"The Use of the Word Allah : State Government Has Inherent Jusidiction"

1 Jan. 2010

The article "Court Rules in Favour of Herald" (NST-1 Jan 2010) raised interesting constitutional issues on freedom of religion.

In Malaysia, the State religious authority in the respective State has sole jurisdiction over all affairs involving the religion of Islam.

This is provided under the Malaysian Federal Constitution in the 'State List' (which refers specifically to the Second List set out in the Ninth Schedule of the said Federal Constitution).

Article 74(2) provides clearly : "Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List ( ie the Second List set out in the Ninth Schedule)...".

The List II - State List states that : 1. Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs. Zakat, Fitrah and Baitulmal or similar Islamic religious revenue, mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over person professing the religion of Islam and doctrine Malay custom.

This includes the power to regulate the use of the word. By implication, this includes the word 'Allah' which carries deep Islamic connotation and implication within the muslim majority in Malaysia.

Therefore, the State government (as well as the Sultan as Head of Islamic religion in his respective State) has inherent jurisdiction to permit or disallow certain individuals or persons or organisations to use the word "Allah" in a church sermons or religious publications, activities etc unless the same has been approved by the State Religious Authority.

The position adopted by the learned High Court Judge Lau Bee Lan with general reference to Article 3, 10, 11 and 12 of the Federal Constitution is therefore misconceived.

Hence, any party, person, body, entity etc who wishes to use the word of 'Allah' in the current scenario for religious purposes and/or for any purposes relating to religion, must by law obtain written approval from the respective State Religious Authority.

This is to avoid causing racial disharmony and religious ill-will and hostility in Malaysia which is a multi-racial society. The Emergency of 13th May 1969 is a case in point.

In Malaysia, failure to do so is an offence punishable not only under the by-laws, rules and regulations of the State religious body but also under the general provisions of the Malaysian Penal Code.

In Singapore, the act of using the word 'Allah' may also attract criminal liability under the various laws, namely the Sedition Act 1985, the Penal Code, the Societies Act and the Maintenance of Religious Harmony Act if the use of such word could or likely to cause religious disharmony or extremism. This was demonstrated in Singapore's Racial Riots of 1964 and the recent case "Christian couple convicted for anti-Muslim booklets" as reported by Agence France-Presse, AFP, 29 May 2009 (for a related discussion, see the speech by PM Goh Chok Tong during the Teacher's Day speech in 1996, Singapore and for a detailed overview, see "Keeping God in Place: The Management of Religion in Singapore", Institute of Policy Studies, Lee Kuan Yew School of Public Policy, National University of Singapore).

I believe that on appeal to the Court of Appeal (and the Federal Court), a different position would be adopted by the relevant Court taking into view the unique circumstances surrounding the case herein.

.................................
Jeong Chun Phuoc
Lecturer-in-Law
and a reader in Syariah Competitive Intelligence(SCI)
He can be reached at Jeongphu@yahoo.com