The three judgments are poorly reasoned, the law misread and the conclusions reached would baffle any right-thinking student anywhere in the common law, says Tommy Thomas.
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 their internal publication, the Herald, is absolutely unprecedented, even in a nation very used to bad court decisions.
From a constitutional perspective, the three judgments are poorly reasoned, the law misread and the conclusions reached would baffle any right-thinking student anywhere in the common law. The decision is not just wrong, it is horribly wrong, and will represent 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.
Relevant facts disregarded
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 by Affidavits and Exhibits, supplemented by submissions of lawyers. In the High Court ( 2 MLJ 78, 95.), the Government baldly denied about 20 facts which the Catholic Church referred to in their affidavits.
In such circumstances, the judge accepted, as she was duty bound in our adversarial system, the evidence produced by the Church. 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 congregation of the Catholic Church have been freely using the Alkitab, the Bahasa Indonesia translation of the Holy Bible wherein the word Allah appears;
- 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 in this dispute. No case can ever be decided in a vacuum, isolated from the facts. Unbelievably, none of the judgments gave any weight to the findings of fact made by the High Court — a gross error.
Nordin Salleh ignored
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 Nordin Salleh ( 1 MLJ 697 [SC]), 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. 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 their 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 practiced 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. Thus, 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) does not confer a supremacy status on Islam when compared to 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: see 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.
Freedom of religion as an absolute right
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.
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 Article 10 rights, whereas Parliament cannot enact any laws 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 group 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 Ccess 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 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 for public order reasons. But the onus is on the State to show that public order is affected. Article 11(5) cannot however 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.
Neither 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 which 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 Agung 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 which resulted in the release of the detainees were for 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 v. Jamaluddin ( 1 MLJ 418) where Jamaluddin was detained during Operation Lalang in October 1987 for propagating Christianity to Muslims. The High Court ordered his release, which judgment was upheld on appeal by the Supreme Court. 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 words or demand that they be re-written.
None of these arguments on the centrality of freedom of worship were alluded to in the three judgments.
Although the publication that was before the Court was the Catholic Herald, the ruling affects all books and publications. That is the ratio decidendi (The fundamental findings in a decision which must be followed by all courts in similar circumstances in subsequent cases) of the case. 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 which wish to read it in the Malay language. Such bibles cannot continue to use the word Allah to describe God in the Bible. When the case is put that way, the stark gravity of the Court’s decisions 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.
Establishment of Malaysia
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 as) was a guarantee that British imperialism will not be replaced by 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 remarked that within 50 years, East Malaysians would not be able to read their Malay Bibles containing the word Allah.
Judge’s own research
Instead of dealing with the facts that were before the court, one of the judges, Justice Zawawi, conducted extensive research on the internet. None of the parties (Lead counsel for the Church who argued the appeal before the Court of Appeal informed me of this fact) had provided these materials to the Court of Appeal. 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.
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. As far as the Herald is concerned, if the Catholic Church uses the word Allah it runs the peril of losing its licence. But what about Bibles in Malay containing the word Allah.
The State can enforce the decision of the Court of Appeal by one of two ways:
- confiscate the Bibles by removing them from churches and homes, and thereafter burning or destroying them; or
- visit the churches and homes for the purposes of deleting the word Allah in all the places it appears in the Bibles or tearing the relevant pages from the Bibles and thereafter returning them to their owners.
Again 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 be merely a pyhrric victory achieved at the high cost of damaging ethnic relations in a plural society. Is this responsible political governance?
Composition of the court
In the Braddell Memorial Lecture (Published in “The Constitution of Malaysia” , ed. by F A Trindale and H P Lee [1986 Edition] Page 200, 216) delivered at the National University of Singapore in 1982, Tun Suffian, a former Lord President and one of our greatest judges, 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 name 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.
Tun Suffian, who after Tun Salleh Abas was sacked as Lord President in 1988 became a vocal critic of our judiciary, 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.