The Court of Appeal was wrong in its decision banning Christian weekly Herald from using the word ‘Allah' to refer to God in Bahasa Malaysia, said a constitutional law expert.
"By
linking religious rights under the chapter on fundamental liberties
with Article 3(1) of the Federal Constitution which effectively makes
Islam the benchmark for everybody, this runs counter to the general
meaning of Article 3(1) of the Federal Constitution itself," Dr Abdul
Aziz Bari told Malaysiakini today.
"The
plain meaning of Article 3(1) is simply this: that despite the fact
that Islam has been made official religion, non-Muslims may go on
practising their religions freely without restriction," said the former
Universiti Islam Antarabangsa (UIA) law lecturer.
He
said that the implication of the decision is that it might make
non-Muslims feel "unsafe" and this is contrary to the essence of the
Article 3 in the constitution.
Abdul
Aziz also noted that the court decision yesterday sounded like a
"policy decision" - a decision that is not strictly based on law.
"Like
in most countries, the judges - in critical cases - do not feel they
have the strength to depart from the line taken by the executive. Not
too different from what we have seen in cases involving preventive
detention, election petition and Altantuya (Shaariibuu)'s murder," he
said.
"Like
many, many other decisions which the Minister claimed 'security and
public order', the judges just went along with them. In short, the
judges were not willing to be proactive here.They obviously still live
under the wartime decisions where the government has the absolute power
to decide anything under the guise of security and public order," he
said.
No Evidence
Abdul
Aziz said that with the court decision, the government has interfered
with the way Christians practice their religion when there is no
evidence that using the world ‘Allah' can jeopardise national security
and public order.
"I
do not believe the use of ‘Allah' among Christians would create
problems for the Muslims. For one thing, the Christians have their own
doctrine and they are not out to tell the Muslims about it.
"As
for the Muslims, they have their own doctrine that has been developed
by their ulama for ages. This is the guarantee that the use of ‘Allah'
by Herald - which is not circulated among Muslims anyway - will not affect Muslims," he said.
Abdul
Aziz also described the judges' statement that fundamental liberties
provision must be read along with Article 3 of the Federal Constitution
as "startling".
"The
only provisions that is allowed by the Constitution to override
provisions for fundamental liberties - or human rights - are Article 149
on power to deal with subversion and Article 150 which deals with
emergency," he said.
"The
fundamental principle is that the court is there to protect and enhance
the provisions for fundamental liberties, not to narrow them down. It
is wrong for the Court of Appeal to do that."
Link disturbing
According
to Abdul Aziz, the alleged link asserted by the judges between Article
3(1), which declares Islam as "the religion of the federation", and
Article 11(4), which allows the legislatures to protect Muslims from
being proselytised (converted) is disturbing.
"The
most one could say about Article 3(1) is that the provision declares
the federation's character and perhaps, ideology.But Article 3(1) is not
one to be used to judge or becoming benchmark for the non-Muslims. I
think this is the reason why the phrase ‘other religions may be
practiced in peace and harmony' is being added towards the end of the
provision.
"I
find it strange as to why the Court of Appeal did not concentrate on
the right to religious freedom and instead chose to highlight the link
between Article 3(1) and Article 11(4), which has less relevant here.
"In fact, Article 11(4) could stand on its own without the support from Article 3(1)."
No comments:
Post a Comment