Church can sue Jais for banning "Allah",say lawyers

The Malay Mail Online – Sun, Dec 29, 2013

Three Catholic priests (left) and two Muslim men (right) waiting outside the Court …

KUALA LUMPUR, Dec 29 — The Church can take the Selangor Islamic authorities to court for prohibiting Christians from referring to God as “Allah” in their religious practices as such a ban is unconstitutional, lawyers have said.

Andrew Khoo, chairman of the Bar Council’s human rights committee, questioned if the Selangor Non-Islamic Religions (Control of Propagation Among Muslims) Enactment 1988 — which has a blanket prohibition on non-Muslims from using 35 Arabic words and phrases in their faith, including “Allah” — has gone beyond the ambit of Article 11(4) of the Federal Constitution that restricts the propagation of other religious doctrines among Muslims.

“If you have a state enactment that is based on Article 11(4) and tells non-Muslims that you cannot use this word absolutely, then has it gone out of the context of Article 11 and 11(4)?” Khoo toldThe Malay Mail Online today.

The lawyer pointed out that the Selangor 1988 enactment says in its preamble that it is based on Article 11(4) of the Federal Constitution, but noted that the enactment does not specifically limit its prohibition on the Arabic words to the context of non-Muslim proselytisation among Muslims.

“It doesn’t say that you cannot use these words when talking to Muslims; it just says you cannot use these words,” said Khoo.

“I may want to tell another non-Muslim, ‘I want to see you again, Insya’Allah.’ Am I propagating something to a Muslim? I’m not. I’m using it towards a non-Muslim,” he added, referring to the Arabic phrase that means “God willing”.

Khoo said that the constitutionality of the Selangor 1988 enactment and other similar state laws in the country could be tested in court.

“By prohibiting the word, how does that deal with the propagation of non-Muslim ideas to Muslims? The churches are saying, ‘We use Allah among our own members’. So, it would appear that if you’re using it among your own members, it should not be something that 11(4) is concerned about,” he added.

Article 11 of the Federal Constitution protects the right to practise and profess one’s religion, but Article 11(4) states that state law and, in respect of the Federal Territories and Labuan, federal law, may control or restrict the propagation of any religious doctrine among Muslims.

Ahmad Zaharin Mohd Saad, newly-appointed director of the Selangor Islamic Religious Department (Jais), said on Thursday that letters will be sent out to all churches in Selangor asking them to comply with the ban on the use of the Arabic words listed under the 1988 enactment.

Jais cannot automatically say it has jurisdiction. For them to act in a non-Islamic context, they can only do so if they have been appointed. Where is the gazette notification? — Andrew Khoo

Jais is also investigating the organisers of a private Christian function that was held in Klang earlier this week, where participants allegedly sang songs containing the Arabic word “Allah”.

Khoo questioned today if Jais was the appropriate authority to enforce the Selangor 1988 enactment, pointing out that he has yet to see a gazette notification that identifies Jais as the authority appointed under the law.

“Jais cannot automatically say it has jurisdiction. For them to act in a non-Islamic context, they can only do so if they have been appointed. Where is the gazette notification?” said Khoo.

Constitutional lawyer Nizam Bashir also said that churches and the organisers of the Christian function in Klang could take Jais to court for violating their freedom of expression. 

“Everyone under Article 11(1) is guaranteed the right to profess their faith,” Nizam told The Malay Mail Online, noting that the Sikh holy book contains the word “Allah”, while Bahá’í followers recite the Arabic word in their daily prayers.

“The main concern the Constitution accepts as being valid is that you cannot misuse the word ‘Allah’ among members of the Islamic community. Article 11(4), in the sense, allows the state to go beyond just the Muslim community. I accept that’s correct. But that’s only in relation to propagation,” he added.

Nizam stressed that Jais must prove that there are Muslims at Christian gatherings, where the word “Allah” is used, before action can be taken.

“They have to show that the intent is to propagate to Muslims,” he said.