Sunday, June 29, 2014

'Allah' judgment a fatal blow to basic liberties

11:20AM Jun 27, 2014By Kim Quek
COMMENT The Federal Court’s decision on June 23 to deny leave to appeal the 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, which 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.

Religious freedom negated

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 three judges, presiding judge Apandi Ali hinged his verdict on Article 3(1) of the  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, Justice Apandi wrote in paragraph 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...

Justice Apandi (left) 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 is 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 paragraph 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 paragraph 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 of the federation 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 Justice 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 federal 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.

And, the 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 Justice 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 floodgates to abuse, not only by religious extremists but, more worrying, by political opportunists.

In fact, it is now 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/she is wrong.

This is because 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, among others, includes the individual’s rights to equality and freedom of speech and assembly, in addition to, of course, religious freedom.

First, Justice Apandi said in his judgment he was satisfied that, in ordering the ban on ground of undermining public security, the home minister had “considered all facts and circumstances in an objective manner”.

But flying in the face against such judgment is the fact that there has not been a single incident that had jeopardised 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 Court of Appeal can uphold the minister’s order that violates one’s right to freedom of religious practice on grounds of threats to Islam or public security without an iota of evidence, what is there to stop the lower courts from using such a 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 Court of Appeal judgments 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 stating the legal context that justifies such subordination of minority interests.

Following this legal maxim, Justice Apandi was effectively saying that minority non-Muslims must be subservient to majority Muslims for the sake of public safety.

Applying to the case of the Herald, 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 federal 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 now pause and reflect deeply before deciding their next move?



KIM QUEK is a retired accountant and author of the banned book, ‘The March to Putrajaya’.

~ Malaysiakini

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