Court wrong in Allah decision, says law expert

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.

No evidence

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.”

Link disturbing

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).”

  1. #1 by raven77 on Tuesday, 15 October 2013 - 11:34 pm

    Nothing surprises Malaysians anymore knowing well the poor quality of judges we have compounded further by their complete lack of courage….its better the judiciary just tutup kedai rather then make fools of themselves not only in Malaysia but now the world….supreme malu case for Malaysia….

  2. #2 by yhsiew on Tuesday, 15 October 2013 - 11:44 pm

    Inevitably, the question of judicial independence crops up in one’s mind.

  3. #3 by Cinapek on Wednesday, 16 October 2013 - 12:36 am

    “Abdul Aziz also described the judges’ statement that fundamental liberties provision must be read along with Article 3 of the Federal Constitution as “startling”.

    Dr Abdul Aziz Bari was being polite and diplomatic in his choice of words to describe the judges and judgement.

    The long and short of it is simply this. That the end justifies the means.

  4. #4 by worldpress on Wednesday, 16 October 2013 - 12:37 am

    If they are wrong they send those believer to H…..

    • #5 by cemerlang on Wednesday, 16 October 2013 - 4:21 pm

      Chosen people. The Malaysian version.

  5. #6 by undertaker888 on Wednesday, 16 October 2013 - 7:35 am

    Those goons don’t care about justice or being wrong. They only know how to be subservient and waiting for rewards in terms of projects and titles. To them this is justice based on laws of the monkeys.

    In this sense umno has decided for the world that the borrowed word “Allah” is now exclusively for them only. Yep ketuanan under UN charter Article 153.

  6. #7 by yhsiew on Wednesday, 16 October 2013 - 8:19 am

    Here is what Datuk Param Cumaraswamy, former UN special rapporteur on the independence of judges and lawyers, has to say in today’s theSun, page 2.

    He questioned the ability of the Federal Court and Court of Appeal judges to decide on issues involving Islam independent of their personal beliefs and convictions.

    Most judges in the appellate courts professed the Islamic faith and that public perception of their independence is as important as the fact, he said.

    “Can our Muslim judges be perceived to decide on such an issue independent of their personal beliefs and convictions?” he asked in a statement.

    He said the lopsided ethnic composition in the courts meant that recusal in a case was not a solution. “In the final analysis we seem to be left with no alternative save to reply on the good conscience of our judges.”

    He said it is “a real dilemma for our justice system”, given the multi-racial, multi-religious, multi-lingual and multi-cultural context of the country.

    “Constitutionally, judges are expected to decide cases before them…independently and impartially without fear or favour,” he said, adding that this includes independence from their “personal beliefs, convictions and prejudices”.

  7. #8 by lee tai king (previously dagen) on Wednesday, 16 October 2013 - 8:22 am


  8. #9 by Jeffrey on Wednesday, 16 October 2013 - 8:31 am

    Article 3 says although Islam is official religion, others have freedom to practise their faiths; article 11 prohibits proselytization of Muslims. By itself there’s nothing wrong with reading article 3 subject to 11. However there is no empirical proof that use in Bahasa Malaysia of that term by Herald or Al-Kitab has facilitated proselytization of Muslims. Attacks on churches and mosques do not prove that the use of that term proselytizes Muslims: it merely proves that extremists perpetrated criminal acts justified by it. As to the other argument that in the Bible, God has always been known as ‘Yahweh’, the Editorial; of a UAE newspaper (The National) has given a cogent rebuttal. The present administration is now somewhat in a bind of a controversy it has created. Decision will alienate Christian support in Fixed Deposit East Malaysian State and mock the PM’s inclusive and moderate face and send message that the more strident radical voices hold sway. To back track by saying that the decision bound only Herald and not other applications in Al Kitab flies in the face of logic – what’s the basis to differentiate? There is another part of Constitution that guarantees equal protection of law and no one should be differentiated without a valid basis. Herald should appeal.

  9. #10 by Jeffrey on Wednesday, 16 October 2013 - 8:39 am

    In the end it is political calculation. It is dangerous for ruling party for fixed deposits in East Malaysia to face prospects of them being unlocked by this decision/issue when arguments even by East Malaysian BN’s politicians linking it with violating te spirit/letter of 18-20 point agreements of their entry into Malaysia gains momentum (not to mention the PM’s standing). The political costs on East Malaysian side will outweign the perceived gains on Semenanjong’s side.

  10. #11 by Winston on Wednesday, 16 October 2013 - 8:43 am

    UMNO/BN is the law.
    The law is UMNO/BN!
    The earlier Malaysians wise up to this truism the better!!

  11. #12 by yysktan on Wednesday, 16 October 2013 - 12:32 pm

    What else but UMNO needs to be kicked out of government to fix the nation’s ills.

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