of Religion, International Law,-
Constitutional Inte rpretation.
VI Indonesian Journal of International & Comparative Law 55-93 (January 2019)
e global feeling of doom and gloom toward secularism as a venerat-
ed political precept in the history of the defense of, inter alia, freedom
of thought, religion and speech has become part of today’s banalities.1
Even more so in the non-Western context; in India, possibly the most
mature democracy in the Global South, for instance, secularism has
arguably lost its appeal.2 To be sure, this might mean that secularism
is not only relegated as merely yesterday’s news, but is something so
evil as to merit immediate eradication.3 As a world’s foremost scholar
of religions, Mark Juergensmeyer who claims to have made sense and
therefore able to go beyond “demonizing” religions as the mainstream
liberals normally do, put it, “it is the secular nationalism, and not re-
ligion, that has gone wrong.4 Does that mean that we should throw
the baby out with the bathwater, in a sense? Is it that bad that the once
ultimate answer to resolve the issue of maintaining the neutrality of
the public sphere, secularism, has now been doomed to be buried with
its articulator John Locke who has been dead for more than three cen-
1. See M J, G R: R C 
 S S, F C M  -Q (2008) (noting
that “[i]n many ways the current conicts are more a global rebellion than a
war, since a few of the movements of the se cular state have an alternative gov-
ernment in mind.”).
2. S  I C (Rajeev Bhargava ed., 1998). is edited collec-
tion is published for the context of India, the editor conrmed that secularism
in India has performed “rather poorly.” And then, he lamented that “[t]here is
perhaps as much, if not greater religious bigotry today than before. Religious
minorities continue to feel disadvantaged and oen face discrimination. e
scale and intensity of religious conict does not seem to have declined: if any-
thing it has proliferated, touching people who have never known it before.” Cf.
Jagdish Bhagwati, Secularism in India: Why Is It Imperiled?, in T F 
S 11-19 (T.N. Srinivasan ed., 2007).
3. See also D C H, C R: F P-
  P-C 10-11 (2004) (noting that radical post-modernists
such as Gilles Delueze, Jacques Derrida, and Slavoj Žižek insist that “although
resistance should not be blind, agents need not know explicitly all their reasons
and principles in advance.’).
4. J, supra note 1. at 3.
Religious Constitutionalism
turies?5 us, the next fair question would be, does it mean that it is
reasonable to adopt the pan-religious values as the ultimate and only
recourse to manage religious diversity and, more importantly, resolve
the civil dispute in the area of freedom related matters, even if it has to
dismiss the budding irreligionists as just another fringe of the unpleas-
ant social gadies.
Arguably, the implicit organizing framework that drives the so-
called “Post-secular” school tends to be empirically, and, thus, neutral-
value, driven.6 As a result, it should not be a surprise that it is no longer
uncommon to nd a widespread disillusionment with secularism as a
ready-made template that can oer a solution to the nagging question
of the unwelcoming intervention of religion in public sphere. To be
fair, this inbuilt high expectation of secularism is not only deceptively
unfair, but it is a tall order that is undoubtedly doomed to failure.7 For
what it is worth, even when it is applied to the U.S., as the brainchild
of the Enlightenment itself, Jeerson’s “wall of separation” is skewed to
the (political) right as a support for more roles for religion in public
life.8 It implies that any eort that expects a “successful” transplantation
of secularism beyond the “pristine model” of the Enlightenment is on
a wild goose chase.9 Seen thus, it is reasonable to eschew secularism
5. See e.g., Rodney Stark, Secularization, R.I.P., 60 S  R  249-
273 (1999).
6. See e.g., Benjamin Schewel, What Is “Post-Secular” about Global Political Dis-
course, 12 T R.  F  I’ A. 49-61 (2016).
7. See also, José Casanova, e Secular and Secularisms, 76 S R. 1049-66
8. See Daniel Dreisbach, e Mythical “Wall of Separation”: How a Misused Met-
aphor Changed Church–State Law, Policy, and Discourse, First Principle Series
No. 6 (June 23, 2006); see also, Susanna Mancini & Michel Rosenfeld, Intro-
duction, in C S  A A  R R
(Susanna Mancini & Michel Rosenfeld ed., 2014) (noting that “the Free Exer-
cise Clause requiring state involvement to provide meaningful sustenance to
religious practice and expression.”).
9. On the use “pristine model” in seeing the Asian constitutional system, see Al-
bert H.Y. Chen, Pathways of Western Liberal Constitutional Development in
Asia: A Comparative Study of Five Major Nations, 8 I’ J. C
L. 849–884 (2010); see also, Albert H.Y. Chen, e Achievement of Constitu-
tionalism in Asia: Moving Beyond ‘Constitutions Without Constitutionalism, in
C  A   E T -F C (2014).

To continue reading