By Deborah Loh and Shanon Shah (thenutgraph)
IT is bewildering that a gazette on such a significant matter of public interest as the use of the word “Allah” by non-Muslims was issued and then rescinded just 24 hours after it was announced.
Did not Home Minister Datuk Seri Syed Hamid Albar spot the mistake in the ruling, which he signed? The gazette, it must be noted, was published on 16 Feb but was only announced on 26 Feb.
The fiasco illustrates how citizens can wake up one morning to find themselves subject to new laws their legislators in Parliament had little chance to debate — and the very next day, to find the laws have changed, again without debate.
Such arbitrariness in a process as important as making laws that affect citizens should be questioned. Indeed, what is a gazette? What powers are invested in the executive branch of government to pass gazettes, and is there room for dissent?
What is a gazette?
Nazri Aziz “The passing of laws that do not go through Parliament for approval, but become law after being published in the Government Gazette, is an administrative way of making laws,” explains Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz.
“When we gazette that such and such words cannot be used (for example in the case of ‘Allah’), it carries the enforcement of the law with it,” he says in an interview in Parliament.
One recent example of a law that was enforced administratively is the rear seat belt ruling that took effect on 1 Jan 2009 under the Road Transport Act 1987.
The British Westminster parliamentary system allows for supplementary laws to be passed in this manner, provided that they are made under a specific Act. The Act itself is what has to be debated in Parliament, explains lawyer Sharmila Sekaran.
The parties involved in passing laws administratively are the relevant minister, the civil servants who draft the ruling, and the ministry’s legal adviser or the Attorney-General’s Chambers, which would be consulted in some cases.
“Practically, we must bear in mind that often, the minister has little real working knowledge in a particular area and thus will rely on advisers or civil servants,” Sharmila says of the work that goes into drafting a law.
Room for dissent?
If citizens disagree with a law that has been passed administratively, or even with laws that have gone through Parliament, a judicial review is the right way to challenge it.
“But, the party filing for judicial review must be directly affected by the law. It cannot be someone with a vague or indirect interest,” Sharmila tells The Nut Graph.
This is why the Islamic religious councils of several states as well as the Malaysian Gurdwaras Council representing the Sikh community have all filed to be intervening parties in the Herald suit. The suit challenges the government’s ban of the use of “Allah” by non-Muslim groups.
Nazri says Members of Parliament can still raise motions to challenge a law after it has been passed. “Laws can always be amended, they are not cast in stone. So there is still room for public input and feedback.”
Doing it wrong
The problem, however, is that the reality is far less ideal than what Nazri posits.
For example, the problem with the Home Ministry’s initial ruling to allow conditional use of “Allah” was that it was an order placed under the Internal Security Act (ISA) 1960. The order was cited as “Internal Security (Prohibition on Use of Specific Words on Document and Publication) Order 2009”.
And the danger with the ISA is that is has an ouster clause: Section 8B, which states that a minister’s decision is final and cannot be challenged.
“This is undemocratic. All decisions by an individual should be challengeable by an unbiased party, for example, the courts,” says Sharmila, who is also National Human Rights Society (Hakam) secretary-general.
She also argues that the government cannot just make a law and “shove it under somewhere”.
“This (the order on the ‘Allah’ issue) is not an appropriate law to be made under the ISA. You must look at what the entire Act is out to achieve, and then make supplementary laws to support the general aim of the Act,” Sharmila says.
Because Section 8(1) of the ISA allows for detention without trial on persons who are deemed a threat to national security, the Home Ministry’s move to place the ruling under the ISA effectively turned a religious matter into a national security issue.
Though the Act does not specifically touch on religious faith as a potential threat, it’s easy to see the Home Ministry’s line of thinking. It views the use of the word “Allah” by non-Muslims as prejudicial to national security.
In addition, if the prohibition of “Allah” was because of fears that Christian groups were proselytising to Muslims, the ISA is still not the right law to use. Lawyer K Shanmuga has argued before that it is up to the individual states and federal territories, and not the Home Ministry, to enact laws restricting the propagation of other religions among Muslims.
Additionally, when Syed Hamid rescinded the gazette on the conditional use of the word “Allah”, did the “mistake” only become apparent after the Malaysian Islamic Da’wah Foundation protested? After all, Syed Hamid did announce the rescinding in response to the foundation’s protests.