Friday, June 01, 2007

Lina Joy misinterpreted Article 11 of the Federal Constitution

Let's look at Article 11 of the Federal Constitution again.

Article 11 of the Federal Constitution:

1. Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.

2. No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.

Every religious group has the right -
(a) to manage its own religious affairs
(b) to establish and maintain institutions for religious or charitable purposes; and
(c) to acquire and own property and hold and administer it in accordance with law.

4. State law and in respect of the Federal Territories of Kuala Lumpur and Labuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.

5. This Article does not authorize any act contrary to any general law relating to public order, public health or morality.
Lina Joy and all the liberalists interpret it as giving each Malaysian the right to freedom of religion. But it doesn't.

Excerpts of the Federal Court's majority judgement on Lina Joy:
Article 11-1 gives you the right to profess and practice your religion... but it doesn't give expressly grant you the right to choose it. In fact, - by using the words 'HIS religion' - article 11-1 makes an assumption that every citizen already HAS a religion.

It doesn't say you have the right to practice 'a religion of your choice' but just that you are have a right to practice your religion, whatever that religion may be. Now... this seems trivial if the religion which you happen to be professing is liberal and does not place any limitations and covenants onto the entry and exit thereof. In this case, establishing what your religion is, and therefore protect your right to practise it - is straightforward.

But Islam is not liberal. Islam compels adherence to whole canons of religious covenants, including those that govern who is and who is not a Muslim. And Article 11 legitimises the enforcement of these religious covenants (Islamic Law or Syariah) by the inference of article 11-3 which says every religious group has the right to manage its own religious affairs. Interpreted widely, doesn't this indeed provide for the application of Islamic laws on the affairs of Muslims? This has been further reinforced by the fact that legally binding Syariah courts have been legislated separately, and article 121-1A removes the civil court's oversight.

Now... back to the case of Lina Joy. She was born to Muslim parents and is therefore Muslim by default (this default is allowable by virtue of article 11-3 and the fact that parents have a right to choose the religion of their infant/minor child). Therefore, the constitution now grants her the right to profess Islam, (and as I read article 11-1), by simply allowing her the right to resist any attempts to STOP her from practicing Islam.

Nowhere does article 11-1 grant her the express right to stop professing Islam (and by default, to change her religion). It just says that nobody can stop her from professing and practicing (article 11-1) whatever religion that she is deemed to profess (and by article 11-3, that religion is Islam by birth). And since article 11-3 allows Islamic law to regulate her entry into Islam (by birth to Muslim parents), it makes sense if Islamic law regulates her exit from Islam.

My conclusion is that article 11 doesn't guarantee the freedom of religion, but rather it simply guarantees the freedom to practice of your religion (article 11-1)... once you have established one (a religion). And by extension of (article 11-3), you will be deemed to have established one (a religion ie. Islam) if you were simply born to Muslim parents. So Lina Joy... tough luck!

sean-the-man says: btw, the govt is violating article 11-2 of the constitution by funding the Islamic departments, religious schools and building mosques using federal and state taxation revenue... which IS NOT drawn exclusively from the taxes paid by Muslim taxpayers.

And if the govt does not take action to separate the tax revenue derived from Muslim and non-Muslim taxpayers, AND does not stop using the taxes from the latter to fund Islamic departments, religious schools and the building of mosques... non-Muslims are constitutionally entitled to refuse to be compelled to pay tax.

In constrast, how the US Constitution guarantees the freedom of an individual to choose their religion is to simply outlaw the making of any laws that seek to establish a religion or to prohibit the free exercise of it.

Therefore US Muslims are free to profess Islam and practice 'Islamic law', insofar that those 'laws' will not be legally binding. As a result, US Muslims can 'choose' (as an individual personal choice) to apply Islamic 'laws' upon themselves. And those 'laws' cannot be administratively or otherwise punitively applied to any individuals unwilling to subject themselves to it.

The text of the First Amendment to the US Bill of Rights of the US Constitution reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
DOWNLOAD / READ pdf of - Chief Justice Ahmad Fairuz Sheikh Abdul Halim's Majority judgment
DOWNLOAD / READ pdf of - Justice Richard Malamjum's Dissenting Decision

No comments: