Oct 15, 2013
The Court of Appeal was wrong in its decision banning Christian weekly Herald from using the word ‘Allah’ to refer to God in Bahasa Malaysia, said a constitutional law expert.
“By linking religious rights under the chapter on fundamental liberties with Article 3(1) of the Federal Constitution which effectively makes Islam the benchmark for everybody, this runs counter to the general meaning of Article 3(1) of the Federal Constitution itself,” Dr Abdul Aziz Bari told Malaysiakini today.
“The plain meaning of Article 3(1) is simply this: that despite the fact that Islam has been made official religion, non-Muslims may go on practising their religions freely without restriction,” said the former Universiti Islam Antarabangsa (UIA) law lecturer.
He said that the implication of the decision is that it might make non-Muslims feel “unsafe” and this is contrary to the essence of the Article 3 in the constitution.
Abdul Aziz also noted that the court decision yesterday sounded like a “policy decision” – a decision that is not strictly based on law.
“Like in most countries, the judges – in critical cases – do not feel they have the strength to depart from the line taken by the executive. Not too different from what we have seen in cases involving preventive detention, election petition and Altantuya (Shaariibuu)’s murder,” he said.
“Like many, many other decisions which the minister claimed ‘security and public order’, the judges just went along with them. In short, the judges were not willing to be proactive here.
“They obviously still live under the wartime decisions where the government has the absolute power to decide anything under the guise of security and public order,” he said.
Abdul Aziz said that with the court decision, the government has interfered with the way Christians practice their religion when there is no evidence that using the world ‘Allah’ can jeopardise national security and public order.
“I do not believe the use of ‘Allah’ among Christians would create problems for the Muslims. For one thing, the Christians have their own doctrine and they are not out to tell the Muslims about it.
“As for the Muslims, they have their own doctrine that has been developed by their ulama for ages. This is the guarantee that the use of ‘Allah’ by Herald – which is not circulated among Muslims anyway – will not affect Muslims,” he said.
Abdul Aziz also described the judges’ statement that fundamental liberties provision must be read along with Article 3 of the Federal Constitution as “startling”.
“The only provisions that is allowed by the Constitution to override provisions for fundamental liberties – or human rights – are Article 149 on power to deal with subversion and Article 150 which deals with emergency,” he said.
“The fundamental principle is that the court is there to protect and enhance the provisions for fundamental liberties, not to narrow them down. It is wrong for the Court of Appeal to do that.”
According to Abdul Aziz, the alleged link asserted by the judges between Article 3(1), which declares Islam as “the religion of the federation”, and Article 11(4), which allows the legislatures to protect Muslims from being proselytised (converted) is disturbing.
“The most one could say about Article 3(1) is that the provision declares the federation’s character and perhaps, ideology.
“But Article 3(1) is not one to be used to judge or becoming benchmark for the non-Muslims. I think this is the reason why the phrase ‘other religions may be practiced in peace and harmony’ is being added towards the end of the provision.
“I find it strange as to why the Court of Appeal did not concentrate on the right to religious freedom and instead chose to highlight the link between Article 3(1) and Article 11(4), which has less relevant here.
“In fact, Article 11(4) could stand on its own without the support from Article 3(1).”