‘Allah’ case: Seeds of harmony and seeds of mass destruction in appeals court judgments

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We need the best brains in the land and the Bar Council to hold a watching brief at the Federal Court to protect the constitutional rights of all Malaysians, says Ronnie Ooi.

zunar-cartoon-on-Allah-term

Summary

A compromise solution which may be acceptable to both the Christian and Malay communities, is to accept that it is lawful both for the Home Minister to ban the Herald and other similar publications from using the word ‘Allah’ and for Malay-speaking Church congregations to continue using the Malay-language Bible, the Al-Kitab. This appears to be the solution desired by Prime Minister Najib Abdul Razak.

But this solution is fatally undermined by the finding that ‘Allah’ is not an integral part of Christianity. This is because case law has set the precedent that only the integral parts of a religion are protected by constitutional guarantees of freedom of religion. If the word Allah’ is not an integral part of Christianity, then the use of the Al-Kitab is not protected.

The appeals court judgment that the word Allah is not an integral to Christianity is based on their finding that ‘Allah’ is not integral to the English Bible. But the Malay-speaking Christian does not know the God of the English Bible. He only knows the ‘Allah’ found in the Al-Kitab as his Christian God. It is as if the Judges have ruled that coconuts are green, but the real question is: are rambutans red?

The Appeals Court judgment has elements which can form the basis of compromise, the seeds of harmony, and elements which can severely damage inter-religious relations, the seeds of mass destruction. We need the best brains in the land and the Bar Council to hold a watching brief when the case goes to the Federal Court, in order to maintain the seeds of harmony and weed out the seeds of mass destruction.

Introduction

In my first article (“Any chance of a meaningful solution in ‘Allah’ furore?” published in Aliran, I urged that a solution acceptable to both sides be found. This article examines the legal basis for such a solution.

First there are two admissions I want to make. First, I am a real loyar buruk as I do not have any legal training and not a pretend loyar buruk as some real lawyers call themselves when they write for the press. However I have a good analytic mind which has been trained to assess the strengths and weaknesses of arguments as well as an inborn sense of fairness.

Secondly, there are many intertwined issues, and to understand them properly means going into details. I hope readers will not be put off by this because attention to detail is what wins the battle. Furthermore constitutional law affects us all, and the more knowledgeable people are, the better it is for the country.

In this article, reference is made to the written judgments of the three Appeal Court judges as follows: (Aziz [24]) refers to paragraph 24 of Justice Dato Abdul Aziz’s judgment.

Chronology

  • 5 December 1986 – Home Ministry directive prohibiting use of the word ‘Allah’ and three others in publications of religions other than Islam
  • 1999 – Herald started publication (Aziz [24])
  • 1999 – 2008 – Five admonitions and two show-cause letters reminding The Herald of the directive. (Apandi [[8]]
  • 7 January 2009 – Home Minister gives approval for the publication of The Herald for 2009 provided the word ‘Allah’ is not used. The Archbishop files for a judicial review.
  • 31 December 2009 – Decision by Madam Justice Lau Bee Lan of KL High Court quashing the order of the Home Minister to prohibit the use of the word Allah on the grounds:
  1. that the Home Minister had failed to take into account “uncontroverted historical evidence” that “for years or centuries the word God has been translated and used in the Bahasa Melayu and Bahasa Indonesia as Allah” (Aziz[18]);
  2. that the Home Minister had taken into account irrelevant factors such as the position of Islam as the official religion of the Federation, and the prohibition of the propagation of any religion apart from Islam to Muslims (Aziz [19]);
  3. that the Home Minister did not disclose any factual evidence to support his claim that the usage of the word Allah would pose a threat to national security or public order (Aziz [37]);
  4. that the Home Minister’s decision violated the constitutional rights as laid out in Articles 3 (religion of the Federation), 10 (freedom of speech), 11 (freedom of religion), 12 (education rights).
  • 14 October 2013 – The three judges of the appeals court reversed the decision of Justice Lau on special grounds directly opposite to her:
  1. “In the Bible, God has always been known as ‘Yahweh’. That being the historical fact, it can be concluded the word Allah is not an integral part of the faith and Christianity practice” (Apandi[51]). Justice Dato Mohd Zawawi agrees (Zawawi [16-29].
  2. Justice Abdul Aziz finds “nothing unreasonable nor irrelevant for the Home Minister to take into consideration the special position of Islam as the religion of the federation under Article 3(1) and the restriction on proselytism under Article 11(4) in imposing the prohibition on the use of the word Allah” (Aziz[50]).
  3. The three Justices are satisfied that allowing the use of the word Allah by The Herald could cause “unrest and ill feeling within the community that may lead to a disruption of the even tempo of the community” (Apandi [39]). The potential for confusion “not only to Muslims but also to Christians” (Zawawi[28]) is also highlighted.
  4. “Freedom cannot be unfettered, otherwise like absolute power, it can lead to chaos and anarchy” (Apandi [36]). Both freedom of speech under article 10(1) and freedom of religion under Article 11(1) is subject to the laws passed by Parliament to protect “public order, public health or morality”.

The nature of compromise

A solution acceptable to both sides may be termed a compromise. To avoid any misunderstandings, I want to clarify exactly what I mean. Whenever we face a dispute, we all have a white area where we get all we want and a black, bottom line below which are all those matters on which we would never compromise. In between is the grey zone. Leaders who sow discord and quarrels between communities have a very narrow grey zone; those without backbone or principles have an infinite grey zone. Moderate leaders are between these two extremes, as I am. I, for instance, believe articles of faith cannot be compromised.

The possible outcomes of the appeal to the Federal Court considered from a national perspective are:

The white outcome

This occurs when both the Christian and Malay communities are happy with the outcome, i.e. the Herald is allowed to use the word ‘Allah’ and the Malay community accepts this, as proven by opinion polls and the open support of Malay organisations. Many would say this outcome is impossible to achieve.

The white-black outcome

This occurs when one community is happy with the outcome and the other very unhappy, e.g. if The Herald is allowed to use the word Allah and the Malay community is angry about it. It also occurs if the appeals court judgment is accepted in its entirety without any alteration, including the finding that the word Allah is not an integral part of Christianity. I am against any white-black outcome.

The grey outcome

This is the outcome where neither community is completely happy but the outcome falls in their grey zones, the area where compromises may be struck. This is the outcome that Prime Minister Najib Abdul Razak says the government wants, i.e. The Herald is banned from using the word Allah but Malay-speaking Christians can continue using the Malay-language Bible Al-Kitab. For the grey outcome to occur, the finding that ‘Allah’ is not an integral part of Christianity must be quashed for reasons which I explain below.

Accepting the grey outcome means in legal terms accepting the appeals court findings that the Home Minister did not consider irrelevant material and there was sufficient concern about public order when he made his decision, nor did his decision impinge on the constitutional guarantees of freedoms of speech and religion. It does not include accepting that the word Allah is not integral to Christianity for Malay-speaking Christians.

On these points, some may prefer the judgment of Madam Justice Lau Bee Lan. Many who are not lawyers know that in real life, there are often situations where there are no right answers. (Lawyers are of course trained to come down on one side or the other.) I do not find the arguments of either Court to be markedly superior to the other but the appeals court judgment has the merit that it lays the groundwork for acceptance by both sides – a seed for harmony.

Those who advocate compromise must take account of the views of Tommy Thomas (published by Aliran). The evidence found by the Kuala Lumpur High Court for the historical use of ‘Allah’ by Christians is certainly impressive but Justice Abdul Aziz argues “neither the historical evidence nor the fact that the word Allah appears in the Malay version of the Bible is sufficient justification for the Home Minister not to impose the prohibition on the use of the word Allah (Aziz[30]).

I agree entirely with Tommy Thomas about the paramount importance of the constitutional guarantee of freedom of religion and the dire consequences for the country if this provision is breached. Of course, what applies to The Herald also applies to other publications needing a permit from the Home Minister.

But his premise that “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)” is contradicted by Justice Abdul Aziz who says: “The Al-Kitab and The Herald are two publications of entirely different character. The Al-Kitab is used in churches and among Christians only and the words “Bukan untuk orang Islam” are printed clearly and conspicuously on the front page. Whereas The Herald is a newsletter or in the nature of a newspaper (albeit with restricted circulation). Its online accessibility means that it can be read by anybody – be it Muslim or non Muslin.” (Aziz[30]).

This is certainly the position of the government. If this position holds, then the threat to Malay-speaking Christians comes not from banning the word in The Herald but from the finding that ‘Allah’ is not an integral part of Christianity.

The black outcomes

These are those parts of the appeals court judgment with the potential to severely damage inter-racial and inter-religious harmony, surely something which neither Muslims nor non Muslims want.

They are the seeds of mass destruction. They are:

1. The finding that the word ‘Allah’ is not an integral part of Christianity

Justice Dato Mohd Zawawi cites extensive case law to show that only the integral parts of a religion are protected by constitutional guarantees of freedom of religion. If the word Allah is not an integral part of Christianity, then the use of the Al-Kitab by Malay-speaking Christians is not protected.

But the finding is based on very shaky arguments which can be refuted as follows:

Much is made of the argument that the word Allah is not found in the English Bible and therefore it is not integral. But the learned judges have omitted to make an important distinction. As someone who has lived for many years in the UK, it is blindingly obvious that the word Allah is not integral to Christianity for English-speaking congregations. A moment’s reflection will tell anyone that no English Court nor any English Christian will agree that the word Allah is integral to Christianity in England.

But we are not talking about English-speaking but Malay-speaking congregations who use the Al-Kitab where the word ‘Allah’ is found. The fact that the word Allah is not integral to English-speaking Christians is irrelevant. It is as if the Judges have ruled that coconuts are green, but the real question is: are rambutans red?

Justice Dato Mohd Zawawi goes into great detail how the word God is translated from the Hebrew to the Greek to the English and to Bibles in other languages and concludes that “the Christians themselves have not reached a consensus as to how to use the word Allah” (Zawawi [25]).

But all this is irrelevant. For the Malay-speaking Christian, ‘Allah’ is his Christian god, not a translation of the English God found in the English Bible. He does not know the English God nor is he aware of the controversy over its translation. For better or worse, for right or wrong, the church authorities have translated God as ‘Allah’ in the Al-Kitab and that is his Holy Book. The word Allah is integral to the belief and faith of the Malay-speaking Christian.

The importance of local circumstances is shown by a case cited by Justice Zawawi (Zawawi [9]). In the State of West Bengal v Ashutosh Lahiri, the court ruled that the sacrifice of a cow by Muslims on Id Kurban (Idul Adha) was not an “essential” part of Islam since a camel or a goat could be substituted for the cow. (Friends might like to bring this case to the attention of YB Kamalanathan). No one can imagine that a similar decision would be reached by a Malaysian court.

If the Federal Court cannot bring itself to affirm that the word Allah is integral to the faith of the Malay-speaking Christian, then quashing the finding that ‘Allah’ is not integral is sufficient, allowing the issue to fade from memory or, if necessary, to be fought over on another occasion. There are already sufficient grounds for banning The Herald from using the word ‘Allah’ without bringing in the question of what is or is not integral to Christianity.

Justice Dato Seri Haji Mohamed Apandi says the appeals court is not “the proper forum” for “a study of comparative religions” (Apandi[52]), but all three Justices venture into this area and make pronouncements about the Christian faith which are wrong. Although not a Christian myself, all my Christian friends assure me that Christians worship one God, not three but both Justices Abdul Aziz (Aziz[36]) and Zawawi (Zawawi [28]) insist Christians worship three gods because of the Trinity of the Father, the Son and the Holy Ghost.

It is true that religions contain elements of faith which cannot be explained in terms of logic. In this case however the concept of the one Christian God manifesting itself in three different forms can be better understood if one thinks of water, one substance H2O, which can exist in three forms – ice, liquid and steam. Undoubtedly the Muslim Allah and the Christian God are different but no one should exaggerate the differences through misrepresentation.

2. Concern for public order must not become a tool for the suppression of legitimate rights

In this case I can accept that the Home Minister has a reasonable basis for his concern over public order, especially as his order is confined to The Herald and there are no moves to ban the Al-Kitab.

But I am disturbed by Justice Abdul Aziz mentioning the burning of churches and mosques as evidence that the Home Minister was right to be concerned (Aziz [40]). Surely the threat of violent and unlawful actions by extremist groups cannot be the basis for the Home Minister acting to prevent groups from exercising their constitutional rights under the guise of preserving public order. If so, the violent will be rewarded and the lawabiding punished (for further arguments, see Azmi Sharom, ‘A vague but useful term,’ The Star, 31 October 2013).

The public would be reassured if the Federal Court, when it hears the appeal, takes note of the above point and supports the findings of the Nordin Salleh case cited by Tommy Thomas. The findings are that “in testing the validity of any state action impinging any of the fundamental liberties enshrined in Part II of the 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”.

3. We must be governed by the rule of law, not by pronouncements at the whim and fancy of government

The third seed of mass destruction comes not from the decisions of the appeals court but from the government’s approach to the Court’s decisions.

It is encouraging that Prime Minister Najib in his speech to the PBS delegates’ conference in Sabah said Christians in East Malaysia can continue to use the word Allah. But this seems to imply that Malay-speaking Christians cannot use the Al-Kitab in West Malaysia. In fact one Cabinet Minister was reported as saying that when East Malaysians come to West Malaysia, they have to stop using the word Allah.

These pronouncements do not appear to be grounded in law as the appeals court judgment does not distinguish between West and East Malaysia. As the law stands, surely if the Al-Kitab is legal in East Malaysia, it must be so in West and equally if The Herald is banned from using the word Allah in West, it is also in East. If the government is not happy with any aspect of a court’s judgment, then it should overturn that judgment through legislation, not through arbitrary pronouncements at its whim and fancy.

Why the Bar Council should hold a watching brief at the Federal Court

With the emergence of constitutional issues in the ‘Allah’ case, it is no longer a matter between the Roman Catholic Church and Muslims but involves all of us. If the Church asks the wrong questions and gets the wrong answers, if it puts forward bad arguments and gets bad decisions, we all face the consequences, not the Church alone. The best brains in the land should be involved in finding a solution, not just the Church and a single firm of lawyers.

For this reason, I urge the Bar Council to intervene in the appeal to the Federal Court, not on behalf of the Church, but to watch over the constitutional rights of all of us.

The first duty of the Bar Council must be to speak out against bad law without fear or favour.

The second should be that where the arguments of neither side are markedly superior, it should favour the arguments which pave the way to a solution acceptable to both sides.

Surely the Association of Muslim Lawyers cannot object to such a role and should instead work with the Bar Council to ensure the Muslim perspective is taken fully into account.

Indeed to achieve Najib’s wish of Christians in East Malaysia continuing to use the word ‘Allah’, the government too must help in finding a compromise solution at the Federal Court.

The appeals court judgment contains both seeds of harmony and seeds of mass destruction. We need the help of all, especially the Bar Council and the government, to maintain the seeds of harmony and weed out the seeds of mass destruction.

Dr Ronnie Ooi is a retired medical doctor who was active in the Gerakan party 25 years ago, until he left for the United Kingdom and lived there for 20 years. He returned to Malaysia five years ago and is now an Aliran member.

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Zunar strikes home with the cartoon. It says it all.