by Tommy Thomas
Malaysiakini
Oct 23, 2013
COMMENT The sustained public attack on last week’s decision of the Court of Appeal in prohibiting the Catholic Church from using the word ‘Allah’ in its internal publication, The Herald, is absolutely unprecedented, even in a nation used to bad court decisions.
From a constitutional perspective, the judgments of the three judges on the bench are poorly reasoned, the law misread and conclusions reached which will baffle any right-thinking student anywhere in the common law.
The decision is not just wrong, it is horribly wrong, and represents a terrible blot on our legal landscape, unless overturned quickly by the apex court, the Federal Court. Regrettably, what follows may seem unduly legalistic, but it cannot be avoided in a critique of a court decision.
By their very nature, judicial review proceedings are determined in the first instance by a single judge of the High Court who does not hear witnesses. Instead, the application is disposed of with affidavits and exhibits, supplemented by the submissions from lawyers on both sides.
In the High Court, the government baldly denied about 20 facts that the Catholic Church referred to in its affidavits. In such circumstances, the judge accepted, as she was duty bound in our adversarial system, the evidence produced by the church.
Relevant facts
In effect, the High Court made findings of fact, as it was entitled to do. Some of these facts are worth recalling:
•The word ‘Allah’ is the correct Bahasa Malaysia word for ‘God’ and in the Bahasa Malaysia translation of the Bible, ‘God’ is translated as ‘Allah’ and ‘Lord’ is translated as ‘Tuhan’;
•For 15 centuries, Christians and Muslims in Arabic-speaking countries have been using the word ‘Allah’ in reference to the One God. The Catholic Church in Malaysia and Indonesia and the great majority of other Christian denominations hold that ‘Allah’ is the legitimate word for ‘God’ in Bahasa Malaysia;
•The Malay-Latin dictionary published in 1631 had translated ‘Deus’ (the Latin word for God) as ‘Alla’ as the Malay translation;
•The Christian usage of the word ‘Allah’ predates Islam, being the name of God in the old Arabic Bible as well as in the modern Arabic Bible used by Christians in Egypt, Lebanon, Iraq, Indonesia, Malaysia, Brunei and other places in Asia, Africa, etc;
•In Bahasa Malaysia and Bahasa Indonesia, the word ‘Allah’ has been used continuously in the printed edition of the Matthew’s Gospel in Malay since 1629, in the first complete Malay Bible from 1733 and in the second complete Malay Bible since 1879;
•Munshi Abdullah, considered the father of modern Malay literature, had translated the Gospels into Malay in 1852, and he translated the word ‘God’ as ‘Allah’;
•The Bahasa Malaysia-speaking Christian natives of Malaya, Sarawak and Sabah had always and have continuously and consistently used the word ‘Allah’ for generations and the said word ‘Allah’ is used in the Bahasa Indonesian translations of the Bible used throughout Malaysia;
•At least for the last three decades, the Bahasa Malaysia congregations of the Catholic Church have been freely using the Al-Kitab, the Bahasa Indonesia translation of the Holy Bible, wherein the word ‘Allah’ appears; and
•In any event, the word ‘Allah’ has been used by Christians in all countries where the Arabic language is used as well as in Indonesian/Malay language without any problems and/or breach of public order and/or sensitivity to persons professing the religion of Islam in these countries.
The above matters provide the factual background to this dispute. No case can ever be decided in a vacuum, isolated from the facts. Unbelievably, none of the three Court of Appeal judgments gave any weight to the findings of fact made by the High Court, which is a gross error.
Nordin Salleh forgotten
It is incredible that none of the judgments even mentioned, let alone considered, the impact of the most important constitutional case ever decided by our courts, which had a direct bearing on the dispute.
The Supreme Court decided in the Nordin Salleh case that in testing the validity of any state action impinging any of the fundamental liberties enshrined in Part II of the federal constitution, the court’s duty is to look at the effect, result or consequence of state action.
If such effect is to render the exercise of such fundamental liberty “illusory or meaningless”, it is unconstitutional. If the ratio of Nordin Salleh, which incidentally is binding on the Court of Appeal, had been applied in The Herald case, the decision would have been different because the effect of the state prohibiting Christians from using the word ‘Allah’ in their worship is to render their right to practise their religion under Article 11(1) and (3) illusory or meaningless.
It is as plain and simple as that. The appeal ought to have been dismissed for that obvious reason alone.
It was misconceived for the Court of Appeal to have focused its attention on Article 3(1) rather than Article 11(1) and (3). Article 3(1) provides for the role of religion in the new nation of Malaya (subsequently Malaysia). Islam is the religion of the federation, but other religions may be practised in peace and harmony.
The founding fathers intended the new nation to be one for believers, where God has a prominent place. They did not wish their country to be atheist or agnostic. Other countries have similar belief systems stated in their constitutions.
For example, the Preamble to the Constitution Act, 1982 of Canada declares: “Whereas Canada is founded upon principles that recognise the supremacy of God and the rule of law.”
But Article 3(1) of the Malaysian constitution does not confer a supremacy status on Islam when compared with other religions. The draftsmen of the constitution were aware of the hierarchy of laws and rights: hence, the very next article provides for the supremacy of the constitution over all other laws in the land, as is seen in Article 4(1).
No similar words are used in Article 3(1). Further, it was not intended to establish a theocracy in the new nation, which is to remain at all times a secular state.
More significantly, the right to practise a religion of one’s choice is found in Part II, and, in particular, Article 11, which I now turn to. But the fundamental freedoms of personal liberty [Article 5(1)], equality [Article 8(1)], anti-discrimination [Article 8(2)] and freedom of speech, assembly and association [Article 10(1) and (3)] are also relevant, and indeed far more relevant than Article 3.
Fundamental liberties
Freedom of religion is a fundamental right under the federal constitution. Article 11(1) gives constitutional protection to an individual’s right to profess, practise and propagate his religion, and Article 11(3) recognises collective worship by providing that “every religious group has the right to manage its own religious affairs”.
A plain and ordinary reading of the language employed in Part II of our constitution will indicate that the founding fathers drew a distinction between the measure of protection that each of the specific, listed fundamental liberties would enjoy.
Thus, our fundamental liberties are not treated equally in the constitution. Hence, there is an in-built hierarchy of rights, and, freedom of religion is given core or central protection. A simple reading of the text of each Article in Part II, containing Articles 5 to 13, suggests that some liberties are more fundamental than others.
The fundamental liberties can therefore be placed in two distinct categories: those that are absolute; and those that are limited.
By the choice of the language in Articles 11 and 12, which was deliberate, the right of worship is undeniably absolute. Within the rubric of religious rights are found:
•The freedom to profess and practise a religion;
•The freedom from special, but not general, taxation to support a religion other than one’s own;
•The freedom of a religious group to manage its own religious affairs and to establish and maintain institutions for religious and charitable purposes; and
•The right not to receive instruction in or to take part in any ceremony or act or worship of a religion other than one’s own.