Practical implications of the Court of Appeal decision on the Allah issue - Jason Kay

Much of what needs to be said on this issue have been said by many people, some politely, some angrily. I will not repeat those points.

I will focus only on one issue: The ramifications if the Court of Appeal’s (COA) decision stands without review by the Federal Court.

The COA has decided that Allah cannot be used in the Catholic publication, Herald, to refer to God. It held that the decision of the Minister of Home Affairs was not in excess of his statutory powers or functions under the Printing Presses and Publications Act 1984 (PPPA).

Many parties, including the honourable Attorney-General of Malaysia (in his statement of October 20, 2013) have taken pains to clarify that this decision of the COA has only a limited scope (the narrow interpretation) in that it only concerns [i.e. prohibits] the use of the term Allah when referring to God in the Bahasa Melayu section of the Herald.

In my humble opinion, this is a woefully incorrect appreciation of the ramifications of the COA’s decision.

One key point being bandied about is that the COA’s decision does not affect the position and usage of Allah in the Malay language version of the Bible, the Al-Kitab.

This is a disingenuous and intellectually dishonest position to take because there was, I can safely assume, almost no doubt in the minds of the citizens of Malaysia that were present outside the COA when submissions were being presented and when the decision was delivered (as well as in the minds of many others who were closely following this issue) that this case would be the case that finally settles the legal position as to whether or not Allah can be used by non-Muslims to refer to God in Malaysia.

Yes, I will concede that, strictly speaking, the position that the COA's decision only affects the use of Allah in the Herald is legally accurate. But it is disingenuous and intellectually dishonest to stop there.

If this very narrow construction is taken, it means that the Herald cannot use Allah to refer to God - but any other publication can, until and unless not allowed by the Minister for Home Affairs under the PPPA.

What would be the problem that would arise from this narrow reading? This is the problem: Assuming, in the future, some other non-Islamic publication is unhappy with the probable decision of the Minister of Home Affairs to disallow Allah to be used to refer to God (a fair assumption because that would be a consistent approach that would probably be taken by the government), then this whole saga has the potential to repeat in Court; and it will played out again and again, publication by publication, until, presumably, every non-Islamic publication that uses Allah to refer to God attracts a Court order saying that it cannot do so.

This is the practical ramification of a narrow interpretation of the COA's decision. This narrow interpretation essentially means that in the future, there is the real possibility that the court's time will be wasted over and over again because there is the potential that every non-Islamic publication that uses Allah to refer to God, even the Al-Kitab and possibly the Bup Kudus (the Iban Bible), could be banned because of their use of the word Allah to refer to God.

This narrow reading of the COA's decision renders it nonsensical. Legal yes, but nonsensical.

What should be done?

The Federal Court needs to rule on this. The Titular Roman Catholic Archbishop of Kuala Lumpur should appeal. The Federal Court should (it is fervently hoped) grant leave. And the Federal Court should deliver a decision that is better than that given by the COA.

The end result is unimportant. It does not matter whether or not Allah is allowed to be used by the Christians (or any non-Muslim) to refer to God.

What is important is that the Federal Court, the highest court in the Judiciary of Malaysia, gives a thorough opinion on the legal aspects of this issue.

If indeed it is legal to have one set of laws on this issue for West Malaysia and another set for East Malaysia, say so.

If Allah cannot be used by a magazine/publication but can be used for the Al-Kitab and other bibles or religious books, say so.

And if not, say so as well.

But say it. Be emphatic. Leave no room for misinterpretation or hypothetical extrapolations. Let the obiter dicta be long, far-reaching and informative. Clarify the law fully for the citizens. That is the role of the Courts – that is what the Federal Court is there for.

But for goodness sake, do not pussyfoot around the issue and give it a narrow reading/treatment. That does not benefit Malaysia.

If Malaysia stands alone in the world on this issue, it could either mean that our judges are wrong, or that the other countries are wrong. It does not matter. Let them say Malaysia has allowed Allah to be copyrighted by the Muslims. That’s all right.

If that is the correct legal position to take, then declare it – openly, bravely, and emphatically. Leave no room for politicians or loudmouths to misinterpret the legal position as declared by the Court.

And whether or not the Malaysian Courts have declared the legal position on this issue correctly, we will leave to posterity to decide.

Make no mistake – all the players in this saga will be remembered for what they have said and done long after they have left this earth. It is up to them to decide, by their words and actions now, how they will be remembered.

If you are a monotheist, you believe in Judgment Day, and you will have to answer for your stand on this issue on that Day.

So let our words be measured, and our focus always on the glory of God.

* Jason Kay is a lawyer practising in Malacca. He sits on the Bar Council National Legal Aid Committee and is the Head of the Defence Team of the Kuala Lumpur War Crimes Tribunal.