Monday, January 27, 2014

Allah issue – One Malaysia, two laws?

OUTSPOKEN: A few days ago my good friend Andrew Khoo was reported to have said that the 10-point solution which was signed by Prime Minister Datuk Seri Najib Razak prior to the Sarawak state elections in 2011 was valid.

The Bar Council chairman for Human Rights Committee also pointed out what the Attorney-General Tan Sri Gani Patail said on the Court of Appeal decision on the Herald case: the government legal advisor said the court ruling to bar the use of Allah was confined to the Catholic newspaper only.

I do not wish to comment on what Khoo said because I believe he was not really looking at it from the legal standpoint. To my mind what my colleague, the Sarawak state lawmaker from Ba’Kelalan, Baru Bian, was more forthright and relevant. The state PKR chief said that whatever the government had to say about the court decision, eventually the ban would be enforced on all non-Muslims.

True enough Baru was eventually proved correct. And actually that is how I felt the moment the appellate court handed down its decision last year, reversing the ruling made by the High Court Judge Datuk Lau Bee Lan in late 2009. She ruled that the government was wrong in its attempt to restrict the Catholic newspaper from using the word Allah.

Some of the eventual developments which went to the direction of Baru’s prognosis include the raid made by JAIS, the Selangor religious department, on the Bible Society of Malaysia premises in Petaling Jaya.

Not too long before that the Sultan of Selangor, as the state’s head of religion, made it clear that he did not wish to see non-Muslims use the name Allah. In the meantime it was reported that a Christian lady from Sarawak has taken the federal government to court for confiscating Malay bibles she brought in from Indonesia.

The more recent one was the statement made by the Yang di-Pertuan Agong in his birthday speech at his home state Kedah. The head of religion for Kedah, federal territories of Kuala Lumpur, Labuan, and Putrajaya as well as the states of Melaka, Penang, Sabah and Sarawak even pointed out a 1986 resolution made by the National Fatwa Council preventing non-Muslims from using the word Allah.

All these took place after that 10-point solution came into being. For the record, Najib, during his visit to the Vatican to meet the Pope, gave an assurance similar to what Gani had said. Deputy Home Affairs Datuk Wan Junaidi Tuanku Jaafar, who happens to be a Sarawakian, also said the same thing to allay the fears.

I think to the man in the street the assurances have now turned out to be just like the 1Malaysia slogan which eventually became 1Melayu. In other words, the 10-point solution is just another gimmick which the Barisan Nasional administration did not really believe would solve the problem.

That notwithstanding, actually this is the bottom line if one is to look at the decision of the Court of Appeal. In fact, that is also the principle when one looks at the decision handed down by the lady judge earlier at the High Court.

Baru was spot on as the court decision is actually part of our law and a law, as a matter of principle, has a wide-ranging effect. Of course it is correct to say that the immediate effect of the decision is on the parties involved, which in the Herald case means that the court ruling binds both the government and the Catholic newspaper.

But let us not forget the general implication of the Herald case. It is to be pointed out that a court decision is put at the third place in the hierarchy of sources of law in Malaysia; the first being the Federal Constitution and second, the written laws which include acts of parliament and state enactments.

In the Herald case, both the Court of Appeal and the High Court were making rulings on the relevant provisions of the Federal Constitution. We are still waiting for the ultimate decision to be handed down by the Federal Court, the highest court in the land.

With that in mind, the assurances made by Najib and Gani, both members of the executive, have no meaning: they cannot exempt anybody from the impact arising from the Court of Appeal decision which now is the latest law on the issue. Even though Gani is the Attorney-General, what he was essentially doing was no more than a damage control exercise. And in the light of legal sources hierarchy within the system as explained above, even Datuk Seri Idris Jala, widely seen as the architect of the 10-point solution, would not be spared should he later step on this highly inflammable Allah issue.

Dr Abdul Aziz Bari is formerly IIUM law professor who now teaches at Social Science Faculty, Unisel. He also sits as fellow at IDEAS, an independent think tank, and Penang Institute, a think tank under the Penang state government.
~ The Ant Daily

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