Tuesday, January 19, 2010

Kenyataan Persatuan Peguam-peguam Muslim Malaysia

Kenyataan Persatuan Peguam-peguam Muslim Malaysia
Herald Issue – I

The Malays, as one foreigner once summed up, are a people who rest under the coconut tree with the sun shinning brightly and cheerfully upon them whilst the wind blow softly against their faces.

This observation is meant as a compliment to the temperament of the Malay Muslims. As compared to Muslims of other countries, the Muslims of Malaya did not go through a period of great conflict and bloodshed to obtain independence. As a result, you have a Muslim community who is tolerant and receptive to other religion and races.

The constitutional position of Islam and the Malays can be understood by making an analogy to a house owner who welcome visitors into their house and allowed their visitors the right to use the living room, dining room, the bedrooms, the garden, and all other areas, except, the house owner was to say, “Never ask for the right to use my own master bedroom. It is my special privilege.” After a few decades, the house owner has shared everything in his house except for his own master bedroom. He finds that his visitors, having enjoyed unlimited access and use of all the parts in his house are now knocking on the doors of his master bedroom, demanding for the right to use his own master bedroom, his last bastion.

The case of the weekly Herald has jolted the largely Malay Muslim community into the realisation that their last bastion, their master bedroom (i.e. Islam and Malay privileges) is now very much at stake. The positive outcome from the Herald fiasco is the unity of majority of the Muslims coming to the fore to protect and defend a matter held dear to their very essence, their religion, culture and sense of identity.

The Herald had since 1986, illegally used the words “Allah” to refer to God in its publication. Under Control of Undesirable Publications of the Printing Presses And Publications Act introduced in 1984, the Kementerian Dalam Negeri (KDN) (Ministry of Home Affairs) has the power to introduce the Garis Panduan Penerbitan Kementerian Dalam Negeri (“Guideline”) to regulate publications such as the Herald. According to the Guideline, words such as “Allah”, “Kaabah”, “Baitullah” and ‘Solat” are not allowed to be used by religions other than Islam. The KDN then issued a letter dated 19.05.1986 instructing and advising the weekly Herald not to use the words contained in the Guideline. Such words are deemed as sensitive to the Muslim community and may cause disharmony, disunity and confusion among the community especially the Malay Muslim community.

However, instead of adhering to KDN’s instructions and advice to cease publishing the word “Allah”, the weekly Herald repeatedly breached the Guideline by reproducing the publication in the Herald containing the words “Allah”.

The Archbishop of the Titular Roman Catholic Church (“the Church”) himself admitted in his Affidavit that a total of eight letters were sent to the Herald by KDN advising them to cease the use of the word “Allah” in their publication which went unheeded. The word “Allah” is banned for use by non Muslims under the anti propagation laws of states in its schedule of offensive words. Despite a clear statutory provision disallowing the use of Allah by non Muslims, the Herald continued in acts of infringement of the anti propagation laws and blatantly disregarded the Guideline since 1986 until 2007. Since no immediate and decisive action was taken by KDN in response to this transgression of state law and consistent breach of the Guideline, the Church was emboldened enough to file a Judicial Review dated 19.03.2008 for the following declarations:-

that the Church is entitled to use the word ‘Allah’ in The Herald, a weekly Catholic publication of the Church;
that the Guideline by the Kementerian Dalam Negeri is illegal; and
that the use of the word “Allah” is not exclusive for the religion of Islam.

The Herald meanwhile, posted their publication online until it came to the attention of the Majlis Agama Islam Selangor (“MAIS”) and the Muslim Chinese Association of Malaysia (“MACMA”) who were deeply concerned on the effects of the publication on the Muslims in general, especially as they were made to understand by the Church that the publication was to be solely for internal circulation of members of the Church. With its posting online by the Herald however, meant that the general public and those outside of Kuala Lumpur including the world at large would have unlimited access to the Herald. The MACMA feared that the publication would cause confusion among converts due to the terminology used. It may also open the floodgates for other beliefs to challenge the Guidelines and use the word “Allah” in their practise.

As a body entrusted with the protection of the rights and interests of Islam and the largely Malay Muslims, MAIS viewed these developments with alarm and concern. MAIS is empowered under state legislation to dispense their duties as the lawful representative of the Sultan of Selangor including to advise the Sultan of Selangor on any matter impacting the unity and interests of the Muslims. Having presented to the Sultan of Selangor the gravity of the matter, the Sultan of Selangor found the situation to be sufficiently compelling for MAIS’s intervention. With the blessings and unequivocal support of the Sultan of Selangor, MAIS filed applications to be admitted as interveners for both the Summons and Review. Their action was emulated by other Majlis Agama Islam of the States of Wilayah Persekutuan, Terengganu, Johore, Pulau Pinang and Melaka. Throughout the case, solicitors and MAIS officers handling the case attest to the ease by which they were able to advise and brief the Sultan of Selangor and to obtain further directions. The deeds of the Sultan of Selangor shall be crafted in our historical manuscripts as a monarch who has displayed a deep conscience and understanding of his role as protector and custodian of Islam and Malay rights, in the case brought by the Church.

The intervener applications by MAIS, MACMA and Majlis Agama Islam of States were provided for by statutory provisions under the Rules of the High Court. Unfortunately, the Court did not allow their application even though MAIS argued for their inclusion under the various provisions in the Rules of High Court, including provisions for special entry to oppose the judicial review. The Court did not recognise the statutory duties of MAIS under state legislations as the lawful body to advise and aid the Sultan of Selangor in such matters of judicial review relating to the rights and interests of Islam and the largely Malay Muslims.

The Court made a pronouncement that MAIS have no basis to justify that they have a direct interest in the case, in total disregard to MAIS’s statutory function as adviser and aid to the Sultan of Selangor in matters of Islam and Muslim rights. Thus, MAIS was denied the opportunity to put forth their arguments before the Court by the Judge presiding the case, Datuk Lau Bee Lan. This situation proved fatal to MAIS’s intervener application and was a major factor that led to a decision in favour of the Herald. The Court decision meant that the words “Allah” and consequently, “Allah’s Son” were allowed to be used in the Malay pages of the Herald weekly. The Court decision has also set a precedent that where it deems fit, parties who expressly transgressed and breached laws, may still come to Court challenging the authorities’ right to enforce laws under the guise of “constitutional rights”. This is one of the greatest mockeries to our judicial system.

Consequently, the reaction of the Muslim community to the Court decision dated 31.12.2009 is largely one of disbelief, anger and humiliation; a deep wound that if it were at all to recover, would require a long healing process.

Herald Issue – Part II

The Judge presiding the case of the Herald, Datuk Lau Bee Lan, in her decision disallowing MAIS, MACMA and Majlis Agama of States as interveners, made special mention of the fact that the applicants in this case were unable to provide concrete evidence that the use of the word “Allah” is sensitive to the Muslim community and would cause disharmony, disunity and confusion among the Muslim community. As such, it may be inferred that the Judge was of the opinion that the usage of the word “Allah” by the Herald and the Church would not be of material consequence as far as the Muslim community is concerned.

Events that unfolded during the days immediately succeeding the decision proved otherwise. NGOs, Islamic organisations and various other organisations whether politically connected and apolitical were greatly moved by this outright disregard of the Muslim’s community sensitivities. The government, initially unsure of the correct stand to be taken, followed the stance set by our former premier in this issue, where Tun Mahathir in his statement immediately after the Court decision was handed down stated that “….the word “Allah” is specific for Muslims..” and “…in Peninsular Malaysia we have never heard of Christians using the word Allah when referring to God in the Malay language, why are we using the word now?..”. Tun Mahathir’s sentiment is shared by many Muslim groups in Malaysia who questioned the motives behind the application by the Church to use the word “Allah” in the Herald which may, subsequently lead to the use of the word of “Allah” in a Malay language version of the bible. The other versions of the bible, which is the English, Chinese and Tamil language do not include the word “Allah” in their publications. As such, it seems that the word “Allah” and as such, “Allah’s Son” are meant to be used exclusively for a Malay language version and targeted for the largely Malay Muslim community.

The demonstrations of opposition to the Court decision that took place all over the country culminated in sporadic attacks against Churches in Kuala Lumpur, Selangor, Perak, Malacca and Sarawak, hinting to possible civil unrest if left unabated. A news report dated 11th January 2010 in the Star which states “…Some 1,700 members of the Protestant Church packed the hall for the joint Mandarin and English services from early yesterday…” points blankly to the age old customary usage of English and Mandarin in their Church services, which reinforces the suspicion of the Muslim community towards the intention of the Church in using the word “Allah” in the Malay language pages of the Herald-Weekly and the Malay version of the bible. Members of Churches testify through at least one blog (http://www.malaysiakini.com/news/12096) as follows:- “It is for the use of ‘Allah’ in worship and publication in Bahasa, not in English…Yes, they had use God and will continue use God in English worship/publication but in Bahasa, they want to use ‘Allah’ back”.

In respect to the attacks against the Churches, there have been notable efforts by the government to pacify the Christian community whereby monetary compensation and contribution to repair the Churches were offered. The Muslim community generally do not condone the attacks and belief that these attacks are isolated incidences and committed by extremist individuals. However, similar efforts by the government to pacify the Muslim community are wanting and the Christian community have not come strongly forward to state their disagreement with the application by the Titular Roman Archbishop to use the word “Allah” in Malay language pages of the Herald-Weekly. In order to contain extremist individuals and comfort the wounds of the Muslim community inflicted by the Church’s Court application, a more decisive stand has to be made by the government authorities.

Although the stand by the government authorities in this issue is uncertain and lacking in direction, the King – Yang Dipertuan Agong Al-Wathiqu Billah Tuanku Mizan Zainal Abidin ibin Almarhum Sultan Madmud Al-Muktafi Billah Shah (“Yang Dipertuan Agung”) came forward to point the direction that the government is supposed to drive in this issue. In the statement issued by the Yang Dipertuan Agung dated 9th January 2010, the Yang DiPertuan Agung reminded all parties to respect Islam as the religion of the Federation and emphatically stated that the use of the word “Allah” shall precisely follow that as understood and complied in the Islamic context. The statement made by the Yang DiPertuan Agung had to a certain extent, provided some semblance of relief from the black abyss that currently envelopes the muslim community.

The statement by the Yang DiPertuan Agung that Islam is the religion of the Federation is of great significance in its meaning and effect. Under the Constitution, Islam holds a special position that is unquestionable. This special position is entrenched in Article 3 of the Federal Constitution that states, “Islam is the religion of the Federation; but other religions may be practised in peace in harmony in any part of the Federation.” Therefore, Article 3 establishes the sovereignty of Islam as the religion of the Federation and the rights of other religions to be practised shall not encroach on the rights of Muslims to practise Islam nor cause disharmony to Islam. The description of Islam as a religion above others under the Constitution is aptly described by Judge Mohd Nor Abdullah in a decided case in the year 2000 (Meor Atiqurahman bin Ishak & Ors v Fatimah Sihi & Ors [2000] 1 CLJ 393), where Islam is likened to a majestic tree known as the “Pokok Jati” which is tall, strong and luminous. It stands and walk before others, its presence is in the main arena with its voice heard loud and clear. If its nature is not as such, then it cannot be said to be a religion above others in the Constitution.

The Yang DiPertuan Agung, in taking the office of Yang DiPertuan Agong, is subject to the Oaths he had pledged as stipulated in the Fourth Schedule of the Constitution. In accordance to the Oaths taken under the name of Allah, the Yang DiPertuan Agong has an undisputable sacred duty as custodian and protector of the religion of Islam and Malay rights.

In the case of the Herald, the Yang DiPertuan Agong, having been advised by Constitutional experts, came instantly to the defence of the Islamic religion and being an institution by itself, was the first to pledge support for the Sultan of Selangor in the intervener application. The Majlis Agama of Terengganu, being the state directly under the Yang DiPertuan Agong was initiated as a party through its Majlis Agama Islam to the intervener application. For states that have no Sultan such as Malacca, Pulau Pinang and Wilayah Persekutuan, the Yang DiPertuan Agong took upon himself to instruct the Majlis Agama of these states to join in the intervener application. The Sultan of Johor, meanwhile, came into the intervener application through the advice of their Mufti.

The main thrust of the Yang DiPertuan Agong’s and Majlis Agama States’ concern is the confusion that the misuse of the word “Allah” would cause among the Muslims and non Muslims alike. The concept of Allah as understood, embraced and practised by the Muslim community in Malaysia is totally distinct and separate from the concept as understood by the Church conceptually, culturally and theologically. Whereas, the concept of Allah embraced by the Muslim community in Malaysia as defined in the context of Muslim and Malay tradition is Allah in a MONOTHEIST (TAUHID) sense as opposed to the concept of TRINITY of God as understood by the Church.

In the aftermath of the Church attacks, calls were made for the Muslim community to remain calm and not to disrupt harmony. Some opinions chided the Muslim community for their intolerant behaviour towards the Court Decision and even advised that the issue of the use of the word “Allah” in the Malay language pages of the Herald-Weekly has been unjustly magnified. The nation has forgotten one critical aspect in all of this mayhem; the Muslim community did not start the encroachment of the rights of other religious communities. Instead, the act of the Church in bringing the matter to Court is seen by the Muslim community as a belligerent and provocative act and this fact should be acknowledged by all, as a first step towards healing wounds.

Information Secretariat, Persatuan Peguam Peguam Muslim Malaysia.

(Muslim Lawyers Association of Malaysia)

No comments:

Related Posts with Thumbnails