Fundamental Rights Lawfare: Religious Freedom and Public Order in Pakistan and Malaysia

Building on constructivist theories concerning national identity formation as well as institutionalist theories regarding the regulatory power of law (here, constitutional and international human rights laws protecting religious freedom ‘subject to’ politically shifting claims regarding public order), this paper examines a pattern of ‘religious’ national identity formation in Muslim-majority Pakistan and Malaysia. Specifically, the paper illuminates a pattern of intra-religious boundary-formation grounded in what I call fundamental-rights lawfare—a pattern in which majoritarian political actors urge senior judges to operationalize existing religious-freedom provisions in ways that ‘securitize’ certain self-identifying co-religionists as provocative ‘heretics’ who, posing a risk to ‘public order’, lie outside the boundaries of each country’s majoritarian constitutional community. Magnus Marsden joined Sussex in November 2013 from SOAS, University of London where he was Reader in Social Anthropology. He has conducted extensive fieldwork in Afghanistan and Pakistan, and worked on ethnographic projects in Uzbekistan, Tajikistan, Ukraine and China.