改教课题-内阁的决定vs宪法vs现况
Posted: 30-04-09 Thu 9:12 am
From http://aisehman.org
The Twilight Zone
28 April 2009 | 2,553 Views | 1 blog reaction
So, “the Cabinet has decided that children be raised in the ‘common religion’ at the time of marriage should one of their parents convert”, eh?
Much as I would like to see this matter resolved quickly, I think it would be naive to believe that this “decree” of the Cabinet resolves anything at all.
First of all, there’s the Federal Constitution.
Article 12
3. No person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own.
4. For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
Now, the Constitution defines singular terms to include the plural, and vice versa. In other words, “parent” up there does not mean just the father or just the mother.
Article 12(4) gives the right of determination to both parents.
Both the father AND mother have the right to determine the religion of their child who is under the age of eighteen, for the purposes of providing religious instruction to, or the participation in a ceremony or act of worship by, the child.
The Cabinet “decree” usurps the right of the parent to decide the religion of his or her child. But who is the Cabinet to force one parent to have their child raised in the “common religion at the time of marriage”?
The “decree” is about as effective as a Japanese paper fan in hell, because the Cabinet does not have any authority in hell, let alone in heaven, to do this.
And if a law is passed to give Cabinet jurisdiction, that law would contravene the right of parents to determine the religion of their child under Article 12(4). That law would be ultra vires the Constitution.
The Cabinet can try to amend the Constitution but it is unlikely to be passed.
And how would you amend Article 12(4)?
Let’s give it a try — For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian, or if a parent has converted to a religion other than the religion professed by the parent at the time of marriage to the other parent, and the converted parent disagrees with the other parent on the religion of the person, his religion shall be that of his parents’ common religion at the time of marriage.
Does that do it?
Not exactly.
In the same breath that it gives parents the right to determine the religion of their child, the amended clause also takes away that right from one parent for the simple act of insisting on exercising his or her right to freedom of religion.
In which case, would not such a clause fall foul of Article 11(1): “Every person has the right to profess and practice his religion …”?
There is also the matter of inter-religious civil marriages, which have no “common religion”, even at the time of marriage.
Problems could also arise in civil marriages between people of the same religion at the time of marriage but who are no longer of that religion — for example, a disagreement on the religion of the child of a formerly Buddhist couple where the husband has converted to Islam and the wife to Christianity.
The “common religion” here is Buddhism, but I doubt the father and the mother would want the child to be raised a Buddhist.
Maybe you say that if there is disagreement, the civil courts should be given the authority to decide.
Okay, but how shall the courts decide?
Shall they weigh the merits of say, a Christian upbringing versus a Muslim upbringing for a particular child?
How indeed shall the civil courts impartially weigh the merits of a particular religion against another?
DOES the answer lie in the Syariah law or in the Syariah court?
Please. Much as I am a believer, I cannot see how a non-Muslim fighting for the custody of his or her child and exercising his or her constitutional right to freedom of religion by insisting that the child undergo a strictly non-Muslim upbringing, can win custody of the child in a Syariah court.
And except under circumstances of darurat, I do not see when and where Islam provides a Muslim parent the flexibility of agreeing to his or her child being brought up in the ways of a religion other than Islam.
It is mind-boggling, I know, but there you have it.
IF you have any suggestions for a resoluton or if you find flaws in the arguments above, please comment. I would like to know.
Just a request — go easy on the idealism.
The Twilight Zone
28 April 2009 | 2,553 Views | 1 blog reaction
So, “the Cabinet has decided that children be raised in the ‘common religion’ at the time of marriage should one of their parents convert”, eh?
Much as I would like to see this matter resolved quickly, I think it would be naive to believe that this “decree” of the Cabinet resolves anything at all.
First of all, there’s the Federal Constitution.
Article 12
3. No person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own.
4. For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
Now, the Constitution defines singular terms to include the plural, and vice versa. In other words, “parent” up there does not mean just the father or just the mother.
Article 12(4) gives the right of determination to both parents.
Both the father AND mother have the right to determine the religion of their child who is under the age of eighteen, for the purposes of providing religious instruction to, or the participation in a ceremony or act of worship by, the child.
The Cabinet “decree” usurps the right of the parent to decide the religion of his or her child. But who is the Cabinet to force one parent to have their child raised in the “common religion at the time of marriage”?
The “decree” is about as effective as a Japanese paper fan in hell, because the Cabinet does not have any authority in hell, let alone in heaven, to do this.
And if a law is passed to give Cabinet jurisdiction, that law would contravene the right of parents to determine the religion of their child under Article 12(4). That law would be ultra vires the Constitution.
The Cabinet can try to amend the Constitution but it is unlikely to be passed.
And how would you amend Article 12(4)?
Let’s give it a try — For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian, or if a parent has converted to a religion other than the religion professed by the parent at the time of marriage to the other parent, and the converted parent disagrees with the other parent on the religion of the person, his religion shall be that of his parents’ common religion at the time of marriage.
Does that do it?
Not exactly.
In the same breath that it gives parents the right to determine the religion of their child, the amended clause also takes away that right from one parent for the simple act of insisting on exercising his or her right to freedom of religion.
In which case, would not such a clause fall foul of Article 11(1): “Every person has the right to profess and practice his religion …”?
There is also the matter of inter-religious civil marriages, which have no “common religion”, even at the time of marriage.
Problems could also arise in civil marriages between people of the same religion at the time of marriage but who are no longer of that religion — for example, a disagreement on the religion of the child of a formerly Buddhist couple where the husband has converted to Islam and the wife to Christianity.
The “common religion” here is Buddhism, but I doubt the father and the mother would want the child to be raised a Buddhist.
Maybe you say that if there is disagreement, the civil courts should be given the authority to decide.
Okay, but how shall the courts decide?
Shall they weigh the merits of say, a Christian upbringing versus a Muslim upbringing for a particular child?
How indeed shall the civil courts impartially weigh the merits of a particular religion against another?
DOES the answer lie in the Syariah law or in the Syariah court?
Please. Much as I am a believer, I cannot see how a non-Muslim fighting for the custody of his or her child and exercising his or her constitutional right to freedom of religion by insisting that the child undergo a strictly non-Muslim upbringing, can win custody of the child in a Syariah court.
And except under circumstances of darurat, I do not see when and where Islam provides a Muslim parent the flexibility of agreeing to his or her child being brought up in the ways of a religion other than Islam.
It is mind-boggling, I know, but there you have it.
IF you have any suggestions for a resoluton or if you find flaws in the arguments above, please comment. I would like to know.
Just a request — go easy on the idealism.