UCLA Pacific Basin Law Journal

Malaysia has ratified neither the 1951 Refugee Convention nor the 1967 Protocol Relating to the Status of Refugees. Accordingly, refugees in Malaysia are not accorded legal status and, like other irregular migrants, face arrest, detention, and basic human rights violations on a daily basis. This Article argues that invoking the importance of asylum in Islam (Malaysia’s “official religion” according to the Federal Constitution) will provoke moral sensibilities and inspire legal reform of Malaysia’s refugee rights protection framework, given the aggrandized role of Islam in Malaysian politics and public law, which now extends beyond the syariah (Islamic law) jurisdiction. This Article then considers whether the court is the most appropriate forum for such advocacy: it proposes a constitutional litigation strategy, analyzes Malaysia’s constitutional jurisprudence, and examines the larger implications of this litigation strategy in Malaysian society, especially regarding the religious freedom of Muslims who seek to renounce their Islamic faith. More broadly, this Malaysian case study supports a religious, rather than a secular model of human rights, and demonstrates why and when religion can be a force for, rather than an obstacle to, human rights. It also challenges the Vienna Declaration’s claims that human rights are inalienable, universal, indivisible and inter-related.