By Faidhur Rahman Abdul Hadi, YP

Recent media reports quoted a recent application made before our courts by the Sidang Injil Borneo (SIB), a Sabah church, for the government to release documents indicating why the government decided to ban the use of the word ‘Allah’ by non-Muslims in 1986.

This follows an earlier order by a High Court in Kuala Lumpur made earlier this year concerning Jill Ireland Lawrence, and that order directed that the government file a report by an expert on whether the use of the word ‘Allah’ is exclusive only to Islam.

These events stem from two cases that are currently before our courts. One pertains to the August 2007 seizure of SIB Sabah’s Sunday school materials at the Low Cost Carrier Terminal airport in Sepang, Selangor, for which SIB had filed for judicial review of the same in December 2007. While the materials have since been returned in January 2008, the SIB is continuing the case on the basis of claiming a right to use the word ‘Allah’ in its Christian publications.

Another is a judicial review application also before our courts made by one Jill Ireland Lawrence of Sarawak in August 2008 in response to her importing eight CDs into the state of Selangor upon her arrival in at the LCCT earlier in May of the same year. The CDs were titled Cara Hidup Dalam Kerajaan Allah, Hidup Benar Dalam Kerajaan Allah and Ibadah Yang Benar Dalam Kerajaan Allah. Again, while the CDs have already been returned pursuant to a court order made in 2014, Lawrence continues her suit on the basis that she has a right to use the word ‘Allah’ in her own Christian publications.

Both want one same question answered

Consider this. In both the above situations, the evangelical Christian plaintiffs have:-

1. Asserted that, by virtue of Article 11(1) of the Constitution, each and every one of us has the freedom to practise their respective religions in this country and their religious freedom to practise Christianity, of which use of the word ‘Allah’ constituted an integral part, was being violated; and

2. Complained that their ‘religious right’ to use ‘Allah’ was violated when certain items they imported into Selangor from the states of Sabah and Sarawak respectively were seized from them. This, notwithstanding that the reasoning behind these seizures itself was perfectly sound – these items contravened Selangor state law.

Readers should be aware that quite apart from a 1986 circular banning the use of the word ‘Allah’ in non-Muslim publications, it is also an offence under a law made by the Selangor State Legislative Assembly in 1988, namely the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment.

Section 9(1)(a) of the Enactment forbids the use of words listed in Part I of the Schedule thereto to express any idea or concept pertaining to a non-Islamic religion. In the Schedule, the word ‘Allah’ is already included as being one of other words prohibited for use to express non-Islamic conceptions of God, in this instance, God as He is understood in Christianity.

Thus, it is not a matter of a mere circular banning the use of ‘Allah’ by non-Muslims made way back in 1986 anymore. This policy position has subsequently been codified into statute and so has become valid as well as enforceable state law not just in Selangor Darul Ehsan, but also all other states save Penang, Sabah, Sarawak and the three federal territories of Kuala Lumpur, Labuan and Putrajaya.

These laws derive constitutional backing by virtue of Article 11(4) wherein states are free to have laws against the propagation of non-Islamic doctrines amongst Muslims in Malaysia. The said allowance in turn derives from Islam’s exalted position as the religion of our federation by virtue of Article 3(1) of the Constitution. Hence, SIB’s application for government documents leading to the 1986 circular, rightly labelled a fishing expedition by the deputy public prosecutor opposing it, has no merit nor value.

Per the great late US Supreme Court justice Antonin Scalia in his work, Reading Law: The Interpretation of Legal Texts, laws, like contracts, are meant to be considered and interpreted within their four walls and the fact of the matter is, legislation has already been passed on the ‘Allah’ issue and has become law. Each and every Malaysian in a state having such a law must abide by it or risk facing criminal charges for its violation.

The ill-conceived 10 point solution that SIB and others often refer to, which ignores such legislation, is unconstitutional. At best they can only be resorted to in states where laws like the one mentioned above do not exist. Certainly not in Selangor, though.

Going back to the matter at hand, violations of the Selangor Enactment’s above said prohibition on use of the term ‘Allah’ by non-Muslims constitutes a punishable offence under the law of the state of Selangor, with a fine of RM1,000.00 liable to be paid by those convicted under section 9(3) thereof.

But notwithstanding the commission of this offence (yes, offence) by SIB and Lawrence within the locality of Selangor (NOT Sabah NOR Sarawak) back then, both not only avoided criminal charges, but had their offending publications returned. Now, the only question that they want our courts to answer is essentially whether they have the right to use of the word ‘Allah’ in their Christian (and thus naturally non-Muslim) conception of God.

But hasn’t this question already been answered?

In 2009, the Titular Roman Catholic Archbishop of Kuala Lumpur, who publishes a Catholic weekly by the name The Herald, applied for judicial review of the decision of the Ministry of Home Affairs to prohibit the use of the word ‘Allah’ in the said publication. During the application it should be noted that the Ministry relied on both the 1986 circular and laws like Selangor’s 1988 Enactment above.

The high court’s answer, given by Justice Lau Bee Lan at the end of that year and I submit, based on erroneous reading and application of material law, was yes, Christians had a right to use the word ‘Allah’. The Ministry appealed in 2010. The Court of Appeal in 2013 subsequently reversed this position and held Christians had no right to use of the word. Among others, the appellant court reasoned that the term ‘Allah’ is not an integral part of Christianity since it was never used at all in any Christian Bible in any language, not even Malay.

Since the word is not a part of Christianity, prohibiting its use by Christians did not amount to denying them freedom of religion. An attempt to appeal this decision by the Catholic Church was dismissed in 2014.

So the question that both SIB and Lawrence are asking, namely, whether they have the right to use the word ‘Allah’ as part of their religious right has already been answered – they don’t, because the word is not an essential part of their faith.

So why, in the case of SIB, are our courts still considering a question that has already been answered?

Why, in the case of Jill Lawrence, did the court feel the need to order the government to report on whether ‘Allah’ is exclusive to Islam?

The principle of standing by what has been decided in earlier cases, known by its Latin maxim stare decisis, applies in Malaysia, as any legal expert would readily acknowledge. More so when a decision reached by an appeal court has been confirmed by the Federal Court, the highest court of our land.

So why are we asking the same question that we already have the answer to?

Haven’t they heard of res judicata?

Res judicata is a Latin term encapsulating the legal maxim that once a matter has been decided on its facts, future consideration on the same matter is barred once and for all. This is to avoid litigation on the same facts, leading to potentially multiple judgments on the same matter. It prevents confusion, and is meant to ensure efficiency and prevent case backlog by keeping issues already decided permanently off the table.

The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence “interest reipublicae ut sit finis litium” (it concerns the State that there be an end to law suits) and partly on the maxim “nemo debet bis vexari pro uno et eadem causa” (no man should be vexed twice over for the same cause).

Yet here our courts are not only being vexed twice over, but thrice over, for the same cause.

His Lordship Peh Swee Chin of the Federal Court said in his judgment given in Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn. Bhd. [1995] 3 CLJ 783:-

“What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicature. When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that it is in the public interest that there should be finality in litigation – interest rei publiccae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action – nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy.”

Indeed, the state has been vexed not just twice but thrice considering that three past cases, one already concluded, are asking whether ‘Allah’ is a term exclusive to Muslims. As for the other parties, although the Catholic Church, SIB and Lawrence are separate parties, all three may be taken and construed as representing all people of Christian or even all non-Muslim faiths in the answer to the above question.

Decision in The Herald’s case wrong? It doesn’t matter

But wait, some naysayers may say. What if the decision of the Court of Appeal in The Herald’s case was wrong?

To answer this without going in depth into the reasoning behind the case, I submit that it was not. (For an excellent analysis of the reasoning involved, I invite readers to fellow member of the Bar Aidil Khalid’s 2014 article, Semantics and the Way Forward after the Herald’s Case”)

Yet even if it was, res judicata still applies. For even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties (in this situation, Christians of all persuasions and the state) to it. As decided in the Privy Council case of Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors. AIR 1949 PC 302 (on appeal from India) the correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata.

SIB’s application should have been made by Catholic Church

SIB may argue that it is still entitled to apply for the 1986 circular documents based on the fact that they were not so applied for by the Catholic Church earlier in The Herald’s case. This argument too, is affected by res judicata as explained by Vigram VC in the English case of Henderson v Henderson [1843] 67 ER 313:-

“The plea of res judicata applies not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time.”

Therefore, the Catholic Church’s own non-diligence in failing to apply for the 1986 circular documents notwithstanding, the SIB is still barred from requesting them by virtue of the same legal maxim that is res judicata.

Conclusion

The answer to the question of whether the world ‘Allah’ may be used by Christians as asked by SIB of Sabah in its ongoing application before our courts and as asked by Jill Ireland Lawrence of Sarawak is the same as the one given by our Court of Appeal to the Titular Roman Catholic Archbishop of Kuala Lumpur in 2013 which is NO.

Why?

Again, per the 2013 case, it is not a fundamental part of Christianity and thus does NOT violate Christian religious freedom. Needless to add, SIB and Lawrence’s ongoing cases should both be dismissed on this basis.

  • First published by Menara.my on 23 September 2017

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