The Nut Graphby Deborah Loh & Shanon Shah
IT is bewildering that a gazette on such a significant matter of public interest as the use of the word "Allah" by non-Muslims was issued and then rescinded just 24 hours after it was announced.
Did not Home Minister Datuk Seri Syed Hamid Albar spot the mistake in the ruling, which he signed? The gazette, it must be noted, was published on 16 Feb but was only announced on 26 Feb.
The fiasco illustrates how citizens can wake up one morning to find themselves subject to new laws their legislators in Parliament had little chance to debate — and the very next day, to find the laws have changed, again without debate.
Such arbitrariness in a process as important as making laws that affect citizens should be questioned. Indeed, what is a gazette? What powers are invested in the executive branch of government to pass gazettes, and is there room for dissent?
What is a gazette?
"The passing of laws that do not go through Parliament for approval, but become law after being published in the Government Gazette, is an administrative way of making laws," explains Minister in the Prime Minister's Department Datuk Seri Nazri Aziz.
"When we gazette that such and such words cannot be used (for example in the case of 'Allah'), it carries the enforcement of the law with it," he says in an interview in Parliament.
One recent example of a law that was enforced administratively is the rear seat belt ruling that took effect on 1 Jan 2009 under the Road Transport Act 1987.
The British Westminster parliamentary system allows for supplementary laws to be passed in this manner, provided that they are made under a specific Act. The Act itself is what has to be debated in Parliament, explains lawyer Sharmila Sekaran.
The parties involved in passing laws administratively are the relevant minister, the civil servants who draft the ruling, and the ministry's legal adviser or the Attorney-General's Chambers, which would be consulted in some cases.
"Practically, we must bear in mind that often, the minister has little real working knowledge in a particular area and thus will rely on advisers or civil servants," Sharmila says of the work that goes into drafting a law.
Room for dissent?
If citizens disagree with a law that has been passed administratively, or even with laws that have gone through Parliament, a judicial review is the right way to challenge it.
"But, the party filing for judicial review must be directly affected by the law. It cannot be someone with a vague or indirect interest," Sharmila tells The Nut Graph.
This is why the Islamic religious councils of several states as well as the Malaysian Gurdwaras Council representing the Sikh community have all filed to be intervening parties in the Herald suit. The suit challenges the government's ban of the use of "Allah" by non-Muslim groups.
Nazri says Members of Parliament can still raise motions to challenge a law after it has been passed. "Laws can always be amended, they are not cast in stone. So there is still room for public input and feedback."
Doing it wrong
The problem, however, is that the reality is far less ideal than what Nazri posits.
For example, the problem with the Home Ministry's initial ruling to allow conditional use of "Allah" was that it was an order placed under the Internal Security Act (ISA) 1960. The order was cited as "Internal Security (Prohibition on Use of Specific Words on Document and Publication) Order 2009".
And the danger with the ISA is that is has an ouster clause: Section 8B, which states that a minister's decision is final and cannot be challenged.
"This is undemocratic. All decisions by an individual should be challengeable by an unbiased party, for example, the courts," says Sharmila, who is also National Human Rights Society (Hakam) secretary-general.
She also argues that the government cannot just make a law and "shove it under somewhere".
"This (the order on the 'Allah' issue) is not an appropriate law to be made under the ISA. You must look at what the entire Act is out to achieve, and then make supplementary laws to support the general aim of the Act," Sharmila says.
Because Section 8(1) of the ISA allows for detention without trial on persons who are deemed a threat to national security, the Home Ministry's move to place the ruling under the ISA effectively turned a religious matter into a national security issue.
Though the Act does not specifically touch on religious faith as a potential threat, it's easy to see the Home Ministry's line of thinking. It views the use of the word "Allah" by non-Muslims as prejudicial to national security.
In addition, if the prohibition of "Allah" was because of fears that Christian groups were proselytising to Muslims, the ISA is still not the right law to use. Lawyer K Shanmuga has argued before that it is up to the individual states and federal territories, and not the Home Ministry, to enact laws restricting the propagation of other religions among Muslims.
Pressure
Additionally, when Syed Hamid rescinded the gazette on the conditional use of the word "Allah", did the "mistake" only become apparent after the Malaysian Islamic Da'wah Foundation protested? After all, Syed Hamid did announce the rescinding in response to the foundation's protests.
"Decisions such as the one gazetted (allowing conditional use of the word by Christian publications) should have been carefully and comprehensively thought out before being issued ... Unsurprisingly, pressure was brought to bear upon the minister and his ministry.
"The problem with incompetent or careless decision-making is that when attacked, it cannot be defended and hence becomes a 'mistake' which has to be reversed or rescinded," notes Sharmila.
Interference
The enactment of the ruling can also be inferred as an act of interference with the judiciary. Herald has a judicial review pending against the government's 2008 decision to ban the word from the Catholic weekly's Bahasa Malaysia edition.
By issuing the ruling, what kind of message was the government trying to send the courts? That there is no room for legal, historical, linguistic, and textual arguments to decide whether or not "Allah" can be justifiably used by Bahasa Malaysia-speaking Christians?
In essence, the government had already decided for the court — yes, it's okay to use "Allah", but only because the executive says so. When instead, what is needed is a judicial decision based on facts.
For without factual basis and cogent arguments, the executive could, for its convenience, withdraw the ruling or impose further restrictions.
Fatwa for non-Muslims?
Perhaps, realising this, the government is now using other ways to restrict the use of "Allah". Minister in the Prime Minister's Department Datuk Seri Dr Ahmad Zahid Hamidi recently said that all states and federal territories would soon institute their own gazette prohibiting non-Muslims from using the word.
Currently, Johor, Malacca, Negeri Sembilan, Pahang, Perak, Kelantan, Terengganu, Kedah, Perlis and Selangor have already included the ruling as part of their state Islamic enactments. Interestingly, the state enactments are based on an earlier fatwa prohibiting the use of "Allah" and three other words.
The question that arises is how can a fatwa be imposed on non-Muslims? Also, isn't enacting the fatwa as a gazette jumping the gun when the court has not completed its hearing of the Herald case?
Few people seem to be publicly raising these questions, perhaps due to the "sensitive" nature of the issue. But DAP deputy chairperson Tunku Abdul Aziz Tunku Ibrahim did recently say it was unfair for the minister to force all states to gazette the ban without waiting for the court's decision.
In the meantime, the way the government has gone about trying to impose the ban on the use of "Allah" remains deeply problematic, not just from a rights but also a procedures perspective. And that can only be an indictment of the government of the day.
What is a gazette?
"The passing of laws that do not go through Parliament for approval, but become law after being published in the Government Gazette, is an administrative way of making laws," explains Minister in the Prime Minister's Department Datuk Seri Nazri Aziz.
"When we gazette that such and such words cannot be used (for example in the case of 'Allah'), it carries the enforcement of the law with it," he says in an interview in Parliament.
One recent example of a law that was enforced administratively is the rear seat belt ruling that took effect on 1 Jan 2009 under the Road Transport Act 1987.
The British Westminster parliamentary system allows for supplementary laws to be passed in this manner, provided that they are made under a specific Act. The Act itself is what has to be debated in Parliament, explains lawyer Sharmila Sekaran.
The parties involved in passing laws administratively are the relevant minister, the civil servants who draft the ruling, and the ministry's legal adviser or the Attorney-General's Chambers, which would be consulted in some cases.
"Practically, we must bear in mind that often, the minister has little real working knowledge in a particular area and thus will rely on advisers or civil servants," Sharmila says of the work that goes into drafting a law.
Room for dissent?
If citizens disagree with a law that has been passed administratively, or even with laws that have gone through Parliament, a judicial review is the right way to challenge it.
"But, the party filing for judicial review must be directly affected by the law. It cannot be someone with a vague or indirect interest," Sharmila tells The Nut Graph.
This is why the Islamic religious councils of several states as well as the Malaysian Gurdwaras Council representing the Sikh community have all filed to be intervening parties in the Herald suit. The suit challenges the government's ban of the use of "Allah" by non-Muslim groups.
Nazri says Members of Parliament can still raise motions to challenge a law after it has been passed. "Laws can always be amended, they are not cast in stone. So there is still room for public input and feedback."
Doing it wrong
The problem, however, is that the reality is far less ideal than what Nazri posits.
For example, the problem with the Home Ministry's initial ruling to allow conditional use of "Allah" was that it was an order placed under the Internal Security Act (ISA) 1960. The order was cited as "Internal Security (Prohibition on Use of Specific Words on Document and Publication) Order 2009".
And the danger with the ISA is that is has an ouster clause: Section 8B, which states that a minister's decision is final and cannot be challenged.
"This is undemocratic. All decisions by an individual should be challengeable by an unbiased party, for example, the courts," says Sharmila, who is also National Human Rights Society (Hakam) secretary-general.
She also argues that the government cannot just make a law and "shove it under somewhere".
"This (the order on the 'Allah' issue) is not an appropriate law to be made under the ISA. You must look at what the entire Act is out to achieve, and then make supplementary laws to support the general aim of the Act," Sharmila says.
Because Section 8(1) of the ISA allows for detention without trial on persons who are deemed a threat to national security, the Home Ministry's move to place the ruling under the ISA effectively turned a religious matter into a national security issue.
Though the Act does not specifically touch on religious faith as a potential threat, it's easy to see the Home Ministry's line of thinking. It views the use of the word "Allah" by non-Muslims as prejudicial to national security.
In addition, if the prohibition of "Allah" was because of fears that Christian groups were proselytising to Muslims, the ISA is still not the right law to use. Lawyer K Shanmuga has argued before that it is up to the individual states and federal territories, and not the Home Ministry, to enact laws restricting the propagation of other religions among Muslims.
Pressure
Additionally, when Syed Hamid rescinded the gazette on the conditional use of the word "Allah", did the "mistake" only become apparent after the Malaysian Islamic Da'wah Foundation protested? After all, Syed Hamid did announce the rescinding in response to the foundation's protests.
"Decisions such as the one gazetted (allowing conditional use of the word by Christian publications) should have been carefully and comprehensively thought out before being issued ... Unsurprisingly, pressure was brought to bear upon the minister and his ministry.
"The problem with incompetent or careless decision-making is that when attacked, it cannot be defended and hence becomes a 'mistake' which has to be reversed or rescinded," notes Sharmila.
Interference
The enactment of the ruling can also be inferred as an act of interference with the judiciary. Herald has a judicial review pending against the government's 2008 decision to ban the word from the Catholic weekly's Bahasa Malaysia edition.
By issuing the ruling, what kind of message was the government trying to send the courts? That there is no room for legal, historical, linguistic, and textual arguments to decide whether or not "Allah" can be justifiably used by Bahasa Malaysia-speaking Christians?
In essence, the government had already decided for the court — yes, it's okay to use "Allah", but only because the executive says so. When instead, what is needed is a judicial decision based on facts.
For without factual basis and cogent arguments, the executive could, for its convenience, withdraw the ruling or impose further restrictions.
Fatwa for non-Muslims?
Perhaps, realising this, the government is now using other ways to restrict the use of "Allah". Minister in the Prime Minister's Department Datuk Seri Dr Ahmad Zahid Hamidi recently said that all states and federal territories would soon institute their own gazette prohibiting non-Muslims from using the word.
Currently, Johor, Malacca, Negeri Sembilan, Pahang, Perak, Kelantan, Terengganu, Kedah, Perlis and Selangor have already included the ruling as part of their state Islamic enactments. Interestingly, the state enactments are based on an earlier fatwa prohibiting the use of "Allah" and three other words.
The question that arises is how can a fatwa be imposed on non-Muslims? Also, isn't enacting the fatwa as a gazette jumping the gun when the court has not completed its hearing of the Herald case?
Few people seem to be publicly raising these questions, perhaps due to the "sensitive" nature of the issue. But DAP deputy chairperson Tunku Abdul Aziz Tunku Ibrahim did recently say it was unfair for the minister to force all states to gazette the ban without waiting for the court's decision.
In the meantime, the way the government has gone about trying to impose the ban on the use of "Allah" remains deeply problematic, not just from a rights but also a procedures perspective. And that can only be an indictment of the government of the day.
1 comment:
As a malay student for 25 years, all I can say is most of the time I heard a non-muslim said it, is in a negative way. Done by ignorant people trying to promote cultural disagreement in our nation. Therefor I hope the people reading on this matter can think of the benefits as well.
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