MELAYU: SATU RENUNGAN MENGENAI KEPUTUSAN MAHKAMAH KE ATAS PENGGUNAAN KALIMAH ALLAH OLEH HERALD

Tuesday, January 12, 2010

SATU RENUNGAN MENGENAI KEPUTUSAN MAHKAMAH KE ATAS PENGGUNAAN KALIMAH ALLAH OLEH HERALD

 PETIKAN INI DI AMBIL DARI:

BEE LIAN LAU – WHAT WAS SHE THINKING?

January 11, 2010 · 

INTRODUCTION 
In the absence of a clear written judgement (which was not given in this matter) complete with Bee Lian Lau J’s reasons for her decision in the Catholic Herald vs the Attroney General matter, we are reliant on information supplied to us from within and outside of Malaysia and from extracts of published media reports on this controversial decision by Bee Lian Lau J of the High Court of Malaysia.
That decision being a license or permission to the Catholic Herald to use of the word Allah defies logic and reason.
Handed down amid heightened inter religious tensions, controversy and a provocation of a large sector of Malaysia’s population, its Muslims the problem is compounded and more confounding where it is not accompanies by reasons. Legal reasons.
That controversial decision was handed down in a week that saw the culmination of tensions rise to the boil with the fire bombing of Churches in peninsula Malaysia. (see; clause 5 of Article 11 federal Constitution of Malaysia) and a widening of inflammatory rhetoric from both sides of religion affected by the decision.
OVERVIEW
Theories of Constitution and Constitutional interpretation, jurisprudence and precedent are areas of the law that Malaysian judges and  lawyers alike have little interest in developing or expanding their knowledge and training in.
There is a tendency amongst these officers of the courts instead to prefer the regurgitation of ancient quotes by famous English judges than for argument or analysis on substantive issues of the law and procedure on matters brought before them to be tried.
The consequence of this apparent deficit of critical knowledge in areas of the law as the Constitution or the study of jurisprudence is quite  often a volatile and politically driven set of judgements handed down by ill informed and poorly trained judges in Malaysia.
Their decisions too often bear the stamp of partiality influenced by the legal profession’s shallow understanding of jurisprudence, Constitutional law and understanding of how the Constitution works.
These problems are often further compounded by the racial and cultural polarization of the communities, infected by political considerations rather than common sense, logic, legal reasoning or an understanding of Malaysia’s otherwise workable constitution.
BEE LIAN LAU-ANOTHER NH CHAN?
Bee Lian Lau J, (possibly from the NH Chan school of jurisprudence) now at the shifting centre of this controversial debate over the use of the word Allah by the Malaysian Catholic Herald, has clearly usurped the power of parliament (perhaps unintentionally) in giving a new and novel interpretation to those provisions of the Malaysian Constitution that apply to this debate. Issues that concern religion and religious freedoms, speech and freedom of expression.
In so doing she has clearly digressed and diverted attention from the critical and main issues at the heart of this controversy. Instead she has produced a highly controversial and unbalanced judgement, devoid of any substantive legal reasoning to underpin her decision as would be expected of a sitting judge.
Little is known of this judge whom the Catholics now refer to ‘that brave judge’, others still, ‘a highly respectd judge’ (as was the cliched reference to NH Chan who expressed similar levels of ignorance of the Constitution in the Perak Constitutional Crisis).
She has a Datukship, an honorific title, seen by some as a badge of dishonour and by others as that invisible tag that screams ‘government property’.
FAILURE TO DISCLOSE-A FATAL OMISSION
What Bee Lan Liau J had failed to do and quite improperly so was to disclose her religious convictions, her emotional and religious interests in the matter she was entrusted to preside over as a judge and to declare any potential for conflict with her interests.
Her duty to independence at the bench required her to disclose the extent of her commitment to her religion and the law. It is widely reported she spends a significant amount of time conducting bible classes outside of court hours (not an offence of itself).
It is however a right in the public interest which goes beyond her private ‘right’ to practice her religion in peace without any interference. She is a public person thrust willingly into an arena of conflict in which she may not be independent.
It is a matter likely to have compromised her judicial independence on a vexed issue in which she clearly has an interest. A spiritual and  ecclesiastical interest likely to conflict with her temporal and secular duties as judge. An interest which logically may have compromised her independence and compelled her to place her religious priorities above those of the law in her mind operating against the interests of fairness in this case.
 The public had a right to know as did the attorney general against whom the Catholic Church was pitted in this matter. 
The degree of her religious conviction in this regard goes further than that of her merely practicing it in private in her spare time. Christians like any other believers adhere to a way of life that does not end after prayers. Bee Lian Lau J’s commitment to one side in this dispute (Christianity) undisclosed, raises serious questions about her impartiality and her priorities in the event of a conflict between Church, law and state.  And a conflict of this nature it was indeed that she presided over.
There is nothing on record to demonstrate any scholarship or seminal legal thesis either in a historic decision engineered by her in her time in private practice or in some area of the law. Her recent decision in the Catholic Herald vs the Attorney General  may explain more fully why and question her credentials for the position she now holds on the bench.
From what may have been an argument about rights to freedom of expression or speech, she has embarked on a dangerous adventure, unnecessarily widening issues and arguments with irrelevant additions to or filtering out those issues that go to the core of this matter. Was it her religious compass at work or her judicial training and impartiality in conflict?
In failing to deal with those issues at the centre of this debate instead of creating imaginery religious freedoms and freedom of worship (as perceived to exist by many) Bee Lian Lau J has produced a controversial, and confusing judgement unhelpful for all concerned. The Constitution like the institution of the bench is as a result a casualty of Bee Lian Lau J’s legal faux pax and callous conduct as a judge.
A SIMPLE BUT CRUDE ANALOGY
To put it more crudely, Bee Lian Lau J’s judgement on this issue is the equivalent of her letting off a “smelly one” at a dinner party, paving the way for opportunists who do not mind the stench, to feed themselves of whats left at the table at the expense of others who in self preservation and out of self respect would have left the dining room in the wake of her unfortunate performance as a judge
Clearly there is more than the exercise of religious freedoms here that is at the root of this highly controversial and now volatile debate that Bee Lian Lau J has missed the point on altogether. 
THREE POSSIBLE REASONS FOR HER FAILURES
In what may well have been an unsubtle exercise of political interference and personal bias in legal proceedings, Bee Lian Lau J appears to have side stepped her professional and legal obligations to be forensic and detatched in arriving at her controversial decision last week.
Clearly she may have allowed one or both of these considerations to interfere with her judgement. There is also a possible third reason for her performance. This being that she is totally and utterly unsuited and insufficiently informed in matters of the Constitution to have presided over a matter of such importance to issues of national security, constitutional and jurisprudential significance.
She was out of her depth in having to decide this matter. 
FREEDOM OF EXPRESSION OR  PROHIBITION OF A QUALIFIED CONSTITUTIONAL RIGHT?
The use of the word Allah or the prohibition on its use by non Muslims in Malaysia has more to do with limitations on the freedoms of expression or freedom of speech as provided for its its Constitution, than it has to do with freedom of religion or worship as proferred by Bee Lian Lau J in her decision.
If such a right does exist it is not unconditional. If there is evidence of its exitence as claimed by Catholics, it is not a constitutional guarantee but a convention. And therein lies the difference.
The application of articles 3, (4, 8, 10) and 11 of the Federal Constitution of Malaysia (Constitution) relating to various freedoms, rights and those rights and freedoms to practice religion, freedom of speech and expression which to some extent Bee Lian Lau J relied upon in reaching her decision, appear to have been given very selective, very narrow interpretations and meanings. Reading it up in the process to achieve an outcome devoid of any proper or logical legal reasoning to underpin her decision.
None of these provisions referred to above found in the Articles of the Constitution provide any ‘Guarantees’ to any freedoms or rights as are often argued to exist by critics of government in such matters in Malaysia.
Rather these are qualified freedoms and rights are couched in language as may create rights to non Muslims and Non Malays and others at the discretion of the government and the king subject to certain conditions being met. These perceived ‘rights’ are without doubt ‘conditional’.
And here are the reasons why we believe Bee Lian Lau erred:
Article3 Which Bee Lian Lau J refers to in her judgement:
(1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
Clearly there is and had been tension and discord brewing amongst the various races and religious groups in Malaysia over the controversial use of the word Allah by the Catholics in their weekly publication the Herald. The consequence of the Herald’ use of the word has undoubtedly given rise to a threat to ‘peace and harmony’. A condition to that ‘right’ cannot be met. 
This dispute concerns views and interpretations of the impact, the use of the word Allah has in particular on Muslims, when used by Catholics in their publication distributed widely to non Muslims (and aimed at potenttial converts including Muslims), that has led to the debate taking on a dangerous and sinister form in the inevitable shape of an inter religious dispute. (the peace and harmony condition is threatened).
These facts are not controverted by either side to this extent.
WHAT CLAUSE (1) OF ARTICLE 3 REALLY SAYS
The operative conditions under which clause (1) of Article 3 of the Federal Constitution
With respect to ‘freedom of religion’ (“may be practiced” which is discretionary and not a guarantee as some read it) are the qualifying words “in peace and harmony”.
When read in conjunction one set of words with the other, the cautionary character of that particular clause and the meaning it conveys becomes clear.
In plainer English than that in which it is written, this clause provides a discretion to government to allow the practice of other religions rather than to compel government to allow its practice or for government to guarantee the practice of other religions in Malaysia.
This clause in the Constitution expressly acknowledges that Islam is the religion of the Federation. Not subject to or existing alongside any others.  The Constitution in this clause is unequivocal in respect of the paramouncy of Islam over other religions in Malaysia.
As to the second part of the clause (1) of Article 3 of the Constitution, the expression “in peace and harmony” , it is clear from the conditions that exist as a result of the action of the Catholic Herald’s action that ‘peace and harmony‘ is threatened and cannot be maintained (by who ever and for whatever reasons. The Constitution is silent on the point).
The absence of or threat to ’peace and harmony’ as referred to in clause (1) of Article 3 again without equivocation, gives rise to a discretion in the hands of responsible government to exercise its powers in maintaining that ‘peace and harmony’.
In preventing a debate of this nature from deteriorating into a conflict situation that threatens national security, political stability and civil strife, government is well within its rights and is empowered to act, even if that means curtailing the rights of some or all sectors of the community.
Bee Lian Lau J clearly failed to give cognizance to or a proper reading of those words in the meaning of clause 1 of Article 3 of the Constitution. Her judgement is desultory and callous.
Further Bee Lian Lau J, in her oral decision, is reported to have implied (expressly in the oral decision)  that:
 pursuant to Article 11(4) of the Federal Constitution, it is  an offence for non-Muslims to use the word Allah to Muslims to propagate the religion”.  Addiing further that:
 “it was not an offence for non-Muslims to use the word to the non-Muslims for the purpose of religion”, she added.
Interestingly the Constitution does not provide for the creation of an ‘offence‘ she refers to for use of the word Allah by non Muslims to Muslims in the propagation of their religion. It appears to be a creature of Bee Lian Lau J’s own imagination. Nothing more.
FOR CLARITY: Article 11 of the Federal Constitution (Malaysia) reads as follows:
 Article 11
(1)Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.
 (2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.
(3) Every religious group has the right -
(a) to manage its own religious affairs;
(b) to establish and maintain institutions for religious or charitable purposes; and
(c) to acquire and own property and hold and administer it in accordance with law.
(4) State law and in respect of the Federal Territories of Kuala Lumpur and Lubuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
 (5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.
Relevant to the issues at the heart of this debate and to Bee Lian Lau J’s controversial decision is, whether the Malaysian Herald has the right to use the word Allah in its weekly publication or to use it in the propagation of its religion.
Even if the Constitution in this Article 11 clause (1) appears to confer that right (in clause (1) of Article 11) on the Catholic Church, that right in clause (1) of Article is qualified, restricted or subject to operation of the provisions of Article 11 clause (4).
Clause (5) of Article 11 and not Bee Lian Lau J’s selective and misguided interpretation of clause (4) of Article 11 provides possibly for the creation of an ‘offence’ in breach of Article 11 which clause (4) of Article 11 does not  in any manner, shape or form provide for.
Article 11 of the Constitution provides amongst other things in clause (1) that every person (one would have to read that it would include a corporate personality) has the right to profess and practice his (generic) religion, subject to clause (4), to propagate it.
Critical to the Churches position and to Bee Lian Lau J’s judgement is that the Church denies the word is being used to propagate the faith, especially amongst Muslims.
MALAY MUSLIM SENSITIVITY OVER CATHOLIC EXERCISE OF CLAUSE (1) OF ARTICLE 11
The threat of or the actual propagation of the Catholic faith amongst Muslims is a matter squarely at the fore front of Muslim Malay anxiety a matter which no account was taken of on considered as being at the source of conflict in this debate and a potential or trigger for the exercise of a power by government under clause (4) of Article 11.
Given the history of the Catholic and other Christian Churches of late to aggressively proselytize and ‘harvest’ followers from amongst the Malay Muslim communities post 9/11 (Lina Joy being but one high profile example of the point I make) it is no wonder that the anxiety of Malays and Muslims are heightened to a fever pitch in Malaysia over the sinister use of the word Allah by Catholics.
POWER TO RESTRICT OR PROHIBIT USE OF ALLAH UNDER CLAUSE (4) AND (5) OF ARTICLE 3 OF THE FEDERAL CONSTITUTION
Under clause (5) of Article 11 of the Constitution, the government’s right to restrict the use of the word Allah by the Catholic Herald is clearly and understandably justified and correct. This is because the use of the word Allah by the Catholic Herald is not authorized by clause (5) of Article which provides:
“This Article does not authorize any act clearly contrary to” any general law relating to public order, public health or morality”
Clause (4) of Article 11 provides;
State law and in respect of the Federal Territories of Kuala Lumpur and Lubuan, Federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. 
Clearly the judge was selectively oblivious to or had no understanding of the powers provided to the various states and territories in clause (4) of Article 11 of the Federal Constitution with respect to “the control or restriction of the propagation of any religious doctrine or belief”. A Matter which the Catholic Herald as a medium of the Catholic Church is carrying out or peceived to be carrying out in the eyes of a majority of Malaysians. Its Muslims.
The government sees the widespread availability of the Herald (not a restricted publication) as having a distribution capability of reaching ‘persons professing the religion of Islam’ referred to in clause (4) of Article 11 of the Constitution.
That power provided to the government at State, Territory and Federal level was for some reason overlooked by the judge in an extraordinary decision (oral at that) without any further explanations to it.
Further, clause (4) of Article 11 does not impose conditions upon the government as to when it should or may use or apply that power at all. It is discretionary. Arguably a discretionary power in government which lies in the words “may control”.
If in its wisdom (something the Bee Lian Lau J clearly misunderstands) the Federal or other government within Malaysia decides that a particular act or omission by a religious group (in this case the use of the word Allah by the Catholic Church) amounts to propagating its faith amongst Muslims, then the government has a duty to act under the Constitution to prevent its use and the greater mischief that would result from its use amongst Muslims especially not only because they are Muslims but also because they constitute a not insignificant majority in a democracy.
The Catholic Herald is not restricted in its distribution and is difficult to restrict in its reach throughout Malaysia.
 FURTHER ERRORS IN THE BEE LIAN LAU JUDGEMENT
Bee Lian Lau J further appears to have shot herself in the foot by making reference specifically to clause (5) of Article 11 which tightened the noose around her flawed interpretation of the relevant Article 11 of the Constitution and her decision in this matter.
Clause (5) of Article 11 when read in conjunction with the other clauses in Article 11 clearly to give it its wider meaning, supports the government’s position in prohibiting the use of the word Allah by the Catholic Herald which Bee Lian Lau J appears to have not understood and here is why:
It provides in clause 5 of Article 11 of the Federal Constitution that:
This Article (11) does not authorize any act contrary to any general law relating to public order, public health or morality. Again it is difficult to see how she could have possibly escaped the ‘act contrary to public order’ when all the evidence clearly pointed to threats to the peace in this regard.
The fall out from Bee Lian Lau’s farcical and scandalous decision and the communal divisions and public disquiet that preceded it, clearly point to a right and an obligation on the part of the government to put paid to the Catholic Herald’s use of the word Allah if for no other reason then for a breach of the provisions of clause (5) of Article 11 by the Catholic Church.
It cannot possibly be read in any other way. The controversial use of the word Allah by the Catholic Herald has created a situation not only likely (and now with the benefit of evidence) but expressly so to affect public order and morality.
THE AFTERMATH
The fire bombings regardless of whoever it is who carried it out, is evidence of that public order situation that ought to have been foreseen and prevented by government at the outset. It is a matter that was brewing on both sides of the divide now for some time.
Clearly this matter is not about to go away in a hurry because of a flawed decision or declaration (Whichever the case may be in the absence of a written judgement) by an inexperienced Bee Lian Lau J.
She has merely thrown more fat into the fire which has embarassingly reflected once more for the public record the caliber of judicial incompetence in Malaysia. Incompetence in their decision making that is dangerous in a highly politicised and polarised legal and political environment. 
JUDICIAL MISCONDUCT
It is a widely held perception and a universally held one at that amongst academics and jurists, that a failure to deliver a written judgement by a judge constitutes a form of removable judicial misconduct.
On such a matter of grave national importance, critical to stability and internal security in a country as polarized and divided along religious and race lines as Malaysia is, it was incumbent on Bee Lian Lau J to produce a written judgement at least on the day immediately after the date of judgement which she did not do.  She could have nominated a future date for delivery of a writen judgement with her reasons on that day of her judgement which she also failed to do.
More important than any other aspect of her scandalous conduct from the bench  Bee Lian Lau J’s decision is a departure from convention, civil procedure and the Constitution, in that she does not provide or refer to any precedent, law,  power or authority she may have relied on (apart from selective and distorted readings of the Constitution) apart from a cursory reference to articles of the Constitution to draw the outrageous conclusions she came to in her judgement.
Malaysia’s political woes appear to have its genesis in its courts and in a  shallow and inexperienced legal profession.
It would do itself a huge favour by encouraging the entry of foreign legal practices and legal practitioners from other commonwealth jurisdictions, a move which could only serve to enhance the quality of its lawyers and the bench.
CONCLUSION
The clergy of Malaysia’s Catholic Church enjoys a kindred spirit with it judiciary and its legal profession. Acceptance to the vocation of priesthood is often less on merit than it is on the patronage of Bishops and parish priests who weild more than termporal and spiritual power on their faithful’s unquesitoning loyalties to them.
The world body of the Church in its diversity appear to have moved on but not the poor second cousins in Malaysia. Father Lawrence Andrew a Jesuit (an elite of the Catholic Church’s many religious orders) and his Bishop Pakiam may have been taken for a ride by over ambitious lawyers from the Catholic lawyers association who ought to have known better about the issues the Church faced in this unwinable battle they embardked on.
Fr. Lawrence (not much about Pakiam) according to a BBC reporter who interveiwed the man over a year ago is by all accounts and honourable and honest advocate of the Church’s interest in an environment as volatile as Malaysia is on matters of religion, race and culture.
His legal advisors could have advised him to moderate the position of the church to one more closely reflecting its theological and moral position than for them to have allowed the issue to develop into a lawyers picnic complete with media circus and inflammatory remarks upping the ante at each stage to reach such an unfortunate watershed in inter religious relations in Malaysia.
The position of the Church has not been aided in any way by an incompetent and illogical decision by Bee Lian Lau J. It has merely served to further alienate the Church from that sector of the community injured by the Pontiff’s caustic and unwarranted remarks  about their religion being ‘the most evil’ in recent years.
FR. Lawrence will eventually be left out to dry by the legal team that are we believe to be at the core of this misadventure by the Church. His Bishop by all accounts is reported to be a man of similar character make up as the lawyers.
Note: This article is subject to changes as new material on this subject comes to hand
Gopal Raj Kumar

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MUNGKIN ADA KEBENARANNYA.
PERLUKAN LEBIH RAMAI GOLONGAN TERPELAJAR MENGULAS ISU INI.


- AKU NADRAK -

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