KUALA LUMPUR (March 19): The inconsistency in a circular issued by the Home Ministry against a Cabinet decision has led to the High Court landmark judgement last week to allow the use of the word “Allah” in publications for non-Muslims, especially among the Christian community.
The 96-page judgement by the Court of Appeal's Justice Datuk Nor Bee Ariffin, who is sitting as a High Court judge, said the court did not consider theological issues in arriving at its decision as the minister's decision that was being challenged was not predicated on theological considerations.
She noted that in 2017, the plaintiff Jill Ireland had amended the declaratory prayers sought in her judicial review application which was filed in 2008, following the seizure of eight CDs bearing the word Allah brought in from Indonesia at the Low Cost Carrier Terminal in Sepang.
The amended declarations sought are:
- declaration that Ireland together with other native Bumiputra Christians of Sabah and Sarawak have the constitutional right to practise their Christian religion freely and without hindrance including the right to use all religious terminologies in the Malay and Indonesian languages in the same manner as they have always done so when Sabah and Sarawak joined Malaya to form the Federation of Malaysia in 1963
- a declaration that the Government Directive issued by the Publication Control Division of the Ministry of Home Affairs Circular: S. 59/3/9/A Klt.2 dated 5.12.1986; “Ketenteraman Awam” (Public Order) and “Melanggar Garis Panduan JAKIM” (Breach of JAKIM’s Guidelines) is unlawful and unconstitutional.
Justice Nor Bee referred to the Cabinet decision in 1986, where the then prime minister Tun Dr Mahathir Mohamad assigned the late Tun Ghafar Baba — who was his deputy and also the then home minister — to decide which words were prohibited and which words were allowed to be used by Christians.
“I entertained serious doubt whether the Cabinet’s policy decision was incorporated in the impugned directive as there appears to be marked discrepancies between the Cabinet’s policy decision and the impugned directive,” she said.
This follows the first paragraph in Ghafar's note stating that the 12 words “Al-Kitab”, “Firman”, “Rasul”, “Syariat”, “Iman”, “Ibadah”, “Injil”, “Wahyu”, “Nabi”, “Syukur”, “Zikir” and “Doa” were permitted to be used and there was no condition attached to the use of these words.
In the second paragraph, the deputy prime minister's note stated the four words “Allah”, “Kaabah”, “Baitullah” and “Solat” were not permitted; however, immediately beneath the four words, the note stated that it was on the condition that “For Christians” was written on the cover of the books or brochures.
Circular by ministry gave total ban on Allah
Justice Nor Bee then noted that the circular by the Home Ministry was signed by an officer on behalf of the ministry's secretary-general, and not the minister himself.
She also highlighted that the directive stated that if the 12 words were published in books or brochures, the publications must also carry the phrase “for Christians”.
“These words do not appear in the first paragraph of the Deputy Prime Minister's note.
“Secondly, with regard to the four words namely 'Allah', 'Kaabah', 'Baitullah' and 'Solat', the words ‘with the condition that "for Christians" is printed on the front cover’ which is on Ghafar's note are not there in paragraph three of the impugned directive.
“It is my view that the impugned directive is inconsistent with the Cabinet’s policy decision. The effect of departing from the Cabinet’s policy decision would mean it does not lie in the minister’s mouth to claim that the impugned directive was based on the Cabinet’s policy decision,” she said.
Justice Nor Bee reasoned that the directive might have emanated from the Cabinet’s policy decision to begin with, but the material discrepancy as demonstrated has severed the link between the decision and the directive.
“Perhaps, if the Cabinet’s policy decision was correctly, properly and validly carried into effect by using the appropriate law under the charge of the Home Affairs Ministry, there may not even be this judicial review proceedings.
“This is because, in my view, the Cabinet’s policy decision is wider in scope than the provisions of P.U (A) 134/1982. Effectively the use of the four words [is] permissible even outside the confines of churches subject to the conditions as prescribed. If the plaintiff had accepted P.U (A) 134/1982, there is every reason to believe that the Cabinet’s policy decision would be equally acceptable,” she said.
Justice Nor Bee explained that P.U (A) 134/1982 is an order under section 22 of the Internal Security Act 1960, which bans the printing, publication, sale, issue, circulation or possession of the AlKitab, an Indonesian translation of the Bible.
However, the prohibitions do not apply to those professing Christianity in Malaysia, she noted.
Ministry directive not subsidiary legislation in PPPA
The judge said the impugned directive cannot be regarded as a subsidiary legislation with the Publication and Printing Presses Act (PPPA) as it was not signed by the minister.
“There is no explanation why that was so and why the minister himself did not sign it. The minister has acknowledged the issuance of the impugned directive by his Ministry. The impugned directive did not state the provision of PPPA pursuant to which it is was made.
“If the ministry claimed that the impugned directive is law, the provision PPPA would have been spelt out. When it did not, then it is incumbent on this court to find out whether the PPPA empowers the minister to issue the impugned directive,” she said.
Justice Nor Bee said there is nowhere in the said provisions and in any other provision and the rulemaking provision in Section 26 of PPPA that provides him the power to issue a subsidiary legislation that imposed a prohibition on the use of the four words in all Christian publications.
“It is apparent that the minister is not given the power under section 26 to make rules pertaining to the impugned directive. I do not see any relevance of this subsidiary legislation, which came under consideration in Titular Roman Catholic Archibishop of Kuala Lumpur in the High Court and the Court of Appeal, and matters pertaining to conditions attached to licences and permits of the publishers were never an issue.
“The issuance of the impugned directive is undoubtedly outside the ambit of section 26. There is a clear lack of statutory power to make and issue the impugned directive under PPPA. Therefore, the impugned directive cannot be a subsidiary legislation that has legislative effect made in the purported exercise of the powers under PPPA.”
She said the minister must understand the law that regulates his decision making power and must give effect to it.
If the minister does not follow the law that regulates the exercise of his powers, then he had acted illegally because his action had gone beyond the limits of the power prescribed by the law.
“In this present case, the minister has not acted according to the law by wrongly giving himself the jurisdiction to act by misconstruing the provisions of PPPA.
“In the premises, I hold that the applicant is entitled to the declaration sought that the impugned directive is invalid. In this case, an error in law had occurred when the respondents had treated the impugned directive as being validly made under PPPA when it was not justified or authorised by any provision of the said Act, and in allowing its enforcement under section 9(1) of PPPA.”
“Thus, the end result is that the impugned directive is illegal, unlawful and is a nullity for want of jurisdiction,” the court said.
No threat to public security
The judge went on to rule there was no danger to public security based on the affidavits made by lawyer Syahredzan Johan, former Universiti Malaya Law professor Datuk Dr Azmi Sharom (now Election Commission acting chairman) and Tebing Tinggi assemblyman Dr Abdul Aziz Bari, who was also a law lecturer from International Islamic University, who affirmed they were not confused on Christians using the word Allah.
“It is obvious that from the evidence filed in the affidavits of the respondents, there is no adequate, reliable and authoritative evidentiary basis for the impugned directive. It is to be noted that although the minister indicated that the basis for the making of the impugned directive was on the ground of public order he did not provide any supporting reasons.
“There was no affidavit evidence of any disruption or any potential to disrupt the public order before and at the material time when the impugned directive was made or even when the Cabinet made its policy decision. The respondents did not cite any particular case of public disorder,” Justice Nor Bee added.
The court said it is not disputed that Bahasa Malaysia has been the lingua franca for the native peoples of Sabah and Sarawak living in their home states and in West Malaysia.
“Taking the evidence adduced in this judicial review as a whole, all of which have not been refuted, it cannot be disputed that the Christian community of Sabah and Sarawak have been using the word 'Allah' in Bahasa Malaysia for the word for God for generations in the practice of their religion in the profession and practice of their Christian faith.
“It is also an established fact that the word ‘Allah’ that has been used, has not caused problems leading to public disorder. The uncontroverted historical evidence that the use of the word ‘Allah’ by the applicant and her Christian community in Sarawak was over 400 years, since the year 1629, cannot be ignored,” she said.
As there is no evidence of any alleged confusion or misunderstanding leading to public disorder shown by the government, that reason too must fail, she added.
Justice Nor Bee further ruled that the directive offends Ireland's right to her constitutional right of freedom of religion under Article 11, and therefore she is entitled to the declaration sought.
“It is also my finding that Ireland is entitled to the declaration sought. The discrimination by the government was apparent from the outset. The Cabinet’s policy decision that had allowed the use of the four words subject to the specific conditions, was converted into an absolute prohibition for reasons best known to the minister," she added.