Media Statement by Tony Pua, Member of Parliament for Petaling Jaya Utara and DAP National Publicity Secretary on Tuesday, 15 October 2013 in Kuala Lumpur:
In any cases before the court of law, of greatest interest isn't just the outcome, but the legal arguments used by the judges to arrive at the decision. Whatever the outcome of the Court of Appeal decision on the usage of the term "Allah" by the Catholic Church, I was interested to look into the judges' rationale for the judgement. In this case, the Court of Appeal has quashed the High Court decision to allow the Catholic Church to use the term "Allah" in its publications.
From the key elements of the judgement read by Court of Appeal Judge Mohamed Apandi Ali as reported in the media, we can deduce the following points:
1. The Court of Appeal judges has decided on behalf of the Church, what is deemed "integral part of the faith and practice of Christianity".
The Court found "Allah" not integral to the Church and hence they "find no reason why the respondent is so adamant to use the name ‘Allah’ in their weekly publication."
It is the role of the Court to decide on the legality of the use of "Allah" by the Church. The Court has no role in deciding what is integral or otherwise in any religion practised in Malaysia. Such a finding is completely irrelevant to a decision over the legality over the use of "Allah". Hence the Court have clearly overstepped its boundaries into the realm of theological discourse, and more critically, breached the Article 3 of the Federal Constitution where "other religions may be practised in peace and harmony in any part of the Federation" and Article 11 which states that "Every religious group has the right to manage its own affairs".
2. The Court of Appeal judges has defined the rule of law as the "wishes of the majority".
The Court ruled that “the welfare of an individual or group must yield to that of the community”.
In ruling in such absolute terms, the Court has neglected its equal, if not greater role to protect and defend the rights of the minority. A Court decision based purely on the wishes of the majority, justifies the "tyranny of the majority". This violates Article 8 of the Federal Constitution where "all persons are equal before the law and entitled to the equal protection of the law".
James Madison, the 4th Americal President, political theorist and a founder of modern democracy wrote in Federalist No. 10, “the great danger in republics is that the majority will not respect the rights of minority.”
His predecssor, Thomas Jefferson proclaimed in his first Presidential address, “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.”
"The welfare of an individual or group yielding to that of the community" must never result in the oppression of the minority.
3. The Court of Appeal judges has decided who are "the majority" and what the "majority" wants.
Even in ruling that “the welfare of an individual or group must yield to that of the community”, the Court of Appeal must surely define "the community" or the majority as well as their needs and wants.
It is not the place of the Court of Appeal to decide who are the majority and what they want, and they are certainly have no competence to do so. It should be emphasized again that the role of the Court is to determine "legality" and not making highly subjective moral judgements on ill-defined subjects.
4. The Court of Appeal judges gave wide-ranging discretionary powers to the Minister to make pre-emptive executive decisions.
The Court of Appeal argued that "such usage if allowed will inevitably cause confusion within the community... so the minister had sufficient material before him to ban The Herald from using the word."
In a swoop, the Court has empowered the Home Minister to make pre-emptive executive decisions to ban words or publications which he deems will cause "confusion".
With such powers, the Home Minister will be able to rule that the Sikh Holy Book should be banned, as should any Church in East or West Malaysia should be declared illegal for the widely accepted use of the term "Allah", and the Court will deem itself to have "no plausible reason for the High Court to interfere with the minister's decision".
The ramifications of the Court of Appeal decision to empower the Minister are wide-ranging.
5. The Court of Appeal judges deemed "confusion of a community" sufficient grounds to deny the rights of another
Similarly, when the Court agreed that the use of "Allah" by the Church "if allowed will inevitably cause confusion within the community," it has ruled to "confusion" is a sufficient basis to deny and suppress the rights of the minority which are enshrined in the constitution under Article 3, 8 and 11.
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The long-term impact of the above decision by the Court of Appeal is well beyond just the issue of the Church's use of "Allah". Firstly the Court has given itself the power to make discretionary judgements not on the basis of the Constitution and the law passed by the Parliament, but by the judges own personal viewpoints and bias. Secondly, the Court trampled on the rights of the minority by endorsing the oppression by the majority as well as to give discretionary and absolute pre-emptive powers to the Minister for actions against anyone deemed to be "wrong".
The whole argument behind the judgement in the above case is clearly unreasonable and cannot be left to stand. The decision must be challenged in the Federal Court, not just because it affect a particular religion's use of a specific term, but on the implied powers of judges as well as the executive branch of the Government to make discretionary decisions and mete out punishments without legal or factual basis.
Tony Pua
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