Bar Council: Wrong to Deny Fundamental Rights on the Premise that Others May Be Confused

The Malaysian Bar is deeply concerned by the decision of the Court of Appeal delivered on 14 October 2013 in what is commonly referred to as the “Herald” or “Allah” case.

The concerns arise from the Court’s interpretation of Article 3(1) of the Federal Constitution on the status of Islam and other religions, and Articles 11(1) and 11(4) on the fundamental right to profess and practise a religion.

Any interpretation of the Constitution must invite the greatest scrutiny as it impacts on the fundamental freedoms guaranteed to all citizens.

We are particularly concerned with the following findings, that:

I. The insertion of the words “in peace and harmony” in Article 3(1) is to protect the sanctity of Islam and “also to insulate against any threat…to the religion of Islam”;

Article 3(1) of the Federal Constitution expressly provides that “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation”.

The Court of Appeal found that this Article was inserted as a byproduct of the social contract by our founding fathers, and that the purpose and intention of the words “in peace and harmony” was to protect the sanctity of Islam as the religion of the country and to insulate it against any threat. This is an unnatural reading of the provisions in Article 3(1). The words in their clear and ordinary meaning provides for the right of other religions to be practised unmolested and free of threats.

In referring to the social contract, effect should be given to the understanding as at 1957 and not to the numerous amendments that have since been made to the Federal Constitution in violation thereof. Paragraph 57 of the White Paper in 1957 which gave rise to Articles 3(1) and 11(4) of the Federal Constitution provides as follows:

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 and the right to propagate his religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion.

II. The use of the word “Allah” in the Malay version of the Herald would cause or create confusion amongst persons professing the religion of Islam;

It is unreasonable and contrary to the Constitutional scheme that a fundamental liberty is liable to be denied on the basis that some person or persons would be confused.

The decision does not in any way aid in addressing or resolving the alleged confusion amongst persons professing the religion of Islam, when in fact that word “Allah” is used by more than one community in this country and by people of different faiths in the Arab world and other Muslim countries. Rather, the effect of the decision would be to encourage a perpetual state of confusion or ignorance as justifiable grounds for denying the rights of others. The course that ought to have been taken should be to educate those persons who would be confused and not to restrict or injunct the exercise of rights by others.

III. The use of the word “Allah” in the Malay version of the Herald would have the potential to threaten or harm public order and safety; and

Having recited that religious sensitivities are a threat to public order and safety, the decision unfortunately serves to reinforce the notion that the use or threat of violence would win the day in court. It is unacceptable that citizens are denied their Constitutional rights of religious freedom and expression on the basis that others who disagree or who are confused would resort to aggression.

The law should not be interpreted and declared so as to condone, encourage and perpetuate such aggression and threats of violence. Rather, the law ought to be visited upon those who would resort to threats or violence.

IV. The finding that the word “Allah” is not an essential and integral part of the faith and practice of Christianity.

There appears to be no basis for the findings by the Court of Appeal that the word is not an integral part of the faith or practice of Christianity other than what has been described in the written judgments as “a quick research” and research conducted on the internet.

It is troubling that the Court would conduct research on its own via the internet and come to conclusions of alleged facts with respect to a person’s religion without its veracity being tested.

In any event, it is for a party asserting exclusive rights to the use of the word “Allah” to establish that they have such exclusive rights, rather than for others to have to establish that the use of the word is integral to their faith. By most accounts, there is no prohibition on the use of the Arabic word “Allah” by people of different faiths in the Arab world and other countries. It is difficult to discern how we are able to declare exclusivity of a word over which we do not have proprietary rights.

The Malaysian Bar calls upon all quarters to address the issue with maturity and calmness. It must be reminded that everyone must respect the right of the publishers of the Herald to seek to appeal the matter to the Federal Court, if they so wish. They should be permitted to pursue this without any threats or intimidation.

Christopher Leong
Malaysian Bar

Dated 16 October 2013

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