Was 'Allah' ruling an attempt at constitutional revolution? — R. Rueban Balasubramaniam

OCT 17 — There are multiple problems with the Court of Appeal’s reasoning in its decision in the Allah-Herald case. Indeed, a close reading of the decision reveals that it is rife with error. There are mistakes of fact and law. The judges seemed oblivious to the evolution of the law of judicial review elsewhere in the Commonwealth over the last two decades. The decision is badly researched (one judge has resorted to a mere Google search to perfunctorily pronounce on complex theological issues). And it is rife with logical and argumentative errors like unargued assertions, contradictions, vagueness, and non-sequiturs. There are even mistakes at the level of spelling (a judge could not tell the difference between “principle” and “principal”), grammar, and syntax.

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As a general matter, the quality of the judgment as a piece of judicial reasoning is simply atrocious. If the professional role of a judge is to impartially interpret relevant law to construct a logically coherent and morally attractive interpretation of the law to sustain a particular legal position, then it is as if the Court of Appeal has taken leave of this role.

Why did this happen? Many will be tempted to lament the poor calibre of the Malaysian judiciary relative to their counterparts elsewhere. Others will point to the suspected politicisation of the judiciary in Malaysia as being overly deferential to government. These are plausible explanations. But there is another explanation that I want to spotlight here: the various errors with the decision are symptoms of a deep strain between the genuine act of legal reasoning and the fact that judges were engaged in a completely different undertaking of erecting a new ethno-Islamist Constitution to supersede the existing Malaysian Constitution.

Put differently, the judges attempted a constitutional revolution. To be clear, I am not suggesting that this was their conscious intention. I do not know that one way or the other. But I am suggesting that the logic of their position as set out by all three judges in that case invites the conclusion that they attempted a constitutional revolution, a shift away from the Malaysian Constitution to an ethno-Islamist Constitution that cements the priority of ethnocratic rule.

From the start the judges appeared to treat the Malaysian Constitution as an incidental consideration. The judges first and primary focus is the legislation empowering the Minister to control publications, which they interpret to mean that Parliament has given an absolute and legally uncontrolled discretion to the Home Minister to control publications all in the name of preserving public order and national security. For the judges, it is absolute Ministerial discretion that sets the stage, which they then follow up with an after the fact rationalisation about the meaning of the Constitution that will accord with this initial conclusion.

This rationalisation employs two argumentative strategies that further the constitutional revolution. They argue that the ethno-Islamist position is rooted in the so-called Malaysian social contract, a social-political agreement between Malaysia’s Founding Fathers that is prior to but embedded in the existing Constitution. And the Court claims that the ethno-Islamist position is part of the “basic structure” of the Malaysian Constitution.

It is vital to see how both strategies work together to enact a new ethno-Islamist Constitution to supersede the actual Malaysian Constitution. The social contract argument tries to entrench the ethno-Islamist position as a matter of constitutional history while the basic structure argument elevates that position to the status of being a transcendental constitutional truth that does not depend upon actual constitutional text or structure.

The result is to try to establish that there is a prior and “higher” ethno-Islamist constitution that underwrites the actual Malaysian Constitution. It supersedes what the actual Constitution says and operates as a master position that should therefore govern legitimate legal and political decision-making in Malaysia.

But because judges cannot come right out and say that they are going to ignore or ditch the existing Constitution, they need to find a foothold in the Constitution for their argument. That foothold is Article 3(1) which says that “Islam is the official religion of the Federation” but then goes on to assert that other religions may be practiced in “peace and harmony” in the country. According to the Court, minorities must accept limits to their religious freedoms and other constitutional rights to avoid antagonising the sensitivities of the Malay-Muslim majority thus preserving peace and harmony in the country.

Of course, this is a flawed reading of Article 3(1). It does not mesh with the plain meaning of the Article nor does it fit with other aspects of the Constitution that protect fundamental liberties. As well, it is completely at odds with the fact that the Constitution attempts to disperse power among organs of government so that no single organ or official can claim an absolute discretion, in the sense of a legally uncontrolled power that allows them to dominate minorities. Other respected commentators like Professors Abdul Aziz Bari and Clive Kessler have already noted the wrongheaded and perverse character of this argument as a piece of constitutional interpretation.

But if we suppose that judges were not interpreting the Constitution but were trying to construct a new ethno-Islamist Constitution, then we might view their argument about peace and harmony is in fact an assertion that there is an inextricable link between the ethno-Islamist positions and the physical and ethical identity and security of the state.

If there is any doubt about this intended shift, then I leave it to the judges to speak. Here, I quote from the lead judgment delivered by Justice Mohammad Apandi bin Ali. At page 31 he says: “… Malays see an inseparable connection between their race and religion. Any attempt to weaken a Malay’s religious faith may be perceived as an indirect attempt to erode Malay power.”

To conclude, the Court of Appeal has in effect attempted to erect an ethno-Islamist Constitution intended to entrench “Malay power” and to immunise it from political or even legal-constitutional challenge rooted in the existing Constitution. While judges may have attempted to couch their decision as one about what the existing Constitution requires, the various flaws in their reasons are evidence that the existing Constitution does not sustain that conclusion. Given that it does not, it is no surprise that they were driven to attempt a constitutional revolution.

* Dr. R. Rueban Balasubramaniam is Associate Professor of Law and Legal Studies at Carleton University, Canada. He is also the principal founder of the Jurist Malaya Initiative for the Rule of Law (www.juristmalaya.com)

** This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malay Mail Online.

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