Right to go to court over “Allah”

By Ding Jo-Ann
thenutgraph.com

(Pic by Nikolai Mamluke / Dreamstime)

THE argument that Malaysians are being asked to accept over the "Allah" issue sounds like this:

"Muslims are the majority in this country. In a democracy, the majority's wishes should be prioritised. Christians may have the right to use the word 'Allah', but why do it when it provokes the Muslim Malaysian majority? The Catholic Herald started this mess by going to court and insisting on their right to call God 'Allah'. If they had been respectful of peace and harmony and refrained from going to court, we would have been spared this situation of inflamed passions."

The assumption underpinning these arguments is that non-Muslims who want to use "Allah" should be mindful of the majority's "religious sensitivities". But is democracy founded on the notion that whatever the majority wants, it must necessarily get? Is "tyranny of the masses" really what democracy is about?

Majority rules?

Notwithstanding whether a majority of Muslim Malaysians object to non-Muslims using "Allah", it is incorrect to state that the majority's wishes should prevail in this case.

(Pic by Jirikabele / sxc.hu) Majority rule is most applicable during elections, not when a question of rights is involved. In a Malaysian first-past-the-post election, for example, even though 49.9% of the electorate may have voted against the eventual winner, they still have to respect the majority's decision.

But when it comes to deciding on policies and the implementation of laws, it is not the will of the majority that should advise the government. It is the Federal Constitution and the rule of law.

The need for this guiding principle becomes even more apparent when there are diverse views among the constituents; and even more so when there are shifting majorities. For example, if the decision on policies were to be decided by the majority, which majority should political leaders choose? In East Malaysia, the majority may support the use of "Allah" by non-Muslim Malaysians. Similarly in majority non-Muslim Petaling Jaya in Selangor.

Additionally, it is not clear whether there truly is a Muslim Malaysian majority that objects to the Herald and other non-Muslims using "Allah". In the absence of a national referendum, how can the government even know what the majority wants?

Genuine democracy

More importantly, is it rational and good governance for policies to be guided by the wishes of the majority, however that majority is defined, at the expense of the legitimate rights of others? What if the majority's wishes are oppressive, as during the days of black slavery in America and Nazi rule in Germany, and today's Israeli blockade of Gaza? What if giving in to the majority means sacrificing fundamental liberties that are guaranteed by the Federal Constitution in Malaysia?

Tempting as it may be to succumb to the pressures of the majority, whether real or constructed, this is a slippery slope that is likely to lead to chaos and the oppression of individuals and minority groups. Clearly, such outcomes are not what genuine democracies are about.

Who, then, protects minority rights in a democracy if the government, ever conscious of winning brownie points with the electoral masses, refuses to do so?

Enter the courts

The defender of citizen rights in a democracy is the judiciary. Indeed, the function of an independent, impartial and competent judiciary is to arbitrate between citizens and the state.

This, in part, is what separation of powers means in a democracy. If our political leaders are tempted to compromise our liberties for the sake of their own gains, the courts should be there to hold them in check.

Hence, this is my response to those who say the Herald shouldn't have gone to court: Where, then, should they have gone to seek recourse over a Home Ministry decision to deny them their rights? The Catholic Church in Malaysia already tried the backdoor route for more than 20 years, where they depended on the indulgence of the prime minister to resolve the issue. In the end, that method did not ensure their rights were protected.

So, what are these critics really arguing for when they say the Herald should not have gone to court? It seems that these critics expect the Christian community, as the minority in Malaysia, to abandon their constitutional rights and accept the home minister's decision. Indeed, there are some who say that Catholics should give up their right to "Allah" for the sake of harmony since there are some Muslims who oppose it vehemently.

But why isn't anyone calling on those Muslims to abandon their claim to use "Allah" exclusively?

Priest and altar server during a Catholic service (Pic by Nick Choo)

It is clear that no democracy can decide on an issue based on who shouts the loudest or who threatens the most. Hence, it is precisely in these situations that the court has to step in and make a decision based on the law, not the court of raucous public opinion.

It's about justice

An independent and competent judiciary considers only the rule of the law and not the views of the majority. Justice, after all, is depicted as blindfolded to symbolise its imperviousness to outside influence. The race, religion and political beliefs of the plaintiffs, defendants and judge should all be left outside the court room. How else would the rights of minorities be protected, what more in cases where citizens have been unlawfully oppressed by more powerful institutions such as the state?

(Pic by dcubillas / sxc.hu) One wonders about the Muslims who oppose the Herald's actions of going to court. How would they feel if a Christian majority told them they could not use "Allah" since "Allah" predates Islam? Or a secular government decreed that Muslim women could not wear the veil even if they chose to? Or that Muslims could not build a mosque in a predominantly Christian neighbourhood?

And what if a Christian majority told Muslims they had to accede to the trampling of these rights because the Christian majority's sensitivities were at stake? Wouldn't Muslims, in such a situation, also seek recourse in the courts and hope for judges to uphold justice?

In Malaysia's case, it is more crucial than ever for there to be an independent and competent judiciary to ensure citizens' rights are protected. And following that, to have a government that respects the court's decisions and is unafraid to explain to its electorate that whatever they may think, it was the Herald's right to go to court.