The highest Appellate court, our Federal Court today ruled that the National Registration Department (NRD) was right not to allow Lina Joy to remove the word "Islam" from her identity card.
Does this judicial decision doomed us to pessimistic account of our legal orders?
The Federal Constitution under Article 11: Freedom of Religion states that:
11(1): Every person has the right to profess and practise his religion subject to State Law and ... Federal Law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
11(5) states: This article does not authorise any act contrary to any general law relating to public order, public health or morality.
Article 8 states that "All persons are equal before the law and entitled to the equal protection of the law."
Article 8(2) states that "...there should be no discrimination against citizens on the ground only on religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
I am afraid the Federal court did not consider Article 11(5) in which the NRD's act constitute a public order which is ultra vires the Constitution.
Dworkin had always emphasized that "Rights" are individuated and are political trumps. There is no justification whatsoever to interfere with individual rights such as liberty, equality and the freedom of thoughts, conscience and religion. There is also no justification for any mechanism to operate and impinge upon any individual's rights and entitlement provided under the constitution. The court could only override any rights which are in conflict with general communal rights and of which it is in the general publics interest and where the cost to society would be beyond the cost paid to grant the individual right.
A person has a right to moral independence and it is wrong for officials to act in violation of that right even if the community as a whole had preferred.
In the 19th Century, Karl Marx observed that the law was coercive and oppressive and manifest the state's monopoly of the means of coercion. Has Marx's ideology being manifested in our society today?
While the regime of law guarantees everyone the rights to equality and freedom to practice any religion, such freedom is of little positive value as it obscured social and political realities.
Freedom and equality is underpinned by the misguided jurisprudence of liberties and obscured by the illusory equality proclaimed by the legal order.
Marx had warned, that we should not blind ourselves to the realities of domination inherent in law. Class interest is still a very much powerful elements of legal and political power; for history of mankind is a bleak record of conflict of class against class with the law taking side.
The social phenomena are interconnected and any analysis of institutions must include their historical development and contradictions in order to reconcile them.
Does this judicial decision doomed us to pessimistic account of our legal orders?
The Federal Constitution under Article 11: Freedom of Religion states that:
11(1): Every person has the right to profess and practise his religion subject to State Law and ... Federal Law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
11(5) states: This article does not authorise any act contrary to any general law relating to public order, public health or morality.
Article 8 states that "All persons are equal before the law and entitled to the equal protection of the law."
Article 8(2) states that "...there should be no discrimination against citizens on the ground only on religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
I am afraid the Federal court did not consider Article 11(5) in which the NRD's act constitute a public order which is ultra vires the Constitution.
Dworkin had always emphasized that "Rights" are individuated and are political trumps. There is no justification whatsoever to interfere with individual rights such as liberty, equality and the freedom of thoughts, conscience and religion. There is also no justification for any mechanism to operate and impinge upon any individual's rights and entitlement provided under the constitution. The court could only override any rights which are in conflict with general communal rights and of which it is in the general publics interest and where the cost to society would be beyond the cost paid to grant the individual right.
A person has a right to moral independence and it is wrong for officials to act in violation of that right even if the community as a whole had preferred.
In the 19th Century, Karl Marx observed that the law was coercive and oppressive and manifest the state's monopoly of the means of coercion. Has Marx's ideology being manifested in our society today?
While the regime of law guarantees everyone the rights to equality and freedom to practice any religion, such freedom is of little positive value as it obscured social and political realities.
Freedom and equality is underpinned by the misguided jurisprudence of liberties and obscured by the illusory equality proclaimed by the legal order.
Marx had warned, that we should not blind ourselves to the realities of domination inherent in law. Class interest is still a very much powerful elements of legal and political power; for history of mankind is a bleak record of conflict of class against class with the law taking side.
The social phenomena are interconnected and any analysis of institutions must include their historical development and contradictions in order to reconcile them.
4 comments:
this is a dark day for this country... certainly a significant chapter written.
In some system, not all human being are brave to uphold the human conscience. Some choose to be coward.
When some people though he is "help holding the right" of their own ethnics, in fact they are destroying their cultures by abandon their own conscience.
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Errr, I am referring this to the bogus Bolehland. So please don't sue me(or rempit me).
yeah, i read tis article today, sad day for lina. what can we do, in most circumstances, nothing. that is federal court decision. lift up and carry on the journey. life is meant to be tough and unfair.
30 may 2007 gonna be a historic black day for us.
what in the world is happening to our country when even the judges does not follow the constitution (some said they judged as a muslim for muslim).
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