The constitution is supreme, not religion (Part 2)

by Tommy Thomas
Malaysiakini
Oct 24, 2013

COMMENT A simple way to illustrate the point that the measure of protection given in the federal constitution may be absolute or limited is to compare the language employed in Articles 10 and 11.

Article 10 protects freedom of speech, assembly and association. But Parliament may, by law, restrict the rights under Article 10, whereas Parliament cannot enact any law to restrict or curtail the freedom of religion under Article 11(1) and (3).

This difference in text between Articles 10 and 11 means that persons who belong to, say, a chess club or a sports association, would come within the purview of Article 10, while members of a religious group would come within the scope of Article 11.

Because Article 11 is drafted in much broader terms than Article 10, members of religious groups enjoy a far greater measure of constitutional protection than members of a chess club or a sports association.

Conversely, state action can control, direct and regulate a chess club and a sports association much more than it can over a religious group. Additionally, only citizens enjoy Article 10 rights, whereas no such limitation occurs under Article 11.

In stating this position, Article 11(5) is not to be overlooked. But Article 11(5) does not permit Parliament to enact laws to restrict freedom. It merely provides that in the enjoyment of religious freedom, whether individually under Article 11(1) or collectively under 11(3), a person or a religious group should not carry out any act which could contravene any general law relating to “public order, public health or morality”.

Hence, for instance, those who participate in a religious procession like the annual Thaipusam pilgrimage to Batu Caves should not insult other religions. If they do, then the state can take restrictive measures on grounds of public order. But the onus is on the state to show that public order is affected.

However, Article 11(5) cannot be engaged if a worshipping community prays in a church or temple, or if a family prays in their house. Both are private places.

The overall effect is that Article 11(1) confers a personal freedom to be enjoyed by every person resident in Malaysia, regardless of his citizenship, nationality or domicile. So long as he is physically present in the country he can enjoy it. It is his right to choose whichever religion he wishes, and he can profess, practise and propagate it.

The government cannot interfere

Neither the government nor any other authority can dictate to any person his right to choose a religion, relinquish a religious belief (with limitations for Muslims), change religion and not to be religious (whether as atheist, agnostic or otherwise). This right is absolute, entrenched and inalienable.

Its absolute nature can be tested in three other ways. First, Article 149 of the federal constitution provides that if an Act of Parliament expressly recites that action has been taken or threatened by a substantial body of persons against the nation, then that Act of Parliament may enact laws that would be inconsistent with Articles 5, 9, 10, or 13. However, such law cannot impinge upon freedom of religion under Article 11.

Secondly, if a State of Emergency is declared by the Yang di-Pertuan Agong pursuant to Article 150, and emergency laws are enacted thereafter, such laws cannot relate to religion although it can curtail other fundamental liberties [see Article 150(6A)].

Thirdly, our courts have recognised the great importance of religion as a fundamental liberty. Since the enactment of the Internal Security Act, 1960 (ISA), nearly 10,000 persons have been detained by way of preventive detention under the ISA and other similar legislation. The very few successful legal challenges that resulted in the release of the detainees were because of procedural reasons.

One of the very successful challenges on substantive grounds (that is, on the merits of the detention) was the landmark case of Minister of Home Affairs vs Jamaluddin Othman, where Jamaluddin was detained during Operation Lalang in October 1987 for propagating Christianity to Muslims.

The High Court ordered Jamaluddin’s release and this judgment was upheld by the Supreme Court on appeal. Both courts held that a person cannot be detained under the ISA for his religious conviction and for propagating his religion (Christianity, in that case) to Muslims.

Accordingly, the position under the constitution is that Catholics are allowed to read any translation of their Holy Bible as part of their right to profess and practise their religion and under their right to manage their own religious affairs. These are absolute rights. Neither the state or any authority or any person can interfere with them. Followers of all religions enjoy equal rights with respect to their Holy Books.

The divinity, sacredness and purity of Holy Books of all religions should be respected by all, and protected by all nations across the globe, unless one is a monster like Hitler or Pol Pot. What that means in practical terms is that no state agency can re-write a single word in these Holy Books or demand that they be re-written.

None of these arguments on the centrality of freedom of worship were alluded to in the three Court of Appeal judgments against The Herald.

Effect of the Allah judgment

Although the publication that was before the court was Catholic weekly The Herald, the ruling affects all books and publications. That is the ratio decidendi or the fundamental findings in a decision that must be followed by all courts in similar circumstances in subsequent cases.

In other words, it is not possible to draw a distinction on facts and law between the use of the word ‘Allah’ in one publication (The Herald) and another publication (the Bible). The principle of stare decisis – the doctrine that subsequent inferior courts are bound to follow the fundamental findings of previous cases decided in similar circumstances – does not work that way.

Thus, it affects the Bible that is popularly used in East Malaysia by communities that wish to read it in the Malay language. Such a Bible cannot continue to use the word ‘Allah’ to describe God. When the case is put that way, the stark gravity of the appellate court’s decision becomes clear: it amounts to censorship of a Holy Book. That is not the business of any secular court in any nation in this world.

It is ironic that as Sabah and Sarawak celebrate 50 years in Malaysia, they are told by a court sitting in Putrajaya that their subjects cannot read their Holy Book in the translation of their choice. Malaysia was formed in 1963 over substantial opposition, internally in East Malaysia, which resulted in the formation of the Cobbold Commission to ascertain the wishes of the people there, and externally by Indonesia and Philippines, which resulted in intervention by the United Nations.

One of the key demands of Sarawak and North Borneo (as Sabah was then known) was a guarantee that British imperialism will not be replaced with Malayan imperialism, and that an exchange of colonial rule from London to Kuala Lumpur will not take place.

Can one imagine the horror that would have been exclaimed in the deliberations between 1961 and 1963 (which incidentally also involved the British and Singapore), prior to Malaysia’s establishment, if anyone had remarked that within 50 years, East Malaysians would not be able to read their Malay Bible containing the word ‘Allah’?

Instead of dealing with the facts that were before the court, one of the judges, Justice Zawawi Salleh, conducted extensive research on the Internet. None of the parties had provided these materials to the Court of Appeal (as I was informed by the lead counsel for the Church who argued the appeal before this court).

Thus, this judge carried out research on his own. In breach of the principles of natural justice, he did not invite lawyers representing all the parties to comment on the materials he discovered in the Internet. This is another fundamental error on his part. One can therefore expect the Federal Court to completely disregard such “judge-found” evidence.

Enforcement of court order

No court makes an order in vain: there must be practical utility to it. Hence, whether an Order of Court can be practically enforced is relevant. Insofar as The Herald is concerned, if the Catholic Church uses the term ‘Allah’, it runs the peril of losing its licence. But what about the Bible in Malay containing the word ‘Allah’?

The state can enforce the decision of the Court of Appeal by one of two ways:

(i) Confiscate the Bible in Malay by removing them from churches and homes, and thereafter burning or destroying them; or

(ii) Visit the churches and homes for the purposes of deleting the word ‘Allah’ in all the places it appears in the Bible or tearing the relevant pages from the Bible and thereafter returning them to their owners.

christians praying church attacksAgain, the gravity of the decision becomes clear when one considers how the state is going to enforce it. It is immediately foreseeable that the churches and the households will resist anyone from the state touching their Holy Book, let alone harming it.

Would the state then use reasonable force when confronted with resistance? What constitutes “reasonable force” in such circumstances? The national interest requires the delicate use of tact and sensibility when dealing with the rights of minorities, especially religious rights. The tyranny of the majority should not result in bloodshed and violence.

One is not scare-mongering: this is just the inevitable consequence of the decisions. Did the attorney-general advise the government of these consequences? Otherwise, the court decision would merely be a Pyrrhic victory, achieved at the high cost of damaging ethnic relations in a plural society. Is this responsible political governance?

In the Braddell Memorial Lecture that was delivered at the National University of Singapore in 1982, former Lord President and one of our greatest judges, Mohamed Suffian Hashim, described his fellow judges as follows:

“In a multi-racial and multi-religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgment with our names deleted could, with confidence, identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.”

Suffian, who became a vocal critic of our judiciary after Salleh Abas was sacked as Lord President in 1988, would have wholeheartedly agreed that his comment does not apply to this case, with the overwhelming public perception being that the religion of the three judges in The Herald case was a factor in their decisions.

A fundamental principle of our law is that justice must not only be done, it must also manifestly and undoubtedly be seen to be done. In an appeal where the central issue is a clash between Islam and Christianity, the judges ought to have been Hindus, Buddhists, atheists or agnostics.

Alternatively, there should have been a delicate balance between judges of the Muslim, Christian and other faiths. Hopefully, such a combination will form the panel for the Federal Court when The Herald appeal is heard.