“Allah” judgment a fatal blow to
fundamental liberties
By Kim Quek
27.06.2014
The federal
court’s decision on June 23 to deny leave to appeal against an earlier court of
appeal judgment banning the use of “Allah” by non-Muslims has devastating and
far reaching consequences against religious freedom and fundamental liberties
in this country.
This is
because by shutting the door to appeal, the erroneous and heretical
interpretation of the Federal Constitution by the court of appeal that has
precipitated such heinous distortion of the constitution has become the
unchallenged authority on these issues for future enforcement by the Executive
and the judiciary.
Thus, it has the
effect of having amended the Federal Constitution – however improper these
might be – for purpose of law enforcement and judicial interpretation.
Beyond the
imagination of most people, this is not only the death of religious freedom,
but also the loss of other fundamental personal rights guaranteed under Part Two
of the Federal Constitution, as will be explained later.
ERRONEOUS
INTERPRETATION NEGATED RELIGIOUS FREEDOM
First, let
us look at how the court of appeal has denied religious freedom through its
misinterpretation of the federal constitution.
In a
unanimous decision among a panel of 3 judges, presiding judge Apandi Ali hinged
his verdict on Article 3(1) of the federal constitution, which reads:
“Islam is the religion
of the Federation, but other religions may be practised in peace and harmony in
any part of the Federation.”
Interpreting
this Article, Apandi wrote in Para 33 of his judgment:
“It is my judgment that
the purpose and intention of the insertion of the words ‘in peace and harmony’
in Article 3(1) is to protect the sanctity of Islam as the religion of the
country and also to insulate against any threat faced or any possible and
probable threat to the religion of Islam. ………….”
Apandi
based
his interpretation on the pre-Independence negotiations and consensus
reached among various racial and religious groups that were recorded in a
White Paper known as the
Federation of Malaya Constitutional Proposals 1957.
But nowhere in this White Paper was there any
mention that Article 3 was meant to “protect the sanctity of Islam”. On the
other hand, there was categorical assurance of religious freedom as elaborated
in Para 57 of the White paper, which reads:
“57. There has been
included in the proposed Federal Constitution a declaration that Islam is the
religion of the Federation. This will in
no way affect the present position of the Federation as a secular State, and
every person will have the right to profess and practice his own religion,
though this last right is subject to any restriction imposed by State law
relating to the propagation of any religious doctrine or belief among persons
professing the Muslim religion.”
The
consensus so reached in Para 57 of the White paper later found its expressions
in the Federal Constitution under Article 3(1) and Article 11(1), (3) &
(4).
Article 3(1)
is as stated above.
Article
11(1) states that every person has the right to profess and practice his
religion.
Article
11(3) grants every religious group the right to manage its own religious
affairs.
Article 11(4)
grants every State the right to enact laws to control and restrict the
propagation of any religious faith among Muslims.
Based on
these Articles, as well as on the White Paper, it is clear that Apandi’s
interpretation of Article 3 as a constitutional dictate to “protect the
sanctity of Islam” is a far-fetched imagination of his own and is completely unfounded
in fact and in law.
If it is
otherwise, wouldn’t it be a big loophole in our Constitution that could create
pandemonium in our multi-religious society, as neither the definition of “sanctity
of lslam” nor the measures that are allowed to be taken to “protect the
sanctity of Islam” are defined and prescribed in the Constitution? And wouldn’t
such an imprudent provision in the Constitution (if true) lead to rampant abuse
by obsessed zealots and to endless disputes among the different religions?
Besides,
isn’t a deliberate act to violate the sanctity of any religion an offence? Why
should it be confined to Islam?
And, most
importantly, how could one logically and rationally relate the use of “Allah”
to the issue of “sanctity of Islam”? If
the whole world, including the 1,300 million Muslims, sees nothing wrong with
non-Muslims using Allah to call God, why should a small group of Muslims in
Malaysia find such usage of Allah unacceptable?
The possibilities
of abuse arising from such misinterpretation are endless. Today, it is Allah and scores of other Arabic
words that found themselves in the prohibition list. Tomorrow, it could be certain religious
ceremonies wherein certain gestures or chants that bear resemblance to those of
Islam are found objectionable and hence must be banned. Day after tomorrow, it
could be architecture or emblems or signs with similarities to those used in
Islam that may be taken to “confuse” Muslims, the way Judge Apandi had claimed
that others using “Allah” had “confused” Muslims and thus threatened public
security.
It is not
difficult to see that such a court judgment has opened the floodgate for abuse
by not only religious extremists but, more worrying, by political
opportunists.
In fact, it
is now a political truism in this country that the ruling power has been
ruthlessly exploiting religious and racial fault lines to ferment animosities
both for self-entrenchment and for sabotaging its political adversaries.
And this
latest federal court decision which has sealed the infamous court of appeal
judgment as the final authority on these issues is undoubtedly a godsend gift
that has boosted the ruling power’s arsenal of political weaponry.
OTHER
FUNDAMENTAL LIBERTIES IN JEOPARDY
In case
anyone should think that such judicial judgment has only affected religious
freedom, he is wrong, for the legal principles upon which the court has
justified the Home Minister’s banning of Allah from being used in the Catholic
publication The Herald, have also
undermined the fundamental liberties enshrined in Part Two of the Federal
Constitution, which includes among others, the individual’s rights of equality
and freedom of speech and assembly, in addition to, of course, religious
freedom.
First,
Apandi in his judgment said he was satisfied that, in ordering the ban on
ground of undermining public security, the Minister had “considered all facts and
circumstances in an objective manner”. But
flying in the face against such judgment is the fact that there had not been a
single incident which had jeopardized public security or appeared to have the
tendency to undermine public security arising from the use of Allah by the
Christian natives in Sabah and Sarawak and other Malay-speaking Christians in more
than a hundred years of harmonious living between Christians and Muslims – up to the time when the Minister
ordered the ban.
If the
appeal court can uphold the minister’s order that violates one’s right of
freedom of religious practice on ground of threats to Islam or public security
without an iota of evidence, what is there to stop the lower courts from using
such legal precedent to sanction the Executive’s arbitrary violations of
fundamental rights that may extend well beyond religious matters in the future? In fact, the lower courts are bound to accept
such appeal court judgment as guiding principles in their own rulings.
Second, in
an effort to bolster his dubious decision, Judge Apandi cited certain Latin
maxims to support his view that public safety is the supreme law, for which the
interests of minority must yield to that of the majority, without mentioning the
legal context which justifies such subordination of minority interests. Following this legal maxim, Apandi was
effectively saying that minority non-Muslims must be subservient to majority
Muslims for the sake of public safety. Applying to this case, it means that if
Muslims say Allah must not be used by non-Muslims, then the latter must obey
for the sake of peace and tranquility.
It also means, of course, that the minorities have to forget about their
fundamental rights guaranteed in the Constitution.
Hence, this
is a judgment that also sanctions tyranny of the majority, in addition to
legalising arbitrary transgression of fundamental personal rights guaranteed
under the Constitution.
If such a dangerous
judgment remains unchallenged, as it appears to be the case now unless a review
is granted by the federal court, what is there left in our egalitarian
Constitution founded on democracy and human rights except ruins at the hands of
bigots and traitors who have turned what was once a happy and liberal democracy
into a nightmare of corrupt authoritarian rule characterised by endless racial
and religious conflicts?
Shouldn’t those
with the power to avert such catastrophe pause now and
reflect deeply before deciding their next move?
Kim Quek
