Philip Koh teases out the theological-political implications of the Allah issue.
At a recent BFM interview Mr Sharaad Kuttan asked me about the theological and social contract references in the judgements. This prompted me to unpack my thoughts on these issues in this essay.
This essay provisionally explores the theological-political implications of the controversy .
It endeavours to tease out the broader pattern of thought, prejudices and trajectories which led to the decision of the Court of Appeal.
Bernard Lewis poses the issue for all Islamic governments :
“There is an agonizing question at the heart of present debate about democracy in the Islamic World: is liberal democracy basically compatible with Islam, or is some measure of respect for law, some tolerance of criticism, the most that can be expected from autocratic governments? The democratic world contains many different forms of government – republic and monarchies, presidential and parliamentary regimes, secular states and established churches, and a wide range of electoral systems – but all share certain basic assumptions and practices that mark the distinction between democratic and undemocratic governments. Is it possible for Islamic peoples to evolve a form of government that will be compatible with their own historical , cultural and religious traditions and yet will bring individual freedom and human rights to the people as these terms are understood [in the context of] free societies.”
Malaysia continues to aspire to the model of a moderate Islamic polity as she takes her place within the nations of the world.
The recent Court of Appeal decision and the responses to its reasoning reverberates nationally and globally. Our Malaysian exceptionalism has been widely derided and is held up to be a sign of intolerance rather than of an exemplary moderate Islamic polity that co-exists with democratic governance. The recent decision threatens to unravel our national fabric and to render Malaysia’s aspiration meaningless.
The problem that besets all concerned Malaysian citizenry is the following: how to reconcile a liberal democratic constitution that protects all citizens and people within Malaysia and yet grants recognition to the status of Islam and the position of Malays.
There are nay-sayers who insist that Islam is incompatible with democracy and that never the twain may meet. These nay-sayers are found among all religious denominations. There are Christians who hold that the Allah word cannot be used by Christians as it confuses the Biblical revelation with that of the Quranic. Some Islamists also hold such a view and are therefore dismayed and angered when they find faith communities also using the word in their texts and religious practices.
A middle position can however be found, but the opposing polemics are loud and divisive. This position needs to be stated and heard.
The theological conundrum
There is an easy accusation that the Christian church is obdurate and insensitive in their unyielding stance that the Allah word is not the monopoly of Muslims. Bad motives are attributed to Christians for adopting this position. According to this argument, the Christian God is a Trinity whereas Islam confesses to a wholly monotheistic declaration that there is No God but Allah. The subtext is that Christians are tri-theistic and ought not to appropriate the term Allah.
The desire to mark the boundaries of any discourse is a laudable one and in this case the accusation is superficially attractive. This however is a grievous error. When the Bible was translated into the Indonesian and Malay tongue the term Allah was and is the rightful term to describe the Creator and the Almighty .
Christians share with Jews and Muslim the Abrahamic faith of the One God over all the nations. God who is the universal One over all of humanity is sovereign over all tribes, families and societies.
The Yale theologian Miroslav Volf adumbrates the following tenets after a survey of scriptural texts from the Quran and the Bible :
1. There is only one God, the one and only divine being.
2. God created everything that is not God.
3. God is radically different from everything that is not God.
4. God is good.
5. God commands we love God with our whole being.
6. God commands we love our neighbours as ourselves.
The Framers of our Rukun Negara, which contains in one of its pillars a belief in God, would concur with the above characterisation of God as a core requisite/condition for a people working alongside each other in unison to build a nation.
Of course this is not to deny that there are significant differences in the perception of the One God, both as One and as Trinity (in accordance with Christian confession), which causes us to pause in any easy truce on the matter.
It is however a gross misunderstanding of the Christian Community to accuse it of being tri-theistic or of worshiping a plurality of God(s). In the dialogue between Muslim theologians and Christians, the then Archbishop of the Anglican Church, Dr Rowan Williams, wrote — “God exists in a threefold pattern of interdependent action [and here Dr Williams is referring to the Father, Son and the Holy Spirit] … there is only one divine nature and reality.” 
The arguments that appear to have persuaded the Court, or at least are implicit in its ruling that the Allah word is not integral to Christianity is from this view untenable. Historically Christians have used the Allah word in pre-colonial and post-colonial times and in the translated Bible and liturgies.
The Government’s case and that of the Muslim NGOs, both of whom insist, in the absence of empirical evidence, that the use of Allah confuses and is a threat to Muslims appears to be a gross overstatement. If such an argument was advanced merely to win the Court case it is a grievous accusation that has no theological basis.
More invidiously it threatens to exclude the desire of minority faith communities from national discourse and life.
The Social Contract Argument and Basic Feature Doctrine
The Court of Appeal’s allusion to the notion of social contract is altogether surprising, as is the use of the basic feature argument. Hitherto our Courts have been extremely reluctant to be drawn into the political thicket in their constitutional interpretive stance. Witness Phang Chin Hock  1 MLJ 70 — Suffian LP who declined to be so drawn, saying that there are basic features in the Malaysian constitution which legislative amendment cannot modify. Witness also the time when the doctrine of separation of powers was commended to the bench, which also declined the invitation (see also Loh Kooi Choon v Government of Malaysia  2 MLJ 187). The social contract doctrine then espoused appears to be similar to that urged upon the nation by certain apologists for Malay dominance in exchange for the granting of jus soli as the basis of citizenship for non-indigenous peoples.
This concept has not gone uncontested . One unintended consequence of the Court of Appeal ruling using the highly contested notion of social contract is that it endorses an ethnic rather than civic view of nationalism . Joseph M Fernando’s measured words are worth citing :
“The common legal-political institutions defined in the 1957 Constitution, the common legal-political community created by the Federation of Malaya citizenship, for example, serve as a basis for the active political life of all sections of the community within the territorially defined political unit. This consequently would accord a ‘civic’ character to the Malayan nation. Yet the existence of a dominant ‘ethnic’ — the Malays — whose identity and customs are defined in the Constitution and who enjoy favourable status, signify elements from the second category, the ‘ethnic’ model. A careful examination of the Independence Constitution, however shows that the acceptance at face value of the ‘ethnic’ content can be misleading.“
The consequence of the judiciary unequivocally endorsing a contested political doctrine is to be regretted. Its role as dispassionate arbiter of the rights and duties of citizenry within a democratic constitutional polity will be severely tested and questioned. There are compelling reasons and arguments that the notion of social contract can be pressed into the service of civic nationalism rather than ethnicity.
Role of Judges in a Democracy
One well known constitutional Judge and jurist powerfully and poignantly depicts his vision of the impartial Judge in a democracy :
“As a Judge I do not have a political platform. I am not a political person. Right and Left, religious and secular, rich and poor, a man and a woman, disabled and nondisabled — all are equal in my eyes. All are human beings, created in the image of the Creator. I will protect the dignity of each. I do not aspire to power. I do not seek to rule. I am aware of the chains that bind me as a judge and as the President of the Supreme Court; I have repeatedly emphasised the rule of law and not of the judge. I am aware of the importance of the other branches of the government — the legislative and the executive — which gives expression to democracy. Between those branches are connecting bridges and checks and balances. I view my office as a mission. Judging is not a job. It is a way of life. I enter the courtroom, I do so with the deep sense that, as I sit at trial, I stand on trial.”
A revealing verse from the Quran in Surah Al-Maidah 5:48  enjoins believers to live in peace with others who do not share the same faith:
We have ordained a law and an (obligatory) open path (of religious life). And if Allah had so wished, He could have made you a single nation (united with a single religion), but He wishes to test you (in carrying out) what He has given you. Vie with one another in good works (in faith and good deeds). For to Allah you shall return, and He will inform you of what you have disagreed about.
One Christian theologian, after deep philosophical exegesis, has this to say on whether Jews, Christians and Muslims worship the same God :
“We have arrived at a curious conclusion. From the Christian perspective it seems we have to say that Jews, Christians and Muslims have the same God — and this statement would be underlined by [each] from the perspective of their respective faiths. However, they each would emphasise that the others do not worship or believe in this God in the same way, because God has revealed Himself to them, according to their self-understanding, in different ways — which, from each perspective creates a real difference in worship and faith. However, this difference would not seem to exclude that we live in the same world, interpreted from different perspectives, in which we have to act together for our common good.”
The Catholic Herald case and the judicial decisions that followed have created a fissure in faith communities, the members of which desire to work together with Muslims for the common good. We wait for a just and fair solution to the disquiet that the court of Appeal decision has unleashed.
 The writer is keenly aware that in a short compass of an article many issues can only be provisionally analysed.
 Bernard Lewis, “Islam and Liberal Democracy” Atlantic Monthly 271 (February 1993), 92. See also Nader Hashemi, “Islam, Secularism and Liberal Democracy: Towards a democratic Theory for Muslim Societies” (Oxford)(2009) which argues persuasively that whilst there are tensions between democracy and religion they are not structurally irreconcilable or incompatible.
 Timothy C Tenant in summarising the debate over the origin of the word Allah observed that, “Whatever the actual origin of the word ‘Allah’ or the theological diversity of Christians in Arabia, what is clear is that by the time of Muhammad, and certainly by the time of his mission, Allah was widely used by monotheistic Arabs (hanifs), Jews and Christians as the word for God. Various inscriptions with the word Allah have been discovered in Arabia as far back as the fifth century BC, and its use has continued with Arabic speaking peoples ever since. Although the New Testament was not translated into Arabic until the ninth century, from the beginning Arabic translators persistently used the word ‘Allah’ to translate elohim in the Old Testament and theos in the New Testament” —“Theology in the Context of World Christianity” (Zondervan, 2007).
 Miroslav Volf, “’Allah’: A Christian Response” Harpers One (2011).
 See The Common Word initiative: A Common Word Text & Reflections (Muslim Academic Trust (2011). See also http://www.acommonword.com/archbishop-of-canterbury-a-common-word-for-the-common-good/. There is a full monograph downloadable that has Muslim intellectual dignitaries and Christians that endorse a middle position that is conducive to peace and common unity without sacrificing differences.
 See Clive Kessler, Noraini Othman & Mavis Puthuceary, “Sharing the Nation”.
 See discussion by Joseph M. Fernando, The Making of the Malayan Constitution MBRAS (2002).
 Ibid p.207. The distinction between ethnic and civic model is made by Anthony Smith and Fernando summarises this: “Anthony Smith‘s ‘civic’ and ‘ethnic’ models of the nation provide an important basis for an examination of the question of national identity. According to Smith, the ‘civic’ model… is characterised by a historic territory, legal-political community, legal-political equality of members, and a common civic culture and ideology… the ethnic (non-western) conception of the nation, on the other hand, is distinguished from the ‘civic’ model mainly by the latter’s emphasis on a community of birth and native culture.” Ibid page 74 citing Anthony Smith (1991) Penguin p.11.
 Aharon Barak, ”The Judge in a Democracy” (Princeton)(2006) p.315.
 Tafsir Ar-Rahman: Interpretation of the meaning of the Quran Department of Islamic Development Malaysia (2007).
 Christoph Schwobel: The Same God? The Perspective of Faith, The Identity of God, Tolerance and Dialogue in Miroslav Volf ed Do We worship the Same God?: Jews, Christians and Muslim in Dialogue (eerdmans)(2012).