Wrong to deny fundamental rights just because some will be confused

ARCHIVES 2013

By admin-s On Oct 17, 2013

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.

Christopher Leong, President, Bar Council Malaysia

THE Malaysian Bar is deeply concerned by the decision of the Court of Appeal delivered on Oct 14, 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 Article 11(1) and (4) on the fundamental right to profess and practice 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 practiced 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 peoples of different faiths in the Arab world and other Muslim countries.