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Allah issue: Interpreting the constitution or a will? – MP Sepang Speaks.

October 17, 2013

 

MP SPEAKS Freedom of religion as enshrined in Article 11 of the federal constitution has never been absolute. Nowithstanding that, the constitution definitely allows Christians to use ‘Allah’ in their Catholic weekly publication The Herald.

Thus, it is indeed shocking to learn that the Court of Appeal unanimously invoked the constitutional ground to affirm the decision of the home minister in preventing The Herald from using the word Allah in its publication.

As far as I am concerned, the issue is rather simple and straightforward, namely whether Allah exclusively belongs to Muslims. If the answer is in the affirmative, then it is the end of the matter.

In other words the Christians or other religious adherents do not have any constitutional right to use Allah’s name. The rule is so simple – you cannot claim any right which is not yours in the first place.

Truth to be told, Allah is not the exclusive possession of any Muslim. The non-exclusivity of Allah to the Muslims is in fact derived from the Muslim’s main sources of guidance, which are the Quran and the hadith.

Allah transcends racial and religious boundaries

The first chapter of the Quran, known as Al Fatihah (The Opener) categorically states that Allah is the God of the universe, embracing all mankind. Allah, as far as Islam is concerned, transcends racial and religious boundaries.

Be that as it may, I am indeed puzzled when some Muslims vehemently assert the exclusive right to use the word Allah, to the exclusion of others.

The Prophet Muhammad (peace be upon him ) had also shown his par excellent tolerance on this issue. This can be gleaned from Hudaibiyyah’s treaty. In that treaty, the Meccan infidels represented by Suhail ibn Amr refused to let the Name of Allah the Most Benificient, the Most Merciful be written in the treaty.

Instead, Suhail ibn Amr demanded the following words to be used: Bismika Allahumma. The Prophet Muhammad ( peace be upon him ) agreed to the request, despite the fact the Meccan infidels had a different understanding of the word Allah . Do our Muslim brothers in this country claim superiority than their own prophet?

That Allah is not to be confined to Muslims is indeed the opinion of many great Muslim scholars, such as Dr Yusuf Al Qardhawi and Dr Wahbah Zuhaily. In subcsribing to such a view, these Muslim scholars in fact, inter alia, relied on the above quoted verse from Al Fatihah as their basis.

Be that as it may, any different stand deviating from such a view, I believe, is nothing to do with religious ground. Unfortunately, preconceived fear among he majority of Muslims in this country, fuelled by provocative and irresponsible elements, contributes to this sad state of affairs.

Allah not a Muslim’s exclusive right

Since Allah is not a Muslim’s exclusive right, the Christians must never be restrained from using the word Allah in their religious practice. Any restrain is unlawful and unconstitutional. It is against the fundamental liberty enshrined in Article 11 of the Federal Constitution. Article 11(1) guarantees freedom of religion and it applies to any person, including non-citizens. So fundamental of such a constitutional right it cannot be abrogated or suspended, even during an Emergency.

Of course the right of the non-Muslims to freedom of religion in Article 11 is not unlimited. The Christians are constitutionally protected to profess and practice Christianity and such a right definitely includes the right to use the word Allah by The Herald – a newsletter exclusively for the Catholic adherents.

So long as The Herald is distributed to Christians only – despite the word Allah appearing in it – the constitution will recognise and jealously protect it. No law, or any minister, can supersede such a fundamental right.

Of course, The Herald cannot be distributed to Muslims because it will tantamount to propagation. Article 11(4) prevents The Heraldfrom doing so. To its credit, there is no evidence proving that The Herald has been distributed to Muslims.

If at all there is any proof that The Herald has been distributed to Muslims, it would be an offence not because there is Allah’s name in the publication. Any Christian publication distributed to Muslims obviously contravenes Article 4 of the constitution, irrespective of whether the word Allah appears or not in it.

In its written judgement, the Court of Appeal, inter alia, invoked Article 3(1) of the constitution to deny The Herald using the word Allah in its publication. I must confess that I have great difficulties to fathom the reasons given by the court.

Now, why invoke the White Paper?

With the greatest respect to the learned judges, I fully subscribe to Dr Aziz Bari’s view that the meaning of Article 3(1) is crystal clear. There is no ambiguity whatsoever. The article clearly supports The Herald’s fundamental right to peacefully practise its religious freedom. In fact, Article 3(1), in my opinion, is a boon to The Heraldand thus a bane to the home minister. The Court of Appeal surprisingly twisted it.

In his judgment, Justice Apandi Ali stated that Article 3(1) was initially absent in the Reid Commission’s report but it was later inserted, having been suggested by Justice Abdul Hamid. Justice Appandi also stated that there was an assertion in the White Paper that in spite of the existence of Article 3(1), it does not change Malaysia as a secular state.

To be honest, I am unable to detect any relevancy of invoking the said White Paper. On the contrary, by invoking the White Paper, Justice Appandi had in fact given a new bullet to The Herald.

If it is true that our constitution is secular in nature in spite of the existence of Article 3(1), why would a secular constitution have any say or interference in any religious practices by any religious adherent?

I believe the only caveat, if at all exists, to restrain The Herald from using the word Allah is Article 11(5) of the constitution. This article may be used to deny any right to freedom of religion if the practice of such a right is proven to have duly affected public order or morality or health.

But to completely deny such a right, the decision maker, such as the home minister, must present cogent evidence to the court. Any flimsy and hypothetical perceptions should have never be allowed by the court to replace evidence.

Suspicion, however strong, is not evidence. In interpreting the highest law of the land, the court must never allow itself to be seen as an appendage of the executive .

I am of the view that the Court of Appeal, with due respect, made an erroneous judgment by resorting to ambiguous interpretation of a very clear provision in our constitution dealing with religious freedom.

Let us be reminded, again and again, that the constitution will die if it is interpreted like a will.


MOHAMED HANIPA MAIDIN, the Member of Parliament for Sepang, is a lawyer by profession and a PAS central committee member. 

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8 Comments leave one →
  1. October 17, 2013 4:25 am

    Its the sign of the times. malays are getting more arrogant forcing others to comply with their mentality.
    Just the other day, a nepalese gurad who works for the yemen embassy was scolded by a malay driver for greeting him “assalamulaikum”.
    The nepalese has no trouble when he greets his Yemeni bosses this way. But malays scolded him by saying he is not muslim, so he cannot greet them like that.

    What we neeed is a malay leader to open the up the minds and mentality of the malays. Anwar and dr M were the ones who turned them insular and non progressive giving huge powers to religious authorities.

    Malays need a leader to free them from mental slavery. So far, Zaid Ibrahim and Marina mahathir have been very vocal in the papers, but none of them can garner any popular support from the kampungs.

  2. October 17, 2013 4:59 am

    @sputjam,
    I agree with pretty much of what you say except that NOT all Malays are arrogant as you stated. It’s only the UMNO Malays, majority of whom are rent-seekers with little backbones to earn a living in a dignified and honest manner. Again to be fair NOT all UMNO Malays are like that too however, majority of them are.
    As for that Home Minister who started the whole ‘Allah only for Muslims’ issue, it is probable that he will go down in history as one of the most stupid and incompetent human being, let alone as a Minister of a Government. He is where he is today due solely to his family roots who unfortunately did not pass on any much grey matter to that space between his ears.

  3. sk cheah permalink
    October 17, 2013 6:46 am

    this country needs good leaders but alas the only great one we had was the Tengku those that came after him had small mind. Worst of all that Mahathir made the malays even more smaller and this country suffers. Its sad. The current leaders should have mad a stand and admonish the religiuos bigots but they pander hem instead. When a country is not fairly represented by its citizens there is no hope but the curnt leaders want to keep it this way. Just to protect their so-called Malay rights. There are to many mahathirs ans ibrahim ali`s and too few of zaids and marina`s

  4. anskrombau permalink
    October 17, 2013 11:16 am

    According to that Badut fellow in Johore, our Sepang YB is now an infidel…????

  5. usopmohd permalink
    October 17, 2013 1:41 pm

    Assalamualaikum,

    Dear Dr.Dzul,

    First of all,  perception of melayu need to be changed.. Islam itu bukan milik melayu…..

    Second, can i have your contact number in order fr me to give you ring…

    May ,we can share the idea….

    Usop,Qatar

    Sent from Samsung tablet”Dr. Dzul’s Blog” wrote:

  6. October 17, 2013 5:45 pm

    The signs are clear. Our government is monopolized by racists and close minded people. If they say that we Malays want all to do as we say, then there is no necessity to dress up what we are doing and call it justice, law, fairness. If you don’t like what we are doing you can get out. We the majority have the right to say and do what we want. Our people are corrupted and looting the country, we don’t mind. What are you going to do about it? Just stop messing around with justice and fairness.

  7. jamaludin permalink
    October 21, 2013 12:07 am

    The word Allah is not copyrightable. Nobody has. Borrowing IT jargon, I prefer it is a material for “copyleft”. However, core issue still remains: Who is Allah? What is Allah? Is Allah so mysterious figure defy logic? Thus, forces us to interpret “Allah”. This business of interpretation is logical and a necessity. The Muslims accept the Qur’anic interpretation of godhood and submits the word Allah. It has nothing to do with ethnicity in interpreting. The Qur’an posits that the proper name of the God is Allah. Qur’an invites others to agree or not to agree. It is their prerogatives.
    Qur’anization of Arabic language has produced concretization of Islamized godhood that is Allah. Subsequent indigenization of Islam in SEA, the non Arabic speaking Malays use and accept Tuhan Maha Esa as its Malay equivalent to Allah. Either TME or Allah, it signifies the Unicity of Godhood.
    “Allah” is so problematical only to those whose mindsets subscribe to the political interpretation and institutionalization of negative process of the indigenization of Islam carried out by the racist hegemonic ideology of Malay supremacy/Ketuanan Melayu. The problem of KM is now made to spill over the country-nobody is spared. Actually, it is the pure political problem of Melayu Umno and not necessary the Malays as the whole.
    Under KM, the end justifies the means. Everything is slam dunked. In between, everything is machiavillianized. Islam is used as pretext to hegemonize and plunder the natural resources. The 1% is the occupiers and well protected, the rest- the 99% of us, is occupied and made subaltern.
    It is KM really hijacks Islamic universalism and holds hostage the nation and the country pays the
    price.

  8. jamaludin permalink
    October 21, 2013 12:12 am

    I am still baffle on how or in what way the Herald’s publication of the word “Allah” will cause or inflict national security threat or affect public disorder to the Muslim community or the country as a whole? It is mind boggling to me. The home minister as one of the decision makers presenting government interest must present a strong case to the court whether such case has occurred or not. Thus far, he or she, I believe, has done a lousy job to convince the nation.
    Another issue in connection to the “Allah” issue is: in what way the publication is held accountable in proselytizing Muslim and be liable as national security threat to Muslim as well as the country. Who is going to determine that? I have to agree with Mr. Mohamed Hanipa Maidin that it is time that, “suspicion, however strong, is not evidence. In interpreting the highest law of the land, the court must never allow itself to be seen as an appendage of the executive”.
    Finally, I believe those three judges are just like poker players, gambling away the nation “by resorting to ambiguous interpretation of a very clear provision in our constitution dealing with religious freedom.”
    This ambiguous interpretation project is not part of the package what is known as Shar’iah compliance, I guess.

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