Monday's Court of Appeal decision upholding the home minister's ban on the use of the term ‘Allah' by Christians for security reasons as if Islam is under siege in Malaysia, has drawn derision from constitutional law expert Abdul Aziz Bari.
"Islam in Malaysia is not under threat. In fact it is growing as now 60 percent of the population are Muslims, (and) with the media and government protecting Islam as well.
"It (the court decision) is nonsensical if you look at the numbers. Why are they worried about it? What threat are Muslims being exposed to from the other religions...? It (the threat) does not exist," contended the academician.
According to Abdul Aziz, the three judges who heard the matter have distorted the meaning and intention of Article 3(1) in the federal constitution in which Islam is the religion of the federation but there is freedom for other communities to practise their own faiths in peace and harmony.
"The Court of Appeal decision has not resolved the issue but has (instead) created a new problem. This has resulted in federal cabinet ministers from Sabah and Sarawak trying to pacify their people."
Aziz, a former law professor at Universiti Islam Antarabangsa and now with Universiti Selangor, said the court ruling has inadvertently restricted the religious rights of the minority communities.
"This is the other problem created by the decision, it has narrowed religious rights. The job of the court is to expand the horizon of rights, but the judges have limited it (with their decision)," he told Malaysiakini in an interview.
The Court of Appeal on Monday overturned the decision of the High Court in Kuala Lumpur that the home minister's ban on the use of the term ‘Allah' by the Bahasa Malaysia version of the Catholic weekly The Herald was illegal.
On Dec 31, 2009, High Court judge Lau Bee Lan ruled that the Home Ministry's ban on the use of the word was unlawful and unconstitutional as it violated Article 11 of the federal constitution, which provides that every individual has the right to profess and to practice his or her religion.
The Court of Appeal's argument for upholding the minister's ban was security reasons and to insulate Islam from threats from other religions.
Article 11(4) of the federal constitution states that it is an offence to propagate religions other than Islam to Muslims. Already there are various state Islamic enactments to prevent such proselytisation.
Wide ramifications
Aziz said while it is true that the impact of the higher court's decision is confined to The Herald, the home minister and the government, its repercussions cannot be underestimated.
While the decision binds The Herald and the home minister with its declarations, Aziz said, "We now find the government ministers from Sabah and Sarawak giving assurances, trying to contain the anger in their states.
"If the government is serious in limiting the effect of the court decision, it must declare so through an Act of Parliament or revoke the decision by withdrawing the application from the court since this matter has become the talk of the town.
"Sabahans and Sarawakians have every right to be anxious and unhappy. That is why the statements by the federal ministers to minimise the anger are justified.
"The problem with this decision is that it has interfered with the rights of individuals or groups to practise their religion, which I personally think (it) is wrong of the court to assume public disorder."
article 11 of the federal constitution 090606According to Aziz, the linking of Article 3 in the constitution by Federal Court judge Mohamed Apandi Ali to Article 11(4) is questionable.
Article 11(4) - which restricts the propagation of other religions to Muslims - can stand by itself without being bolstered by the argument of "practising faiths in peace and harmony" in Article 3.
He added that judges cannot interpret as such as the constitution is silent on the matter.
The only provisions that can limit the people's fundamental liberties are Articles 149 and 150, and only when there is subversion or an emergency situation.
"The court is wrong in creating the provision - linking Article 11(4) with Article 3 - for Article 3 is there just to declare the essence of the character of the federation," he said.
"We can say that under the Malaysian constitution, religious rights are supreme as not even Article 149 can limit the right to religious freedom, except if there is an issue of disruption of public order.
"However, the way the court upheld the minister's order was done in such a way as to distort the constitution," Aziz said.
The Court of Appeal decision, therefore, is akin to the government regulating matters involving religion.
"You cannot have a condescending attitude and tell someone what to do (and) how to pray. This is not your job. You just make sure that there is (freedom)," Aziz added.
This interview was jointly conducted by Fathi Aris Omar and Ahmad Fadli KC.
By Hafiz Yatim
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