Analysis of the 2nd and 3rd Appeal Judgment - ALLAH

                                     
Dato Abdul Aziz's judgment. His judgment is more formidable and challenging, legally speaking, though less in the number of pages compared to that of the Presiding Judge but there are concerns, and serious ones at that:

1. From Paras [1-27], His Lordship summarizes the case at the High Court and deals with the issue of whether the Minister has the discretion to impose conditions to preserve public order and security. This the learned judge does by Conditions 6 and 11 of PPPA in which the permit-holder has to comply with any directive of the Minister. Art 10 FC was quoted as a qualified right of speech and expression and Parliament has the right to impose any restriction in the interest of public security, peace and harmony. There are two issues here: 1. Does the Minister have the authority to act on behalf of Parliament to impose such the impunged condition? 2. How does the name 'Allah' used by Malay-speaking and Bumiputera Christians for centuries suddenly became a security issue? Is there any consensus about this prohibition in the Cabinet?

2. In Para 30], His Lordship while noting that though 'Allah' appears in the AlKitab does not by itself constitute sufficient justification to set aside the prohibitive condition on Herald. The learned judge distinguishes between the Alkitab and the Herald. The latter falls into the same category as a newspaper and it is now accessible online thus necessitating the prohibitive condition. It is a curious interpretation here to state while it is allowed in the Alkitab, Herald should not be allowed to use 'Allah' in its publication.

3. In Para [32], the learned judge is of the firm belief that the Minsiter has exercised his discretionary power in good faith and without improper motive. One needs to ask if the Minister had passed the tests, especially the first. Was the discretion exercised bona fide when many Malay-speaking and Bumiputera Christians have been using 'Allah' long before the soical contract came about? His Lordship further justifies it again in terms of the potential harm to public order and public safety.

4. In Para [36], the learned judge stated that 'Allah' is the God of Muslims and this cannot be confused with the Trinitarian God of the Christians. Again, what right does the learned judge have to decide if Christians cannot use 'Allah' when they have been using it for such a long time?

5. Paras [37-40] raises the issue of national security again but His Lordship illustrates it with the violence that erupted the moment the High Court announced its decision. in [40], the learned judge said that the trial judge did not appreciate this concern about public order and security. Seriously, one needs to ask important questions about the violence that erupted: Who was behind the Violence? Is violence the criterion to decide on laws or what should be fair laws? If violence is the measure, then the group that is most violent will get to decide what the laws should be rather than what good conscience and fairness should. It will be a Rule of Law based on who is most violent.

6. In Paras [40-49] with reference to art 391) and 11(1), the learned judge said that since Islam is the official religion, the Minister has exercised his discretion properly to impose the prohibitive condition to protect the sanctity of Islam and guard against any threats to the official religion. This is a serious concern that is, it sets a dangerous precedent for the future. What about Art 11(1) that 'every person has the right to profess and practise his religion...'. Will the Court be duty-bound to protect this right of the individual, and the Christian and Sikh communities to call their God 'Allah' when they have been doing so for centuries?

7. In Para [42], he states that the Minister's decision has passed the Wednesbury principles of legality, without impropriety, proportionality and rationality. One can disagree with this assessment.

8. In Paras [45-50], the learned judge considered if the Minister's decision has contravened the respondent's constitutional right and concludes that Art 11(4) was inserted to protect Islam from being threatened. He quotes Muhd Imam, Andrew Harding and Shad Faruqi on the point of preserving public order via propagation. While this may be so, propagation should not be confused with using 'Allah'. There is clearly a confusion of terms here. Surely, using 'Allah' in Christian worship is different from propagation.

9. In Paras [50-55], he concludes mystifyingly together with his brethren judges that 'Allah' is not an essential and integral part of the Christian religion. What right does he have to make a decision on behalf of the Christian community? Has he consulted the Christian communities and their leaders?

Michael Moey
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Appeal Court inept judgment based on internet research - Ng Kam Weng

OCTOBER 15, 2013

The Court of Appeal in Putrajaya on yesterday over-ruled the earlier decision by Justice Lau Bee Lan in the Kuala Lumpur High Court to allow Christians (Herald) to use the word Allah.

The wide ramifications of the Appeal Court decision calls for careful analysis to ascertain whether it is based on accurate facts which are foundational for a coherently argued and impartial judgment.

I shall focus on the judgment delivered by one of the three judges, Justice Mohd Nawawi bin Salleh, since it ostensibly examines the facts pertaining to the legitimacy of Christians (the Herald) using the word Allah.

Justice Mohd Nawawi notes that Justice Lau Bee Lan in her High Court judgment concluded that “it is apparent that the use of the word Allah is an essential part of the worship and instruction in the faith of the Malay (Bahasa Malaysia) speaking community of the Catholic Church in Malaysia and integral to the practice and propagation of their faith.” [2]

He then refers to some earlier court judgments which ruled that the wearing of the purdah and the serban was not integral to the practice of Islam. More importantly, he cites the principle that was used by a court in India to decide whether a dance involving public display of skulls and knives was integral to the practice of the sect in question. “Test to determine whether a part of practice is essential to the religion is to find out whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.” [6]

This should have been a straight forward test. Dressing and dance change as fashions come and go. They would not be considered as constituting the essence or core of a religion. In contrast, the concept of God is THE defining centre for any religion. This being the case, Justice Lau’s judgment which affirms the word Allah is an integral part of Christian faith and practice would have been self-evident.

Justice Mohd Zawawi seems to think otherwise and proceeds to lay out the grounds for his decision to set aside the judgment of Justice Lau. The judge reiterates the claim made by the Muslim appellants that the word Allah is not found in the original Hebrew and Greek Bible, and as such, it cannot be integral to the practice of the Christian faith. However, the Muslim appellants’ assertion is disputed by the respondent for the Herald who emphasizes that the word Allah has been used for years by the majority of the Catholics to translate the Hebrew word elohim.

We should not miss the judge’s acknowledgment that “This debate does not exist for Arabic-speaking Christians who had continually translated “Elohim” and “Theos” (the primary terms for “God” in Biblical Hebrew and Greek), as Allah from the earliest known Arab Bible translations in the eight century till today.” [16]

But despite this acknowledgment, the judge opines the case might be different for non-Arabic speakers which he as a judge proceeds to adjudicate. Citing Lord Sumner, he explains this role would mean he “can be called upon to receive and to act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.”

How then does the judge proceed in his inquiry? Essentially, he offers a series of cut and paste, piecemeal quotations which he deems to have a decisive bearing on his judgment.

[17] “…One person who has written a book arguing against the use of the word Allah by Christian is a Nigerian, G.J.O Monshay. In his book, “Who is this Allah?”, Ibadan, Nigeria: Firelines Inst., 1990, he writes at page 8: “for long we had assumed that Christians and Muslims serve the same God, and that it is only in the language of expression and mode of worship that they differ.”. But he concludes that they are not. …”

It is telling that judge leaves out the sentence which follows immediately, “This assumption can no longer continue with the popular clichés of political correctness. What we believe must be according to facts from the original sources of the religion” (p.11-12. I am citing from the newer Chick Publications 2008 edition).

The fuller context shows that the author rejects any facile identification of the God of Christianity and Allah if it is based on political correctness that is pervasive in the West. The judge would have regrets citing Monshay since the author in the newer edition argues that Christians cannot believe in the same God as the attackers of September 11 who were motivated by the belief that they were serving Allah. The judge would be appalled should he read further and find Monshay asserting that the Allah of Islam as “A lie engineered by the devil cannot be defeated by hazy and vague ideas” (p. 13).

Perhaps the judge should have made a wiser choice and cites a more balanced approach from Kenneth Cragg who is also mentioned in the book, “Those who say that Allah is not “the God and Father of our Lord Jesus Christ” are right if they mean God is not so described by Muslims. They are wrong if they mean that Allah is other than the God of the Christian faith” (p. 15).

It is evident that the judge has been both selective and careless in using his source. More significantly, he deliberately ignores other evidence from the book when it contradicts his view.

[18] “…In arguing that Allah is not the God of the Bible, Brutus Balan, an Australian, advances the following reasons:
“The word 'Allah' no matter the origin pre Muhammad is understood in the Islamic context today as the Quranic deity. It is not a word that depicts the Trinitarian Yahweh-Elohim (Lord God) of the Bible. It is wrong for any translation of the Bible in any language to use this word 'Allah' to refer to the God of the Bible.”

The quotations seem to suggest that the judge has been diligent in doing internet research. A simple search with Google would instantly locate this comment in the site belonging to Daniel Pipes, a political commentator whom Muslim extremists love to hate.

The quotation was merely a response to an internet post. Given the utmost importance of the Court judgment, I would have expected the judge to rely on authoritative sources. However, he does not refer to original sources and scholarship.

Why in the world would a learned judge rely on someone who has no academic credentials? Apparently, the learned judge considers an Internet comment would suffice for a robust intellectual argument.

The judge must be desperately grabbing at straws for evidence. Amazingly, he cites the next paragraph without any critical comment and caveat, “the word Allah that pre-dates Islam, a word that was and is a non Hebrew word for a pagan deity, the "Moon-god" of the pre Muhammad Arabs was Christianized and retained among the Middle Eastern Arab Christian converts finding its way in the Arabic Bible translation. Post Muhammad this same "Moon-god" is now appropriated and identified with the Islamic Quran by Muhammad” [17(2)]

Does the judge agree with Brutus Balan that the Allah whom Muhammad preached was the pagan “Moon-god”?  I can safely assume that by now he would echo Shakespeare, “Et tu, Brute?”

[19] “…a Roman Catholic in Netherland, Tiny Muskens, called for all Christians to use the word Allah. However, the call was objected by the Protestant Christian as well as the Catholic Christians. The President of the Catholic League for Religious and Civil Rights disputed the idea…”

It is unclear why the judge cites this incident. Perhaps he wants to demonstrate that Christians are still disputing with one another over whether they should use the word Allah.  It is telling that the judge could only refer to an isolated dispute involving an aged and retiring Bishop to buttress his claim that Christians are confused.

The judge would have been more persuasive if he manages to offer cases of unresolved disputes between major Christian leaders. Obviously, he fails to provide a suitable example. Then again, is it the case that the judge considers internet research to be of such reliable quality that it provides credible support for a compelling court judgment?

In the light of his "impressive" internet research, the judge confidently declares, [24] From the above research, it can be seen that in spite of the word Allah is not the same as Elohim and Theos in the Bible, translators involved in translations of the Bible or revisions of the Bible in languages used by the majority Muslim community had used the word Allah…

This is an embarrassing declaration: The judge doesn’t realize that he is contradicting what he cited earlier in paragraph [16] - “This debate does not exist for Arabic-speaking Christians who had continually translated “Elohim” and “Theos” (the primary terms for “God” in Biblical Hebrew and Greek), as Allah from the earliest known Arab Bible translations in the eight century till today.”

I can only conclude that the judge does not read the sources with due diligence and care. Perhaps he simply does not understand what he is quoting. He then summarizes,

[25] In summary, judging from the many viewpoints and contentions that I have alluded before, we can conclude that the Christians themselves have not reached a consensus as to how to use the word Allah, whether in their many translations and versions of the Bible or in their general usage of it and this simply demonstrates how contentious and controversial such a usage.

This is the conclusion that the judge desperately seeks after and stubbornly asserts in the face of contrary evidence. For this reason, he cites academic pretenders at the fringe of the church rather than verify his facts with the most authoritative institutions for Bible translation in the Malay speaking world, The Lembaga Alkitab Indonesia and the Bible Society Malaysia. He ignores the fact the Malaysian Church leaders have consistently spoken with one voice in affirming the use of Allah to refer to God in the Malay Bible/Alkitab.

The judge asserts that using the word Allah will bring confusion to Christians.

[28] If the word Allah is to be employed in the Malay versions of the Herald to refer to God, there will be a risk of misrepresentation of God within Christianity itself, since the Christian conception of God as symbolised by the trinity is absolutely and completely dissimilar to the conception of Allah in Islam; in other words, the potential for confusion is not confined only to Muslims but also to Christians.

Ironically, it is the judge who is personally confused. The discussion so far shows him to be someone who is unable and unwilling to acquire a sound understanding of the Christian faith. But this does not stop him from going ahead to define for Christians what should or should not be integral for their faith.

[29] The upshot from the foregoing discussion is that the usage of the word Allah in the Malay version of the Herald to refer to God is not the essential or integral part of the religion of Christianity… It is also doubtful whether the opinion of the Respondent on the usage of the word Allah reflects that of Catholic majority.

But who is this judge who arrogates for himself the power and authority to decide unilaterally what is or is not an integral part Christianity? Christian doctrine is a sacred treasure to the Christian community of faith. No individual, not even a venerable Bishop dares to make any alteration without the consensus of other leaders.

As a Muslim, he should have been wary of pronouncing how other religionists should profess their faith lest he inadvertently commits blasphemy against their God! Does the judge presume to teach Christians because he deems them to be confused. The judge’s assertion that Christians are confused is indefensible given the unanimous declaration on the Allah issue by CFM and the authoritative Bible societies.

An ill-informed judgment can only result in loss of public confidence in the integrity of the Judiciary. People have reasons to wonder if justice is poorly served by an Appeal Court judgment based on inept internet research. - krisispraxis.com, October 15, 2013.

*Ng Kam Weng is the Research Director at Kairos Research Centre.