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Monday, June 30, 2014

Missed opportunity to defend religious freedom


COMMENT News that the Federal Court refused to grant leave to hear the appeal by the Archbishop Emeritus of the Catholic Archdiocese of Kuala Lumpur in the ‘Allah’ case did not come as a surprise. As many Malaysians expected, the judges by a majority decision of four to three predictably upheld the earlier Court of Appeal’s decision  to ban the use of the word in the Catholic weekly, the Herald.

In the extensive media coverage given to the decision, much attention has been given to the reasoning provided by each of the judges, especially the three dissenting judges. Reading through the reports and analysis, what should be of utmost concern is the failure of any of the judges to touch on the central issue that was placed before them and which they circumvented - that of the threat to the freedom of religion that was stark and explicit in the case before them.

None of the seven judges - not even the dissenting three - found it necessary to cut through the political and legal thicket set up by the government to diminish religious freedom or to state the case against any diminishment of that freedom. None of them found it important to articulate or restate the need for fidelity and unfailing adherence to the core principle of religious freedom enshrined in our secular constitution.

In retrospect, the position taken by all the seven judges - including the dissenting - should raise alarm bells that professional independence and competency has been so compromised in our judicial system that we cannot expect redress from our courts when it comes to defending our fundamental liberties.

What are the larger implications?

If Umno leaders and hard-line Muslim organisations such as Perkasa, Isma and others are celebrating this decision as a ‘victory’, they should think again.

Firstly, they should reflect on the origin of the dispute over the word. The initial damage to the previously stable relationship between Muslim and Christian Catholics on this particular issue which flared up in 2009 can be traced to the political ambitions of one man, the then-home affairs minister; and the subsequent lack of resolve from the Barisan government, including the non-Muslim ministers in the cabinet.

Earlier, following court appearances and negotiations, the Catholic publication received permission to use the word ‘Allah’ as long as it stated on its masthead that the Herald was “For Christians only”.

Syed Hamid Albar (right), the then-minister, had even signed the order permitting the publication. However, 12 days after the order was gazetted on Feb 16, 2009, he backpedalled and re-instated the ban on theHerald from using the word ‘Allah’. It has been postulated that with the looming Umno election in March, Syed Hamid who was vying for a supreme council position and wanting to be retained in the cabinet, was engaged in a last ditch effort to revive his political fortune.

The ‘Allah’ case clearly provided him the opportunity to demonstrate his strong Islamic credentials to Umno members.

Since then, Umno leaders, wannabe Malay and Islamic ‘heroes’, the vigilante Malay media, and a phalanx of newly pious and devout Muslims have jumped on the bandwagon to defend their faith and assuage their newly arisen anxiety that Islam is faced with attack from an alleged  insidious enemy, bent on destroying their religion and converting their weaker Muslim brothers and sisters to another religion.  

Why did the home minister and his Umno colleagues start this fire over a word which East Malaysian Christians have used for decades - even before Sabah and Sarawak merged with Malaya in 1963; and which the great majority of Malay Muslims - until the use of the word was politicised and dragged into the public spotlight -  had no concern or problem with?

If the use of ‘Allah’ is in violation of Shari’a law, then surely the ulama, Umno, PAS and others would have objected to it much earlier and more vehemently. 

How can an in-house religious magazine circulating within the Catholic community and using the word ‘Allah’ which was ‘halal’ under previous home affairs ministers suddenly become ‘haram’ in 2009 on the eve of the Umno general assembly meeting?

How can anyone take seriously the claim by Umno leaders and a small group of Muslim zealots that their faith alone has exclusive right to use the word ‘Allah’ in Malaysia, and that any other religion using it, is seeking to proselytise Muslims and disrupting peace and harmony?

Umno members and its proxies may not want to ask these crucial questions but the rest of the world has.

What next?  

A colleague has pointed out some of the larger implications and argued for one way forward. I am  quoting his opinion (1) in extenso because it is an important contribution in pointing the way towards finding a solution when our religious and other basic liberties are under threat and when there appears to be no recourse from our own courts in safeguarding the sanctity of the constitutional provisions on them. 
 
“The prohibition of the the use of the ‘Allah’ word by non-Muslims is a clear violation of the Malaysian constitution and a violation of the Malaysian Agreement (1963), which mandates freedom of religion in the former, and no imposition of any one officially mandated religion on Sabah and Sarawak, in the latter.

"Given that Iban people have used the term ‘Allah’ in their Christian prayers for Iban of varied Christian denominations, denial of the use of ‘Allah’, based on the legal judgment of the court and its interpretations, clearly imposes an Islamic restriction on BOTH the peninsula, where Islam is only an official religion, and NOT THE SOLE NATIONAL RELIGION, and on Sabah and Sarawak, which per the 1963 Agreement, HAVE NO OFFICIAL RELIGION IN EITHER STATE.

"It is for Malaysia to meet its obligations, according to the constitution and the 1963 Malaysia Agreement. The state may think it is "compromising" by meeting its requirement. This is false. Meeting a legal requirement and fulfilling Constitutional law is not "compromise", it is MANDATORY by law.

"Nations that fail to meet their legal and historical obligations are not democracies, but autocracies that do not recognize their own laws. Any such nation must be held to account for illegal actions and their consequences.

"Malaysia has failed to meet its obligations, and therefore, it is patently clear that Umno has violated the right of freedom to believe and practice one's faith, unhindered by governmental interference, and it has violated the terms of the 1963 Malaysian agreement, in both failing to recognise and accept non-Muslim bumiputera religious practices, and imposing a religious doctrine (Islam) on such practices, on two states within the federation, that legally are not mandated to have any official religion, and therefore cannot be compelled to accept religious strictures from the peninsula and Putrajaya, let alone coming from non-democratic Malay NGOs.


"These violations of human rights of belief and practice, mandate international legal adjudication,as Malaysia has displayed no proof of judicial impartiality whatsoever, and redress of such violations can only properly be judged outside Malaysia. In fact judicial impartiality is rare, if not completely absent, from Malaysia's court and judicial system, whether civil or Islamic (Shari'a Law).

"As Malaysia is a signatory to UN human rightsprovisions, and in fact at one time, a Malaysian even led the UN, as President of the UN General Assembly, 1996-1997 (Ambassador Razali Ismail), and was heavily involved in human rights issues at the UN, relating to Myanmar and human rights activist Daw Aung San Suu Kyi, Malaysia's particular involvement in UN human rights activities, make such domestic human rights violations even more problematic and visible.


"No nation can serve the UN as a fair arbiter of international human rights issues, while denying such fairness at home. Thus, Umno, as the sitting government of Malaysia, must be held to account for allowing the courts, upon whom it gives its imprimatur, by appointing judges to the High Court, the highest court in the land, to issue illegal rulings that abrogate already established Malaysian legal and constitutional provisions.

"Umno/BN is therefore part and parcel of the High Court, by virtue of judicial imprimatur and judicial appointments, and is therefore, ipso facto, responsible for the High Court's legal decisions, as Umno by law must implement all High Court decisions.

"On that basis, Umno is in violation of its national responsibilities to the nation and should be found guilty of such violations, as it is required to implement legal decisions that are in violation of the nation's very own constitution and historical legal agreements.

"If Umno does not put such legal decisions in abeyance, and implements contradictory and illegal laws, there is no known legal basis to judge the Malaysian government as anything but illegal, in itself, by its own chosen actions.

"The notion that a national government would violate its own constitution and historical legal agreements, is more than just odious; it is, in fact, entirely unacceptable, without any caveats. A nation that violates its laws, as we know from history, inevitably results in its citizens also violating such laws. This situation cannot, and must not, be allowed.

"Only an international court, like the International Court of Justice, in The Hague, Netherlands, can properly weigh the evidence against Umno and its judicial proxies, like the High Court, and assess whether, by international standards of human rights and the UN Geneva Conventions, Malaysia, as represented by Umno/BN as the sitting government, has violated the Malaysian Constitution and the 1963 Malaysia Agreement, and if such violations are found to be true and validated by the ICJ, and such violations are also found inconsistent with international law based on all known UN conventions, then an indictment of human rights (religious freedom) violations by the Malaysian Government becomes legally binding and internationally recognised.

"We propose that the Malaysian government has indeed violated two cornerstones of Malaysia's own historical existence, and we seek remedy to such violations, in order to ensure that the Malaysian government meets all its commitments to the nation, as required by law, and as required in fact for every nation on the planet, not simply Malaysia alone.

"To do less, is to allow flagrant human rights abuses and to tolerate the persecution and abuse of Malaysian people, by ethnic, cultural and religious intolerance and deprivation.
"

He has also provided this addendum

"The whole point of the constitution is to protect ALL MALAYSIANS. No Muslim may fear, through irrational paranoia, that Catholics will try and convert them, because the constitution says they CANNOT. Isma's and Perkasa's straw man about non-Muslim threats to proselytise and inhibit Muslims from practicing their faith, is wrong, and is as prohibited by the constitution, as is Muslim proselytisation.

"The only difference being most non-Malays respect the constitution and don't go around (usually) trying to turn Malays into Catholics or Hindus, while many Muslims break the constitutional legal requirement that they not interfere with non-Muslim religious practices.

"The Malays don't know the constitution affords them protection, or they do know, and don't care, and really want the constitution to ONLY protect Muslims, which the constitution cannot do as currently written. Few sane Malaysian would accept a constitution that only protects one group (Muslims), and this would be totally unacceptable.
"

(1) I would normally disclose my source but the colleague whom I have quoted lives abroad, has family members in Malaysia, and has legitimate fears that he may be denied entry during his next visit should his name be brought to the attention of the authorities.


The article is taken from ‘The Big Issue’, issue 7, July 1-15, pp. 23-8



LIM TECK GHEE is director of the Centre for Policy Initiatives.

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