Judgments of the
Federal Courts
[2024] CEB 1
IN THE SUPREME COURT OF JUSTICE OF
THE MYEONGHAN REALM
FEDERAL HIGH COURT
COURT OF EMPEROR’S BENCH
NO. 1 OF 2024
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BETWEEN
I (ex parte DINAH) Applicant
and
THE SUPREME PATRIARCH OF THE REALM Respondent
Before : The Rt Hon Lord Muk LC Ag LCJ in Court
Date of Hearing : 16 September Seongchi 2 (2024)
Date of Judgment : 20 September Seongchi 2 (2024)
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J U D G M E N T
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1. The decision being challenged in this judicial review is that of the Supreme Patriarch of the Realm (the ‘Respondent’) to invoke his inherent power, shortly after his coronation on 11 February Seongchi 2 (2024), to prohibit Ms Dinah (the ‘Applicant’) from proselytising to all persons under the spiritual jurisdiction, and areas under the extra-territorial jurisdiction of the Myeonghan Realm (the ‘‘Prohibition’’).
2. According to the Respondent, the Prohibition was a lawful and appropriate response to the incident (the ‘Incident’) that took place on 5 December Seongchi 1 (2023), where the agreed facts are provided below:
The Incident
3. At or about 3 pm on 5 December Seongchi 1 (2023), the first meeting (the ‘Meeting’) of the College of Counselors of the Supreme Council for the Doctrine of the Sages (the ‘Supreme Council’) that was held in a meeting chamber under the Realm’s extra-territorial jurisdiction at the material time. The Meeting attendees consisted of the Respondent and two senior clerics of the Supreme Council (hereinafter simplified as the ‘Supreme Counselors’).
4. During the Meeting, the Applicant, without invitation or permission from the Supreme Counselors, intruded into the meeting chamber and interrupted it, holding a copy of her version of the New Testament of the Holy Bible in one of her hands. The Supreme Counselors had no choice but to set aside their business and attend to the Applicant, who proceeded to proselytise her Protestant beliefs to them.
5. In the course of her interruption, the Applicant made the following claims about her Protestant belief, which include inter alia, the resolute denial of the institutional existence of the OHCAC (One, Holy, Catholic, and Apostolic Church), and the fact that the Holy Bible consists of more than 66 books.
6. The Supreme Counselors repeatedly asked the Applicant to leave. Finally, at around 4 p.m., she was evicted from the meeting chamber despite her reluctance.
7. After the Applicant’s eviction, the Meeting continued, where all three Supreme Counselors agreed that the disturbance was absolutely intolerable, and it was necessary to implement measures to prohibit the Applicant’s behaviour and prevent similar incidents in the future. The Meeting resolved to advise the future Supreme Patriarch to issue a Prohibition Order after taking office, which led to the aforesaid Prohibition.
The Arguments and Complaints
8. The Applicant contended on the grounds that the Prohibition was made in violation of (a) Article I(6) of the Constitution (‘The persecution of any lawful religion other than Confucianism shall be prohibited.’), and (b) her freedom of religion as recognised under the Universal Declaration of Human Rights and International Covenant of Civil and Political Rights, which is protected under Article II(4) of the Constitution of the Realm (collectively, ‘Articles’).
9. Furthermore, amidst the ongoing legal proceedings, the Applicant has raised concerns regarding my impartiality in this matter, citing my identity as a Confucian cleric and my membership in the College of Counselors of the Supreme Council as an apparent conflict of interest, in reliance on Article VI(9) of the Constitution. While ordinarily, her argument for my recusal would hold merit, the unique circumstances we face demand a different course of action. As the only federal judge in the Realm, my recusal would completely deny the constitutional rights of the Applicant to access justice, thereby severely undermining the rule of law. In such pressing circumstances, it becomes imperative that the original judge preside over the case, notwithstanding any perceived partiality, to ensure that the administration of justice prevails.
10. And I must seize this occasion to underscore to the Applicant the solemnity with which I regard my judicial oath. The Oath for the Acting Lord Chief Justice mandates that I dispense justice to indigent and affluent alike in conformity with the Constitution, statutes, and customs of this most serene Realm, uninfluenced by partiality or prejudice, affection or animosity.
11. On the other hand, the Respondent argued that both Articles did not apply to this case: Article I(6) only covers ‘lawful religions,’ which patently excludes the Applicant’s denomination, which was not registered on the roll of lawful religions of the Realm. And Article II(4) contains an express reservation from the rights ‘those that are incompatible with this Constitution’, and hence excludes the Applicant’s belief in a likewise fashion. Besides, the Respondent raises that decisions of the Supreme Patriarch of the Realm is not susceptible to judicial review, an issue that I shall first deal with.
Amenability to Judicial Review
12. The Supreme Council, as established by Article III(9) of the Constitution of the Realm (the ‘Constitution’), stands as the official governing body of the Confucian religion within our Realm. It is the largest religious entity in the Myeonghan Realm, with the Emperor serving as its Sovereign Governor. Through the Lords Spiritual Act 2024, the Supreme Council secures representation in the Central Assembly via non-voting clerics known as the Lords Spiritual, affording them a direct voice in legislative matters. Guided by its legal code of ritual law, the Supreme Council oversees clergy discipline and the practice of the five essential rites of Confucianism. This legal structure is duly recognised within the federal legal system, notably by the existence of the Tribunal of Propriety Law within the Supreme Court of Justice.
13. The historical lineage of the Supreme Patriarch as a public office performing a public function traces back to the ancient Ju Dynasty of continental East Asia, dating from 1046 to 256 BC. As a revered figure, the Supreme Patriarch oversaw imperial sacrifices and state ceremonies, gradually evolving into a trusted advisor to the monarch with considerable influence over court affairs. The contemporary manifestation of the Supreme Patriarch's office was enshrined by the Constitution and the Supreme Council for the Doctrine of the Sages Act 2024, affirming its enduring significance within our Realm, the premier micronational inheritor of millennia of Confucian civilisation.
14. This esteemed Court stands as a steadfast guardian of our Constitution. It serves as a crucial check on any arbitrary or capricious action of public authorities. As delineated in Article I, the rule of law and constitutionalism are fundamental tenets of our Realm, thus necessitating vigilant judicial scrutiny over the actions of all branches of government. While the Supreme Patriarch and the Supreme Council wield considerable influence, they are not exempt from judicial review. According to Article IX, this Court must assess the compatibility of legislative and executive actions with the Constitution, declaring any inconsistencies null and void. The constitutional jurisdiction of this Court is unequivocal. It has the authority to review the Prohibition issued by the Respondent, subject to further appeals in the Federal Court of Appeal and the Constitutional Court.
Article I(6)
15. It is agreed among the parties that the scope of Article I(6) exclusively covers ‘lawful’ religions. The construction of what is ‘lawful’ is in dispute. Whether the Prohibition amounts to a ‘persecution’ for Article I(6) is not disputed. The text of Article I(6) is provided in the following:
‘Confucianism shall be the national soul of the Realm. Subject to this Constitution, the Confucian spirit shall be manifested in all laws and policies adopted by the Realm. The persecution of any lawful religion other than Confucianism shall be prohibited.’
16. In this regard, the Applicant submitted that what is lawful must be construed broadly to include all generally recognised religions, including her version of the Protestant faith. A narrower construction that virtually excludes all religions other than Confucianism (the national religion) should not be followed, as it would render the succeeding words ‘other than Confucianism’ superfluous.
17. The Respondent, on the contrary, submitted that Article I(6) aims to safeguard the Realm as a Confucian confessional state. Therefore, it would be necessary for all unlawful religions to be suppressed publicly to make room for ‘the national soul of the Realm’. Nothing forbids citizens to practice unlawful religious beliefs and rituals privately. ‘Other religions’, under this construction, should be interpreted narrowly, encompassing only the form of Confucianism that was embodied in the teachings of the four of the greatest Sages of the Confucian tradition: Confucius, Mencius, Ju Hui, and Wang Yangmyeong (harmony be upon them). This would exclude various schools and forms of thought and practices that identify as ‘Confucian’ developed in the Manchu Daecheongguk, Japan, and Vietnam, as well as the ‘New Confucian Movement’ that emerged in latter half of the twentieth century, all of which are not strictly considered as ‘Confucianism’ per se to interpret the original meaning of the Constitution.
18. Whilst the Respondent’s understanding of the object of Article I(6) is accurate, it must be noted that the restriction of a fundamental right should not be presumed to be justified. Contrarily, the presumption of liberty, enshrined in Article II(7), a value essential to the administration of justice in the Realm, demands that everybody be presumed free to act until the act is forbidden in accordance with the law.
19. With the above being said, the other polar extreme is absurd. If every religion in the world, lawful or not, were permitted to proselytise in the Realm, then Confucianism's constitutional value and status would be significantly reduced, defeating the purpose of Article I(6) itself. As raised by the Applicant, this broad construction is contrary to the most fundamental laws of logic, for a statute ought to be construed ut res magis valeat quam pereat.
20. Before I commence further, I must emphasise the following. The ordained method of constitutional interpretation is the originalist approach. As stipulated in the unambiguous language of Article IX(1) of the Constitution: ‘Every interpreter of this Constitution shall construe this Constitution in a just manner in order to live up to the original intent and meaning of this Constitution at the time of its adoption.’ The essence of the originalist approach is as follows. The text of the Constitution maintains a consistent meaning, reflective of its interpretation at the time of its promulgation on 17 August Seongchi 1 (2023). Absent a valid amendment, actions prohibited by the Constitution remain prohibited, and those permitted remain permissible, no matter how much time has passed since the promulgation of the Constitution. Secondly, the genuine meaning of the Constitution, rooted in its original intent, must be derived from (a) the explicit language of the text, viewed through the lens of (b) its constitutional purpose, as articulated in the immutable foundational principles enshrined in Article I, and (c) their historical context, elucidated in external documents crafted by the Constituent Assembly.
21. The Constituent Assembly should be admired for its foresight. The originalist approach is an exclusive means to prevent constitutional interpreters, including this Court, from exploiting the Constitution for improper gain. Unless the Constitution's original meaning dictates the course of interpretation, what alternative interpretation could prevent constitutional interpreters, including the Grand Justices of the Constitutional Court, from imposing their personal preferences upon the broader Realm?
22. Concretely put, in interpreting the meaning of part of a provision, the provision itself has to be read in an overall approach, with reference to the words before and after the part in question and the context of the provision. In addition to endorsing Confucianism as the official religion, Article I(6) also provides that ‘the Confucian spirit shall be manifested in all laws and policies adopted by the Realm.’ This would mean that any threat to the Confucian spirit cannot and should not be tolerated under the Realm’s laws and policies. This aligns with the widely known (judicial notice taken) original intent of the Constituent Assembly when adopting this provision.
23. Viewed from a different perspective, it becomes imperative for the Realm to uphold the essence of Confucianism through its legislation and policies. Consequently, if the Prohibition aligns with this objective, the Respondent would very probably possess lawful authority to issue such a directive. This principle is expressly articulated in the foundational Article I, which mandates that the ‘democracy and liberty and practices the rule of law and constitutionalism’ of our Realm must be rooted in the ‘sagely doctrines’ of Confucianism.
24. Within this framework, a suitable yardstick for assessing the legality of a religion under Article I(6) would be its compatibility with Confucianism. In this context, I posit that the concept of ‘lawful religions’ does not necessarily encompass the various schools of thought within the broader conception of Confucianism. For instance, Catholic Christianity, a lawful religion in our Realm, has historically been deemed compatible with Confucianism since the 16th Century by Sage Matteo Ricci and Supreme Patriarch Sage Seo Gwang-gye (서광계), also known as ‘Sage Paul Hsu,’ both esteemed figures within our Realm and beyond. The determination of whether the Applicant’s beliefs harmonise with Confucianism or pose a threat to it falls outside the purview of this Court's legal authority. A more appropriate course of action for me is to defer this assessment to the expertise of the Supreme Patriarch, as per Article III(9), who heads a non-partisan expert body of Confucian scholars that advises the Emperor in his role as the Defender of the Way.
25. In the Respondent's argument, it was asserted that the Applicant’s explicit rejection of an OHCAC ran counter to the sacred teachings of Sage Paul Hsu (whose present-day successor is none other than the Respondent), which constitute a fundamental expression of the Confucian ethos of the Realm. The Applicant’s outright denial of the institutional presence of an OHCAC conflicted with the principles espoused by Sage Paul Hsu, symbolic of the Confucian spirit and the prevailing understanding of Confucianism within our jurisdiction. I am content that assessing the compatibility of the Applicant’s beliefs with Confucianism was duly considered before the Respondent's issuance of the Prohibition Order.
26. Hence, the Applicant’s argument must fail on ground (a). I shall now proceed to address the second ground of the challenge.
Article II(4)
27. The Applicant has advanced the contention that the right to religious freedom enshrined in the Constitution transcends the confines of what is deemed ‘lawful’ by the Supreme Council pursuant to Article I(6). She posits a broader protection ensured by the Universal Declaration of Human Rights (‘UDHR’) and the International Covenant on Civil and Political Rights (‘ICCPR’) under Article II(4). Conversely, the Respondent relies on the caveat within Article II(4) that excludes religious practices ‘incompatible with this Constitution.’
28. The freedom of religion is an inherent entitlement of the individual to protection, within reasonable boundaries, from external coercion in matters of supernatural belief by governmental entities. This entitlement should be recognised in the legal framework of any civilised society, including ours, of course. However, the freedom of religion is not a carte blanche to embrace falsehood, nor a purported entitlement to deviate from objective truth. Error non habet ius. The Confucian nature of the Realm entails a natural duty to safeguard the fundamental human rights to freedom from spiritual poison and a healthy conscience, both of which are crucial for exercising the right to know the Truth. The Supreme Council, while consistently refraining from coercing people to become Confucians, has acknowledged its obligation to hinder, to the extent feasible, the public practice and dissemination of erroneous cults, in the interests of the common good.
29. In my analysis, it is undisputed that the UDHR and ICCPR guarantee religious freedom. However, the same assurance is afforded under Article I(6), a provision specifically addressing the dissemination of diverse religious beliefs in this jurisdiction. Even absent the express reservation, the maxim of lex generalia specialibus non derogant cries out that, within Article I(6), the narrower proposition raised by the Respondent conflicts with and should take precedence over the general right guaranteed by the UDHR and ICCPR raised by the Applicant. Furthermore, it is noteworthy that the Central Assembly has formally ratified neither the UDHR nor the ICCPR.
30. Alternatively, even if Article I(6) is not considered, it is crucial to recognise that the right to religious freedom under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights is not absolute. Firstly, the UDHR, despite safeguarding this right, is globally acknowledged as a non-binding soft law, offering guidance but lacking legal force. This Court lacks jurisdiction to enforce soft laws, rendering reliance on the UDHR inconsequential for the Applicant’s case. Secondly, whilst Article 18 of the ICCPR protects religious freedom, paragraph 3 therein allows for limitations prescribed by law to safeguard public safety, order, health, morals, or the rights of others. Article I(6) provides a legitimate basis for a competent authority to impose necessary restrictions on religious freedom, especially in a Realm where Confucianism is enshrined as the micronational ethos, embodying the public morals of the Realm. The Respondent, as Supreme Patriarch of the Realm and President of the Supreme Council, is duty-bound to uphold these morals by restricting the religious activities of a proselytiser in a justifiable, rational, proportionate, and balanced manner.
31. Having considered the respective effects of the UDHR and the ICCPR within the constitutional framework of the Realm, I am convinced that the rationales elucidated in the preceding paragraphs effectively counter ground (b) raised by the Applicant.
Conclusion
32. Accordingly, the Applicant’s argument must fail. The Prohibition shall stand. I see no reason why costs should not be awarded in favour of the Respondent.
(Lord Muk)
Lord Chancellor and Acting Lord Chief Justice