Courts do not have the final say on the Allah issue, says academic

The courts do not have the final word in the Allah case, this contest will go beyond the Federal Court, a law lecturer from the Australian National University said today.

Speaking in an academic seminar titled "The Name of God on Trial: Narratives of Law, Religion and State in Malaysia", Joshua Neoh (pic) said that given this scenario, dissenting judgments were important because it appeals to the people and builds a counter-current of opinion.

"All decisions could be revisited and challenged judicially, the losing side in a judicial battle can always live to fight another day. That is the very nature of Constitutional interpretation," he said in Petaling Jaya today.

Neoh said that Malaysia's Federal Constitution contained an arsenal of weapons for both sides of the ideological divide, be it for proponents of a pro-Islamic state or secular state.

He added there was a silver lining in the Allah case, given that the challenge was happening within the framework of the Constitution.

"The contest is happening in the courts, this ideological battle is a constitutional battle and is an achievement of sorts for constitutionalism in Malaysia," he said.

Neoh, who stressed that he was speaking from a purely academic and legal interpretation, said that in the Court of Appeal judgment, Datuk Seri Mohamad Apandi Ali had switched from legal analysis to theological exposition, when he said that due recognition must be given to the names of respective Gods in respective holy books such as Yahweh, the God of the Holy Bible, Allah the god of of the Holy Quran and Vishnu, the god of the Holy Vedas.

"Justice Apandi deemed it appropriate and within his area of judicial competence to go around categorising and naming gods, including the gods of religions other than of his own," he said.

Neoh added that Datuk Abdul Aziz Abdul Rahim, another judge on the three-man Court of Appeal bench, went a step further and said that Allah refers to "oneness" and cannot be a concept of Trinity of the Father, Son and Holy Ghost.

"Clearly he has not gone to a good Catholic school, because if he went to a good La Salle school, he would have learnt that the Trinity refers to oneness in as much as Allah refers to oneness," Neoh said.

He further added that there was the recurrent theme of confusion, adding "we already know how Allah can confuse Muslims".

"It is an argument we have heard over and over again but Justice Zawawi Salleh went further and said that if Allah is used by Christians, the confusion was not limited to Muslims, but Christians would also be confused.

"This ‘potential for confusion’ is akin to the following scenario: if I call my father Papa, and you call your father Papa, there is a risk that you will be confused that my Papa is your Papa, and your Papa is my Papa, or that we have the same Papa," Neoh added.

He added that the Islamic theology presented by these three Court of Appeal judges was not classical or even orthodox Islamic theology.

He also said that the ban on the word Allah did not exist anywhere but in Malaysia.

Neoh added that there was also the question on the scope of the judgment, where the Court of Appeal couched its judgment as if there was a blanket ban when the case was about the use of the word in the Bahasa Malaysia section within the Catholic weekly, Herald.

"It is a judicial hybrid of Malaysian constitutional politics and Islam," he said.

He added, however, that even when the judges were rewriting the constitution through reinterpretation, they had at least tried to couch what they were doing in terms of constitutional law.

Neoh pointed out that the Malaysian post-colonial constitutional settlement was precarious – not only because the constitution is an incompletely theorised agreement, but because it presented two conflicting visions on issues of law, religion and state.

The effect of this, he added, was that there were two constitutions embedded in the one constitutional text which engages in double speak.

"This bifurcation in the constitutional text makes the post-colonial constitutional settlement a precarious arrangement because its meaning is internally incoherent and inherently unstable.

"While it may not have the benefit of stability, ironically, it may have the benefit of longevity," he said.

He added that this was the reason that enabled proponents of both sides of the ideological divide to find their voices and visions in the same constitutional context.

"They could both draw on the same document for support and could construct their own narratives and counter-narratives from the available constitutional materials," he added.

Neoh went on to explain that this was the reason why the contestation on the use of the word Allah will continue beyond the Federal Court, adding that it was a symptom of a larger contest about the meaning of the Constitution.

"It is a contest about the origin of our state and the future of Malaysia. The court does not have the final word, the courts never have the final word in any Constitutional matter," he said. – July 14, 2014.