The Court of Appeal’s unanimous decision to ban the use of ‘Allah’ by Catholic weekly The Herald is constitutionally flawed and factually unsustainable.
In overturning the Kuala Lumpur High Court decision, Justice Mohamed Apandi Ali has imputed extra meaning without basis to distort the interpretation of Article 3 of the federal constitution that grants freedom of religious practice.
There is also not an iota of evidence that could have supported the home minister’s order to prohibitThe Herald from using ‘Allah’ in its Malay edition.
The major constitutional contentions are centred around Articles 3 and 11.
Article 3(1) states: ‘Islam is the religion of the federation, but other religions may be practised in peace and haramony in any part of the federation.’
Article 11 states that ‘every person has the right to profess and practise his religion’ and that ‘every religious group has the right to manage its own religious affairs’, with the proviso under Clause 4 that the states may enact laws to restrict the propagation of religions other than Islam to Muslims.
Justice Apandi says this of Article 3: ‘It is my judgment that the purpose and intention of the insertion of the words ‘in peace and harmony’ in Article 3(1) is to protect the sanctity of Islam as the religion of the country and also to insulate against any threat faced or any posible and probable threat to the religion of Islam.
‘It is also my judgment that the most possible and probable threat to Islam, in the context of this country, is the propagation of other religions to the followers of Islam. That is the reason as to why Article 11(4) of federal constitution came into place.’
In coming to this opinion, Apandi (left)explained that Artcle 3 is the culmination of lengthy negotiation among racial and religious groups, as reported in the White Paper known as the Federation of Malaya Constitutional Proposals 1957, which also states that despite the final compromise resulting in Islam being declared the religion of the federation, it has in no way affected the position of the federation as a secular state.
He terms the Article 3 compromise as part of the so-called social contract of our founding fathers that has produced the federal constitution. Apandi then proceeded with his interpretation of the phrase ‘in peace and harmony’ as meaning a dictate to protect Islam.
While Apandi has correctly stated that Article 3 is a compromise solution to our multi-religious complexity agreed to by our founding fathers, I see absolutely no basis for him to jump to the conclusion that ‘practising other religions in peace and harmony’ can be equated to ‘the protection of the sanctity of Islam and the insulation of Islam from probable threat’.
Such an injection of Islamic zeal to Article 3 without any foundation in fact and law clearly signifies that the judge has assumed the extra-constitutional role of defender of Islam against fictitious intruders.
Fictitious, because there has been no evidence of any transgression against Islam in this country.
In this connection, I remind Justice Apandi, together with Justices Abdul Aziz Abdul Rahim (right) and Mohd Zawawi Salleh who concurred with Apandi, that when they sit on the bench, they can only play one role - and that is as defender of our constitution, which is a secular and equalitarian constitution that grants every citizen equal rights irrespective of religion, race or descent (Article 8).
The common sense interpretation of the phrase ‘in peace and harmony’ should obviously be as it reads in the Article, that other religions should be allowed to be practised freely without any undue interference.
With regard to Clause 4 of Article 11, which allows state governments to legislate laws to restrict proselytisation to Muslims, this law to protect the status quo of Muslims has been agreed to and in fact has always been complied with by non-Muslims wherever such laws exist, despite it being inequitable for lack of similar laws to protect other religions.
Without any visible threat of proselytisation to Muslims, the court has no legal basis to support any executive move to impose restrictive measures such as the banning of the use of Allah by non-Muslims, in the name of protection of Islam against transgressors – irrespective of the true interpretation of the phrase ‘in peace and harmony’.
‘Allah’ not integral part of Christianity?
In an attempt to prop up his obviously wobbly rationale to ban the use of ‘Allah’ by non-Muslims, Apandi, dabbling into Christian theology, claimed that the word is not an integral part and practice of Christianity, on the ground that the word is not found in either the Old or New Testament.
This claim is manifestly misguided, as the Christian natives of Sabah and Sarawak as well as other Malay-speaking Christians have been using’ Allah’ extensively in all their religious practices including prayers, religious rites, songs and publications for many generations without causing any friction with Muslims.
Millions of Christians in the Middle East, Indonesia and other parts of the world do so likewise. To these Christians who have ‘Allah’ on their lips and minds all the time, ‘Allah’ is certainly an inseparable part of their religious life.
So how can the judge say that it is not an integral part of Christianity? Can we imagine the chaos that will set in among these Christian communities if the judge’s ruling is put into effect?
On the basis of such erroneous claim, Apandi asserted that he ‘could not find any plausible reason why the respondent is adamant in using the word ‘Allah’ in its weekly newsletter’.
He went on to declare: ‘Since ‘Allah’ is never an integral part of the faith of the correspondent, it is reasonable to conclude that the intended usage will cause unnecessary confusion within the Islamic community and surely not conducive to the peaceful and harmonious tempo of life in the country.’
It is wholly incomprehensible how the issue of whether ‘Allah’ is an integral part of Christianity could add or subtract to the alleged confusion among Muslims, not to mention its non-existent impact on peace and security of the country.
No factual basis for minister’s ban
Before introducing this theological issue, Apandi cited certain Latin maxims to support his view that public safety is the supreme law, for which the interests of the minority must yield to those of the majority, without mentioning the legitimacy of the latter.
He further declared that he was satisfied that the home minister, in ordering the ban of the use of ‘Allah’ by The Herald (in January 2009), had considered ‘all facts and circumstances in an objective manner’.
Apandi’s confidence in the minister is puzzling, as there was no evidence at the time of the order that the use of ‘Allah’ had, directly or indirectly, jeopardised public security or displayed tendency to undermine public safety.
Now, with his theological observation of ‘Allah’ in relation to Christianity, Apandi finally made his verdict: ‘It is my judgment that the application for judicial review on matters of the nature as in this appeal militates against the spirit of ‘peaceful and harmonious’ co-existence of other religions in this country’.
In overturning the Kuala Lumpur High Court decision, Justice Mohamed Apandi Ali has imputed extra meaning without basis to distort the interpretation of Article 3 of the federal constitution that grants freedom of religious practice.
There is also not an iota of evidence that could have supported the home minister’s order to prohibitThe Herald from using ‘Allah’ in its Malay edition.The major constitutional contentions are centred around Articles 3 and 11.
Article 3(1) states: ‘Islam is the religion of the federation, but other religions may be practised in peace and haramony in any part of the federation.’
Article 11 states that ‘every person has the right to profess and practise his religion’ and that ‘every religious group has the right to manage its own religious affairs’, with the proviso under Clause 4 that the states may enact laws to restrict the propagation of religions other than Islam to Muslims.
Justice Apandi says this of Article 3: ‘It is my judgment that the purpose and intention of the insertion of the words ‘in peace and harmony’ in Article 3(1) is to protect the sanctity of Islam as the religion of the country and also to insulate against any threat faced or any posible and probable threat to the religion of Islam.
‘It is also my judgment that the most possible and probable threat to Islam, in the context of this country, is the propagation of other religions to the followers of Islam. That is the reason as to why Article 11(4) of federal constitution came into place.’
In coming to this opinion, Apandi (left)explained that Artcle 3 is the culmination of lengthy negotiation among racial and religious groups, as reported in the White Paper known as the Federation of Malaya Constitutional Proposals 1957, which also states that despite the final compromise resulting in Islam being declared the religion of the federation, it has in no way affected the position of the federation as a secular state. He terms the Article 3 compromise as part of the so-called social contract of our founding fathers that has produced the federal constitution. Apandi then proceeded with his interpretation of the phrase ‘in peace and harmony’ as meaning a dictate to protect Islam.
While Apandi has correctly stated that Article 3 is a compromise solution to our multi-religious complexity agreed to by our founding fathers, I see absolutely no basis for him to jump to the conclusion that ‘practising other religions in peace and harmony’ can be equated to ‘the protection of the sanctity of Islam and the insulation of Islam from probable threat’.
Such an injection of Islamic zeal to Article 3 without any foundation in fact and law clearly signifies that the judge has assumed the extra-constitutional role of defender of Islam against fictitious intruders.
Fictitious, because there has been no evidence of any transgression against Islam in this country.
In this connection, I remind Justice Apandi, together with Justices Abdul Aziz Abdul Rahim (right) and Mohd Zawawi Salleh who concurred with Apandi, that when they sit on the bench, they can only play one role - and that is as defender of our constitution, which is a secular and equalitarian constitution that grants every citizen equal rights irrespective of religion, race or descent (Article 8). The common sense interpretation of the phrase ‘in peace and harmony’ should obviously be as it reads in the Article, that other religions should be allowed to be practised freely without any undue interference.
With regard to Clause 4 of Article 11, which allows state governments to legislate laws to restrict proselytisation to Muslims, this law to protect the status quo of Muslims has been agreed to and in fact has always been complied with by non-Muslims wherever such laws exist, despite it being inequitable for lack of similar laws to protect other religions.
Without any visible threat of proselytisation to Muslims, the court has no legal basis to support any executive move to impose restrictive measures such as the banning of the use of Allah by non-Muslims, in the name of protection of Islam against transgressors – irrespective of the true interpretation of the phrase ‘in peace and harmony’.
‘Allah’ not integral part of Christianity?
In an attempt to prop up his obviously wobbly rationale to ban the use of ‘Allah’ by non-Muslims, Apandi, dabbling into Christian theology, claimed that the word is not an integral part and practice of Christianity, on the ground that the word is not found in either the Old or New Testament.
This claim is manifestly misguided, as the Christian natives of Sabah and Sarawak as well as other Malay-speaking Christians have been using’ Allah’ extensively in all their religious practices including prayers, religious rites, songs and publications for many generations without causing any friction with Muslims.
Millions of Christians in the Middle East, Indonesia and other parts of the world do so likewise. To these Christians who have ‘Allah’ on their lips and minds all the time, ‘Allah’ is certainly an inseparable part of their religious life. So how can the judge say that it is not an integral part of Christianity? Can we imagine the chaos that will set in among these Christian communities if the judge’s ruling is put into effect?
On the basis of such erroneous claim, Apandi asserted that he ‘could not find any plausible reason why the respondent is adamant in using the word ‘Allah’ in its weekly newsletter’.
He went on to declare: ‘Since ‘Allah’ is never an integral part of the faith of the correspondent, it is reasonable to conclude that the intended usage will cause unnecessary confusion within the Islamic community and surely not conducive to the peaceful and harmonious tempo of life in the country.’
It is wholly incomprehensible how the issue of whether ‘Allah’ is an integral part of Christianity could add or subtract to the alleged confusion among Muslims, not to mention its non-existent impact on peace and security of the country.
No factual basis for minister’s ban
Before introducing this theological issue, Apandi cited certain Latin maxims to support his view that public safety is the supreme law, for which the interests of the minority must yield to those of the majority, without mentioning the legitimacy of the latter.
He further declared that he was satisfied that the home minister, in ordering the ban of the use of ‘Allah’ by The Herald (in January 2009), had considered ‘all facts and circumstances in an objective manner’.
Apandi’s confidence in the minister is puzzling, as there was no evidence at the time of the order that the use of ‘Allah’ had, directly or indirectly, jeopardised public security or displayed tendency to undermine public safety.
Now, with his theological observation of ‘Allah’ in relation to Christianity, Apandi finally made his verdict: ‘It is my judgment that the application for judicial review on matters of the nature as in this appeal militates against the spirit of ‘peaceful and harmonious’ co-existence of other religions in this country’.
(Writer’s note: ‘Judicial review’ refers to the application made by the Catholic Church to the KL High Court in 2009 to annul the ban.)
Thus, this judgment is doubly faulted: for having misinterpreted the federal constitution and for its misguided theological understanding of ‘Allah’ in Christianity, as well as his acceptance of the minister’s decision without factual basis.
Apologists of this unjust and glaringly flawed judgment may placate disgruntled Christians with the false consolation that this ‘Allah’ ban is only confined to The Herald. Not quite.
With this appellate court judgment as a legal precedent in setting out the legal principles that lead to the judgment, no non-Muslim is safe from interference to their religious practice by the Executive in the name of threats to Islam and public security.
Worse, an individual’s fundamental liberties guaranteed under Part Two of the federal constitution including freedom of religion and expression and equality under the law can similarly be undermined by the so-called doctrine of public safety as supreme law under which minority rights are subsumed. This will pave the way to tyranny of the majority.
It is not unfair to say that this judgment is characterised by extremely contrived and hollow legal argument and non-existence of factual evidence. It thus gives rise to perception that the judgment is tailored to fit a pre-determined political decision.
This has also further confirmed the common observation that the entire ‘Allah’ episode has been a political plot to arrest the decline of a decayed regime through incitement of primordial instincts in the time tested strategy of divide and rule.
That the BN federal government has indeed succeeded in further deepening the fault lines in our multi-religious and multi-racial society is evident from the fast and furious reaction of large segment of our population to the manifestly unreasonable and unjust decision of the appellate court.
With the incumbent authorities bent on relentless exploitation of religion and race to cling on to power, the hope of this badly-divided nation now lies in growing number of enlightened Muslims to come to the fore to publicly reject such evil manipulation of religion for political ends.
Thus, this judgment is doubly faulted: for having misinterpreted the federal constitution and for its misguided theological understanding of ‘Allah’ in Christianity, as well as his acceptance of the minister’s decision without factual basis.
Apologists of this unjust and glaringly flawed judgment may placate disgruntled Christians with the false consolation that this ‘Allah’ ban is only confined to The Herald. Not quite.
With this appellate court judgment as a legal precedent in setting out the legal principles that lead to the judgment, no non-Muslim is safe from interference to their religious practice by the Executive in the name of threats to Islam and public security.
Worse, an individual’s fundamental liberties guaranteed under Part Two of the federal constitution including freedom of religion and expression and equality under the law can similarly be undermined by the so-called doctrine of public safety as supreme law under which minority rights are subsumed. This will pave the way to tyranny of the majority.
It is not unfair to say that this judgment is characterised by extremely contrived and hollow legal argument and non-existence of factual evidence. It thus gives rise to perception that the judgment is tailored to fit a pre-determined political decision.
This has also further confirmed the common observation that the entire ‘Allah’ episode has been a political plot to arrest the decline of a decayed regime through incitement of primordial instincts in the time tested strategy of divide and rule.
That the BN federal government has indeed succeeded in further deepening the fault lines in our multi-religious and multi-racial society is evident from the fast and furious reaction of large segment of our population to the manifestly unreasonable and unjust decision of the appellate court.
With the incumbent authorities bent on relentless exploitation of religion and race to cling on to power, the hope of this badly-divided nation now lies in growing number of enlightened Muslims to come to the fore to publicly reject such evil manipulation of religion for political ends.
KIM QUEK is a retired accountant and author of the banned book ‘The March to Putrajaya’.
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