Is the Lina Joy case is a procedural matter?
There are those that insist it is but I strongly beg to differ. Saying the case is procedural in nature downplays an issue that receives great attention from many sides that have stake in the ruling of the case. On the surface, I would agree that the case is about procedural in nature. If one looks at the issue beyond skin deep however, this is about a conflict of rights.
I was surprised to read procedure being forwarded as the cause of this confrontation. The procedure-based argument understates the issue so much that I feel there is a gross misunderstanding of the issue at hand. Or maybe, it is an act of downplaying an explosive and divisive issue. I could not care less if it were specifically, exclusively about procedure but I care because it is not. If this case were about procedure, what a pitiful society we all live in, arguing on matter of little significance. In my humble opinion, our society deserves a little bit of respect as far as this case is concerned.
The truth is, there are two groups that matter in this case. One emphasizes on individual rights and another emphasizes on community rights. From a neutral point of view, the overlapping area of the rights is the crux of this whole debate.
The fraction that stresses on individual rights is without doubt the liberals. The liberalism, at least classical liberalism, places the sovereignty of the individual on the individual. Individual is free to do whatever he wishes with his person and properties as long as he respects others’ person and properties.
The other side however demands the sovereignty of an individual be transferred to the society. In other word, sovereignty of the individuals is the pregorative of the society. The religious conservatives in particular, from my observation, insist that a higher being or god rules sovereign over individuals. The community then acts on behalf of that god and takes over the sovereignty on the individual on the behalf of god. As far as the case is concerned, Lina Joy’s religious belief is god’s prerogative and by implication, it is the community’s prerogative.
Between the two, the latter does not recognize difference in belief or religious freedom while the former does. If one is to draw a Venn diagram, the overlap is obvious where the content of the universal set is claims to rights.
The source of contention is freedom of belief. Individual rights demand religious freedom while community rights do not but both stake claim for it. Therefore, the question we need to ask and answer is, which rights should take priority? For liberals, the answer is obvious.
As long as this is left unanswered, the issue — the contest of ideologies — the blurriness will stay. Furthermore, saying the Lina Joy case is a question of procedural tantamount to sweeping the dust under the carpet; attributing the case to procedural matter does not solve the matter.
If we as a society would like to come to a common ground, the first thing we need to do is to acknowledge the root course. Attacking the symptoms, which is too common in Malaysia, does nothing.
After all, just as was mentioned by Jonson Chong at a forum on Lina Joy ruling organized by DAP that I attended earlier this week, the law is an mean, not an end.
8 replies on “[1256] Of Lina Joy case is more than a mere procedural matter”
I think the judge forgot to refer to these verses when he made his decission in Lina Joy’s case.
“It is equal to them, whether you warn them or not, they will not believe. Allah has put the seal upon their hearts.†(2:6-7)
“If Allah had willed he would have made you one nation. But he leads astray whom he will and guides whom he will. But you shall certainly be called to account for all your actions.†(16:93).
– can we ever blame Lina joy for the situation that she’s in?
[…] was touching about freedom of religion. In response to a question relating to Lina Joy, he said that if God had willed it, he would have made everybody a Muslim. But God does not do that […]
[…] conservatives as well as other sympathizers leaned on superficial factor as the main issue — procedure — whereas those that see it pass skin deep know full well that it is about freewill; liberty; […]
Dear freelunch,
IMHO, it exactly what I described in this post. He is forwarding an argument for community rights and that action affects the unwilling others.
Hey Hafiz,
tks for clearing that up. u r right then! ;) it’s been so long since i drew a venn diagram ;)
hey, what do u think of this post on apostasy from mahaguru (http://mahaguru58.blogspot.com/2007/06/apostasy-criminal-breach-of-al legiance.html).
as i am non-muslim, i can’t really comment from that point of view.
:)
Dear freelunch,
Concerning the Venn diagram, I failed to state the content of the universal set. In this entry, the universal content is claim to rights, whereas the overlapping area shows claims to the same rights and the relevant anti-set as claims to different rights. Those outside of the two circle sets are rights not claimed by either sides.
If the content were position on rights, you would have been right.
I will add the assumption inside for clearer view. Thanks for spotting the unclear idea.
Dear Hafiz,
Another intelligent post with a good angle on the issue.
First, I would like to say I am no lawyer and only took two modules of law at uni ;)
This is a multi-faceted issue but if we truly respect the law then we must follow procedures.
However, in Malaysia, our Constitution appears to be inconsistent on the following matters:-
1. Freedom of Religion as a fundamental right specified by Article 11 vs the amended Article 121(1)(a) which empowers the Syariah Courts to deal with matters pertaining to religion including conversion. So, is the amendment to Article 121(1)(a) constitutional in the first place as it contradicts Article 11? Or are the Syariah Courts subject to Article 11 anyway where it’s simply a procedural matter that Muslims go to them to formalise their conversion which is a guaranteed freedom under Article 11? Can the Syariah courts actually make apostasy illegal? I would argue no under the constitution as the Syariah is subject to it as it is the supreme law of the land.
2. Equal treatment before the law regardless of race or religion. Can’t remember the article but will subjecting Muslims to the Syariah courts for religious matters prejudice their standing before the law, ie. two sets of laws for people of different religion/race.
So these issues have to be first resolved before Muslims really know how to go about it?
Procedures
Any good lawyer will advise his client that to build up a strong case, the client must follow procedures. The procedure here for Muslims appears to be (not sure cos it seems to contradict Article 11) going to the Syariah courts to formalise his conversion. Should it be rejected, he should appeal. Only after his appeal is rejected then he should seek some other remedy, if available, in the civil courts.
Because if he has not gone through ‘proper’ procedures, the judge can just throw the case out on this basis like in Lina Joy’s case.
Ind vs Community Rights
Re your Venn diagram, if my memory serves me right, the areas of conflict are outside the the red area, where individual and community rights don’t coincide. Where they do (the red area), we have agreement. ;) correct ar?
You wrote:
The religious conservatives in particular, from my observation, insist that a higher being or god rules sovereign over individuals. The community then acts on behalf of that god and takes over the sovereignty on the individual on the behalf of god. As far as the case is concerned, Lina Joy’s religious belief is God’s prerogative and by implication, it is the community’s prerogative.
I agree with this observation.
As I understand it, the difference between democracy and a government based on religion is the source of the mandate; the former being from the people, the latter perceived to be from God.
The concern that I have about receiving a mandate from God is how do we verify this? In the end, we have to rely on faith and believe that self-declared God appointees are carrying out God’s perfect laws here on Earth. But is it possible for Man, who is usually defined as flaw compared to God, to carry out God’s perfect laws perfectly?
And the further question now is with regards to conversion is since a convert, in his heart at least, have opted out of a particular society, why should he be subject to such laws? Or must he go through the necessary lawful procedures as stipulated?
If the laws are just, then yes. If not, what next?
There appears to be no remedy unless the Syariah courts allow for conversion (let’s drop the term apostasy) after a period of rehabilitation.
———–
In conclusion, due to the inconsistencies in our constitution and the ambiguity of the Syariah with regards to conversion, it appears that there may be no remedy for conversion out of Islam or it may be very difficult to do so.
However, a convert who wishes to formalise his conversion out of Islam would have to go through the necessary procedures before appealing to the higher ‘secular’ courts.
In my view, Lina Joy’s case was severely weakened by her failure to first seek remedy via the Syariah courts although it’s been argued that she will self-implicate herself. Unfortunately, that’s the law.
Should the majority feel that such laws should be changed, then elect leaders who will make the necessary amendments. After all, it was the rakyat who gave Mahathir the mandate for over 22 years to amend the constitution to his liking.
We are all now paying for our mistakes. Perhaps younger voters will be more responsible at the ballot boxes.
For too long, we have given up our fundamental liberties for progress and development. The price we paid – the stifling of our creativity, the decline of our competitiveness and the destruction of our democratic institutions – may be too much to bear.
Somehow I believe the choice of judges may have a difference. I hope all judges not to make judgments that is considering the “political correctness” of the result