Muslim judges’ decision all politics, no law

By Joe Fernandez | Wednesday, 16 October 2013 01:04
CPI

CPI introduction

We are reproducing two newspaper articles which have appeared in response to the ruling by the Court of Appeal banning the use of the word ‘Allah’ in the Herald. The first article from the Borneo Insider provides a succinct analysis of the political underpinnings and ramifications of the COA decision and the costly impact it will have on the Barisan government. The second from one of the leading papers in the Middle East points to how irrational and unjustifiable the ruling is from any point of view – legal or theological or other.

********************************

In a dramatic first in world history and law, the Court of Appeal (COA) sunk to an all-time new low on Monday (14 Oct 2013) in allowing an appeal by the government of Malaysia against a High Court decision on 31 Dec 2009 which held that the Herald, a Catholic weekly, has the right to use the term Allah for God in its Malay language edition on the faith.

Judges Mohamed Apandi Ali, Abdul Aziz Abdul Rahim, and Mohd Zawawi Salleh presided.

Earlier, the High Court had ruled that the Home Minister was wrong, in law and the constitution, to impose a restriction in the licensing regulations that the Herald should not use the term Allah in Malay print in matters involving the Christian faith.

The Herald can apply for leave to appeal to the Federal Court (FC) against the COA decision.

The fear is that it will be turned down on the grounds that it has not demonstrated that it has a case to be heard.

Alternatively, the FC may sit on the appeal if allowed or nothing more may be heard of it. This has been a standard tactic employed by the government in the past in other cases.

The fear among Muslim judges of going to hell for not being sufficiently Islamic, whatever it means, is another worry among those committed to the rule of law. The Judiciary in Malaysia, often the subject of numerous complaints about creeping Islamisation, is packed with Muslim judges. It’s estimated that non-Muslim judges comprise less than ten per cent of the Judiciary although the non-Malays form 40 per cent of the 28-odd million population.

The fact that the COA was composed of three Muslim judges whose credibility was suspect, presiding over a case involving the Christian faith, meant that the cards were stacked against the Herald from the very beginning. The judge at the High Court level, where the Herald won, was a Buddhist and was widely seen as viewing the matter dispassionately i.e. being confined to the law and Constitution and ignoring the theological rhetoric emanating from across the divide.

The COA painted itself into a corner when it could not comment on the term Allah for God in Malay print in the Bible, Allah in Christian mass, prayer, song and music; and on the Sikhs using the same term in the Guru Granth Sahib, the Sikh Bible, in the Gurmukhi script in various dialects and languages. The COA merely confined itself to whether the Home Minister had acted improperly in administrative law – i.e. government policy – in restricting the Herald. It then went on to pontificate sanctimoniously on issues where it should not have treaded even if they were subject matter experts, which they were not. The COA ignored the intention of the framers of the constitution.

Does anyone have a copy of the ‘social contract’?

If both Muslims and Christians differ on their interpretation of Allah, as the COA claims to have discovered, what business is it of the COA anyway? Indeed, what business is it of the COA or the Home Minister for that matter to decide the Muslim version is Allah and the Christian version isn’t? In Islam, Allah is not the term for God but an attribute of God. God, in Islam, has 99 known attributes.

The possibility of Muslims in Malaysia being “confused” by Christians using the term Allah as well was another worry raised by the COA. The confusion theory does not hold water either because no one anywhere in the world outside Malaysia has raised it as an issue. The COA even conceded, while ruling against the Herald, that Arab Christians were using the term Allah for God in the Arab Bible.

Getting into politics, the COA claimed that its decision was in line with the ‘social contract’ forged between the Malays and non-Malays in Malaya at the time of independence in 1957. The only ‘social contract’ that matters is the constitution. However, that does not appear to stop many extreme rightwing Malay politicians from claiming from time to time that there’s a social contract between Malays and non-Malays on the governance of Malaya. No one has yet produced this so-called social contract.

Clutching at straws, the COA claimed in explaining the Herald decision that it had a duty to protect Islam and Malays.

In fact, the question of any such protection by the judiciary does not arise as that role has been reserved for the Conference of Malay Rulers – the sultans — under the constitution.

Besides, the real protection for Islam and the Malays lies in not removing certain articles from the Constitution i.e. Article 3 on religion, Article 152 on the Malay language, Article 153 on reserving for them and the Orang Asal a reasonable proportion of places in the civil service, institutions of higher learning, scholarships and opportunities to do business; and Article 160 which among others defines the term ‘Malay’ as a Nation in Malaya, not as Orang Asal (native).

If anyone needs protection, it’s the Malay Rulers from the federal government which is bent on usurping their position as heads of Islam and Malay culture, customs and traditions in their states.

Islam is a state, not federal, matter

Lawyer Lim Heng Seng left no doubt in a paper he presented at a recent Forum in Kota Kinabalu on Malaysia 50 years, Constitution, Religion and Freedom, that constant attempts were being made by the federal government under the ruling Umno to subvert the secular nature of the constitution.

He maintained that Articles 3(1) and 3(4), read together, underlined in no uncertain terms the secular nature of the Malaysian constitution and nation-state and its commitment to the rule of law and a common nationality.

The federal government, Lee pointed out, had no business meddling in Islam which was a matter for the Malay sultanates to handle, and the

Syariah Court
– being an inferior Court — could not encroach into the jurisdiction of the civil court.

He warned the federal government against practising a form of warped logic all on its own and going out on a limb to ensure that any law in Malaysia was Syariah-compliant. Such so-called compliance was unconstitutional, thereby unlawful and therefore illegal.

The COA decision will be considered as having no relevance in Sabah and Sarawak where the majority of the Malay-speaking Christians and Orang Asal in Malaysia live. The 20 Points and the 1963 Malaysia Agreement (20P/MA63) drawn up to facilitate these two nations in Borneo being in federation with Malaya held that they would not have any religion.

It appears that the COA has now gone out on a limb, and against the 20P/MA63, and made it its business to decide on the Christian faith: what is an essential or non-essential part.

What anyone calls his or her God is an essential part of one’s faith.

The Allah decision is likely to further stoke nationalist passions in Borneo.

Already, activists are planning to petition the Queen in England for an official inquiry into the exact nature and actual circumstances surrounding the British departure from Sabah and Sarawak on 16 Sept, 1963 when the Federation of Malaysia came into being.

This follows the discovery of disturbing contents in declassified colonial documents on the issue.

Apparently, these documents make it clear that the British were convinced that Malaya would colonize Sabah and Sarawak after their departure.

These revelations clearly demonstrate, according to the activists, that the United Kingdom abandoned Sabah and Sarawak to Malayan colonialism.

This is held to be a violation of the UN Charter, the mandate of the UN Decolonization Committee, the UK’s responsibilities as a permanent member of the UN Security Council and stewardship of the Commonwealth of Nations which the Queen heads.

The story first appeared in Borneo Insider yesterday.

Longtime Borneo watcher Joe Fernandez is a graduate mature student of law who also tutors at local institutions. He subscribes to Dr Stephen Hawking’s ‘re-discovery’ of the ancient Indian theory that “the only predictable property of the universe is chaos”. He feels compelled, as a semi-retired journalist, to put pen to paper – or rather the fingers to the computer keyboard – whenever something doesn’t quite jell with his weltanschauung (worldview).

************************

Word ‘Allah’ is not exclusive to Islam

Editorial from The National, an United Arab Emirates newspaper

Like the history of most religions, the history of Islam is complex and much debated. But there are a few elements that are not in dispute, chief among them that the God of the Quran is the same as the God of the Bible and of the Torah before it. The mission of Islam, as expressed in the Quran, is not to bring a new faith, but to update the messages of the monotheistic faiths before it.

It is therefore surprising to see, as The National reports today, that a Malaysian court has ruled that a Christian newspaper may not use the word ‘Allah’ to refer to God. The court overturned a previous decision by a lower court, ruling that ‘Allah’ as a term is not exclusive to Islam. This causes a problem for the country’s substantial Christian minority, who have used the word ‘Allah’ to refer to God for decades.

In a fellow Muslim country with substantial Christian and Hindu populations, this feels like the wrong decision. The UAE is rightly proud of its society that allows people from all over the world to practise their faiths openly and without discrimination. Indeed, that inclusiveness is inherent in Islam. One of the reasons Islam was able to spread so far, so rapidly, was the inclusive nature of the faith: for at least two centuries after the coming of Islam, the Arabs ruled vast regions where the majority were not Muslims.

The word ‘Allah’ is never exclusive to Islam – indeed, both Christians and Jews used the word ‘Allah’ to refer to God even before the coming of Islam.

That remains the case today.

When Christians across the Middle East pray to God, they use the term ‘Allah’.

Walk into a church in Cairo, Baghdad or Beirut this coming Sunday and you will hear the name of ‘Allah’ invoked. That also applies to the Jews of the Arab world, who for centuries have prayed to ‘Allah’. The Quran itself is explicit on this subject, declaring, in Surah Al Ankabut, that Muslims should tell People of the Book (Christians and Jews) that “our God and your God is one”.

The Malaysian decision overlooks not merely the theology, but also the etymology of the word. The word ‘Allah’ is derived from the Arabic “al-ilah”, the god. It’s found its way across the world and entered Malay from Arabic.

Arabic as a language is a vehicle for faith, be that Christianity, Judaism or Islam. The God of the three monotheistic religions is the same god. It is unsurprising, therefore, that all three faiths in the Arabic-speaking world (and beyond) refer to God as ‘Allah’. And if they have the same God, they should have the right to call their deity by the same name.

The story first appeared in The National on 14 Oct 2013.