Sunday, July 16, 2006

*Do your research first*

Eh heh heh...*sigh*, talk about an amatuerish mistake I made.

I stumbled onto a fairly interesting exchange on YoungRepublic after somewhat of an extended hiatus similar to the blogging one that you might have experienced in recent months.

But basically, here's the context, it was originally about a JW teacher being fired for not singing the national anthem and saying the pledge on grounds that it violated his religious beliefs (go google or wikipedia it, I can't find the energy to explain it honestly, most theology I feel fit into this mould). But it became a discussion about whether a student could be compelled to attend religious service in school.

To be honest I was quite willing to watch from the sidelines but a comment spurred me to respond. Basically in response to a comment that there already existed an opt-out system, the writer J said that, "That really is a privilege, not a right" which annoyed me because I dislike this particular argument as it is predicated on a rather incidious form of fallacious logic a.k.a that that which is the status quo is necessarily good. The real point being that often rights and privileges are simply used as labels more than any examination of the real principles behind them.

But anyway the following was my response:
I'm not certain that saying it's a privilege as opposed to a right is a response insofar as it is begging the question. The assumption behind that argument is that it is necessarily the sole perogative of the school, even a private one, to determine your attendence at chapel.

However, one could well argue that being forced to attend a religious service against your will is a violation of your freedom of religion, Article 15 (case law to the contrary for now admittedly) and the freedom of movement, Article 14. And if so, then the question (as C has previously asked) becomes why the school should not be providing an opt-in rather than an opt-out system (more so when it requires parental consent to get out of it). In fact, given that an opt-out system operates in ACS(I) as a matter of right (as long as you follow the administrative procedure), I don't see how it still operates as a "privilege" rather than a "right".

Or to put it more simply: what the law is does not indicate what the law ought
to be.

J responded with the following:
But this is no different anywhere else, and applies for religious schools all over the world, even in the United States with its Bill of Rights. The clear difference here is a private institution: the right to freedom of religion and freedom of movement is usually granted under language "Congress shall pass no law infringing [on right in question]".

Firstly, as brought up on slashdot, generally a school assumes guardianship of its students upon school hours until relieved by a parent or until they end. Thus, as guardians or parents have a right to determine their children or ward's movements or attendance, so does a school. That's one aspect. (Law will probably not recognise a parent's right to determine his or her child's religion, but will probably recognise orders such as "you have to go to church with the rest of us", until emancipation.)

Otherwise does a school infringe on freedom of movement every time it requires students to go on an excursion, attend holiday celebrations, or force Primary Five students to attend NDP rehearsals? I do not see why private institutions should be forced to provide an opt-in system for their chapel services, as long as it treats everyone like a blanket group.

And in the midst of my response, I decided to cull some quotes from the Constitution available at Statutes Online particularly with regard to Article 13 and 15, when I decided to look through Article 16, Right to Education as well. And there it was, the "answer" that would have solved in one sense the question of whether it was a right or a privilege. The reason I had totally forgotten about this was that I only remember art. 16(4) and forgot it referred to art. 16(3). Don't understand what's going on? Don't worry, here's the full response:
This is rather embarrassing considering that I have been the person constantly pushing the Statutes Online website. But here's the most relevant of articles, Art. 16. Please note clause (3) and (4)

Rights in respect of education
16. —(1) Without prejudice to the generality of Article 12, there shall be no discrimination against any citizen of Singapore on the grounds only of religion, race, descent or place of birth —

(a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or

(b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside Singapore).

(2) Every religious group has the right to establish and maintain institutions for the education of children and provide therein instruction in its own religion, and there shall be no discrimination on the ground only of religion in any law relating to such institutions or in the administration of any such law.

(3) No person shall be required to receive instruction in or to 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 18
years shall be decided by his parent or guardian.

But nevertheless, all that establishes is the Constitutionality of the discussion at hand BUT NOT the actual validity etc. Therefore the following is my proper response.

J, I don't disagree with your assessment of things as it stands, but the same critique still applies. What you have provided is an argument that goes along the lines of the status quo is good, but the more pertinent question is whether it really is and whether change is needed. Thus, saying that "this is no different anywhere else" is really besides the point i.e. where (and when) women sufferage is still an issue, I don't think it is valid to simply argue that it is similarly the case elsewhere.

Same regarding the private institution bit, we don't simply say you can contract away your rights e.g. those silly personal disclaimer forms are totally and utterly void in law, you simply cannot disclaim away negligence for bodily harm (heck, sometimes your so-called disclaimer clauses for simple damages is ineffectual).

So the issue still remains as I have previously expressed, "is it necessarily the sole perogative of a school, even a private one, to determine your attendence at a religious ceremony". Other than the Constitutional right not to be (more on parental determination of religion in another post perhaps) what makes this issue particularly vexing is the seeming right of any student to "opt-out" as long as administrative procedures are followed.

And again, this is linked to an earlier argument of why should it not be converted to an opt-in system instead of an opt-out system in this particular regards.

I'm not entirely clear as to the point about the language used. Could you edify
me on that please?

Anyway, I reproduce the other relevent articles and clauses here for discussion

Prohibition of banishment and freedom of movement
13. —(2) Subject to any law relating to the security of Singapore or any part thereof, public order, public health or the punishment of offenders, every citizen of Singapore has the right to move freely throughout Singapore and to reside in any part thereof.

Freedom of religion
15. —(1) Every person has the right to profess and practise his religion and to propagate it.

(4) This Article does not authorise any act contrary to any general law relating to public order, public health or morality.

But back to the discussion at hand.

1. In loco parentis. It is of course true that schools exercise in loco parentis and yes of course they can determine your movement. BUT, and this is a huge qualifier, it has to be reasonable. The tort of false imprisonment still exists and I personally think that (even without art 16), a good case could be made out on the plain reading of art. 13 especially when it has been very clearly enumerated what the exact restrictions are that can be placed on this right and therefore no other grounds of restriction applies. There's some latin term for this particular mode of statutory interpretation but I have honestly forgot.

In fact, without parental consent, I don't think the schools will bring those students along or are much less able to compell them to go on these so-called extra-cirricular outings. However, if they are on school time, I think a very strong case would be made out re compelling students to go or be subject to disciplinary action. But it should be fairly clear that given that exemptions are given on religious grounds, that religious services are not viewed as part of "school time" per se and therefore there is no grounds for compelling students or subjecting them to disciplinary action otherwise.

As an aside, I don't want to get into a theological debate as to the nature of atheism at this point so what I'll say to C is this, I think that you could get exempted on the ground of being a "freethinker" since that is recognised as a "religion"

2. I make no comment as to whether the two are as apparently different and distinguishable as they seem as that was not part of my original response and I want to think through my position regarding the government's role in anti-discrimination and the determination of religion.

So there you have it. This issue could have been much more readily resolved if I had simply checked the Constitution first. Of course it did not make any difference to my eventual response and analysis but it would still have put the debate in its proper context and perspective.

Perhaps one interesting point can be taken from this episode. It seems that we are so taken by the private-public divide as well as the autonomy of schools when exercising in loco parentis that everyone involved simply assumed it to be true that the school could compell students to attend a religious ceremony/practice without considering the rights of the individual.

Oh well.


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