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Kristen Stilt, Contextualizing Constitutional Islam: The Malaysian Experience, 13 Int'l J. Const. L. 407 (2015).


Abstract: The incorporation of references to Islam and Islamic law (such as the establishment of Islam as the state religion, or the “establishment clause”) in modern constitutions is now a recognized phenomenon. The scholarship on these clauses has been focused on an examination of their judicial interpretations, with some attention to the historical contexts of their adoptions. A deeper contextual inquiry into the adoption, or rejection, of these clauses promises a more meaningful understanding of the phenomenon of constitutional Islam—in historical and contemporary settings—than has yet been achieved. This article proposes a contextual approach to constitutional Islam and uses it to examine the making of the Federation of Malaya independence Constitution of 1957. In examining both the dynamics within the country and the international context in which the constitutional drafting process took place, this article shows that the establishment clause was attached to debates about many other constitutional issues and that its adoption was ultimately an attempt to provide another avenue of constitutional advantage for ethnic Malays.