Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey

Abstract

The article addresses the question of what role formal constitutions play in mitigating intense conflicts over the religious character of the state. In contrast to common views in constitutional and political scholarship, it demonstrates that the ideal of liberal constitutionalism is not compatible with the political reality and types of conflicts that characterize religiously divided societies. Analyzing four processes of constitution drafting in which issues of religious law and religious identity were at the heart of the debate—India, Indonesia, Israel, and Turkey—it argues that under deep disagreement over the state's religious character, the drafters adopt either a permissive or a restrictive constitutional approach. While the former implies strategies of constitutional ambiguity, ambivalence, and avoidance in order to allow the political system greater flexibility in future decision making on religion-state relations, the latter approach uses repressive constitutional constraints designed to limit the range of possibilities available to future decision makers. The article further explores the long-term consequences of the two approaches and argues that (1) permissive constitutional arrangements, more than restrictive arrangements, are likely to promote the democratic functioning of future governments; and that (2) permissive constitutional arrangements may facilitate greater freedom of religion, but they are also likely to lead to greater restrictions on freedom from religion, compared with restrictive constitutions.

Inclusive Constitution Making and Religious Rights: Lessons from the Icelandic Experiment

“…Additionally, constitutional theory suggests that moderate levels of deferral and ambiguity are more likely to allow for enduring constitutions (Dixon and Ginsburg 2011). There is even some empirical evidence that at least in the context of deeply divided nations "permissive" constitutions that use strategies of consti-tutional ambiguity, ambivalence, and vagueness, like those of Israel, India, or Indonesia, tend to correlate with more democracy down the line than more "restrictive" constitutions, such as the aggressively secular Turkish one (Lerner 2013). 41 All things considered, therefore, the Constitutional Council's solution appears wise in its cautiousness and at least marginally better than the expert solutions.…”

“…The impact in terms of religious freedom is mixed, the permissive constitutions favoring freedom of religion over freedom from religion and the restrictive ones the opposite trade-off. But the net gain of permissive constitutions seems to be to allow for the flourishing of democratic practices and institutions (Lerner 2013). It is unclear whether these findings would translate to a country like Iceland, but on the face of it the choice of a permissive as opposed to a restrictive constitutional framework presents some advantages.…”

Constitutionalism in a Post-Colonialism State: Socio-Cultural and Historical Perspective of Indonesian Constitution Identity

“…The idea of religious freedom stated by Soekarno, the most influential nationalist leader (and Indonesia's first president), proposed a compromise in June 1945, according to which the country's ideological foundation would be the "Five Principles" (Pancasila). (Hanna Lerner, 2013). What eventually became the first of these principles affirmed that the basis of the Indonesian state was "Belief in the Oneness of God".…”

The Judicialization of Religious Freedom: An Institutionalist Approach

“…Different constitutions may be more or less ambiguous, and thus subject to interpretation. Lerner () distinguishes between “permissive” constitutions that contain ambiguous or vague provisions, and more “restrictive” constitutions that constrain possibilities for interpretation. Permissive constitutions create a degree of “constitutional flexibility” that may allow judges to devise decisions that grant increased “protection of rights of religious groups” (pp.…”