(Updated)

High Court rules use of word Allah by non-Muslims allowed

Counsel Lim Heng Seng (left) and Annou Xavier (right), who represented Ireland, commended the extensive decision made by Justice Nor Bee, and said the word Allah can be used by non-Muslims in Malaysia, and especially in Sabah and Sarawak, just as they had been used for centuries. (Photo by Mohd Izwan Mohd Nazam/The Edge)

Counsel Lim Heng Seng (left) and Annou Xavier (right), who represented Ireland, commended the extensive decision made by Justice Nor Bee, and said the word Allah can be used by non-Muslims in Malaysia, and especially in Sabah and Sarawak, just as they had been used for centuries. (Photo by Mohd Izwan Mohd Nazam/The Edge)

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(This story has been updated for accuracy.)

KUALA LUMPUR (March 10): The High Court has ruled that the use of the word Allah by non-Muslims all over Malaysia is allowed.

In addition, other prohibited words such as Baitullah, Kaabah and solat, which were banned by the Cabinet in 1986, could also be used by the community for teaching purposes as they have been in use in Sabah and Sarawak and some parts of Peninsular Malaysia for more than 400 years.

This follows Court of Appeal Justice Datuk Nor Bee Ariffin, sitting as the High Court judge, in allowing the judicial review by Sarawak Melanau clerk Jill Ireland, and ruling that the directive by the Home Ministry not to allow the use of the four prohibited words, including Allah, is filled with illegality and irrationality.

With this, she allowed Ireland's declaration and ruled that the use of the words would not disrupt public order.

Ireland was challenging a ban on the use of the word Allah, which resulted in eight CD items she brought in from Indonesia 13 years ago to be confiscated at the Low Cost Carrier Terminal (LCCT) as they bore those words.

Although the CDs had been returned, she went ahead with the judicial challenge that included a challenge of a circular issued by the Home Ministry over a total ban of the use of the four words — Allah, Baitullah, solat and Kaabah — unless there was a written word Christian published in front.

In her decision, Justice Nor Bee ruled that the circular issued following the 1986 Cabinet directive is null and void.

She finds the circular, which was signed by a Home Ministry officer and not a minister, provided a blanket ban over the use of the four words, which was not the directive's intention.

"The directive on the prohibition that it would result in a threat in public order is not supported. In fact, the directive is deemed irrational and perverse," she said.

She said the Publication and Printing Presses Act 1987 (PPPA) is there to check on undesirable publications and not for the purpose of maintaining public order, morality or health.

"If the minister (then Datuk Seri Syed Hamid Albar) does not follow the law regulating the exercise of his power, then he has acted illegally, as he has gone beyond the limit of his power. The minister must understand the law. If the minister does not follow the law, he has acted illegally. In the present case, the minister has not acted according to the act (PPPA).

"The impugned directive (blanket ban circular) cannot be considered to be a subsidiary legislation," Nor Bee ruled.

After deliberating over the issue — which also touches on freedom of religion — for more than one-and-a-half hours, Justice Nor Bee subsequently allowed three declaratory relief sought by Ireland.

The three are:
• the government directive issued by the Publication Control Division of the Ministry of Home Affairs circular s59/3/9/A dated Dec 5, 1986 is unlawful and unconstitutional;
• a declaration that Ireland has a right based on Articles 3, 8, 11, and 12 of the Federal Constitution to import publications in exercising her rights to practise her religion and education;
• a declaration of her right to equality of all persons before the law with regard to the Printing Presses and Publications Act 1984 that prohibits discrimination against her due to this act.

Touching on freedom of religion as stipulated under Article 11, Justice Nor Bee said while Islam is recognised as the religion of the federation under Article 3(1), other people are allowed to practise his or her religion of choice.

"The minister has no right to limit anyone the right to profess and practise their religion," she said, adding this right to freedom of religion is stipulated under Article 11, while the right to education is stated in Article 12.

Justice Nor Bee also touched on the 10-point solution announced by Putrajaya in 2011 and espoused by then prime minister Datuk Seri Najib Razak — which allows Christians to use Malay-language Bibles containing the word Allah — and said if that had been implemented, this matter might have been resolved without having to be heard in the court.

"If the cabinet had withdrawn the impugned (1986) directive when the 10-point solution (was proposed), there would not have been an issue," the judge added.

She also dismissed the government's contention that the use of such words would result in disruption of public order, following three affidavits filed by lawyer Syahredzan Johan, Dr Azmi Shahrom and former law professor and now Tebing Tinggi assemblyman Dr Abdul Aziz Bari, which stated that the use of the word Allah by non-Muslims would not confuse them as Muslims.

The present circumstances are different from the situation in 1986, Justice Nor Bee said.

She cited the case of Sisters in Islam (SIS) versus the Home Ministry, where SIS Forum challenged the ban on a book it published, which had been deemed detrimental to public order, whereas the book had been out for years and had not caused any disruption to public security with its presence.

Based on the reasons mentioned, and the fact that the terms had been in use by the Christian community who had used Bahasa Malaysia or Bahasa Indonesia for over 400 years, she said the court was of the view the continued usage of these terms would not be detrimental to public order.

Counsels Lim Heng Seng and Annou Xavier, who represented Ireland, commended the extensive decision made by Justice Nor Bee, and said the word Allah can be used by non-Muslims in Malaysia, and especially in Sabah and Sarawak, just as they have been used for centuries.

Senior federal counsel Shamsul Bolhassan appeared for the Home Ministry and the government.

Andrew Khoo appeared for the Christian Federation of Malaysia, followed by Datuk SC Lim for MCA and Mohd Haniff Khatri Abdulla for the Federal Territory Islamic Council and the Selangor Islamic Religious Council, who were allowed in as amicus curae (holding a watching brief), as was the Malaysian Bar.

Lam Jian Wyn & Tan Choe Choe