Malaysiakini Comment by Andrew Khoo
As published in Malaysiakini on 18 Jan 2014.
In
March 2011, 30,000 copies of the Christian ‘New Testament, Psalms and
Proverbs’ in Bahasa Malaysia were impounded at Port Kuching. At the same
time as this news came to be known, it was highlighted that 5,100
copies of the Alkitab had been impounded at Port Klang since
March 2009 and had been sitting there for two years. These 5,100 copies
had remained impounded even though Prime Minister Najib Abdul Razak had
ordered their release in December 2009.
The
reason for the impounding was that these copies of the Bible, printed
in Bahasa Malaysia, were found to contain the word ‘Allah’. An earlier
edition of the Alkitab had been categorised as an undesirable publication and prohibited from being imported into Malaysia.
Whilst
negotiations were being held to secure the release of all these copies
of the Bible, the Publication Control and Quranic Text Division of the
Home Affairs Ministry had each copy stamped with a serial number, the
official seal of the relevant government department and the words “by
order of the Home Affairs Ministry” and then released.
In
the ensuing controversy, and in order not to have a repeat of this
incident of impounding and then desecration of copies of the Bible, a
10-point solution was initiated by the federal cabinet on April 2, 2011
and agreed to by the Christian Federation of Malaysia.
The
text of the 10-point agreement was set out in a letter from the prime
minister to the then chairperson of the Christian Federation of
Malaysia, Anglican Bishop Ng Moon Hing, on April 11, 2011. In this
letter, the prime minister stated that the 10-point solution was a collective decision of the cabinet.
One
thing needs to be made absolutely clear at this juncture: The 10-point
solution applied to both the peninsula, as well as Sabah and Sarawak.
The only difference was that the copies of the Bible being imported into
Sabah and Sarawak were not required to have the mark of the Christian
cross and the words “Christian Publication” printed on the outside cover
of the Bible.
Otherwise,
the 10-point solution accepted the fact that the Bahasa Malaysia Bible
with the term ‘Allah’ was allowed to be brought into anywhere in
Malaysia, and printed anywhere in Malaysia.
Statements
in the media and elsewhere that the 10-point solution was only
applicable to Sabah and Sarawak are therefore wholly incorrect.
Court ruling muddies the issue
Fast forward now to Oct 14, 2013, when the Court of Appeal issued its decision in the case of the Herald.
There was immediate uncertainty as to what the exact nature and extent
was of this decision. In order to address concerns about the ambit of
the Court of Appeal’s decision, attorney-general Abdul Gani Patail came
out with a statement on Oct 20, 2013.
In a press report by national news agency Bernama
and published on online media, he clarified that the decision of the
Court of Appeal was that the Printing Presses and Publications Act 1984
gave the home affairs minister the discretion to prohibit words that
were prejudicial or likely to be prejudicial to national security and
public order.
So
long as that discretion was exercised legally, reasonably, rationally
and proportionally, the court would not interfere with the exercise of
the minister’s discretion.
Naturally,
the minister’s discretion must conform with the provisions of the
federal constitution. The attorney-general stated that the Court of
Appeal had unanimously held that the constitutional protection afforded
to the practise of one’s religion was confined to practices that formed
an essential and integral part of the religion. And it is here that the
Court of Appeal’s decision is worrying for Christians in Malaysia.
The
attorney-general continued in his statement that the Court of Appeal
had made a determination that, “the use of the word ‘Allah’ in the Malay
version of the Herald to refer to God is not an essential or
integral part of the religion of Christianity and therefore does not
attract the constitutional guarantee under Article 11 of the federal
constitution”.
The
situation is, in fact, much worse. With due respect to the
attorney-general, the judgment of the Court of Appeal does not show that
it found “the use of the word ‘Allah’ in the Malay version of the Herald to refer to God is not an essential or integral part of the religion of Christianity”.
The
underlined words are simply not there in the judgment. Instead, at
paragraph 51 of his judgment, Appandi JCA states: “... It can be
concluded that the word or name ‘Allah’ is not an integral part of the
faith and practice of Christianity, in particular that of the Roman
Catholic Church.”
At no point does Appandi JCA attempt to limit this observation only to the use of the word ‘Allah’ in the Malay version of the Herald.
Indeed in paragraph 5 of the summary, it is stated, “It is our common
finding that the usage of the name ‘Allah’ is not an integral part of
the faith and practice of Christianity”.
The
attorney-general has tried to suggest that the extent of the decision
is narrow. Yet it is the Court of Appeal’s own words that “the word or
name ‘Allah’ or the usage of the name ‘Allah’ is not an integral part of
the faith and practice of Christianity”.
It
thus gives rise to the real and serious concern that this finding is of
wide purport and must be generally and broadly applied. This would then
justify the outlawing of the use of the word ‘Allah’ not just in a
church newspaper but anywhere else, including copies of the Bible,
prayer books, study materials, etc. In other words, a blanket
prohibition.
In
any event, just as the federal government ignored the advice of the
attorney-general in relation to the re-introduction of detention without
trial in the amendment to and enlargement of the Prevention of Crime
Act 1959 (the attorney-general - to his credit - was not in favour, but
the cabinet overruled him), the federal government has ignored the
attorney-general’s attempted clarification of the Court of Appeal’s
decision.
Solution without a solution
The
prime minister himself, speaking on Oct 22, 2013 to delegates of Parti
Bersatu Sabah in Kota Kinabalu - a component party of BN - tried to have
his cake and eat it too. He stated that the 10-point solution would be
honoured in Sabah and Sarawak. However he said nothing about the
10-point solution continuing to apply to the peninsula, even though it
is clear that the 10-point solution does not make mention of newspapers.
The
10-point solution - which clarified that the Malay-language Bible could
be printed in Malaysia and also imported into Malaysia - was never
stated to be only applicable to Sabah and Sarawak. Indeed, as has been
set out earlier, the circumstances which brought about the 10-point
solution was the impounding of the Bahasa Malaysia Bible from being
brought into both the peninsula and Sarawak, precisely because they
contained the word ‘Allah’.
If
the prime minister is now trying to suggest that the 10-point solution
somehow does not apply to the states of the peninsula because of the
ambit of the ruling in the Herald, that would contradict the
opinion of his own attorney-general on the one hand, and to detract from
the raison d'être of the 10-point solution on the other.
It should also be noted that the Printing Presses and Publications Act 1984 that was being challenged in the Herald
case, is applicable to the states of Sabah and Sarawak just as much as
it is to the states in the peninsula. Thus, if under the Printing
Presses and Publications Act 1984 it may be lawful for the minister to
exercise his discretion to prohibit the use of the term ‘Allah’ in
church newspapers in the peninsula, he could do so in Sabah and Sarawak
as well.
And while the Herald
case’s immediate subject matter was a church newspaper, even the
printing and publishing of the Bible comes under the jurisdiction of the
home affairs minister pursuant to the Printing Presses and Publications
Act 1984.
If
there is no constitutional protection for the use of the word ‘Allah’
amongst Christians, that lack of protection would apply equally whether
in the Bible or church newspapers, and would also apply equally to Sabah
and Sarawak as it would to the states of the peninsula. There cannot be
two separate and distinct applications of the federal constitution in
this respect.
The
prime minister wrote in point 10 of the 10-point solution that, “There
is a need to manage polarities that exist in our society to achieve
peace and harmony. I believe the best way to achieve this is through
respect, tolerance, forgiveness and reconciliation”.
If he genuinely meant those words, he must reaffirm the following:
1. The 10-point solution remains in full force and effect, both in the peninsula and Sabah and Sarawak.
2.
The right of the Christian community in Sabah and Sarawak to use the
word ‘Allah’ in their Bible, church services, prayer books, teaching
material and church newspapers does not arise merely out of custom and
practice, but is intrinsic in their constitutionally-guaranteed right to
freedom of religion.
3.
That same constitutional right must by necessity apply to the Christian
community in the peninsula as well, otherwise it is rendered
meaningless. And if one community does not enjoy the
constitutionally-guaranteed right to freedom of religion, then no
community enjoys the constitutionally-guaranteed right to freedom of
religion because it will have been rendered illusory.
4.
The so-called finding by the Court of Appeal that “the word or name
‘Allah’ or the usage of the name ‘Allah’ is not an integral part of the
faith and practice of Christianity” ignores the faith and practice of
Bahasa Malaysia-speaking and or bumiputera Christians throughout
Malaysia that was implicitly accepted in the 10-point solution, and the
attorney-general should be instructed to apply for such references in
the judgment of the Court of Appeal to be expunged, regardless of the
final outcome of the appeal.
ANDREW
KHOO is co-chairperson of the Human Rights Committee of the Bar Council
Malaysia. He writes here in his personal capacity.
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