Written by: Averroes
On the 12th of March 2021, the Federal Government
decided to file an appeal to the Court of Appeal on the decision of a judicial
review. The constitutional issue tried before the first instance court was that,
it had annulled the 1986 directive to prohibit Christians from implementing the
word Allah in their religious education and books.
Such directive is tantamount to being unlawful and unconstitutional.
The High Court states that Allah is an Arabic word for god, which had been imparted
to the locals of Malaysia and into the Malay language, spoken and communicated
between the native inhabitants for generations, even amongst those in the
Bornean region of the country, for almost 400 years.
Noting that article 3, 8, 11 and 12 of the Federal Constitution
were breached due to the 1986 directive that were the right to practice
religion and education. For equality, the law recognizes equality for all
person under the law and the safeguard from discrimination of religion in
reliance of the law, that is the Printing Presses and Publications Act 1984 and
Customs Act 1967.
In the appeal filed by the government, Jill Ireland would be the
respondent who is a Sarawakian descent of Melanau origins, whereas the
Malaysian government and Home Minister as the appellants. The main strife or
trigger of this issue began when she the respondent challenged the government’s
decision for seizing eight educational CDs with the word Allah on the titles,
specifically for personal use only.
The seizure occurred at the Sepang LCCT airport as she returned from
Indonesia. The seizure back in 2008 was conducted based on the 1986 directive
enforced by the Home Minister, which finally returned to her in 2015 by court
orders. Though, during that time, constitutional issues were not raised.
It is quite inquisitive and curious for many on what would be the
verdict or outcome of the appeal. Though, this is not the initial time which
the Allah issue had became contentious and that was years ago in the Court of Appeal case in 2013, in the following paragraph below.
In the case of Menteri Dalam Negeri & Ors v Titular Roman
Catholic Archbishop of Kuala Lumpur[1] the
respondents were allowed to publish the word Allah in the Herald which is the
Catholic Weekly publication by the High Court, inclusive of other words, but not limited to
Kaabah, Solat and Baitullah (as per the 1986 directive). The Minister’s decision to prohibit the usage of
those words were revoked by certiorari which the High Court states that it was
null and void, as it was against the law.
Though, on the appeal, with the introduction of the 1986 directive
for prohibiting the word Allah in any Christian publication, it was assessed to
be a potential harm to public order and safety which if not contained, would cause
unnecessary uproar from society. The court explained that situations had become
intense, whereby houses of worships were already being attacked, riots on the streets, inflammatory
discourses online were justifiable grounds to prohibit the use.
Furthermore, under article 3(1) of the Federal Constitution, the
court added further that the word Allah does not form part of the Christian
faith or its general practice as under article 11(1) of the Federal Constitution,
but rather of a spiritual connotation which is peculiar only to Islam. Hebrew Scriptures
do not express Allah as the son of God or any of the entities of the trinity in
either the Old or New Testament.
Therefore, the sanctity of Islam in the minds of the Minister and
view of the court was imperative to preserve the sanctity and the sacredness of
the faith. That is why from the genesis of the religion of the Federation, as of
paragraph 57-58 of the White Paper, the Federation of Malaya Constitutional
Proposals 1957, during the Reid Commission came about.
Concisely, it states that Islam pertains to state law for
propagation among Muslims, as being the official religion of the Federation, but
other practices are allowed. This is in essence for the introduction of article
11(4) of the Federal Constitution to protect the Islamic faith from apostasy or proselytization. As the court
expounded with the Latin term of Salus Populi Suprema Lax, (safety of
the people is the supreme law) the welfare of an individual or group must yield
to that of the community.
From those circumstances above, the Minister had acted within his
power and discretion to prohibit the usage of Allah in Christian publications.
That power was granted to him pursuant to section 40 of the Interpretation Acts
1948 and 1967. Though, that power has its limitations, which is subject to
limitations of being reasonable, surrounded upon each facts of the case. This
is founder under section 93(1) and 95 of the same Act.
The exercise to issue the permit is found under these relevant
laws, read together with the Interpretations Act. Section 6 of the Printing
Presses and Publications Act 1984 and its Rules 1984, founded under Form B in
the 1st Schedule. The permit was in accordance with the 1986
directive, but the directive itself was not challenged, but rather the permit
and prohibition. The directive was later challenged and declared unconstitutional,
following the recent Jill Ireland case.
Hence, as for the Jill Ireland case, the Federal Government could
present the Archbishop Titular case in their tide against her. Though, there would
definitely be different facts and circumstantial evidence adduced by her and
other relevant laws, we would have to wait the arguments accumulated and continue
theorizing what would be the probable decision in the coming appeal soon.
The inhabitants of Borneo, from the Sidang Injil Borneo denomination
of Christianity are concerned regarding this appeal and other Christians with
interests in that region of Malaysia. There were talks between Baru Bian and
Prime Minister Muhyiddin Yassin to settle this issue through a resolution
outside the courts, by amending the 1986 directive, as to respect the
Malaysian Agreement 1963 and to recognize differences between West and East Malaysia.
The people of Sabah and Sarawak decided that there should not be
any official religion in their states, but it is obvious that by
implication, article 3(1) of the Federal Constitution serves to be applied wholly throughout the Federation
as it is the Supreme Law, and that the 9th Schedule, List II, Item 1
provided that each state could manage their own Islamic matters. Technically, even if Sarawak does not have Islam as the official state religion, except for Sabah which they amended to include Islam as state religion, in general the whole of Malaysia has Islam as the official religion.
Some suggest that this ongoing court battle is to gain the support
and increase the political mileage for the ruling Malay-Islamic coalition, which
is true to a certain extent, but what we as Malaysians should focus on is other
more pressing issues at hand. Ever since the dawn of the ICERD rally and Rome
Statute protests, it has hindered Malaysian to progress in terms of science and
technology.
Malaysia face many other issues, such as economy, finance, crime,
security, illegal immigrants and corruption which is far more pressing than
getting emotional and rhetorical over this small fiasco. Religious, cultural
appreciation and understanding needs to be promoted, rather than having this
turmoil grow excessively larger. We need to have further forums and discussions,
by having an inter-religious discourse among people of different faiths, while still protecting the sanctity and position
of Islam as the official religion of the Federation, since it forms part of the
Basic Structure of the Constitution.
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