Rudyard Kipling"
“When you're left wounded on Afganistan's plains and
the women come out to cut up what remains, Just roll to your rifle
and blow out your brains,
And go to your God like a soldier”
General Douglas MacArthur"
“We are not retreating. We are advancing in another direction.”
“It is fatal to enter any war without the will to win it.” “Old soldiers never die; they just fade away.
“The soldier, above all other people, prays for peace, for he must suffer and be the deepest wounds and scars of war.”
“May God have mercy upon my enemies, because I won't .” “The object of war is not to die for your country but to make the other bastard die for his.
“Nobody ever defended, there is only attack and attack and attack some more.
“It is foolish and wrong to mourn the men who died. Rather we should thank God that such men lived.
The Soldier stood and faced God
Which must always come to pass
He hoped his shoes were shining
Just as bright as his brass
"Step forward you Soldier,
How shall I deal with you?
Have you always turned the other cheek?
To My Church have you been true?"
"No, Lord, I guess I ain't
Because those of us who carry guns
Can't always be a saint."
I've had to work on Sundays
And at times my talk was tough,
And sometimes I've been violent,
Because the world is awfully rough.
But, I never took a penny
That wasn't mine to keep.
Though I worked a lot of overtime
When the bills got just too steep,
The Soldier squared his shoulders and said
And I never passed a cry for help
Though at times I shook with fear,
And sometimes, God forgive me,
I've wept unmanly tears.
I know I don't deserve a place
Among the people here.
They never wanted me around
Except to calm their fears.
If you've a place for me here,
Lord, It needn't be so grand,
I never expected or had too much,
But if you don't, I'll understand."
There was silence all around the throne
Where the saints had often trod
As the Soldier waited quietly,
For the judgment of his God.
"Step forward now, you Soldier,
You've borne your burden well.
Walk peacefully on Heaven's streets,
You've done your time in Hell."
Jill
Ireland is a Melanau Sarawakian Christian who had eight CDs - bearing
titles with the word “Allah” - seized by the Customs Department when she
flew back to Malaysia from Indonesia on May 11, 2008.
In August
of the same year, Ireland filed a legal challenge to get back the CDs as
well as a court declaration on her constitutional rights involving
equality before the law and religious freedom - including the right to
use the word “Allah”.
This started a legal battle that would last more than a decade.
The latest court ruling came from Judge Nor Bee Ariffin in March 2021, which ruled in favour of Ireland.
The issue came under the spotlight again when it was revealed that the government decided to withdraw its appeal against the 2021 High Court decision on April 18, 2023.
So, is it about getting back Christian CDs that had the word “Allah”, or about a Christian’s right to use the word “Allah”?
The short answer is, both.
But
the declarations Ireland sought under Article 8 (equality before the
law) and Article 11 (freedom of religion) of the Federal Constitution
are not so straightforward.
When
she initiated her case at the Kuala Lumpur High Court, she sought seven
declarations of which two are on her right to use the word “Allah” and
to own material bearing the word.
However, while the High Court in
2014 quashed the Home Ministry’s seizure of her CDs and ordered for
them to be returned - it did not rule on the declarations of her
constitutional rights.
Ireland appealed to this lack of ruling on constitutional issues in
the Court of Appeal, while the government appealed against the High
Court’s decision that the ministry was wrong to seize her CDs.
What did the Court of Appeal decide?
In 2015, the Court of Appeal ruled that the eight CDs must be returned
to Ireland and ordered the High Court to hear Ireland’s case again, on
just two of the seven constitutional declarations sought.
They
were on whether Ireland had a constitutional right to import the seized
CDs for her religious practice and education, and whether the Federal
Constitution protected her from discrimination by law.
The two declarations specifically on her right to use the word “Allah” were not sent back to the High Court for a rehearing.
Justice
Tengku Maimun Tuan Mat - who is now the Chief Justice of Malaysia - led
the three-person Court of Appeal bench that heard the case.
The CDs were returned to Ireland in September 2015.
What happened during the 2017 rehearing of Ireland’s case at the High Court?
The
High Court heard Ireland’s case on two declarations sought - that her
constitutional right to practise her religion was violated and the use
of federal laws to seize the CDs infringed on her constitutional right
to equality.
The laws used were the Publication and Printing Presses Act (PPPA) 1984 and the Customs Act 1967.
During
the rehearing, Ireland’s legal team discovered that the root problem
was a Home Ministry’s directive dated Dec 5, 1986, which completely
banned the use of “Allah”, “Kaabah”, “Baitullah”, and “Solat” by
non-Muslims.
As such, she sought an additional declaration that
the directive was unlawful and went against her constitutional rights to
profess and practise her freedom of religion.
Although the
rehearing began in 2017, due to several attempts to settle the matter
out-of-court, the decision was only delivered on March 10, 2021.
Judge Nor Bee Ariffin ruled
that the Home Ministry’s directive - issued under the PPPA and used to
seize Ireland’s CDs - has no statutory backing and is, therefore,
illegal and irrational.
Judge Nor Bee Ariffin
Nor
Bee, a Court of Appeal judge who sat as a High Court judge when
delivering her decision, said the December 1986 directive went above and
beyond the cabinet’s intention, in a memorandum on the matter dated May
16, 1986.
The contradicting 1986 cabinet stand and Home Ministry’s directive - andhowit decidedthe case
On
May 19, 1986, then-prime minister Mahathir affirmed that he assigned
his deputy, the late Ghafar Baba, to determine what words can be used
and what can’t in the Christian religion.
The letter was submitted to the court in Ireland’s case.
Attached
to that letter was a note from Ghafar dated May 16, 1986, titled
“Islamic terms/words in the AlKitab which cannot be used”.
The AlKitab refers to the Bible published in the Malay and Indonesian languages.
The note identified 12 words which were allowed and four words – “Allah”, “Kaabah”, “Baitullah”, and “Solat” - which were not.
Former prime minister Dr Mahathir Mohamad (right) and the late Ghafar Baba
However,
under the four disallowed words, the note read: “On condition, the book
cover (front page) has the words “Untuk Agama Kristian” (for the
Christian religion)”.
Note by Ghafar Baba
Seven
months later, on Dec 5, 1986, a directive was issued by the Home
Ministry, containing the list of the same 12 permitted words and four
prohibited words - but this time - for all Christian publications and
not just the AlKitab.
Additionally, Ghafar’s condition - that the
book covers include the words “For the Christian religion” - was placed
under the 12 permitted words instead of the prohibited words as was
written in Ghafar’s note.
Home Ministry’s directive
Nor Bee ruled that this showed a contradiction between the directive and what was set out in Ghafar’s note.
She
said the note clearly stated that the 12 words can be used
unconditionally - whereas the four words could only be used subject to
the condition that the front cover of the publication must contain the
words “For the Christian religion”.
At the same time, Nor Bee said
the cabinet could not have meant to impose a total ban on the four
words because that decision would contradict a government order gazetted
four years before that, on March 22, 1982.
The 1982 order -
issued under the now defunct Internal Security Act (ISA) - permitted the
AlKitab, which carried the word “Allah”, to be used within the confines
of Christian churches throughout the country.
If the cabinet
wanted to ban those words for Christian publications, it would repeal
the 1982 order, but this was not done, the judge said.
As such,
Nor Bee ruled that the Home Ministry’s directive was illegal, unlawful,
and that it was devoid of any legal effect whatsoever from its
inception.
Current Home Minister Saifuddin Nasution Ismail said the contradictions as highlighted by the judge were the reason behind the government’s decision to withdraw its appeal in the Ireland case.
Home Minister Saifuddin Nasution Ismail
So did the judge say Christians can use the word “Allah”?
It’s complicated.
Although
Ireland sought declarations specific to her right to use the word
“Allah”, this was not one of the two declarations that the Court of
Appeal ordered the High Court to hear.
This means it was never adjudicated, and there is no ruling specifically for this.
The
rulings were only on whether the CD seizures breached her
constitutional rights to practise her religion without discrimination.
To
do so, Judge Nor Bee ruled on the legality of the directive used to
seize those CDs - i.e. the ban on the use of the four words in Christian
publications.
This means that the judge was not making a ruling
on whether Christians had the right to use the word “Allah” in general,
but whether Christian publications can use the word “Allah” and that
Christians can own such material.
However, she did note that
Bahasa Malaysia had been the lingua franca for the native people of
Sabah and Sarawak and that the Christian communities of those states
have used the word “Allah” to refer to God for generations when
practising their Christian faith.
“The uncontroverted historical
evidence that the use of the word ‘Allah’ by the applicant (Ireland) and
her Christian community in Sarawak was over 400 years, since the year
1629, cannot be ignored,” she said.
She ruled this also negates the government’s argument that the directive is needed to curb public unrest.
Wait, what about aFederal Court decision the government claims supersedes this ruling?
In
deflecting brickbats for withdrawing its appeal against the Nor Bee
ruling, Putrajaya has several times referred to a 2014 Federal Court
ruling which it said remains in force.
While the government has not been specific, this most likely refers to the Federal Court rejecting leave for a Catholic publication, the Herald, to appeal a Court of Appeal decision not allowing them to use the word “Allah”.
The Federal Court - in a 4-3 decision - found that the appellate court had applied an objective test when arriving at its decision, among others.
However,
the Federal Court also ruled that remarks by the Court of Appeal bench
on theological aspects were mere “obiter” - a passing remark that does
not bind the court.
This was believed to be in regard to the Court of Appeal saying that the word “Allah” was not integral to the Christian faith.
Also to note, the government’s position at the time was that the Court of Appeal and Federal Court decisions on the use of “Allah” were specific only to the Herald - and not to Christians in Malaysia as a whole.
However, the Court of Appeal’s decision did have an impact on a similar case filed by Sidang Injil Borneo (SIB).
What’s the SIB case then?
Like
Ireland’s case, the SIB case began after the Home Ministry seized
Christian religious books containing the word “Allah” in 2007.
The
group won its case to get the books back in 2008 but continued to seek a
court declaration that it had the right to use the word “Allah” in
publications and for educational purposes.
However, the Kuala Lumpur High Court in 2014 rejected the application, saying it was bound by the decision of the Court of Appeal in the Herald case.
SIB discontinued its 14-year legal battle to challenge this decision last month in the interest of “national harmony”.
Which court ruling takes precedent on whether Christians can use the word “Allah”?
Lawyers
have opined that the Ireland case takes precedent on the use of the
word “Allah” by Christians for religious and educational purposes.
This is because the rulings in the Herald’s case should be deemed specific to the Catholic publication, as was the Najib Abdul Razak administration’s position at the time.
In
2013, several ministers - including then home minister Ahmad Zahid
Hamidi - also held the position that the Court of Appeal ruling on the Herald did not apply to the AlKitab, which could continue using the word “Allah”.
This is consistent with the 1982 government order, referred to by Judge Nor Bee, in the Ireland case.
Does a ban on non-Muslim use of the word have Islamic precedence?
The
use of “Allah”, as the Arabic word for God by non-Muslims, is common
practice among Christians and Jews in Arabic-speaking countries.
This was attested to by Perlis Mufti Mohd Asri Zainul Abidin in a 2021 opinion piece where he argued that Islam and the Quran do not prohibit non-Muslims from using the word “Allah” - as this is the name of God.
Perlis Mufti Mohd Asri Zainul Abidin
Instead,
he said what is prohibited is the misuse of the word “Allah” - such as
using it to describe idols, inanimate objects or humans.
PM said ruling only applicable in East M’sia. Is this true?
In
an attempt to quell dissent over the government’s decision to withdraw
its appeal on the Ireland case, Prime Minister Anwar Ibrahim said the
court ruling is only applicable to East Malaysia.
However,
this position does not appear to have solid footing, with former home
minister Hamzah Zainudin and others pointing out that Judge Nor Bee’s
ruling was not confined to East Malaysia.
Others also pointed out that the decision was delivered in the Kuala Lumpur High Court.
Prime Minister Anwar Ibrahim
Likewise,
after the 2014 Federal Court ruling, then minister in the Prime
Minister’s Department Idris Jala said the cabinet’s position that
Christians can use the word “Allah” also applied to copies of the
AlKitab in Peninsular Malaysia.
Idris is the architect of the Najib administration’s 10-point solution which allowed the printing of Malay-language bibles.
What about state Syariah laws barring non-Muslims from using the word “Allah”?
In theory, the Federal Constitution states that when federal law and state laws clash, then federal law takes precedence.
However,
besides constitutional provisions safeguarding freedom of religion,
there is no specific Act or article in the Federal Constitution on
non-Muslim use of the word “Allah”.
In contrast, several
Peninsular Malaysia states such as Selangor have state enactments that
prohibit non-Muslims from using “Islamic words” such as “Allah”.
This has led to situations such as the Selangor Islamic Department seizing
Malay-language bibles in 2014, despite the then Najib administration’s
10-point plan allowing Christians on the peninsula to use the AlKitab.
This contradiction remains unresolved.
One peninsula state that does not prohibit non-Muslims from using the word “Allah” is Perlis.
So what’s next?
The
Anwar administration has said that it plans to amend laws that leave
room for contradictions on the “Allah” issue so that the matter can no
longer be challenged in court.
The government also plans to limit the use of the word by non-Muslims to those in Sabah and Sarawak only.
How this might affect the use of the AlKitab and Christian wors
hip by Bahasa Malaysia-speaking East Malaysian congregants in the peninsula remains to be seen.
