The Allah decision is wrong in constitutional law

 

(Aliran) – The three judgments are poorly reasoned, the law misread and the conclusions reached would baffle any right-thinking student anywhere in the common law, says Tommy Thomas.

The sustained public attack on last week’s decision of the Court of Appeal in prohibiting the Catholic Church from using the word “Allah” in their internal publication, the Herald, is absolutely unprecedented, even in a nation very used to bad court decisions.

From a constitutional perspective, the three judgments are poorly reasoned, the law misread and the conclusions reached would baffle any right-thinking student anywhere in the common law. The decision is not just wrong, it is horribly wrong, and will represent a terrible blot on our legal landscape, unless overturned quickly by the apex court, the Federal Court. Regrettably, what follows may seem unduly legalistic, but it cannot be avoided in a critique of a court decision.

Relevant facts disregarded

By their very nature, judicial review proceedings are determined in the first instance by a single judge of the High Court who does not hear witnesses. Instead, the application is disposed of by Affidavits and Exhibits, supplemented by submissions of lawyers. In the High Court  ([2010] 2 MLJ 78, 95.), the Government baldly denied about 20 facts which the Catholic Church referred to in their affidavits.

In such circumstances, the judge accepted, as she was duty bound in our adversarial system, the evidence produced by the Church. In effect, the High Court made findings of fact, as it was entitled to do. Some of these facts are worth recalling:

• The word Allah is the correct Bahasa Malaysia word for ‘God’ and in the Bahasa Malaysia translation of the Bible, ‘God’ is translated as ‘Allah’ and ‘Lord’ is translated as ‘Tuhan’;
• For 15 centuries, Christians and Muslims in Arabic-speaking countries have been using the word ‘Allah’ in reference to the One God. The Catholic Church in Malaysia and Indonesia and the great majority of other Christian denominations hold that ‘Allah’ is the legitimate word for ‘God’ in Bahasa Malaysia;
• The Malay-Latin dictionary published in 1631 had translated ‘Deus’ (the Latin word for God) as ‘Alla’ as the Malay translation;
• The Christian usage of the word Allah predates Islam being the name of God in the old Arabic Bible as well as in the modern Arabic Bible used by Christians in Egypt, Lebanon, Iraq, Indonesia, Malaysia, Brunei and other places in Asia, Africa etc;
• In Bahasa Malaysia and Bahasa Indonesia, the word Allah has been used continuously in the printed edition of the Matthew’s Gospel in Malay since 1629, in the first complete Malay Bible from 1733 and in the second complete Malay Bible since 1879;
• Munshi Abdullah, considered the father of modern Malay literature, had translated the Gospels into Malay in 1852, and he translated the word God as ‘Allah’;
• The Bahasa Malaysia-speaking Christian natives of Malaya, Sarawak and Sabah had always and have continuously and consistently used the word Allah for generations and the said word Allah is used in the Bahasa Indonesian translations of the Bible used throughout Malaysia;
• At least for the last three decades, the Bahasa Malaysia congregation of the Catholic Church have been freely using the Alkitab, the Bahasa Indonesia translation of the Holy Bible wherein the word Allah appears;
• In any event, the word Allah has been used by Christians in all countries where the Arabic language is used as well as in Indonesian/Malay language without any problems and/or breach of public order and/or sensitivity to persons professing the religion of Islam in these countries.

The above matters provide the factual background in this dispute. No case can ever be decided in a vacuum, isolated from the facts. Unbelievably, none of the judgments gave any weight to the findings of fact made by the High Court — a gross error.

Nordin Salleh ignored

It is incredible that none of the judgments even mentioned, let alone considered, the impact of the most important constitutional case ever decided by our courts, which had a direct bearing on the dispute. The Supreme Court decided in Nordin Salleh ([1992] 1 MLJ 697 [SC]), that in testing the validity of any state action impinging any of the fundamental liberties enshrined in Part II of the Constitution, the court’s duty is to look at the effect, result or consequence of state action.

If such effect is to render the exercise of such fundamental liberty “illusory or meaningless”, it is unconstitutional. If the ratio of Nordin Salleh, which incidentally is binding on the Court of Appeal, had been applied in the Herald case, the decision would have been different because the effect of the State prohibiting Christians from using the word Allah in their worship is to render their right to practise their religion under Article 11(1) and (3) illusory or meaningless. It is as plain and simple as that. The appeal ought to have been dismissed for that obvious reason alone.

Read more at: http://aliran.com/15380.html