Judgment raising more controversies than answers

Bob Teoh

The Court of Appeal judgment in favour of the government was done at the expense of limiting fundamental human rights guaranteed by the constitution. Such rights are now subject to Islamic dictates. The appeal court did this by throwing out all the six orders made by the High Court of Kuala Lumpur four years ago that allowed the Catholic weekly The Herald in the use of the word ‘Allah’.

Constitutional lawyer Dr Abdul Aziz Bari said the Court of Appeal was wrong in its decision banning The Herald from using the word ‘Allah’ to refer to God in its Bahasa Malaysia edition.

“By linking religious rights under the chapter on fundamental liberties with Article 3(1) of the federal constitution which effectively makes Islam the benchmark for everybody, this runs counter to the general meaning of Article 3(1) of the federal constitution itself,” he was quoted as saying.

Christian theologian Dr Ng Kam Weng, director of the Kairos research Centre, said the judgment is flawed as the judge had used selective and non-authoritative quotes from the Internet as authority for determining whether the word ‘Allah’ is exclusive to Islam.

“An ill-informed judgment can only result in loss of public confidence in the integrity of the Judiciary. People have reasons to wonder if justice is poorly served by an Appeal Court judgment based on inept Internet research.”

Perkasa president Ibrahim Ali welcomed the ruling and warned non-Muslims not to be provocative, while his vice-president, Zulkifli Noordin, said that Alkitab could continue to be distributed as long as they do not contain 32 words including ‘Allah’ prohibited by the various state enactments.

PAS Parit Buntar MP Mujahid Yusof Rawa (left) said the Court of Appeal decision indicated thatinterfaith relations are moving backwards and he blamed right-wing forces for the woeful situation.

“These are people who are not able to understand the need for interfaith relationships. They were given attention (by government media) as if they represent the whole (Muslim) society, which is not the case,” he said.

Association of Churches in Sarawak chairman Archbishop Rev Bolly Lapok said bumiputera churches in Sarawak and Sabah will defy the decision and continue to call their God ‘Allah’.

The Herald editor Father Lawrence Andrew said they would file an appeal to the Federal Court.

Six orders made by High Court

The Court of Appeal comprising Abdul Aziz Abdul Rahman, Mohd Zawawi Salleh and  Mohamed Apandi Ali ruled in favour of the government on Monday (Oct 14) and struck out all six orders made by the High Court of Kuala Lumpur in favour of The Herald on Dec 31, 2009.

The six orders were:

1. The government’s decision not to allow The Herald to use the word Allah is illegal, and null and void.

2. Under Article 3(1) of the federal constitution, The Herald has the constitutional right to use the word Allah.

3. Although under Article 3(1) Islam is the official religion but the government cannot prohibit The Herald from using the word Allah.

4. The Herald has the constitutional right to freedom of speech and expression to use the word Allah under Article 10.

5. In exercising its rights to freedom of religion under Article 11, The Herald has the constitutional right to use the word Allah.

6. Under Article 11 and Article 12, The Herald has the constitutional right to use the word Allah for the instruction and education of the Catholic congregation in the Christian religion.

The Court of Appeal said, “It is our considered finding that the minister has not acted in any manner or way that merit judicial interference on his impugned decision.”

The judgment said the minister by imposing a condition prohibiting the use of the word ‘Allah’ on The Herald did not infringe any of its constitutional rights.

It also ruled that “the usage of the name ‘Allah’ is not an integral part of the faith and practice of Christianity and if such a usage was allowed will inevitably cause confusion”.

The court also said that the welfare of an individual or group must yield to that of the community. “It is our reading that this is how the element of ‘peace and harmony’ in Article 3 (1) is to be read with the freedom of religion in Art 11(1).”

Archbishop Bolly Lapok (right) blasted the judgment: “For an outsider to say that the use of ‘Allah’ is not integral to the Christian faith is excessive, utterly irresponsible and grossly demeaning, to say the least. The church does not need an apologist (defender) from outside to decree what is integral or not regarding her faith.”

‘No breaches of peace’

Human rights lawyer Malik Imtiaz Sarwar was quoted as saying the judgment was flawed as the court did not consider whether there was a basis to Putrajaya’s argument that there would be public disorder if The Herald was allowed to use that word.

He pointed out that there were no breaches of peace at the time the condition was imposed by the home minister nor was there an imminent threat of public disorder.

He also felt that the court should not have taken upon itself to determine whether the word Allah was an integral part of the Christian faith. “They should have relied on what the Catholic Church had presented in its submissions during appeal,” he said.

Malik said the judgment also gave the impression that Muslims were easily led astray and wondered whether Putrajaya allowed itself to be influenced by the views of “a small number of conservative Muslim groups”.

The crux of the matter lies in determining whether the word ‘Allah’ is exclusive to Islam as claimed by the government or an Arabic loan word in the Malay language to generally refer to God in the English language.

The court gave a lengthy explanation but was shot down by Christian theologian Dr Ng Kam Weng. “Justice Mohd Nawawi notes that Justice Lau Bee Lan in her High Court judgment concluded that “it is apparent that the use of the word ‘Allah’ is an essential part of the worship and instruction in the faith of the Malay (Bahasa Malaysia) speaking community of the Catholic Church in Malaysia and integral to the practice and propagation of their faith.”

“Justice Lau’s judgment which affirms the word Allah is an integral part of Christian faith and practice would have been self-evident. Justice Mohd Zawawi seems to think otherwise and proceeds to lay out the grounds for his decision to set aside the judgment of Justice Lau,” he said.

Ng said essentially what the judge did was to offer a “series of cut and paste, piecemeal quotations which he deems to have a decisive bearing on his judgment.”

“It is evident that the judge has been both selective and careless in using his source. More significantly, he deliberately ignores other evidence from the book when it contradicts his view.”

“Given the utmost importance of the Court judgment, I would have expected the judge to rely on authoritative sources. However, he does not refer to original sources and scholarship. Why in the world would a learned judge rely on someone who has no academic credentials? Apparently, the learned judge considers an Internet comment would suffice for a robust intellectual argument. The judge must be desperately grabbing at straws for evidence,” Ng said.

The ‘Allah’ judgment has raised more controversies than it can handle. At the end of the day, the question is not about one word alone but our constitutional right to profess, practice, and propagate our respective faiths and to manage our own affairs without undue interference from the executive. This is the only guarantee for a multi-religious Malaysia to move forward as one God-fearing nation. Justice and righteousness must prevail for the glory of God.