On "Allah"
...and the Scope of the Civil Courts
DESPITE the 10-point solution in April 2011 allowing Christians to import and use "Allah", caretaker prime minister Najib Razak before the 5 May 2013 election said his government supported the Home Ministry's appeal against the High Court's decision to let "Allah" by used by non-Muslims.
When the courts finally decide on the matter, what if the decision does not uphold the freedom of religion? The High Court's decision in December 2009 allowing the Catholic newsletter, The Herald, to publish the word, has so far been the strongest legal defence for non-Muslims in this controversy. But given our socio-political realities, there is always the possibility that pressure will be applied for a solution that pacifies those who hold conservative views on the matter.
May 8, 2013 has been fixed for the Court of Appeal to hear the challenge by six state Islamic councils (Federal Territory, Selangor, Kedah, Malacca, Johor and Terengganu) and the Malaysian Chinese-Muslim Association. The seven are appealing the High Court's decision to dismiss their application to be interveners in the main case.
The seven Islamic bodies had contended that the matter of allowing non-Muslims to use "Allah" could only be decided by the Malay Rulers, and not a civil court. Their basis for this is that the King and the Sultans are heads of Islam in the Federal Territories and in the states, as provided under the Federal Constitution and State Constitutions.
The High Court, however, had dismissed their application on the grounds that while the Malay Rulers were indeed the heads of Islam in their states, control over publications was governed by federal (i.e. civil) law.
This appeal by the seven Islamic bodies is different from the main appeal by the Home Ministry against the High Court's ruling. For the main appeal by the government and Home Ministry, the Court of Appeal has fixed May 30 for case management.
How will the appellate court decide? Would it abdicate its civil authority by upholding the argument for the Malay Rulers to decide on the use of "Allah"? This would be akin to how the Federal Court in 2007declined jurisdiction in favour of the Syariah Court by refusing to let Lina Joy drop the word "Islam" from her identity card without a Syariah Court order confirming her apostasy.
Malaysians must remember that while our country has a dual-track legal system comprising civil and Syariah law, the latter can only apply to persons professing the religion of Islam.
Article 121 (1A) of the Federal Constitution states that the civil courts "shall have no jurisdiction in respect of any matter within the Syariah courts." It means that the Syariah courts can only hear certain matters of Islamic law, which are specified in the Constitution. Thus, while the civil court cannot interfere in matters that come under the scope of the Syariah courts, the latter also cannot encroach onto matters beyond its scope that come under civil law. And as noted by the High Court, laws governing publications (whether The Herald newsletter or the Al-Kitab) are under the Home Ministry and are thus, federal law.
The Syariah courts "must not interfere in any matter where the interests of any non-Muslim is affected; and they should only determine issues where persons professing Islam are involved in a dispute regarding Islamic personal, family or criminal laws which have expressly legislated upon by the State Legislature."1
Clearly, using the word "Allah" in a Bahasa Malaysia Christian publication is a matter of interest to non-Muslims. Will the civil courts recognise it as such? The hypocrisy of these appeals is the fact that the government has already taken the first step in recognizing the interest of non-Muslims in the "Allah" matter with its 10-point solution in April 2011 allowing the importation and use of the Al-Kitab here, as contained in a letter signed by the prime minister himself.
So, it would be a first, and a new constitutional crisis in a sense, if the civil appeals court were to hand over the matter to the Malay Rulers, for there is no constitutional provision that says the decision of the Conference of Rulers on a matter like this is binding on non-Muslims.
While a final decision on the use of "Allah" may still take some time more, all Christians, including the Bahasa Malaysia-speaking and East Malaysian bumiputra believers, should be cognizant of the workings of courts, the constitution and the law, and the implications therein. It is part of navigating the course towards the freedom of religion in Malaysia.
1 Shanmuga, K., Article 121 (1A) of the Malaysian Federal Constitution-What does it really mean?, www.loyarburok.com, 14 March 2007. |
