Sunday, January 12, 2014

Sikhs can use the word ‘Allah’, says doyen Karpal | Free Malaysia Today

Sikhs can use the word ‘Allah’, says doyen Karpal

FMT Staff | January 12, 2014
Penang Mufti’s prohibition of that word by Sikhs in the state was of no consequence of avail, stressed the veteran lawyer
GEORGE TOWN: The constitutionality of prohibition by Penang Mufti on use of the word “Allah” by non-Muslims in Penang is opened for challenge in court, said senior parliamentarian and lawyer Karpal Singh here today.

He pointed out that the Sikhs have had used the word “Allah” in Penang and elsewhere in the world from time immemorial without any objection from any quarters, and rightly so, having regard to the guarantee of freedom of religion under Articles 3(1) and 11(1) of the Federal Constitution.

Therefore, he said that the Penang Mufti’s prohibition of that word by Sikhs in the state was of no consequence of avail.

Penang Mufti have outlined and outlawed the use of 40 “Islamic” words by non-Muslims in Penang.
Offenders can be slapped with a fine not exceeding RM3,000 or imprisonment not exceeding two years, or both, under Section 3 of the Syariah Criminal Offences Enactment (Penang) 1996.

“The prohibition by Penang Mufti has far reaching implications and consequences.

“In the particular, the prohibition of the use of the word ‘Allah’ strikes at Sikhs practising their religion in Penang,” said Karpal, a Sikh.

He said the position has been put right with regard to Section 9(1) of the Selangor Non-Islamic Religions (Control of Propagation Among Muslims) Enactment 1996, which prohibits non-Muslims the use in writing or speech 25 “Islamic” words or any of their derivatives or variations, as stated in Part 1 of the Schedule, pertaining to non-Islamic religion.

Among the 25 words were Allah, Firman Allah, Ulama, Ibadah, Kaabah, Kadi, Illahi, Wahyu, Mubaligh, Syariah, Qiblat, Haj, Mufti, Rasul, Iman, Dakwah, Injil, Salat, Khalifah, Wali, Fatwa, Imam, Nabi and Sheikh.

Section 9(2) of the Selangor Enactment also prohibits non-Muslims the use of 10 expressions of Islamic origin set out in Part 11 of the Schedule, including Alhamdulillah and Insyallah.

The Legal Aspect

Bukit Gelugor MP Karpal cited senior lawyer, Roger Tan’s article – Religion and The Law – which was published in an English daily today, to have highlighted important legal points as follows:

“The constitutionality of Section 9 (which is in para material or similar to the prohibition by the Penang Mufti) has been called into question in that the relevant state legislatures have no competency to enact Section 9 for the following reasons:

“Article 11(4) and Para 1, List II of Schedule 9 of the Federal Constitution only allow states to pass law to control or restrict the propagation of any religious doctrine or belief among Muslims.

“To put in another way, Muslims may propagate the Islamic religion to non-Muslims, but not vice-versa.

“But the states do not have the power to make laws controlling or restricting, let alone prohibiting, the use of certain words and expressions without any act of propagation.

“In other words, a state law can only be enacted to proscribe a Christian from delivering a Bible, which contains the word “Allah” to a Muslim, and not if the former uses the same Bible for his own personal belief.

“Section 9 is also contrary to Articles 3(1) and 11(1) which confer on every non-Muslims the fundamental rights to profess and practise his own religion in peace and harmony.

“Article 11(3)(a) states that every religious group had the right to manage its own religious affairs.
“A Malaysian’s rights to freedom of religion is further entrenched under Article 12(3), which provides that no person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.

“It is also against a person’s rights to freedom of speech under Article 10.

“Article 4(1) upholds the supremacy and paramountcy of the Constitution in that any law which is inconsistent with it shall, to the extent of the inconsistency, be void.

“Having said that, Section 9 is still a valid law unless repealed or amended by the respective state legislatures.

“In the alternative, anyone can challenge its validity but he must first obtain leave from a Federal Court judge under Article 4(4) unless challenge comes from the federal or state governments.

“It is now apposite to point out that under Para 1, List II of Schedule 9 of the Constitution …

“I must hasten to add that no non-Muslim can be charged in a Syariah Court. He has to be prosecuted in a civil court.
“If he is to be charged in a civil court, then only the Attorney-General will have a say in the prosecution under Article 145(3) of the Constitution.

“If he is charged or convicted or jailed by a Syariah Court, then the non-Muslim offender is entitled to seek remedy from the civil court under Section 25(2) and the Schedule of the Courts of Judicature Act 1964, which empowers the civil High Court to grant various orders including the writs of habeas corpus and prohibition.”

“It would be certainly be in order for the Penang government to seek legal advice on the prohibition by the Penang Mufti before any non-Muslim is charged for an offence for use or the words prohibited,” said Karpal, the DAP national chairman.

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