NEWS ANALYSIS BY THE MALAYSIAN INSIDER
October 17, 2013
There is irrationality and irony in the Cabinet’s decision that the word Allah can be used in worship and in the Bahasa Malaysia bibles in Sabah and Sarawak – because one cannot compartmentalise religion by regions.
Nor can the Cabinet override the court’s decision.
Or the fact that the Bahasa Malaysia section of the Catholic weekly, the Herald, is actually meant for East Malaysians where most of the Catholics speak and read the national language more than anywhere else in the country.
After all, what are the chances that a non-Catholic would be able to lay his or her hands on one of the 14,000 copies printed weekly in Malaysia for some one million Catholics in the country?
If anything, the Cabinet decision that the Court of Appeal ruling would not affect Christians in Sabah and Sarawak shows that at the end of the day, everything is about politics.
While the ruling was specific to the Herald’s appeal against the Home Minister’s ruling, there was also the wider issue of considering the Archbishop’s argument that it infringed his right to freedom of religion.
What really is there to stop the enforcement of Syariah laws that prohibit usage of certain words by non-Muslims, now that the civil courts have agreed that the Home Minister is well within his rights to limit the Herald from using the word Allah?
As it is, several muftis have voiced their opinions that such religious laws can be used to punish non-Muslims and excommunicate Muslims who support a Christian’s right to use the word.
The Cabinet cannot just decide that it is fine to issue a letter limiting the words used by a publication depending on the religion and region or allowing it to be freely used elsewhere.
This makes a mockery of such laws and regulations.
While the appeal court have made its decision, the government of the day has to ponder the ramifications of its ruling and the subsequent challenge in court. State Islamic authorities too will have a larger say on the matter, even in Sabah and Sarawak.
Where will this end? Not with a Cabinet ruling on the matter because this country has separation of powers. To ignore a court decision brings with it the possibility that others too will ignore the ruling.
Stopping a low-circulation weekly from using the word Allah or confusing practice with propagation has turned Malaysia into an international joke as far as religious ties are concerned.
Trying to cover it up with more assurances is even more comical, if not sad.
The reality is that the government has decided it can regulate the words used by worshippers of any faith, without considering how futile that can be. But that is what politics is all about, the art of the possible. – October 17, 2013.
Don’t be misled; it is going to be a blanket ban nationwide so that the Catholic weekly cannot change its name to Herald Baru to escape the ban.
1Malaysia divided.
Latest slogan — 2 Malaysia (endless possibilities indeed!)
Now that they have painted themselves into a corner the more they try to get out, the more they will get themselves into trouble. Just look at the series of idiotic statements issued since the judgement was severely criticised. Even the most pro Govt supporters are beginning to see the consequences of this ill thought out action by the Govt and are now scrambling to try to defuse the situation by making idiotic declarations such as that the ban only applies to Herald.
I would love to hear what the 3 judges has to say in the interpretation of their judgement. Wan Junaidi or the Muslim Lawyers association are just making themselves look more illogical and confused.
All they had to do was simply sit down and work something out right from the start with Herald but instead UMNO wants to play to the gallery and started on a slippery slide down the slope which they now do not know how to stop. This is what you get when you have HPS ministers who are not able to think through a problem and yet have the cheek to gloat that he was right to start the “Allah” fire.
While a full-fledged ban will wipe off their deposit vote banks, a partial ban will make Jibby’s team a laughing stock to the world. Stupid people put themselves in a stupid predicament.
1malaysia
Umnoputra didahulukan pencapaian wang ringgit diutamakan
It is a punishment by the Christian God?
By the way, what is this they say about the independence of the judiciary?
Do they still teach that constitutional edict in Malaysian law schools any more?
Or do they teach… everyone must remember to say thank you to UMNO 5 times a day in your daily prayers, facing UMNO HQ in KL?
1Malaysia…..endless possibilities.
Tak habis-habis cerita nenek moyang.
sebab sejarah itu pencetus segala galanya termasuk kemungkinan yang tidak habis habis aka endless possibilities
My son wrote this based on his knowledge of the law:
October 17, 2013 at 4:41pm
Have decided to air my views on the Herald case since I find it to be an interesting case (we hardly ever hear of landmark constitutional law cases in Malaysia) and well, it hits a little close to home (I was raised Catholic and used to read the Herald). Also, I think it’s important for us to know a bit more about our Federal Constitution, though I don’t profess to be an expert or anything. I originally just wanted to rant but then I realised that I had to justify it so erm.. it has become a bit of an essay lol.
VERY BRIEF FACTS
The Herald is a Catholic newspaper that has been in publication since around 1999. It applied for a publication permit under the Printing Presses and Publications Act 1984 (“Act”) for the year 2009. The Govt approved the permit subject to 2 special conditions (in addition to the general conditions which are provided for in the Act and any subsidiary legislation):
1) the word “Allah” was not to be used in the Malay version of the Herald; and
2) the word “TERHAD” was to appear on the front page of the Malay version of the Herald, to give an indication/meaning that the Herald was to be distributed in churches and to Christians only.
The Catholic Church (“Church”) went to court, seeking to quash the decision. The Church did not object to the 2nd condition but objected to the 1st condition on the ground that it was illegal, unreasonable, irrational and/or unconstitutional.
In December 2009, the High Court ruled in favour of the Church and quashed the decision. It essentially ruled that the decision was “illogical” and “irrational” as well as unconstitutional. The Govt appealed to the Court of Appeal and won (more on the appeal below).
The relevant Federal Constitution provisions
Article 3(1): Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
Article 11(1): Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.
Article 11(4): State law and … federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
Note: Assuming that all States have laws that prohibit a non-Muslim from “preaching” to a Muslim, the effect of Article 11 is that everyone has a right to profess and practise his religion AND Muslims can “preach” to non-Muslims BUT non-Muslims cannot “preach” to Muslims.
The decision of the Court of Appeal (“COA”)
The COA allowed the appeal of the Govt and held as follows:
a) the Govt had acted within its powers under the Act and had considered all relevant factors and had not taken into account any irrelevant factors
b) the insertion of the words “in peace and harmony” in Article 3(1) is to protect the sanctity of Islam and “also to insulate against any threat…to the religion of Islam
c) the most probable threat to Islam is the propagation of other religions to the followers of Islam and the restriction of proselytism has more to do with the preservation of public order than with religious priority
d) the usage of the word “Allah” in the Malay version of the Herald has the potential to disrupt the even tempo of the life of the Malaysian community
e) it will have an adverse effect upon the sanctity of Islam as envisaged in Article 3(1) and the right for other religions to be practised in peace and harmony
f) the Herald does not have a constitutional right to use the word “Allah” because it is not an integral part of the faith and practice of Christianity
g) since it was never an integral part of the faith, it is reasonable to conclude that the intended usage will cause confusion within the Islamic community and is surely not conducive to the peaceful and harmonious tempo of life in the country
SOME POINTS TO CONSIDER
Wednesbury unreasonableness
I was no lover of Public/Constitutional law back in university, but I can tell you that one of the landmark cases everyone had to know was the Wednesbury case. The following passage is a summary of the Wednesbury principle taken from the Wednesbury case itself:
“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere.”
Previous cases had already established that a decision could be overturned on grounds of illegality or procedural impropriety/unfairness. The Wednesbury case was significant because it also allowed a court to interfere based on the merits of the case. In other words, it allowed the court to look at the decision of the Govt and decide that even though the Govt had acted legally and had considered all relevant matters, the decision was still so unreasonable that no reasonable authority could ever come to it.
The COA did not even discuss this last point. It selectively quoted the first part of the Wednesbury case and held that it could not interfere because the Govt had acted within its powers under the Act and had considered all relevant factors. This is a trick lawyers use. They only quote the parts of the case which are favourable to them. But I would have expected the COA to be better than this and deal with whether the 1st Condition was “reasonable” or not. Note that the High Court had discussed this last point, which makes the omission even more glaring.
In peace and harmony
Article 3(1) of the Federal Constitution expressly provides that “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation”.
The COA found that this Article was inserted as a byproduct of the social contract by our founding fathers, and that the purpose and intention of the words “in peace and harmony” was to protect the sanctity of Islam as the religion of the country and to insulate it against any threat. This is an unnatural reading of the provisions in Article 3(1). The words in their clear and ordinary meaning provides for the right of other religions to be practiced without any interference or threat from others.
Integral part of faith and practice
The COA essentially held that to receive constitutional protection, it must be shown that the use of the word “Allah” was an integral part of the faith and practice of Christians. This was a very restrictive interpretation of Article 11 (the right to profess and practice one’s religion). In arriving at its decision, the COA relied on its previous decision in the case of Meor Atiqulrahman bin Ishak v Fatimah Sihi and the many Indian decisions referred to in that case. However, it is rather dubious that the COA chose to refer to its previous decision when that very same case was appealed to the Federal Court, which reformulated the test and held that:
“whether a practice is or is not an integral part of a religion is not the only factor that should be considered. Other factors are equally important in considering whether a particular law or regulation is constitutional or not under Article 11(1) of the Federal Constitution. I would therefore prefer the following approach. First, there must be a religion. Secondly, there must be a practice. Thirdly, the practice is a practice of that religion. All these having been proved, the court should then consider the importance of the practice in relation to the religion. This is where the question whether the practice is an integral part of the religion or not becomes relevant. If the practice is of a compulsory nature or “an integral part” of the religion, the court should give more weight to it. If it is not, the court, again depending on the degree of its importance, may give a lesser weight to it.”
With such binding Federal Court authority, the COA should not have referred to its own decision and the Indian cases (which are only persuasive and not binding). It is yet another glaring omission as the High Court had referred to the Federal Court judgment.
In addition, the COA apparently did some “quick research” on whether the word “Allah” had been used as the name of God or even a man in the Hebrew Scriptures or in the Old or New Testaments. Finding none, it proceeded to conclude that the word or name “Allah” was not an integral part of the faith. In addition, it referred to various academic/religious books and international articles and concluded that “the Christians themselves have not reached a consensus as to how to use the word “Allah”. It went even further and held that “if the word “Allah” is to be employed in the Malay versions of the Herald, there will be a risk of misrepresentation of God within Christianity itself… the potential for confusion is not confined only to Muslims but also to Christians”.
I think the COA’s approach leaves much to be desired. It apparently preferred to take judicial notice* of international facts and discussions (gleaned from its own independent research) regarding the use of the word “Allah” instead of considering the fact (established in evidence and accepted by the judge in the High Court) that millions of local Malaysians have been using the word “Allah” as part of the practice of their Christian religion.
*Note: To my non-lawyer friends, judicial notice refers to the situation where a court takes notice of and accepts any fact that is so well known or notorious that it does not need to be proved by adducing evidence in court e.g. World War II, the Great Depression, the increase of gun crime in Malaysia, Sept 11 etc. It is an exception to the normal rules on evidence and should only be used in clear cases.
In addition, it was presumptive of the COA to hold that the potential for confusion also extended to Christians when there is no such evidence of that being the case in Malaysia.
Confusion
There has been a lot of criticism of the COA’s decision based on the “confusion point”, and rightly so. Several points may be made.
First, it is to be noted that the Herald agreed to include the “TERHAD” warning on the front page of the Malay version and to limit distribution to churches and Christians only. In the off chance that a Muslim got their hands on a Herald paper, surely the warning would put them on notice that the publication was not intended for them.
Second, while the Constitution and State laws prohibit propagation/proselytization, just because someone may still be “confused” despite reasonable efforts to “unconfuse” them DOES NOT make it propagation/proselytization.
Finally, “confusion” is not a recognised ground to deny a person’s Constitutional right to profess and practice their religion.
The press release by the Malaysian Bar put it quite nicely:
“The decision does not in any way aid in addressing or resolving the alleged confusion amongst persons professing the religion of Islam, when in fact that word ‘Allah’ is used by more than one community in this country and by peoples of different faiths in the Arab world and other Muslim countries. Rather, the effect of the decision would be to encourage a perpetual state of confusion or ignorance as justifiable grounds for denying the rights of others. The course that ought to have been taken should be to educate those persons who would be confused and not to restrict or injunct the exercise of rights by others.”
Public order / security
The COA and Govt sought to justify the decision on the ground that the condition should be imposed in the interests of public order and security. Reference was made to the subsequent chaos which erupted after the High Court decision.
Again quoting Malaysian Bar press release:
“The decision unfortunately serves to reinforce the notion that the use or threat of violence would win the day in court. It is unacceptable that citizens are denied their Constitutional rights of religious freedom and expression on the basis that others who disagree or who are confused would resort to aggression. The law should not be interpreted and declared so as to condone, encourage, and perpetuate such aggression and threats of violence. Rather, the law ought to be visited upon those who would resort to threats or violence.”
I think there may be rare instances where public order may be invoked as a right to restrict one’s Constitutional rights (e.g. state of emergency or where there would be complete anarchy with no law and order and society just falls apart) but I would like to believe that we have not reached such an extreme state of affairs.
SUMMARY
The COA decision leaves much to be desired for the following reasons:
a) it inadequately applied the “Wednesbury unreasonableness” principle
b) it selectively quoted cases and disregarded binding Federal Court authority
c) it engaged in a strained and convoluted interpretation of Article 3(1) of the Federal Constitution
d) it has effectively established “confusion” as a new ground to restrict the Constitutional right to practice one’s religion; and
e) in effect, it has sent a message that the mere threat of violence may successfully restrict one’s Constitutional rights.
The COA had stated that “the welfare of an individual or group must yield to that of the community”. I would suggest that in this case, the decision of the COA has resulted in a situation where the interests of the community as a whole have yielded to the “welfare” of the confused and the violent.
.
HJ Angus,
Thanks for an interesting post or rather thanks to your son for an interesting analysis. :)
The COA on the ‘Allah’ verdict is certainly storm in a tea cup. The entire politically motivated court room exercise has unleashed more problems than provide solutions to the issue itself. It tears apart the very fabric of the Federal Constitution and of our society and setting dangerous precedents in the region that is already embroiled in religious extremism.
What is even more confusing is the government’s decision now that this verdict only applies to the Herald publication and its use of the word ‘Allah’ and that East Malaysians are free to use ‘Allah’ in their worship and propagation of faith which can only adds deeper undercurrents to the already frayed and hurt feelings of Christians and right-thinking Muslims alike.
The UMNO government has not only shot itself in the foot and mouth but with its seemingly plausible affront has instead invited the world’s ridicule and may be just the cause for its own demise.
God is great! Allah is great! Faith strengthens us in our lives and daily challenges. We pray for peace, strength and guidance from our own God or through our own faith meditation. Let Malaysians practise their own cultures and religions freely as guaranteed in the constitution.
According to M’siakini’s Oct 17 report Minister in PM dept said word “Allah” could be used only by Sabahan and Sarawakian Christians in their worship…Is this “Sabahan” or “Sarawakian” drawn along lines of domicile, graphical location or what? Is this use by them (a) permitted only in geographical area of East Malaysia and prohibited once they cross South China Sea to Peninsular or (b) they can do so also in West Malaysia? If (a) can a West Malaysian Christian be permitted to use the word if he were physically in Sabah or Sarawak or he can’t do so? If (b) what is the rational differentiating factor (“rational differentia”) to entitle Sabah and Sarawakian to use the word in West Malaysia and yet deprive West Malaysian Christians to do so there?
Article 8(1) of our Federal Constitution provides “all persons are equal before the law and entitled to the equal protection of the law” and (2) states that “there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender”. This means peoples belonging to same classes (say Christians) should be treated equally; that they should not be treated differently under law unless there’s a rational differentia justifying why one group ought to be treated differently by law from others of same group/class…Is the 18-20 point agreement for Sabah & Sarawak a rational differentia sufficient to discriminate between East Malaysian and West Malaysian Christians? This is only but the narrow issue, the broader being (i) are Christians to be discriminated differently from Malaysians of other faiths like Sikhs (ii) Non Muslims from Muslims (whether in West or East Malaysia) on use of that word? The Federal Court will be confronted with this article 8 *equality before the law) constitutional issue.
When OUTSIDER want to prescribe how the followers of another religion how they should pray and address their God, that is of UTMOST DISRESPECT to the other religion followers, ABSURD & UNACCEPTABLE.
In the west they have the three stooges. Larry, moe and Curly.In bolehland, we have these 3 umno-stooge judges. Titles, cash and projects.
I have to criticize PR too for their stand that they support the non-Muslim on this issue. While its true that the issue is mostly about East Malaysian Christian rights guaranteed under the Malaysia Agreement and should be even more so by the Federal Constitution., its also about the the Malay Muslim right to the truth and not lived in ignorance of abuse by very human religo-politics.
The issue is ABHORENT in that it abuses EVERYONE, the MAJORITY using the excuses of a small over-entitled minority.
Even if Sabahans are Sarawakians are allowed to use the banned word in West Malaysia, are the police going to come into the church and check the attendees one by one whether he is a Sabahan or Sarawakian? Stupid idiots!!!
Endless Possibilities.
Unlimited Stupidity!
Three cheers for jib.
Jib Jib Satu Boleh.
Ros Ros Satu Cantik!
JJ1B
RR1C
We should not insult the 3 Stooges – they provided good entertainment!
I just wonder how judges arrive at their decision?
Do they consider all the legal arguments before deciding or they make a decision and then try to frame the legal basis?
This country is not only ruled by the corrupt and the scandalous.
But also the crazies!!
All Malaysians must make it their mission in life to kick UMNO/BN out of Putrajaya.
Nothing less will do!!!!
Putrajaya’s decision to allow Sabah and Sarawak is largely impotent and merely a feeble attempt at damage control to placate Sabahans and Sarawakians.
In truth, many Sabahans and Sarawakians don’t really care very much about Semananjung rules and regulations. They have already indicated that they have no intentions to obey the “Allah” decision anyway :)
Once upon a time, I recall pointing out to my brother-in-law, a Bidahyu, that he was doing something illegal under Malaysian law.
The sneer on his face said everything when he replied, “I know it is illegal in Malaysia but we don’t care in Sarawak. Ask them to come and try to stop me” :)
As somebody pointed out elsewhere, if the Herald was printed in
Sabah or Sarawak, Putrajaya would simply have to grin and bear it.
After RCI and confirmation of Lingam korek, korek, korek and Mammak suddenly bisu and forgetfulness during cross examination – we for sure the JUDICIARY is ALL scr*wed and fu*cked totally. (by the Mamak).
Hence, is ALL Dumno sandiwara and right – is all POLITICS for Dumno ‘leaders’ only, actually. Before G13, they used this matter to play the racial, religious aspects to the hilt. These Dumno for sure not at all concern on the matter (it’s outcome whatsoever) except wanting to use it for POLITICAL purpose only – to play-play.
Leaving aside whether the Cabinet has the authority to decide that Christians in Sabah and Sarawak can continue to use the word Allah in their worship and in Bahasa Malaysia Bibles, it clearly shows that the BN still badly needs the Christian voters from there. I hope their memory of being short-changed will last until the next GE.
Bodoh look at the mirror
Their religiou born earlier yours few hundreds years..