The Federal Court decision in Lina Joy's case, referred to by some as the
Joy decision, clearly brought no joy to many, while being received by some
others with a sense of relief and perhaps even of victory. The perceived
implications of the decision extend far beyond the narrow confines of the
questions of law posed to and answered by the court.
If it is looked at or labelled as a matter of one religion versus another
(or others), then one might expect strong sentiments to fly freely in all
directions, sometimes threatening to go out of control.
Or, is it a case purely of legal interpretation of the Federal
Constitution,
involving legal technicalities and niceties, such as on the issue of
whether
jurisdiction must be expressly conferred or may be implied? If that is the
case, then the decision is nothing more than the result of an application
of
cold legal principles, which should hardly deserve any emotional response.
But it is in truth neither.
The Lina Joy dispute is certainly not a case of contest between (or among)
religions. No one has been asked to decide which religion wins or should
prevail. No one should. God is not on trial. He is watching the trial, and
how each player in it exercises his or her conscience.
Neither is the case just about how the Constitution should be interpreted
strictly as a legal document. To consider it to be merely so is to put
justice to death, and then to dutifully dissect the dead body and analyse
its parts after all life in it is gone.
It is meaningless to construe any Constitution as if it were a puzzle
composed of mathematical logic, without carefully accounting for the
continuous evolution of the concepts and boundaries of freedoms and
rights,
not just within the context of the society or community concerned, but
universally.
The Federal Constitution is, as any Constitution worth the paper it is
written on should be, a living document that proactively promotes and
protects freedoms, not just by their strict letters but also by invoking
the
spirit that surrounds or ought to surround it.
Hence, the underlying essence of Lina's case, notwithstanding the
uncoloured
legal questions framed, is neither principally about religion nor
primarily
about the law.
What then is it about, looking beyond the immediate scope of the case?
Lina's case is about freedom, about the rights of individuals, about the
extent to which our society as a whole is prepared to respect such freedom
and rights, and about the degree to which our justice system is willing to
lead rather than tail the society in recognising, promoting and protecting
these freedoms and rights.
Just as freedom of speech is not about speech (or the contents of any
particular speech), but about the provision of space (with the absence of
punishment) for the expression of opinions whether or not approved by the
majority or by those in control; freedom of religion is not about religion
(or the contents of any religion), but about allowing (again without
punishment) every individual to pursue his or her own path of
enlightenment
whether or not shared or approved by others or by those in power.
The permission of this freedom for all is essential to the existence of
true
equality and mutual respect within any society. Whether viewed from a
religious aspect or otherwise, what good can it do, and how meaningful
could
it be, for society or any community within a society to, directly or
indirectly, impose or force upon any person a set of ideas or beliefs to
which that person does not subscribe from the heart?
Different persons look at Lina's case in different ways, each perhaps
convinced of the soundness of his or her perspective. Some of these
viewpoints are difficult to reconcile. In the circumstances, the easiest
thing is for us to respectively throw our arms in despair, and be resigned
to the conviction that others will never understand our point of view, and
hence to the futility of continuing to talk to one another.
That is the easiest thing to do, in times of frustration, but is also the
surest way to self-condemnation. Granted that these are difficult issues,
and granted that at times a mutually acceptable solution appears to be
forever impossible; yet it is crucial that constructive dialogue must
continue, for otherwise destructive conflicts will quickly fill its space.
There are, as an illustration of diverse points of view, those who truly
feel that Lina is misguided, and who wish to guide her back to the right
path. Such perspective, repugnant as it may appear to some, should not be
scoffed at or dismissed as silly. To do that will be to commit the same
error that we feel others have made when they brush aside arguments that
we
find irrefutable; and therefore to do that will be to keep widening the
divide between groups with different opinions.
The appropriate response, once again, lies in dialogue. In a constructive
dialogue, other viewpoints can be offered in response, such as the view
that
a pre-requisite starting point in wanting to guide a person is to first
respect that person as an individual; and that it can hardly be genuine
respect if the treatment given is coercive in nature.
In a meaningful dialogue, points and counterpoints can be exchanged, not
in
competition with one another, but with the view to better mutual
understanding, to establishing commonalities, and to finding possibilities
amidst a climate of perceived impossibilities.
Progress through dialogue may be painfully slow, but there is no viable
substitute. There are also obstacles that need to be overcome along the
snail-crawl, such as the low level of mutual trust, and the interference
of
politics.
Another hurdle is the management of emotions. Politicians are fond of
branding a topic "sensitive", when it suits them, in the hope of
prohibiting
or limiting its public discussion. This always makes the problem
progressively worse. Then, when public discussion becomes inevitable, they
will say that people should not be "emotional" in raising issues, as if
emotion is a dirty word per se, and as if human beings can function
entirely
free of emotion in a robotic manner. They will demand that discussion
stops,
if emotion is detected.
It is time to recognise that one cannot be expected to discuss an issue,
such as freedom or religion, which one feels passionate about, without the
involvement of any emotion whatsoever. To be emotional is not necessarily
the same as being irrational. One can be in a state of happiness, anger,
frustration, anxiety or compassion (all of which are emotions), without
being irrational.
Therefore, in all dialogues it is the degree of emotion (the runaway kind
that drags away rationality along with it) that needs to be managed or
avoided, and not the need to meet the impractical demand of total absence
of
emotion. It is, however, essential to maintain mutual respect throughout
the
process, and to gradually build mutual trust. The fact that an issue is
termed "sensitive", or that people may exhibit emotions when expressing
opinions on it, cannot be an excuse to suppress discussion or dialogue;
unless one wishes to see a difficult problem silently turning into an
uncontrollable monster.
So, however one looks at Lina's case, one thing is clear. The decision in
that case is not a victory for our society at all. It is just a
manifestation of unresolved issues. We, our society as a whole, must
undertake the task of resolving them, eventually.
Freedom is not about the majority, or those in power, being allowed to do
as
they please. Freedom is about every member of society, including the
minority and the weakest in it, being given the same opportunity and the
same latitude that the rest (including the majority and the powerful)
enjoys
in abundance.
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