Law experts: Royal decree on ‘Allah’ not binding on non-Muslims, but…
UPDATED @ 07:33:49 PM 10-01-2013
KUALA LUMPUR, Jan 10 — Neither the Selangor Sultan’s decree nor a fatwa banning non-Muslims from using the word “Allah” for their gods is enforceable, lawyers say, but they added that a 1988 state law could trigger another courtroom battle for those who persist — in the latest faith storm to hit Malaysia.
Christians and Sikhs nationwide have protested the Selangor Sultan’s blanket ban and warning by the state’s Islamic authorities that they would enforce the law on non-Muslims, insisting they have the constitutional right to also call their gods “Allah” as prescribed in their holy books.
The Muslim-dominant country, which provides for syariah courts to run alongside the civil courts, has created several gray areas due to an overlap of powers, several law experts told The Malaysian Insider when contacted yesterday.
“The statement by HRH itself has no legally binding authority. It should not have any effect on non-Muslims,” said Syahredzan Johan, referring to Sultan Sharafuddin Idris Shah’s decree issued on Tuesday.
“But the 1988 enactment is legally binding as it has been passed by the state legislative assembly. It is this 1988 enactment which may be used against non-Muslims,” the civil liberties lawyer added.
The 1988 Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment does not create syariah offences but civil offences, Syahredzan explained, which means the case would be tried in the civil courts and not the syariah courts, which has jurisdiction only on Muslims.
But the lawyer noted that section 9 of the 1988 state law “cannot be a blanket ban on the use of the word ‘Allah’ for non-Muslims, as it would encroach on a non-Muslims constitutionally guaranteed freedom of religion under Article 11(1) of the Federal Constitution, which the states do not have power to restrict or control”.
He also pointed to a 2009 judgment where the civil High Court ruled that “if any action is taken by the Rulers and YDPA which affect the affairs of non-Islamic religions, such action would be construed as unconstitutional”. YDPA stands for Yang di-Pertuan Agong, a title accorded the country’s king.
“According to the judgment therefore, any attempt to use the 1988 enactment to prohibit freedom to practice religion would be unconstitutional.
“Until it is overturned by the appellate courts, the judgment is good law,” Syahredzan said.
The 2009 High Court judgment was a landmark case brought about when the Catholic Church challenged the Home Ministry’s decision to bar it from publishing the word “Allah” to describe god in a non-Islamic context.
The Home Ministry’s appeal has been languishing at the Court of Appeal for the past three years. In the meantime, the Catholic Church remains barred from publishing the word in the Malay section of its weekly newspaper.
Other law experts weighing in on the controversy voiced similar views to Syahredzan’s, noting that Selangor was not the only state that has passed laws restricting the spread of non-Islamic religions.
Syarie lawyer Nizam Bashir pointed out that state laws touching on Islam only have effect on “persons professing the religion of Islam”.
He said the controversy was related to freedom of speech and expression as provided for under Article 10(2)(a) of the Federal Constitution, which only Parliament has the power to restrict.
“If you look at the Guru Grant Shaib holy book of the Sikhs, it has got the word ‘Allah’ in so many places. Are we going to edit the holy book of another community?” Nizam asked, before answering, “That’s wrong. The royal decree cannot apply.”
Afiq Mohd Noor, a member of the Lawyers For Liberty (LFL) group, told The Malaysian Insider that any penalty imposed on non-Muslims would be against the Federal Constitution.
Section 9 of the Selangor enactment prescribes a fine of RM1,000 on non-Muslims upon conviction but no jail sentence.
It was silent on the action to be taken should the offending non-Muslim refuse to pay the fine.
Law lecturer Azmi Sharom said his reading of the Selangor state law meant that non-Muslims cannot use the word “Allah” only if they were proselytising their religion to Muslims”, a point High Court judge Datuk Lau Bee Lan had detailed in her 2009 judgment.
“The problem with the High Court decision is one of jurisdiction,” the University Malaya don said, adding the case of the Catholic Church versus the Home Ministry was a federal dispute while the royal decree and the Selangor enactment were state matters.
“There is a conflict here and I can’t give you a definitive answer as to which will prevail,” Azmi said in his email response to The Malaysian Insider.
Mohamed Hanipa Maidin, legal adviser to Islamist opposition party PAS, was guarded in his response, saying: “It can be argued so long as the law prohibits non-Muslims to use the word Allah among themselves as a blanket prohibition, such law is invalid.
“Only if it is propagating to Muslims, such act is against Article 11(4).”
Afiq, the human rights activist, said the matter was now up to the Pakatan Rakyat (PR) Selangor government to decide as it was an offence under state laws.
“But what is the PR government going to do? That is the question,” he said.
Race and religion are inseparable issues in Malaysia, where the Malays — who make up 60 per cent of the 28 million population — are constitutionally defined to also be Muslims, and therefore are subject to the dictates of the state Rulers who are each the head of Islam.
The country’s supreme law states that Islam is the religion of the federation but also provides for other religions to be practised freely.
The “Allah” dispute, which first erupted after the watershed 2008 Elections, remains a hot-button topic in the run-up to this year’s polls.