'Allah' case - The judge's reasons....

Some in Malaysia have really got a very wrong understanding of the facts, i.e. they believe that 'Allah' has just been used in the Peninsular Malaysia recently. This is not at all true, the word 'Allah' have been used for a very long time now among Peninsular Malaysians. In my church in Pahang, for as long as I can remember, it has been used in our prayers, songs, Bible and publications in the Malay language. Unlike, the major towns in the West Coast, English is not the 'common communication language' amongst Christians - it has been Bahasa Melayu, and as such the word 'Allah' has been used. It is absurd to believe that Malay, and the word 'Allah' are only used by Christians in Sabah and Sarawak. Maybe our good Ministers should be visiting our churches in the 'rural areas' too... 

The judge at the High Court has released her 59-page written judgment, and the following Malaysiakini report gives us some of the things that are contained in this judgment...

There is a well established practice for the use of 'Allah' among the Malay-speaking community of the Catholic faith in Peninsular Malaysia, Sabah and Sarawak.

In a 59-page written judgment in the Herald case, Kuala Lumpur High Court judge Lau Bee Lan said this is proved in “unchallenged evidence (which) is in the origin of the word and its translation”.

Looking at the factual matrix, she said the court has to bear in mind the constitutional and fundamental rights of persons professing the Christian faith to practise their religion and to impart their religion to persons professing the religion.

“The Catholic church comprises large section of people from Sabah and Sarawak, whose medium of instruction is Bahasa Malaysia, and they have for years used religious material, in which God is referred as 'Allah'.

“There is also a large number of Bahasa Malaysia speaking (Catholics) in Penang and also in Malacca.”

She noted objections were raised based on Article 11(4) and the various state enactments, which restrict propagation of other faiths to those professing Islam.

“Seen in this context, by no stretch of imagination can one say that the state enactments may well be proportionate to the object they seek to achieve (in protecting Islam), and the measure is therefore arbitrary and unconstitutional,” Justice Lau said.

“This also shows the first respondent (the home minister) has taken an irrelevant consideration (in exercising his powers).”

'Ban is unconstitutional'

Lau also found that the Home Ministry's move to impose conditions on Herald was unconstitutional under Article 3(1) and Article 11(1) and Article 11(3).

Article 3 concerns the religion of the federation, namely Islam, and Article 11 is with regard to freedom of religion.

The judge, in declaring the ban on Herald as illegal, null and void, said the home minister in exercising his discretion to impose conditions in the publication permit, had not taken relevant matters into account.

“Hence, he has committed an error of law,” she said.

She noted that the word Terhad (limited) is printed on the front page of Herald and that this serves as an additional safeguard, in that publication is restricted to the church and to Christians only.

“In my view, if there are breaches of any law, the relevant authorities may take the relevant enforcement measures. We are living in a world of information technology, information can be readily accessible.”

“Are guaranteed rights to be sacrificed at the altar just because the Herald had gone online and is accessible to all?”

Lau said there is no material support for the government's arguments that the prohibition over the use of 'Allah' is a threat to national security.

She said she found merit in the plaintiff's arguments that the court should take judicial notice the word 'Allah' is used in the Middle East among Muslims and the Christian community and that this does not cause confusion.

'Issue is justiciable'

The judge also ruled that the proceeding were justiciable as the Malay rulers and the Agong, have no prerogative powers to govern the affairs of other religions.

The affairs of other religions are governed not by the rulers but by their own religious groups, as clearly enshrined under the constitution under freedom of religion.

“Furthermore, any other laws than those set out in Article 11(4) are passed, such laws would be construed unconstitutional.

“This present judicial review is not a judicial review of a decision of the rulers or the Agong, as heads of Islam concerning the exercise of their duties and functions. It is only a review over the minister's prohibition of the use of 'Allah' in the Catholic publication.

“Since the rulers and Agong cannot make any decision in respect of any publications and matters connected therewith, the issue of non-justiciability does not arise.”

She gave the verdict on Dec 31 last year, lifting the ban. The government has managed to obtain a stay of implementation, with the church's consent, pending an appeal against the ruling.- Malaysiakini, 18/1/2010, 'Allah' ban: Home minister erred in law