©The Sun
(Used by permission)
by Yeo Yang Poh
“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.”
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.
The writer is the immediate past president of the Malaysian Bar.