by V Anbalagan
The Malaysian Insider
October 19, 2013
All Malaysians are bound by the Court of Appeal ruling on the Allah issue, says former attorney general Tan Sri Abu Talib Othman, who is puzzled that Putrajaya believes the controversial judgment does not affect Christians in Sabah and Sarawak.
The appellate court agreed that the Home Minister could ban the word Allah in the Catholic weekly Herald, but two Cabinet ministers had insisted the decision did not include the Al-Kitab, the Bahasa Malaysia bible widely used in Sabah and Sarawak, and other Christian publications in East Malaysia.
“It has the effect of a binding precedent and all have to respect that decision, whether you agree or disagree,” he told The Malaysian Insider, adding it was binding until set aside by the country’s highest court, the Federal Court.
Abu Talib, who was the chief legal adviser to the government for 13 years from 1980, said there could be no two sets of law when “we have one nation and one supreme constitution”.
“So, there cannot be exemptions given to Sabah and Sarawak on this religious issue based on region or state,” he said.
Abu Talib said this in response to Cabinet ministers Tan Sri Joseph Kurup and Datuk Seri Dr Maximus Ongkili who had taken the position that Christians in the Borneo states were not affected by the appellate court ruling on Monday and could use the word in their religious practices.
The Muslim Lawyers’ Association of Malaysia had also weighed in on the issue, saying the ban only applied to the Bahasa Malaysia section of the Herald.
Abu Talib said the central issue decided was whether people and institutions other than Muslims could use the word.
“The Court of Appeal has made a finding that the name Allah is not an integral part of the faith and practice of Christianity and, by that extension, the word is exclusive to Islam and Muslims,” he said.
Abu Talib, who was Human Rights Commission (Suhakam) chair after retiring as AG, said in view of sensitivity of the issue, the Chief Justice of the Federal Court, Tun Arifin Zakaria, must give priority to this case which is of public interest.
“If not properly handled, this hot issue will give rise to further controversies as we live in multi-racial and multi-religious society,” he said.
He said the matter must be brought to a finality and once the issue had been decided, “all must move forward”.
“The position of Islam as the religion of the Federation and freedom of other religions could come under scrutiny if the merit of the appeal was heard in the apex court.
“It boils down to freedom of non-Muslims to practice their faith and any decision under the Federal Constitution binds all, irrespective of state and region,” he said.
Abu Talib said there were irresponsible comments and responses following the Court of Appeal ruling with some bordering on contempt of court.
“You can criticise the judgment but there is limit to it. At the end of the day, the independence and integrity of the judiciary must be maintained and observed,” he added. – October 19, 2013.
The Court of Appeal (“CA”)’s decision concentrated on The Herald – that it is prohibited from the use (publication) of the word in its Bahasa Malaysia’s version. The CA never mentioned anything about this prohibition being applicable in West Malaysia and otherwise lifted/exempted in Sarawak/Sabah. So to this extent Abu Talib is quite right about it being blanket for all on both sides of the South China Sea. What the 2 govt ministers said was that the govt might not enforce the prohibition in East Malaysia. If so this would run counter to Article 8 of Federal Constitution which provides that all persons are equal before the law and entitled to its equal protection. The Herald or its readers could challenge such discriminatory enforcement by asking why the publication of that word in West Malaysia is prohibited but not otherwise in Sarawak/Sabah- what is the rational differentiating factor for such selective enforcement? After all the rationale behind the CA’s decision to prohibit will, whether one agrees with it or not, equally apply to both East and West Malaysia providing no justification to treat one side differently from the other.
The prohibition in CA decision relates to The Herald’s publication, so taking the narrow view, it may also be argued that it does not extend to the Malay version of bible (Al Kitab) – although if one follows the rationale behind the prohibition, it could logically be so extended to Al Kitab as well, unless one argues that the Herald’s publication has comparatively wider reach than the Al Kitab which is not so accessible to the class of people whose proselytization is prohibited. Either way the decision is controversial not just because the reasoning behind it in various aspects is publicly controversial but also its effect and coverage uncertain. Abu Talib says there’s too many irresponsible comments and responses which is bad because at end of the day “the independence and integrity of the judiciary must be maintained and observed.” Well don’t just blame the public commenters whether lay or informed like the Bar Council. The Judiciary also bears responsibility to maintain its own independence and integrity. The best way to do so is to base its judgment on sound and tenable reasoning in accordance with law that leaves no ambiguity or gives no room to perception (whether justifiable or not) by others otherwise. The way out is for the Federal Court (a full panel as Karpal suggests) to review this issue of urgent and immediate public interest.
Even a lay man not well versed in English can know that the Court of Appeal’s interpretation of Article 3(1) is wrong. Also, using the threat of disturbance to peace (from extremists) as an excuse to limit the Herald is wrong because the decision does not state what the law is independently of what would result in stating the law correctly. It is not the Judges’ function to keep the peace – only to state what the law is ((“jus dicere”).
As expected, d two bola-less n castrated so-called leaders from E M’sia quickly SOLD OFF their brethren’s fundamental rights n came out with their own ridiculous positions on d court ruling
What a shame, just 2 keep their titles n cabinet positions