Part 2/2: Implications for Freedom of Religion arising from the Catholic Herald Court Judgments
The Federal Constitution provision for freedom of religion has been undermined when the higher courts ruled that the ‘sanctity of Islam’ defines and limits freedom to practice other religions. Surely this unconstitutional restriction also applies to all other fundamental liberties enshrined in the Federal Constitution since fundamental liberties are an inseparable whole, like a ‘seamless cloth’.
Preview of Conclusion
As a result of the decision by the Court of Appeal in the Catholic Herald, the law as it currently stands appears to be that the term ‘Allah’ should not be used by any non-Muslim group in Malaysia as it is not an essential and integral part of the religion. Article 11 only protects what is mandatory in a religion which according to the CA’s interpretation is a severely restricted freedom. Article 11 has to be read with article 3 which was inserted to protect the sanctity and supremacy of Islam. This means that other religions can be practiced in peace and harmony throughout the Federation as long as it does not affect the sanctity of Islam.
Read the attached document “Freedom of Religion after the Catholic Herald Judgments” for a careful and insightful analysis of these disturbing developments:
Freedom of Religion after the Catholic Herald
—————————
Highlights from Document Freedom of Religion after the Catholic Herald Court Judgments
1.Is Islam superior to other religions under article 3?
The CA therefore held that the usage of the word ‘Allah’ in the Malay version of the Herald, without doubt had the potential to disrupt the even tempo of life of the Malaysian community. The CA went on to state that ‘Such publication will surely have an adverse effect upon the sanctity of Islam as envisaged under article 3(1) and the right for other religions to be practiced in peace and harmonyin any part of the Federation. Any such disruption of the even tempo is contrary to the hope and desire of peaceful and harmonious co-existence of other religions other than Islam in this country. The CA went on to state that the welfare of an individual or group must yield to that of the community and that this is thecorrect interpretationof the term ‘peace and harmony’ in article 3(1) and freedom of religion under article 11(1) of the Federal Constitution.
The Court’s judgment has several implications; the first is about the sanctity of Islam as envisaged under article 3(1) which will be addressed here, the second refers to ‘any part of the Federation’ which includes Sabah and Sarawak thus implying that the use of the term ‘Allah’ will disrupt the even tempo of life there although there has been no objection to the term being used in those states and it has in fact been in use prior to the formation of Malaysia. The final implication is that any disruption will affect the religious liberty of non-Muslims as it shows that they cannot coexist with Islam. This final implication is momentous as the CA implies that articles 3(1) and 11(1) do not provide fundamental and inalienable rights of freedom of religion to non-Muslims but are instead, subject to the tolerance of Muslims. This is clearly against the spirit of the Federal Constitution as will be shown here.
2.Is the essential and integral part of the religion test the correct test to be used?
The CA stated that religious practices are not a fundamental right but a privilege. Religious practices are confined to what is an essential and integral part of the religion. The name ‘Allah’ does not appear in the Old or New Testaments and there is no such word in the Greek New Testament. In the Bible, God has always been known as Yahweh and therefore the word or name ‘Allah’ is not an integral part of the faith and practice of Christianity. The CA concluded that ‘the application for judicial review on matters of the nature as in this appeal, militates against the spirit of “peaceful and harmonious” co-existence of other religion *[sic] in this country.’
The CA’s decision has widespread implications as it means that only mandatory parts of religious practices would be protected and non-Muslim religions can be subject to strict doctrinal tests. The concept of legislating faith in Islam has been extended to non-Muslim religions although there is no parallel development in non-Muslim religions as each person acts according to his or her faith. Without an oversight body to decide on the essential practices in non-Muslim religions on which practices are integral to the faith, the lacuna or gap is filled by the courts.
The majority judgement at the Federal Court stated that the Minister’s decision was never premised on theological considerations as it was based on public order and security and therefore the views expressed by the CA are mere obiter. This means that their decision on this matter is not binding on lower courts but merely of persuasive authority.The weight of this pronouncement is questionable. Is it referring to the pronouncement of the CA that the term ‘Allah is not an essential and integral part of the Christian religion? In pronouncing this as obiter, is it stating that the CA’s statements are persuasive and may be raised in another forum in future? The Federal Court did not clearly state that courts should not be involved in issues of theology or ecclesiastical concerns or that the ‘essential and integral part of the religion’ test is an incorrect interpretation of freedom of religion. The outcome is that the courts are free to continue to use the ‘essential and integral part of the religion’ test in future and there is uncertainty as to whether the Court of Appeal’s decision is limited to the Herald or prohibits all non-Muslims from using the term “Allah”.
3.Whether the Court’s decision extends to all publications using the term ‘Allah’ including the Al-Kitab or is it limited to the Herald only?
The CA stated that the Al-Kitab and the Herald are two publications of entirely different character. The Al-Kitab is the Malay version of the Bible and is obviously meant only for Christians…The online accessibility of the Herald means that it can be read by Muslims. The CA’s view therefore was that the permission given by the Ministry for the printing and publication of Al-Kitab in which the word “Allah” appears cannot be treated in the same manner as the printing and publication of the Herald with the usage of the word
‘Allah’.
At first glance, this appears to be a clear statement to the effect the the Court’s decision is only limited to the Herald. Nevertheless as illustrated earlier in this paper, the Court pronounced that the term ‘Allah’ is not an essential and integral part of the Christian religion. The Federal Court in Meor Atiqulrahman which was decided in 2006 stated that a total prohibition would be viewed more seriously by the Courts than a partial prohibition. Had the CA in the Catholic Herald decision considered this view, it may have explained more clearly whether the restriction is a total prohibition or a partial prohibition which was limited to the Bahasa Malaysia version of the Catholic Herald.
As it stands the CA decision in the Catholic Herald means that where the term ‘Allah’ is used in any non-Muslim publication, the publication may be seized by the authorities gazetted under the various Control of Propagation of Non-Muslim Religions enactments in the various states and the persons in control of such publications may even be charged under such enactments. Although the Ministry of Home Affairs granted permission for the Al-Kitab to be published as long as it was circulated among Christians and clearly indicated that it was not for Muslims, there have been incidents where the Al-Kitab has been seized under these enactments.
In states like Sabah which does not have such an enactment, the Home Minister may restrict such publications under the Printing Presses and Publications Act 1984 on the grounds that it threatens public order and security. Alternatively, persons who use the term in their conversation or church worship may be charged under the Sedition Act 1948 on the grounds that the words are seditious as they may ‘promote feelings of ill will and hostility between different races or classes of the population in Malaysia’. The Al-Kitab could be prohibited from publication or circulation either under the relevant provisions of the Printing Presses and Publications Act or by an application to the Court under section 10 of the Sedition Act which states that the Court may prohibit the circulation of seditious publication if the public prosecutor can satisfy the court that the seditious publication would lead to unlawful violence or have the object of promoting feeling of hostility between different classes or races of the community. The Court once it is satisfied shall require every person having any copy of the prohibited publication in his possession, power, or control to deliver every such copy into the custody of the police.
Conclusion
As a result of the decision by the Court of Appeal in the Catholic Herald, the law as it currently stands appears to be that the term ‘Allah’ should not be used by any non-Muslim group in Malaysia as it is not an essential and integral part of the religion. Article 11 only protects what is mandatory in a religion which according to the CA’s interpretation is a severely restricted freedom. Article 11 has to be read with article 3 which was inserted to protect the sanctity and supremacy of Islam. This means that other religions can be practiced in peace and harmony throughout the Federation as long as it does not affect the sanctity of Islam.
Clearly the provisions on freedom of religion in Sabah and Sarawak are not very different from Peninsular Malaysia other than the absence of enactments to prevent propagation. However as illustrated earlier, the absence of such enactmentsis of no real consequenceas the Minister in the Herald case based his decision on the Printing Presses and Publications Act 1984. Judgements from the Court ofAppeal and Federal courts are binding on the High Court and lower courts regardless of any interpretation of these judgments by the Malaysian Cabinet or other politicians.