Are non-Muslims in Penang, Sabah bound by ‘Allah’ state fatwa?

(MM) – The recent fatwa by the muftis of Penang and Sabah barring non-Muslims from using “Allah” and a list of other Arabic words have raised questions over the scope of Islamic law in multireligious Malaysia.

Several legal experts however, were confident that such state religious edicts cannot be enforced against non-Muslims as long as they conflict with the country’s supreme law, the federal Constitution.

Lawyer Rosli Dahlan (pic), who frequently advises on the conflict between syariah and civil laws, pointed out that even syariah laws passed by the state are only applicable to Muslims, as prescribed by Article 74 and the Ninth Schedule, List II, of the Federal Constitution.

“Thus, to extend such laws to non-Muslims would be illegal because the application of personal laws meant for Muslims cannot invade the rights of the wider masses or non-Muslims,” Rosli told The Malay Mail Online.

“Thus, just like what happened in the Borders case, a fatwa which purports to extend to non-Muslims would be illegal and unconstitutional,” he added.

Rosli had previously represented a local Borders employee, Nik Raina Nik Abdul Aziz, at both the civil and syariah courts after she was hauled up in a raid by Federal Territories Islamic enforcers on the bookstore in 2012.

Malaysia runs a unique dual-track legal system, which sometimes sees conflict between the civil courts and the syariah courts, the latter which usually adjudicates on Muslim marriages, divorce and inheritance cases.

The New Straits Times reported last Saturday the Penang mufti prohibiting non-Muslims from using 40 Arabic words, including “Allah”, “iman” (faith) and “nabi” (prophet), under the Penang Islamic Religious Administration Enactment 2004.

The fatwa was reportedly rolled out in 2010.

Rosli noted that such a ban could be declared unconstitutional, pointing to Article 75 of the Federal Constitution, which states that the state law shall be nullified if it conflicts with federal law.

“High Court Judge Datuk Zaleha Yusof declared that Jawi’s raid on Borders, which is a non-Muslim premise; the seizure of books; the questioning of non-Muslim staff; and the prosecution of Nik Raina to be illegal and unconstitutional.

“This is a recent case precedent and should be used as a guidance for the Allah and other Islamic terminology case,” said Rosli, referring to the Kuala Lumpur High Court judgment on the Borders case.

The civil rights lawyer also stressed that the Federal Court ruled in the 2007 Latifah Mat Zin case that the Syariah High Court is a “mere inferior tribunal like the Magistrates and Sessions courts”.

“I am not talking religion here; I am talking about law and its processes,” said Rosli.

Besides Penang, the mufti in Sabah also issued a fatwa in 2003 under the Administration of Islamic Law Enactment 1992, gazetted in 2003, that banned non-Muslims in the state from using “Allah” and 31 other Arabic words, including “injil” (gospel) and “rasul” (messenger).

Another civil liberties lawyer Syahredzan Johan told The Malay Mail Online said that both the Sabah and Penang fatwa, as well as syariah law, are not binding on non-Muslims.

“Any attempts or loophole to bind non-Muslims to fatwa is ultra vires the enactment and would be unconstitutional,” Syahredzan said, using the legal term meaning “beyond the powers of”.

“This may be a backdoor attempt to somehow prohibit those words without having to go through the state DUN,” he added, using the Malay acronym for the state legislative assembly.

He said that as Malaysia is a parliamentary democracy and not a theocracy, all matters must pass the lawmaking process in order to become law.

“It cannot be decreed by unelected persons, such as a mufti, and become law,” Syahredzan said.

Ten states in Malaysia have passed laws banning non-Muslims from using certain Arabic words, including “Allah”, in their religious practices.

The exceptions are Penang, Sabah, Sarawak and the Federal Territories.

On January 2, the Selangor Islamic Religious Department (Jais) used the 1988 state law on the ban to seize over 300 copies of Malay and Iban-language bibles from the Bible Society of Malaysia (BSM) in Petaling Jaya, a move that lawyers have denounced as unconstitutional.

Syarie lawyer Nizam Bashir pointed out that from a theological perspective, a fatwa is never meant to be legally binding even on Muslims.

“I suppose Malaysia has gone above and beyond the scholars from Al-Azhar,” he said, referring to the renowned Islamic university in Egypt.

But Nizam also said that a fatwa banning non-Muslims from using certain Arabic words, after it has been gazetted, may apply to non-Muslims if it clearly limits the ban to the context of non-Muslims proselytising to Muslims, as per Article 11(4) of the Federal Constitution, which clearly prohibits non-Muslims from propagating their faith to Muslims.

“The fatwa has to ensure it talks about propagation,” he told The Malay Mail Online.

Religious rows between Malaysia’s dominant Malay Muslim population and its roughly 2.6 million Christian minority have been erupting with greater frequency in the past five years after the local Catholic Church sought a court ruling to uphold its religious freedom to use “Allah” in a non-Muslim context.