Federal Court Ruling in the Allah Case: What it Means?

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Today, the Federal Court dismissed the Roman Catholic Church’s appeal in the Allah case. This was an outcome not unexpected judging by the trend of recent court decisions in such cases.

I was asked today what the Federal Court decision means. For example, does it change anything?

First, we must understand what the case was all about. The Roman Catholic Church in Malaysia (RC) puts out a bulletin called the Herald. All this time, it was published in English. They wanted a Malay language version and applied to the Ministry of Home Affairs (KDN) for a licence. KDN eventually said that a licence would be given but the word “Allah” must not to be used in the Malay language Herald. The RC disagreed and filed a case in the High Court to challenge the KDN decision. To justify their decision, KDN said that certain state enactments had banned non-Muslims from using the word Allah. The RC argued that the Malay-speaking Christians in Malaysia had used this word to refer to God hundreds of years before the prohibition existed and that the ban was unconstitutional in that it violated the rights of Christians to freedom of religion under Article 11 of the Constitution.

The High Court ruled in favour of the RC. In October last year, the Court of Appeal overturned the High Court decision. The RC then applied for leave to appeal to the Federal Court, the highest court in the land. What is this application for leave? According to the law, there is no automatic appeal from a decision of the Court of Appeal. There are 2 stages to contend with. First, the losing party must get leave or, in layman’s terms, permission to appeal. To get leave to appeal, certain criteria must exist. One of them is that the appeal involves interpretation of the Constitution. Secondly, once leave is granted, the Federal Court then hears the substantive appeal and decides whether the Court of Appeal had made a correct decision. There is no further appeal from the Federal Court.

It is fair to say that the Federal Court decision could be confined to its facts as argued by some quarters, namely, it just means that the KDN was justified in refusing a licence if the RC wanted to use the word Allah in the Malay language Herald. However, it is likely that courts will adopt a wider application of the Court of Appeal decision as seen in the recent decision in the SIB case in May when the Kuala Lumpur High Court refused to entertain SIB’s application for judicial review of KDN’s seizure of SIB’s Malay language Sunday School materials. The Judge had said that she was bound by the Court of Appeal decision and thus had to dismiss SIB’s application.

Coming back to the question: what changes have resulted from the Federal Court decison?

I would say none. The status quo started from October 2013 when the Court of Appeal overturned the High Court decision. In effect, it affirmed the validity of the ban against non-Muslims using the word Allah. Since October last year, the Bible Society of Malaysia (BSM) was raided and 321 Malay and Iban bibles were seized by the Selangor Islamic department (JAIS). So, the legal status from October last year to today when the Federal Court announced its decision has actually not altered.

Recently, the Attorney-General (AG) announced that the JAIS raid on BSM was wrong and that BSM had committed no offences that deserved prosecution. In spite of being challenged by the Selangor Islamic  Council (MAIS), the AG had affirmed his decision that no action will be taken against BSM. Even the Prime Minister called on all parties to respect the AG’s decision.

It should be noted that the AG’s decision was made during the regime of the Court of Appeal decision. As the Federal Court today chose not to touch the Court of Appeal decision, it means that things continue as they were since October last year. In other words, nothing had changed including the correctness of the AG’s decision.

To sum up, the reality in Malaysia today is as follows:

  • The finding by the Court of Appeal that state enactments banned non-Muslims from using the word Allah was not overturned and therefore still stands.
  • KDN would be justified in imposing the condition that the word Allah not be used when it issues publishing licences.
  • Non-Muslims may not use the word Allah in states that have laws banning its use. In states without such laws, non-Muslims are not banned from using the word, eg. Sabah, Sarawak, Federal Territory and Penang.
  • It is not an offence against such state enactments to import, print and use the Alkitab, the Malay language bible, even though the word Allah is used.

This is a quick response to the events of today. I will write more about the implications for Christians later.

 

Khalid, Show Them Who’s the Boss

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The rejection of the Attorney-General’s decision by MAIS and JAIS and their refusal to return Bibles seized from BSM has precipitated a crisis in Selangor state (see link).

Firstly, there is now a crisis of confidence in the State government. A state department has declared its autonomy of the Menteri Besar and the State EXCO. They answer to no one. They have taken upon themselves to be infallible interpreters of the law to the extent that they reject the decision of the AG. In doing so, they have undermined the AG’s constitutional role as the final arbiter of all criminal investigations and prosecutions.

Secondly, MAIS and JAIS by their recent announcements have stated that they regard the Malay and Iban Bible to be in breach of Selangor law in spite of what the AG has said. The practical implication of this is that JAIS with the approval of MAIS will carry out further raids on BSM as they regard BSM as lawbreakers in spite of what the AG has said. Further, they will also raid churches that have and use the Malay or Iban bibles, arrest Christian pastors and priests and seize more bibles in spite of what the AG has said. It matters not that the AG will refuse to prosecute. MAIS and JAIS will continue to act on their own and in defiance of the law as interpreted by the AG until their exhibit rooms are filled with seized bibles. Christians and churches will live in fear of JAIS.

The MAIS and JAIS stand is unprecedented and a dangerous anomaly in modern government. There is no such thing as a government department that is not accountable and not subject to law as interpreted by those constitutionally appointed to interpret it.

Also, MAIS and JAIS’s recalcitrance have shown that they have become unqualified and unfit to enforce the Selangor Non-Islamic Religions (Control of Propagation Among Muslims) Enactment 1988. 

What can the State EXCO do? Clearly, they must protect the people of Selangor from an uncontrollable department. They can easily do this by revoking the Gazette Notification published in 1999 that appointed MAIS and JAIS officials as enforcement officers under the 1988 Selangor Enactment.

This incident have demonstrated the folly of appointing officers of one religion to police adherents of other religions. It is very clear that the job of enforcement should be given to secular authorities like the police to prevent religious bias from perverting the course of justice.

Enforcement  officers under the 1988 Selangor Enactment are appointed by the Ruler in council. This means that the Sultan of the State appoints the enforcement officers on the advice of the State EXCO. Thus, the revocation of such appointments are also on the same basis. 

Understanding the AG’s Decision

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Was the Attorney-General’s decision not to charge the Bible Society of Malaysia for using the  word “Allah” in the Malay Bible founded on law and a proper interpretation of the law?

The AG concluded that the Malay Bible does not fall under Section 9(1) of the Non-Muslim Religions (Control of Propagation Amongst Muslims) Enactment 1988 of Selangor.

The key to understanding how the AG came to this conclusion lies in his use of certain terminology. His statement originally made in Bahasa Malaysia states as follows:

 “Keterangan menunjukkan buku-buku yang dirampas adalah Bible dalam versi Bahasa Malaysia dan Alkitab Berita Baik adalah himpunan buku Taurat, Zabur dan Injil yang merupakan buku asas penganut agama Kristian.”

Roughly translated into English:

 “The statements [recorded from witnesses] show that the confiscated books are the Bible in Bahasa Malaysia and the Alkitab Berita Baik is a compilation of the Torah, Psalms and Gospels which are the basic books of the Christian religion.”

The AG used the expression “buku asas … agama” (English: “basic religious book”). He could have used a variety of expressions to describe the Malay Bible, for example, buku suci (“holy book”). However, the term “buku asas agama” used by the AG was taken from the terminology found inside the 1988 Selangor Enactment itself. Let me explain.

Section 9(1) of Selangor Enactment No. 1 of 1988 states that “a person commits an offence if he in any published writing uses certain Quranic words (eg. “Allah”) to express or describe anything pertaining to a non-Islamic religion.

It should be noted that Section 9 prohibits a non-Muslim in a published writing or in a public speech from using the word Allah in a non-Islamic context. In the heat of the recent debate, it was commonly assumed that the use of the word Allah in the Al-Kitab is a contravention of Section 9. However, what has been overlooked is the intention of Selangor Enactment No. 1 of 1988 to recognise and give due respect to the holy books of non-Islamic faiths.

Section 2 of Selangor Enactment No. 1 of 1988 defines the word “publication” as follows:

“publication” includes any book, magazine, pamphlet, leaflet, sound-recording material, cinematograph films and any other material for reading, viewing or hearing howsoever produced

However, Section 2(2) and (3) further clarifies:

(2)       For the purpose of this Enactment, a publication shall be held to be one concerning a non-Islamic religion if it is considered by the followers or members of that religion to be a holy or fundamental book or one of the essential texts of that religion (hereinafter referred to as “basic religious book”) …

 (3)       Notwithstanding that a publication is a publication concerning a non-Islamic religion by reason that it falls under subsection (2), it shall not form the subject of an offence under this Enactment if the publication as a whole is in the interest of Muslim or the religion of Islam.

Thus, the Enactment in Section 2 recognised the existence of holy or fundamental books or essential texts of non-Islamic religions and classified them under the expression “basic religious book.”

The word “publication” as appears in the Enactment includes “basic religious books” and secondary religious writings of a non-Islamic nature. Thus, it is an offence under Section 7 to send any non-Islamic holy books to a Muslim. Similarly, it is an offence under Section 8 to distribute non-Islamic holy books in a public place to a Muslim.

When Section 9 created the offence of using banned words, it used the expression “published writing” like an article, a book or an internet blog. In other words, an individual (note: the words “a person”) cannot in contemporaneous writings like articles published in books, newspapers, magazines, internet, etc, use the word Allah with a non-Islamic reference.

However, Section 9 has no application to pre-existing non-Islamic holy books. If Section 9 intended to refer to holy books of non-Islamic religions, it would not have used the words “published writing” only but instead would have used or included the expressions created in Section 2, namely, “basic religious books.”

In creating the expression “basic religious books” in Section 2, the Enactment was recognising the existence of non-Islamic holy books like the Al-Kitab which predated the Enactment and indeed the foundation of Malaysia as a modern independent nation. Nothing in the Enactment seeks to prohibit non-Islamic holy books even if they contained the banned words. It only prohibited the sending or distributing of non-Islamic holy books to Muslims.

In fact, Section 2(3) even recognised the possibility of certain non-Islamic holy books as being “friendly” to Islam and provided a blanket exemption, namely, that “it shall not form the subject of an offence under this Enactment if the publication as a whole is in the interest of Muslim or the religion of Islam.” It is my understanding that Islam has traditionally recognised the holy books of the Christians, in particular, that there is a continuity in revelation from the Christian religion to the Islamic religion. However, this is an area for the experts to comment on.

Clearly, the Enactment does not intend to make holy books of non-Islamic religions as contraband articles. It does not prohibit the use of words like Allah in the holy books of non-Islamic religions like the Christian Al-Kitab or the Sikh Granth Sahib.

This view finds support from the recent Court of Appeal decision in Menteri Dalam Negeri & 8 lain lawan Titular Roman Catholic Archbishop of Kuala Lumpur [2013] 6 MLJ 468 commonly known as the Allah case. YA Dato’ Abdul Aziz Bin Abdul Rahim JCA said at page 505:

“Nevertheless, I think neither the historical evidence nor the fact that the word ‘Allah’ appears in Al-Kitab (which is the Malay version of the Bible) is a sufficient justification for the [Home Minister] not to consider imposing the prohibitive condition of the usage of the word ‘Allah’ in the Herald. The Al-Kitab and the Herald are two publications of entirely different character. The Al-Kitab is the Malay version of the Bible — so, it is obvious that it meant only for Christians. Moreover the Ministry of Home Affairs had already specified the condition that the Al-Kitab is to be used in churches and among Christians only; and that the words ‘BUKAN UNTUK ORANG ISLAM’ are to be printed clearly and conspicuously on the front page of the Al-Kitab. This condition is obvious from the Ministry’s letter dated 24 April 2007 to the respondent — in paras 10–12. Whereas the Herald is a newsletter or in the same category as a newspaper (albeit with restricted circulation) which is used or likely to be used as the mouthpiece for the Catholic church to disseminate informations on the activities of the Catholic church or Catholic congregations. It is acknowledged by learned counsel for the respondent that as of today the Herald is accessible online. This online accessibility means that the Herald can be read by anybody — be it Muslim or non-Muslim. For this reason, I am of the view 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’.”

The other two judges say nothing about the Al-Kitab but both say they agree in toto with Justice Abdul Aziz.

In conclusion, a careful reading of Selangor Enactment No. 1 of 1988 shows that neither the use of the word Allah in the Al-Kitab nor the use or possession of the Al-Kitab by Christians constitute offences under Selangor Enactment No. 1 of 1988.

This, I suggest, was the AG’s understanding and interpretation. That was why he used the expression “buku asas agama” which was the rough variation of the 1988 Enactment’s expression “basic religious book.” Recognising that the Al-Kitab is a basic religious book of the Christians, it was therefore logical for him to conclude that the Al-Kitab does not fall under Section 9 of the 1988 Enactment and that the use of the word Allah in the Al-Kitab does not constitute an offence at all.

 

 

 

 

 

 

 

Time for Malaysia to Close Ranks: End to Bible Issue

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Just now a reporter called me and informed me that the Attorney-General has announced that no action will be taken in the case of the Malay Bibles seized from The Bible Society of Malaysia (see Malaysian Insider; Malay Mail Online). Thus, the case is closed. He asked me for my comment.

I told him that I am no longer President of BSM and that he should talk to BSM’s new president. He insisted that since the incident happened while I was President, he wanted to know how I feel about the latest development. I then obliged him with my personal comment which I reproduce below.

I have always believed that the Attorney-General will come to this conclusion. From the moment, JAIS raided BSM, arrested me and my colleague and seized 321 BM Bibles, we knew that JAIS had made a terrible mistake. Nevertheless, it has been a trying experience to endure 6 months of uncertainty of whether we are lawbreakers or law-abiding citizens until the nation’s highest legal officer confirmed that the Malay Bible did not breach any of the laws of Malaysia or its states (in my next post, I will provide the legal reasoning for this).

I thank God for the grace and fortitude that He has given to my colleagues in BSM and me to trust that God will bring about a just end to this controversy.

I now call upon all Christians in Malaysia to follow the teaching and example of our Lord Jesus Christ to forgive, put this incident behind us and go on with our duty as responsible citizens of Malaysia to build our nation on the foundation of peace and harmony.

I call on Christians to forgive JAIS. They were doing their job but they had wrongly interpreted the law. No one is perfect. Everybody makes mistakes. Let us forgive them just as Christ forgave us.

With the AG’s announcement, I now have an iron-clad case to sue JAIS for wrongly arresting me. Shall I do it? Of course not. I forgave JAIS a long time ago and have no intention to sue them or to punish them in any way. The AG’s announcement is better than any court judgment. There is nothing to be gained from a law suit except to satisfy a lust for vengeance. This is unchristian.

I hope the Church in Malaysia will put this incident behind us and concentrate on how God wants the Church to contribute to the life and the future of this nation.

Likewise, I call on JAIS to have the same spirit of goodwill to return the bibles quickly and implement the necessary measures in their administration to ensure that this incident will not be repeated.

Meet The Enforcers

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Justice must not only be done but must be seen to be done. The enforcement of law must have the appearance of impartiality and integrity. Enforcers of a law must inspire confidence that their enforcement of the law will be fair, just and humane.

I have already given a list of the actions which are considered to be offences and their punishments under the Non-Muslim Religions (Control of Propagation Amongst Muslims) Enactment 1988 of Selangor. Now we look at the enforcement of this law.

Unlike ordinary civil law, the power to investigate offences and to arrest suspected offenders under the Selangor Enactment is not automatically to the Police. Instead, these powers of enforcement are given to an “authorised officer.” An authorised officer must be specially appointed by the Enactment.

Section 10 of the Enactment gives the power to appoint an authorised person to the Ruler in Council. In simple terms, it means that the Sultan of Selangor meeting with and acting on the advice of the State Legislative Council appoints a “public officer,” that is, civil servants of the State or Federation, to be an authorised person.

On 16 November 1999, the appointment of authorised persons to enforce the Selangor Enactment was published in the Government Gazette. They are:

  • Secretary of the Majlis Agama Islam Selangor (MAIS) or the Islamic Council of Selangor
  • Head of Enforcement of the Jabatan Agama Islam Selangor (JAIS) or the Islamic Religious Department of Selangor
  • Deputy Director of Research of JAIS
  • Syariah Legal Adviser of JAIS
  • All District Religious Officers in the State of Selangor
  • All police officers of the rank of inspector and above

Of the 6 categories of authorised persons, only one is a civil authority, namely, police inspectors. The first four are high ranking officers of the Islamic hierarchy in the state. The fifth category include mid-level Islamic personnel in the state.

The raid on the Bible Society of Malaysia on 2 January 2014 was not carried out by the police. It was carried out by the head of enforcement of JAIS and his subordinates. There were 2 police constables standing outside BSM premises but they never took part in the raid. They were onlookers. It was a JAIS officer who carried out the arrest. No police was involved. In any event, the 2 policemen standing on the road outside were constables and not above the rank of inspector and so could not be authorised persons under the act.

There is something objectionable and inherently unjust in appointing Islamic religious officers of the state to enforce this Enactment against non-Muslims. Religious officers are inherently biased towards their religion and rightly so. They are the appointed protectors and defenders of their religion. Thus, in an event of an offence that is considered to be an infraction of the dignity of their religion, it is impossible for them to be objective. Thus, any investigation and arrest by them is invariably tainted with bias.

In the enforcement of civil laws, a police officer does not investigate a crime when he is related to the victim. A judge does not hear a case when he is related to the parties or is involved somehow in the facts of the case. This is a basic proposition of law. We call this conflict of interest.

Anyway, let’s go on with our discussion. Section 11 of the Selangor Enactment says that all offences are seizable offences. This means that a person suspected of committing this offence can be arrested. In a non-seizable offence, for example, running the red lights, the offender cannot be arrested but a summons must be issued to him to compel him to attend court.

Section 12 says that an authorised officer may investigate the commission of any offence under the Eanactment and may arrest without warrant any person suspected of committing such offence. It is presumed that the raid of BSM, the seizure of the bibles and arrest of BSM officers were carried out under this section.

Section 13 gives power to an authorised officer to require in writing any person to attend before him in connection with the case. If a person so ordered (that is, the witness) to attend fails to attend, a warrant of arrest may be obtained from a Magistrate to compel the witness to attend. Section 14 says that the authorised officer may examine orally the witness on the facts and circumstances of the case and the witness is bound to answer all questions truthfully. The only exception is that the witness may refuse to answer any question which would expose him to a criminal charge or penalty. The statement of the witness must be recorded and signed by the witness subject to the witness making any corrections he may wish.

There were people who advised me not to go to JAIS office to have my statement recorded. Such persons were well-intentioned but were ill-advised in the law. The lawmakers in Selangor put the law in place in 1988 and then set up the enforcement machinery in 1999. They knew what they were doing and they made sure that they got all the bases covered. They had set a net so that when they cast it, the fish would not escape.

Bible Society To Move Out of Selangor

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Media Statement by The Bible Society of Malaysia

The Bible Society of Malaysia (BSM) expresses its greetings to the Christians and Churches in Malaysia who are observing Holy Week.

Recent announcements from Selangor State EXCO has confirmed BSM’s belief that the environment in the state of Selangor has become unconducive for BSM to carry out its work of supplying bibles to the Christians and Churches of Malaysia. Since the raid by JAIS on BSM’s office on 2 January 2014 together with the seizure of 321 copies of Malay and Iban bibles and the arrest of two of its officers, the Selangor State Government have demonstrated their lack of interest and will to address the unjust situation of state Islamic agencies taking unwarranted action against non-Muslim religious bodies for exercising their legitimate rights under Article 11 of the Federal Constitution.

BSM wishes to put on record that since the announcement of the Ten Points Solution by the Federal Government in April 2011, BSM had imported 400,000 copies of the Alkitab, the Bahasa Malaysia Bible, into Malaysia for use by Christians and churches. This arrived in 21 shipments over a period of 2 years. On each occasion, these shipments of BM bibles were cleared by KDN at Port Klang without delay and without any problems. BSM commends the Federal Government for not only faithfully honouring the Ten Points Solution but respecting the rights of religious minorities to have access to their holy books in the Malaysian languages.

Unfortunately, the stand taken by the Selangor State EXCO to justify and to support the actions of JAIS is a clear signal that JAIS will continue to act as a free agent against non-Muslim religious groups and bodies in Selangor.

BSM had called for and hoped that Selangor State EXCO will follow the good example of the Federal Government by adopting the Ten Points Solution in their administration that will put an end to inter-religious tensions in the state of Selangor. Unfortunately, this has not been forthcoming.

Therefore, BSM wish to announce that it will be moving its headquarters and operations out of Selangor to the Federal Territories where better protection is given by the Federal Government to religious minorities. By moving to states where the Ten Points apply, BSM hopes to avoid incidents like that of January 2 that could disrupt the operations of BSM in supplying BM bibles to Christians and churches throughout Malaysia.

Apart from the change of our base, it will be business as usual for BSM. However, we will no longer be importing Bibles through Port Klang, Selangor but we will ship BM bibles directly to East Malaysia where most of the BM bible readers are. As for West Malaysia, we will ship through the state of Penang which does not have a law like the 1988 Selangor Enactment.

Christians and churches who wish to obtain BM bibles from BSM will have to get them from BSM’s outlets to be established in Kuala Lumpur, Penang, Kuching, Miri and Kota Kinabalu. Christians residing in Selangor  will have to personally undertake the risk of transporting and using the BM bible in Selangor territory. For the rest of the country, we do  not anticipate such problems.

The timing of this transition and the location of BSM’s new offices will be announced in the Christian media in the near future.

BSM calls on Christians to remember the spirit of this Holy Week. During his crucifixion, Jesus Christ prayed to God for forgiveness for his persecutors. As we remember the sufferings, death and resurrection of our Lord Jesus Christ this week, let us forgive all those who have wronged us and pray that they will receive God’s grace and salvation as we have.

15 April 2014

BSM Media Statement: 2 April 2014

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After making many promises to return the bibles seized by JAIS, Selangor State EXCO washes their hands off the problem and tries to pass the buck to Attorney-General. Read Menteri Besar Khalid’s statement here ( at Malaysian Insider; Malay Mail; Free Malaysia Today). Here is my response on behalf of Bible Society of Malaysia:

BSM will not write to AG.

BSM was raided by JAIS, a Selangor government department. The bibles are held by JAIS in their office in Shah Alam, a stone’s throw from the Menteri Besar’s office.

This problem was caused by a department of the Selangor State Government. It was an assault by Selangor State authorities against the rights of the Christian community in Selangor. It is the responsibility of the Selangor State Government to correct this unjust situation and BSM will not be party to Khalid’s attempt to dump his rubbish in somebody else’ backyard.

The Federal Government has given the Ten Points Solution in 2011 that allowed Christians to import, print and distribute the Alkitab throughout Malaysia. In reliance on the Ten Points, BSM has imported the Alkitab on many occasions over the past 2 years and the Federal Government has faithfully honoured the Ten Points when they ensured that each shipment of bibles were promptly cleared and released without delay.

The action of JAIS in raiding BSM and the Selangor State Exco washing their hands off their responsibility today is a clear statement to the people of Selangor that the Government of Selangor rejects the Ten Points Solution and that it does not intend to accord Christians in Selangor as well as the rest of Malaysia access to their holy books in the national language.