“Allah” judgment a fatal blow to fundamental liberties
By Kim Quek
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?