Religious Offences in Common Law Asia: Colonial Legacies, Constitutional Rights and Contemporary Practice

Description

This book provides in-depth comparative analysis of how religious penal clauses have been developed and employed within Asian common law states, and the impact of such developments on constitutional rights. By examining the theoretical and conceptual underpinnings of religious offences as well as interrogating the nature and impact of religious penal clauses within the region, it contributes to the broader dialogue in relation to religious penal clauses globally, whether in countries which practise forms of secular or religious constitutionalism. Asian practice is significant in this respect, given the centrality of religion to social life and indeed, in some jurisdictions, to constitutional or national identity. Providing rigorous studies of common law jurisdictions that have adopted similar provisions in their penal code, the contributors provide an original examination and analysis of the use and development of these religious penal clauses in their respective jurisdictions. They draw upon their insights into the background sociopolitical and constitutional contexts to consider how the inter-relationship of religion and state may determine the rationale and scope of religious offences. These country-by-country chapters inform the conceptual examination of religious views and sentiments as a basis for criminality and the forms of ‘harm’ that attract legal safeguards. Several chapters examine these questions from a historical and comparative perspective, considering the underlying bases and scope, as well as evolving objectives of these provisions. Through these examinations, the book critically interrogates the legacy of colonialism on the criminal law and constitutional practice of various Asian states. Constitutionalism in Asia series Acknowledgements Contents List of Contributors Orthodoxy, Order and Odium: The Enduring Legacy of Religious Penal Clauses in Contemporary Asia I. Introduction: Taking Religion and Religious Feelings Seriously II. Religious Penal Clauses in Common Law Asia and Worldwide III. Conceptual Distinctions Distinctions: Offence Against God Versus Offences Against religious Believers? IV. Constitutional Rights V. Reception, Retention, Renovation, and Reimagination: Legal Translants and Colonial Legacies VI. Conclusion Bibliography PART I:
RELIGIOUS PENAL CLAUSES: HISTORICAL AND
CONCEPTUAL PERSPECTIVES 1. Religious Penal Clauses in Commonwealth Asia: A Brief History I. Introduction II. Blasphemy and the Indian Penal Code III. Sedition IV. Post-Independence Developments V. Conclusion Bibliography 2. Apollonian Restraint and Dionysian Impulse: Law, Freedom
and Religious Feelings I. Introduction II. Religious Feelings III. Law, Freedom and Religious Feelings IV. Between Olympian Rationality and Impassioned Emotion, Human Civility Bibliography 3. Making Islamic Penal Clauses: Translation, Transformation
and Transmogrification I. Introduction II. The Classical Context III. Formulating Islamic Offences – the Classical Context IV. Applying 'Criminal Law' V. Modernity, Transformation and Translation VI. Contemporary Application: Case Studies VII. Conclusion: Transmogrification Bibliography 4. Between Religious Coexistence and Religious Hierarchy: Divergent Developments in Religious Offence Laws in Common Law Asia I. Introduction II. Religious Offence: Intertwining Religious Feelings and Public Order III. Diverging Norms: Constitutional Arrangement, Religious Demography and Political Power IV. Conclusion Bibliography PART II:
RELIGIOUS PENAL CLAUSES IN CONTEXT: COUNTRY
STUDIES IN COMMON LAW ASIA 5. Religious Penal Clauses in India I. Introduction II. Context III. Penal Provisions: Legislative History IV. Court Cases and Political Use: Interpretation of Religious Penal Clauses V. Procedural Provisions Relating to Religious Penal Clauses VI. Constitutional Implications VII. Contemporary Usage of Religious Penal Clauses VIII. Conclusion Bibliography 6. Forbidden Discourse: Evaluating the Transformation of Colonial-era Religious Penal Offences into Contemporary Pakistan’s
Blasphemy Laws I. Introduction II. Constitutional Context III. Religious Penal Clauses in the Pakistan Penal Code IV. Conclusion and Plausible Way Forward Bibliography 7. Bangladesh: Public Law, Religious Freedom and Regulating
‘Religious Sentiment’ I. Introduction II. Legal Context: The Criminal Law of Bangladesh III. The Offences Relating to Religion IV. Expansion of Religious Penal Clauses V. The Colonial Legacy VI. Concluding Reflections Bibliography 8. Prosecuting Religious Violence in Sri Lanka I. Introduction II. Background and Socio-Political Context III. An Overview of the Legal and Constitutional Framework IV. Constitutional Implications V. Conclusion Bibliography 9. Offences against Religion in Malaysia: Navigating the ‘Secular’
Federal Constitution and the Salience of Islam in the
Constitutional Order I. Introduction II. Background: Legal and Constitutional Contexts III. The Penal Code's 'Offences Relating to Religion': Provisions and Contexts IV. Enforcing Offences against Religion V. Constitutional Issues and Implications VI. Conclusion Bibliography 10. Religious Offences Penal Clauses and the Singapore Constitutional
Order: Secular, Sensible but Sensitive to the Sacred? I. Legal Framework and Social Context – Offences Relating to Religion (and Race) II. Prosecuting Religious Offences – Sections 298 and 298a III. Concluding Reflections: Religious Offences in a Secular State and Religious Society Bibliography 11. Recalibrating the Scales of Criminal Justice in Brunei
Darussalam: Religious Penal Clauses 1905–2018 I. Introduction II. Legal Background III. Contemporary Developments IV. Social Background V. Public Opinion on Brunei's Religious Penal Clauses Untitled VI. Overarching Reflections Bibliography Index