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The “Allah” Decision is Wrong in Constitutional Law

Posted: 24 Oct 2013 05:06 PM PDT

From a constitutional perspective, the three judgments are poorly reasoned, the law misread and conclusions reached which will baffle any right-thinking student anywhere in the common law.

The decision is not just wrong, it is horribly wrong, and will represent a terrible blot on our legal landscape, unless overturned quickly by the apex court, the Federal Court.

Regrettably, what follows may seem unduly legalistic, but it cannot be avoided in a critique of a court decision.

Relevant Facts Disregarded

By their very nature, judicial review proceedings are determined in the first instance by a single judge of the High Court who does not hear witnesses.  Instead, the application is disposed of by Affidavits and Exhibits, supplemented by submissions of lawyers.  In the High Court,  the Government baldly denied about 20 facts which the Catholic Church referred to in their Affidavits.

In such circumstances, the judge accepted, as she was duty bound in our adversarial system, the evidence produced by the Church.  In effect, the High Court made findings of fact, as it was entitled to do.  Some of these facts are worth recalling :

"(i) The word 'Allah' is the correct Bahasa Malaysia word for 'God' and in the Bahasa Malaysia translation of the Bible, 'God' is translated as 'Allah' and 'Lord' is translated as 'Tuhan';

(ii)       For 15 centuries, Christians and Muslims in Arabic-speaking countries have been using the word 'Allah' in reference to the One God. The Catholic Church in Malaysia and Indonesia and the great majority of other Christian denominations hold that 'Allah' is the legitimate word for 'God' in Bahasa Malaysia;

(iii)      The Malay-Latin dictionary published in 1631 had translated 'Deus' (the Latin word for God) as 'Alla' as the Malay translation;

(iv)      The Christian usage of the word 'Allah' predates Islam being the name of God in the old Arabic Bible as well as in the modern Arabic Bible used by Christians in Egypt, Lebanon, Iraq, Indonesia, Malaysia, Brunei and other places in Asia, Africa etc;

(v)       In Bahasa Malaysia and Bahasa Indonesia, the word 'Allah' has been used continuously in the printed edition of the Matthew's Gospel in Malay since 1629, in the first complete Malay Bible from 1733 and in the second complete Malay Bible since 1879;

(vi)      Munshi Abdullah, considered the father of modern Malay literature, had translated the Gospels into Malay in 1852, and he translated the word 'God' as 'Allah'

(vii)     The Bahasa Malaysia speaking Christian natives of Malaya, Sarawak and Sabah had always and have continuously and consistently used the word 'Allah' for generations and the said word 'Allah' is used in the Bahasa Indonesian translations of the Bible used throughout Malaysia;

(viii)    At least for the last three decades, the Bahasa Malaysia congregation of the Catholic Church have been freely using the Alkitab, the Bahasa Indonesia translation of the Holy Bible wherein the word 'Allah' appears;

(ix)      In any event, the word 'Allah' has been used by Christians in all countries where the Arabic language is used as well as in Indonesian/ Malay language without any problems and/ or breach of public order and/ or sensitivity to persons professing the religion of Islam in these countries."

The above matters provide the factual background in this dispute.  No case can ever be decided in a vacuum, isolated from the facts.  Unbelievably, none of the judgments gave any weight to the findings of fact made by the High Court — a gross error.

Nordin Salleh Ignored

It is incredible that none of the judgments even mentioned, let alone considered, the impact of the most important constitutional case ever decided by our courts, which had a direct bearing on the dispute.

The Supreme Court decided in Nordin Salleh, that in testing the validity of any state action impinging any of the fundamental liberties enshrined in Part II of the Constitution, the court's duty is to look at the effect, result or consequence of state action.  If such effect is to render the exercise of such fundamental liberty "illusory or meaningless", it is unconstitutional.

If the ratio of Nordin Salleh, which incidentally is binding on the Court of Appeal, had been applied in the Herald case, the decision would have been different because the effect of the State prohibiting Christians from using the word "Allah" in their worship is to render their right to practise their religion under Article 11(1) and (3) illusory or meaningless.  It is as plain and simple as that.  The appeal ought to have been dismissed for that obvious reason alone.

Article 3

It was misconceived for the Court of Appeal to have focused their attention on Article 3(1) rather than Article 11(1) and (3).  Article 3(1) provides for the role of religion in the new nation of Malaya (subsequently Malaysia).  Islam is the religion of the Federation, but other religions may be practiced in peace and harmony.

The Founding Fathers intended the new nation to be one for believers where God has a prominent place; they did not wish their country to be atheist or agnostic.  Other countries have similar belief systems stated in their constitutions.

Thus, the Preamble to the Constitution Act, 1982 of Canada declares :-

"Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law."

But Article 3(1) does not confer a supremacy status on Islam when compared to other religions.  The draftsmen of the Constitution were aware of the hierarchy of laws and rights:  hence, the very next article provides for the supremacy of the Constitution over all other laws in the land:  see Article 4(1).  No similar words are used in Article 3(1).  Further, it was not intended to establish a theocracy in the new nation, which is to remain at all times a secular state.

More significantly, the right to practice a religion of one's choice is found in Part II, and in particular, Article 11, which I now turn to.  But the fundamental freedoms of personal liberty [Article 5(1)], equality [Article 8(1)], anti-discrimination [Article 8(2)] and freedom of speech, assembly and association [Article 10(1) and (3)] are also relevant, and indeed far more relevant than Article 3.

Freedom of Religion as an Absolute Right

Freedom of religion is a fundamental right under the Federal Constitution. Article 11(1) gives constitutional protection to an individual's right to profess, practice and propagate his religion, and Article 11(3) recognizes collective worship by providing that "every religious group has the right to manage its own religious affairs".

A plain and ordinary reading of the language employed in Part II of our Constitution will indicate that the Founding Fathers drew a distinction between the measure of protection that each of the specific, listed fundamental liberties would enjoy.  Thus, our fundamental liberties are not treated equally in the Constitution.

Hence, there is an in-built hierarchy of rights, and freedom of religion is given core or central protection.  A simple reading of the text of each Article in Part II containing Articles 5 to 13 suggests that some liberties are more fundamental than others.  The Fundamental Liberties can therefore be placed in two distinct categories:-



There's a gay in the office!

Posted: 24 Oct 2013 04:55 PM PDT

The said officer is PM's speechwriter, Khairul Annas Jusoh. His ex-wife was Syarifah Nabila Sara bin Dato Syed Abdul Rahman.

Rings a bell?

Yes, she is the daughter of Mongolia's Honorary Consul in Malaysia Datuk Syed Abdul Rahman Alhabshi. When they got married in 2010, it was not actually a marriage between celebrities but the pomp and pageantry was close to one and dubbed the wedding of the decade.

The affidavit revealed a dark side of Dato Najib's Head of Policy and Research at the Prime Minister's Office. It will be viral in the next few days. As always, anything with S E X, normol or abnormal, will always be HOT HOT HOT ... issue.

In the affidavit posted by The Benchmark blog here, it revealed this fella has some weird sex practices. We highlight below:



The DAP Malay and Islam

Posted: 24 Oct 2013 01:17 PM PDT

I said these things:

I agree to Islamic laws as long as they do not contradict our present constitution. 2) I agree to the bigger agenda of Islamic law of establishing a state founded on the principle of the rule of law. 3. I will not object if the laws do not tyrannize others not of Muslim faith.
How are these objectionable? These are the things I said in response to questions asked by a reporter.
To Muslim conservatives, if these views cannot be pigeonholed into specific categories, it is because of my own shortcomings. To secular politicians if they appear alarmingly Islamist, the fright is unnecessary.
Let me offer a more sophisticated explanation.
There seem to be misplaced furor and confusion over statements attributed to me on the implementation of Islamic laws. As I see statements going around especially from people remote from what actually transpired and the absurd and the manic responses arising thereafter, I am now convinced that in general, there is a morbid and irrational fear about anything said in relation to Islam and Islamic laws. Perhaps this morbidity and irrationality and regrettably manic disposition stem from years of self-induced personal bigotry. But perhaps also because Muslims have themselves to blame for so much negativity about them. But that is another subject matter.

Allah Judgment: What the Special Branch saw on Sunday

Posted: 24 Oct 2013 01:10 PM PDT

Announcements and prayers. The pastors and leaders advised those who were assembled to remain calm. They prayed for guidance on whether the Catholic church should appeal the decision, and whether other Christian groups should join as interveners.

Malay songs. In their non-Malay services, they included Malay songs. One of the songs was "Kau Yang Terindah":

Kau yang terindah di dalam hidup ini
Tiada Allah Tuhan yang seperti Engkau
Besar perkasa penuh kemuliaan
Kau yang termanis di dalam hidup ini
Ku cinta Kau lebih dari segalanya
Besar kasih setiaMu kepadaku

Kusembah Kau ya Allahku
Kutinggikan namaMu selalu
Tiada lutut tak bertelut
Menyembah Yesus Tuhan Rajaku
Kusembah Kau ya Allahku
Kutinggikan namaMu selalu
Semua lidah 'kan mengaku
Engkaulah Yesus Tuhan RajaKu

Older church members usually sing Malay songs grumpily. Though millions of Malays have been educated in Malaysian Christian schools, almost no Malays have become Christians. So, except for East Malaysians, no native-Malay speakers attend Sunday services in West Malaysian churches. Therefore, the older members think there is no need to use Malay. (They 'tolerate' Malay because their children are fluent in Malay.)

The Sunday after the CoA decision was unusual. The older members didn't frown or strain when the Malay songs were sung. They not only stood up with the younger members to sing. They even looked happy when the Malay songs were sung, repeatedly.

The quality of the singing was poorer than usual, because the older members pronounce Malay words badly. Yet, no one seemed to mind. Even the worship leaders who normally twist their faces when the assembled people sing poorly, seemed happy.

Read more at: http://write2rest.blogspot.com/2013/10/allah-judgment-what-special-branch-saw.html 

Post MCA EGM : Who Will End Up Winning MCA Presidential Race in Dec?

Posted: 24 Oct 2013 08:41 AM PDT

Many political analyst just analyze the outcome of the latest MCA EGM through just looking at Resolution 1 while neglecting Resolution 2, 3 and 4. Resolution 1 will just provide an insight of 25% of the entire EGM. We should look in more detail to come out with a better conclusion.

MCA EGM Resolution 1 – To Censure Liow Tiong Lai

965 (supporting) vs 1190 (against) with a majority of 225 to vote against censuring Liow Tiong Lai (46% vs 56 %).
According to The Sun columnist Kong See Hoh, the 1,190 nays to a resolution to censure him for the party's general election debacle included neutral and sympathy votes.

Liow own supporter Datuk Paul Kong said "It doesn't mean by rejecting motion number one, there will be 100 percent support for Liow Tiong Lai for the president's post. I think, for the next two months, both sides still need to work hard as what Dr Chua's side need to do is to increase their votes by another 200," said MCA Central Committee (CC) member Datuk Paul Kong (reported by Malay Mail).

Senior journalist of Oriental Daily News Lin Shu Yun said while Liow garnered 1,190 votes in the just-concluded MCA extraordinary general meeting (EGM) to overthrow the first resolution of censuring him, he was reminded that a vote against the resolution does not mean a vote in support of him to be the next MCA president. Indeed, some votes against the resolution might come from central delegates who either sympathise with Liow or taking a neutral stance on the issue

What can we conclude from resolution 1? Sin Chew Daily also has a similar reading on Chua's strength. Its senior journalist Guo Shu Qin said, Chua was still seizing 900 "iron votes" from his hardcore supporters.

Having said that, Dr Chua Soi Lek is still having firm and solid control over 965 MCA Central Delegates (46%) while from just resolution 1 alone is hard to predict how many supporters are Liow real hardcore solid supporters. How much votes from resolution that voting against to censure Liow Tiong Lai is actually votes and supports from the neutral, sympathizer and swing votes according to cases, issues, causes, sentiments and emotions? The answer can only be concluded only if we look forward to analyze the outcome of resolution 2, 3 and 4.

Read more at: http://1sya.com/?p=7895 

Kredit: www.malaysia-today.net

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