(H) 19.10.2017 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS) PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO: R25-256-2008 Dalam perkara suatu Keputusan seperti yang dinyatakan dalam surat pejabat Kementerian Dalam Negeri bertarikh 7.7.2008 yang diterima pada 12.7.2008 Dan Dalam perkara Perkara 3, 8, 11, 12, 74, 76 dan 149 Perlembagaan Persekutuan, Seksyen 7, 9, 9A, 17 & 18 Akta Mesin Cetak dan Penerbitan 1984, Seksyen 102, 114, 128 Akta Kastam 1967 Dan Dalam perkara suatu permohonan untuk Perintah Certiorari, Perintah Mandamus dan deklarasi; Dan Dalam perkara Seksyen 25 Akta Mahkamah Kehakiman 1964 dan Aturan 53 KaedahKaedah Mahkamah Tinggi, 1980. Antara …PEMOHON
JILL IRELAND BINTI LAWRENCE BILL (No. K/P 810926-13-5852) Dan 1. 2.
MENTERI BAGI KEMENTERIAN DALAM NEGERI MALAYSIA KERAJAAN MALAYSIA
APPLICANT’S WRITTEN SUBMISSION
…RESPONDENRESPONDEN
APPLICANT’S WRITTEN SUBMISSION
PART A.
1.
INTRODUCTION
The Applicant, Jill Ireland sought administrative law remedies of certiorari and
mandamus as well as several declaratory reliefs. She also seeks consequential as well as further or other reliefs.
2.
This judicial review application arose out of the Respondents’ decision to withhold
delivery of 8 Christian educational audio compact discs in BI (the “8 CDs”) under the Printing Presses and Publications Act 1984 (“PPPA”).
3.
The administrative law reliefs consisting of certiorari and mandamus pertaining to
the specific publications, i.e., the 8 CDs were granted by the High Court and upheld by the Court of Appeal.
4.
There are however still outstanding the various declarations pertaining to all the
constitutional rights to freedom of religion and equality before the law and the right to equal protection of the law together with further and consequential reliefs thereto with regard to the prohibition on all other Christian publications under the PPPA.
PART B.
5.
CAUSE PAPERS
The Cause Papers relating to this matter are as follows:-
(a)
Application for Judicial Review (ex parte) dated 20.8.2008 (“Application”) [Enclosure 1];
(b)
Statement Pursuant to Order 53 rule 3(2) of the Rules of the High Court, 1980 dated 20.8.2008 (“Order 53 Statement”) [Enclosure 2]; Page 2 of 86
(c)
Notice of Intention to Amend Statement (filed pursuant to Order 53 rule 7 of the Rules of Court 2012) dated 9.8.2017 (“Notice of Intention (1)”) [Enclosure 40];
(d)
Notice of Intention to Apply for Necessary and Consequential Directions and Orders and/or Further Reliefs dated 9.8.2017 (“Notice of Intention (2)”) [Enclosure 40];
(e)
Notice of Hearing of the Applicant’s Judicial Review application dated 18.5.2009 (“Notice of Hearing”) [Enclosure 5];
(f)
The Applicant’s Affidavit in Support affirmed by the Applicant on 20.8.2008 (“Applicant’s JI Affidavit” [Enclosure 3];
(g)
The Respondent’s Affidavit in Reply affirmed by Suzanah Binti Haji Muin on 28.8.2009 (“Respondents’ SM Affidavit”) [Enclosure 6];
(h)
The Affidavit in Reply affirmed by Pendita Jok Wan affirmed on 10.11.2009 (“Applicant’s PJW Affidavit”) [Enclosure 7];
(i)
The Affidavit in Reply affirmed by Syed Hamid B. S. Jaafar Albar affirmed on 2.6.2010 (“Respondents’ SHA Affidavit”) [Enclosure 15];
(j)
The Affidavit affirmed by Profesor Madya Dr. Khadijah Mohd Khambali @ Hambali on 11.1.2010 (“Respondents’ KHK Affidavit 1”) [Enclosure 16] exhibiting her expert report (“KHK’s First Report”);
(k)
The Affidavit affirmed by Dr. Mohd Sani Badron on 11.1.2010 (“Respondents’ MSB Affidavit 1”) [Enclosure 17] exhibiting his expert report (“MSB’s First Report”); Page 3 of 86
(l)
The Applicant’s Affidavit affirmed by Ng Kam Weng on 13.6.2011 (“Applicant’s NKW Affidavit 1”) [Enclosure 29] exhibiting his expert report (“NKW’s First Report”);
(m)
The Applicant’s Affidavit affirmed by Tan Kong Beng on 10.1.2014 (“Applicant’s TKB Affidavit”) [Enclosure 34];
(n)
The Applicant’s Affidavit affirmed by Syahredzan Bin Johan on 15.1.2014 (“Applicant’s SJ Affidavit”) [Enclosure 35];
(o)
The Applicant’s Affidavit affirmed by Dr. Azmi Bin Sharom on 13.1.2014 (“Applicant’s AS Affidavit”) [Enclosure 36A];
(p)
The Applicant’s Affidavit affirmed by Dr. Abdul Aziz Bin Bari on 15.1.2014 (“Applicant’s AAZ Affidavit”) [Enclosure 37];
(q)
The Applicant’s Affidavit affirmed by Datuk Jerry WA Dusing @ Jerry W Patel on 27.7.2017 (“Applicant’s JD Affidavit”) [Enclosure 39];
(r)
The Respondents’ Expert Opinion Affidavit affirmed by Profesor Madya Dr. Khadijah Mohd Khambali @ Hambali on 9.8.2017 (“Respondents’ KHK Affidavit 2”) [Enclosure 41] exhibiting her expert report (“KHK’s Supplemental Report”);
(s)
The Respondents’ Expert Opinion Affidavit affirmed by Dr. Mohd Sani Badron on 9.8.2017 (“Respondents’ MSB Affidavit 2”) [Enclosure 42] exhibiting his expert report (“MSB’s Supplemental Report”);
(t)
The Applicant’s Affidavit affirmed by Ng Kam Weng on 8.9.2017 (“Applicant’s NKW Affidavit 2”) [Enclosure 46] exhibiting his expert report Page 4 of 86
(“NKW’s Supplemental Report”);
(u)
The Applicant’s Affidavit affirmed by Alfred Rosmin Tais on 8.9.2017 (“Applicant’s ART Affidavit”) [Enclosure 43];
(v)
The Applicant’s Affidavit affirmed by Bishop Melter Jiki Tais on 11.9.2017 (“Applicant’s MJT Affidavit”) [Enclosure 44]; and
(w)
The Applicant’s Affidavit affirmed by Datuk Reverend Justin Wan on 11.9.2017 (“Applicant’s DJW Affidavit”) [Enclosure 45].
PART C.
FACTUAL MATRIX: THE USE OF THE WORD “ALLAH” AND THE PROHIBITION BY THE RESPONDENTS
6.
The Christian community which use Bahasa Melayu/Malaysia (BM) in the
profession and practice of their Christian faith use the word “Allah” as a referent to the Almighty Creator God. Their Holy Book, the ALKITAB and all published materials in BM use this holy word. BM is thus used in their prayer books, liturgy, worship and religious instruction as well as training [para 13–14 of Applicant’s JI Affidavit ; para 8–11 of Applicant’s PJW Affidavit ; para 6-12 of Applicant’s ART Affidavit ; para 7-12 of Applicant’s MJT Affidavit ; para 6, 9-14 of Applicants’ DJW Affidavit].
7.
The Applicant is a native Bumiputra Christian Malaysian citizen from the Melanau
tribe of Sarawak. She comes within the definition of “natives of Sabah and Sarawak” referred to in Article 153 of the Federal Constitution [ABOA1 Vol. 1, pp 43-49] and as defined in Article 161A of the Federal Constitution [ABOA Vol. 1, pp 51-53].
8.
BM which is the national language of the nation has been the lingua franca for the
native peoples of Sabah and Sarawak living in their home states and in Peninsular 1
Applicant’s Bundle of Authorities
Page 5 of 86
Malaysia and also for the Baba community and Orang Asli tribes of Peninsular Malaysia where their descendants have practised a culture of practising and professing their Christian faith using BM [para 8–10 of Applicant’s PJW Affidavit].
9.
The Applicant and her co-religionists who use BM as their faith language had been
schooled in the National Education System using BM as the medium of instruction. They use BM in all aspects of the profession and practice of Christianity as in worship, prayers, intercession and in receiving religious instruction. They also use the ALKITAB in Bahasa Indonesia (BI) and relies upon BI written and audio-visual materials in the practice of their Christian faith.
10.
On 11.5.2008, the Applicant landed at the Sepang Low Cost Carrier Terminal
(“LCCT”) bringing along with her 8 CDs which are intended for her personal religious edification. The 8 CDs consisting of the titles which contain the term “Allah” were detained by the Respondents.
11.
The 1st Respondent states that pursuant to the administrative order contained in
the Letter of the Ministry of Home Affairs dated 5.12.1986 (“1986 Government Directive”) all Christian publications are prohibited to use any of the 4 words “Allah”, “Baitullah”, “Kaabah” and “Solat” [Exhibit “SHM-3” of Respondents’ SM Affidavit ; Exhibit “SHA-2” of Respondents’ SHA Affidavit].
12.
The 1st Respondent asserts that the Ministry of Home Affairs was responsible for
implementing the law and the policy of the Government, in particular under the PPPA [para 7 of Respondents’ SHA Affidavit]. He further states that the 1986 Government Directive has never been withdrawn and continues to be in force. The Respondents are therefore using the PPPA to prohibit the historical and generational use of the word “Allah” through the 1986 Government Directive.
13.
Essentially, the ground for the prohibition vide the 1986 Government Directive is
public order and to avoid misunderstanding between Muslims and Christians [para 4 of Page 6 of 86
1986 Government Directive].
14.
The 1986 Government Directive, it is respectfully submitted is both unlawful and
also unconstitutional. Hence this judicial review application seeking the main declarations under Articles 8 and 11 of the Federal Constitution and the consequential reliefs and further or other reliefs including those with regard to the 1986 Government Directive.
PART D.
15.
THE CONSTITUTION, RELIGION AND RELIGIOUS FREEDOM
The Federal Constitution is the supreme law of the land (see Article 4 [ABOA Vol.
1, pp 19-22]). All laws and executive action which are inconsistent with the Federal Constitution are null and void. Enforcement of the rights (fundamental liberties) conferred by Part II of the Federal Constitution is within the powers of the High Court as set out in paragraph 1 of the Schedule read with Section 25(2) of the Courts of Judicature Act 1964 [ABOA, Vol. 1, pp 3-5]. Order 53 of the Rules of Court 2012 [ABOA Vol. 1, pp 69-75] specifically prescribes judicial review as the mode of commencement of action for reliefs in paragraph 1 of the Schedule.
Principal rules in construction of the Federal Constitution
16.
The principal rules in construing the Federal Constitution and in particular such
articles which guarantee fundamental liberties set out in Part II of the Federal Constitution have been authoritatively laid down by the Federal Court.
17.
The rights guaranteed by Part II form part of the basic structure of the Federal
Constitution. Unless sanctioned by the Federal Constitution itself any statute that offends the basic structure may be struck down as unconstitutional (see Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 (“Sivarasa”) [ABOA Vol. 1, p 87]). This includes any amendment to the Federal Constitution itself.
Page 7 of 86
18.
The basic structure doctrine was affirmed by a 5- member panel of the Federal
Court in the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561. On the issue of whether judicial power vested in the courts, the Federal Court affirmed the principle in Sivarasa (supra) that any statute, including one amending the Constitution that offends the basic structure may be struck down as unconstitutional. The Federal Court went on to find that section 40D which whittled away the judicial power to award compensation from the High Court judge and to vest the same in the lay assessors was contrary to Article 121 of the Federal Constitution and hence unconstitutional (at para 79-81, 86, 95) [ABOA Vol. 1, pp 129133].
19.
A prismatic methodology must be taken in construing fundamental liberties
guaranteed under Part II. They must be generously interpreted. The corresponding principle is that “provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively” (see Lee Kwan Woh v. PP [2009] 5 CLJ 631 (“Lee Kwan Woh”) and Badan Peguam Malaysia v Kerajaan Malaysia [2008] 2 MLJ 285 (“Badan Peguam Malaysia”) both cited in Sivarasa (supra) at para 3 and 5 [ABOA Vol. 1, pp – 84-85]).
20.
The test for validity of restrictions of these guaranteed rights is “whether it directly
affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory” (see Sivarasa (supra) applying Dewan Undangan Negeri Kelantan v Nordin Bin Salleh [1992] 1 MLJ 709 (at para 6) [ABOA Vol. 1, p 85]).
21.
The Federal Court in Lee Kwan Woh (supra) also held that a court must refer to
the humanising and all-pervading provisions of Article 8(1) of the Federal Constitution (at para 12) [ABOA Vol. 1, pp 169 - 170].
22.
The legislative history of the Federal Constitution is relevant in the construction of
provisions of the Federal Constitution (see Teoh Eng Huat v Kadhi, Pasir Mas & Anor Page 8 of 86
[1990] 2 MLJ 300 at p 301G-302E [ABOA Vol. 1, pp 229-230] (“Teoh Eng Huat”) and most recently in Public Prosecutor v Azmi bin Sharom [2015] 6 MLJ 751 (“Azmi bin Sharom”), Federal Court at paras 35-40 [ABOA Vol. 1, pp 249-250]).
23.
The legislative history of the Merdeka Constitution of 1957 and subsequently of
the Malaysian Constitution of 1963 consists inter alia of the following: (a) the “Report of the Federation of Malaya Constitutional Commission 1957” (“Reid Commission Report”) [ABOA Vol. 1, pp 253 - 255]; (b) the “White Paper on the Constitutional Proposals for the Federation of Malaya” (Legislative Council Paper No. 41 of 1957) [ABOA Vol. 1, pp 256 - 257]; (c) the “Malaysia and Sarawak” dated 4.1.1962 (Government Paper) published by the authority of the Government of Sarawak [ABOA Vol. 1, pp 265 - 268]; (d) the “North Borneo and Malaysia” dated 31.1.1962 (Government Paper) issued by the authority of the Government of North Borneo [ABOA Vol. 1, pp 261 - 265]; (e) the “Memorandum on Malaysia” submitted by the Malaysia Solidarity Consultative Committee dated 3.2.1962 (“Memorandum on Malaysia”) [ABOA Vol. 1, pp 269 - 276]; (f), the “Report of the Commission of Enquiry, North Borneo and Sarawak, 1962” (“Cobbold Commission Report”) [ABOA Vol. 1, pp 258 - 260]; and (g) the “Report of IGC” set up to work out the constitutional arrangements for the new Malaysian Federation including safeguards for the special interests of Sabah and Sarawak [ABOA Vol. 1, p 287].
PART E.
24.
THE PROVISIONS ON RELIGION AND RELIGIOUS FREEDOM
The Federal Constitution safeguards religious freedom in a multi-religious society
in ways which are unique and are found in no other country. Firstly, this freedom and the scope of its exercise are carefully and expressly provided. Secondly, the right of the State to interfere with these rights is also meticulously circumscribed to very limited matters. Thirdly, notwithstanding that Islam is declared to be the religion of the Federation, great care is taken to explain that it is not to negatively impact on any other provision of the Federal Constitution. Page 9 of 86
25.
The wide scope of individual and collective religious rights is carefully identified
and guaranteed. The freedom of religion of every person consists of freedom not only to profess but to practise and, subject to State law, to propagate his religion (see Article 11(1), (4) of the Federal Constitution [ABOA Vol. 1, pp 29-31]).
26.
In this regard, the Respondents are patently in error in limiting the Applicant’s
religious rights to only the freedom to profess [menganuti] and not to practise [mengamal] her religion [para 19 of Respondents’ SM Affidavit].
27.
Article 3(1) of the Federal Constitution which provides that Islam is the religion of
the Federation qualifies the same by declaring uno flatu (in the same breath) the assurance that “but all religions may be practiced in peace and harmony in any part of the federation” [ABOA Vol. 1, p 19]..
28.
Article 3(1) of the Federal Constitution is next followed by the qualifying Article 3(4)
which provides that the former provision “does not derogate from any other provisions of this Federal Constitution” [ABOA Vol. 1, p 19].
29.
The right of every religious group to manage its own affairs; to establish and
maintain religious and charitable institutions; and to acquire and own, to hold and to administer property in accordance with law is also expressly stipulated (see Article 11(3) of the Federal Constitution [ABOA Vol. 1, p 31]). This includes the right of every religious group to establish and maintain institutions for the education of children in its own religion (see Article 12(2) of the Federal Constitution [ABOA Vol. 1, p 31]).
30.
The Federal Constitution places the Article 11 guarantee of religious freedom at
the highest hierarchy of fundamental liberties together with the Article 8 right to equality [ABOA Vol. 1, pp 25-27] and also Articles 6 and 7 [ABOA Vol. 1, pp 23-25].
31.
All rights are subject to lawful limitations. This applies to religious freedom. Page 10 of 86
However, the Federal Constitution provides for curbs on these rights in very narrow circumstances when compared to other fundamental liberties like freedom of speech, assembly and association. These provisions are painstakingly crafted and embedded into the supreme law to ensure that the full expression of religious freedom is only subject to specific exceptional circumstances and by specified lawful means.
32.
This can be seen from the manner in which the Federal Constitution jealously
guards these rights from restrictions and controls when compared with other fundamental liberties.
33.
Article 10(1) of the Federal Constitution which accords freedom of speech,
assembly and association is subject to a host of specific matters in which Parliament may by law impose restrictions [ABOA Vol. 1, pp 27-29]. Restrictions on freedom of speech may be imposed by Parliament not only for public order but also against defamation and contempt of court among others.
34.
No such power to restrict religious freedom is provided in Article 11 of the Federal
Constitution. With regard to this fundamental liberty, the exercise of religious freedom is subject only to restrictions set out in Article 11(5) and Article 11(4) of the Federal Constitution [ABOA Vol. 1, pp 31].
35.
Article 11(4) of the Federal Constitution provides that State legislatures may
through State laws control or restrict the propagation of any doctrine or belief to persons professing Islam.
36.
Article 11(5) of the Federal Constitution provides that the religious rights conferred
by Article 11 do not authorize any act contrary to any general law relating to public order, public health or morality. These are specific public and social interests which would be regulated by general law.
37.
No one can in the name of religious freedom perform child sacrifice during a full Page 11 of 86
moon. That is to commit murder which is an offence against the Penal Code. No one can in the name of religious freedom commit acts of trespass or defiling the place of worship of any religion as that will be an offence under the Penal Code, a general law relating to public order.
38.
Article 8(1) of the Federal Constitution guarantees equality of all persons before
the law and the equal protection of the law. Article 8(2) of the Federal Constitution prohibits discrimination against citizens, inter alia on the grounds of religion, except, however, as is expressly authorised by the Federal Constitution. There are no provisions in the Federal Constitution which expressly authorizes discrimination on the grounds of religion.
39.
The special concern to give full recognition to freedom of religion is made even
more explicit in the Federal Constitution provisions relating to the vesting of special powers against inter alia subversion and public order or security of the Federation and those relating to grave emergencies affecting the security, economic life or public order in the Federation.
40.
Article 149 of the Federal Constitution permits Parliament to enact laws to deal
with acts of subversion and action prejudicial to public order [ABOA Vol. 1, pp 35 - 37]. This power can be exercised notwithstanding that they are inconsistent with all the constitutional fundamental liberties guaranteed in Articles 5 to 13 of the Federal Constitution. However, inconsistency with fundamental liberties assured under Articles 6, 7, 8 and 11 of the Federal Constitution in such enacted laws are expressly prohibited.
41.
The special status of religious freedom is further reflected in the emergency
powers provided in Article 150 of the Federal Constitution [ABOA Vol. 1, pp 37-41]. Similar prohibitions on interference with Articles 8 and 11 are placed on the enactment of laws during a declaration of emergency.
42.
The detention of a person without trial is permitted under the Internal Security Act Page 12 of 86
1960 (“ISA 1960”) which is an exceptional legislation enacted under Article 149 of the Federal Constitution. It will however be unconstitutional when used against persons practising their religion. The Supreme Court in Minister for Home Affairs, Malaysia & Anor v Jamaluddin bin Othman [1989] 1 MLJ 418 (“Jamaluddin bin Othman”) held that Article 149 does not authorise any contravention of Article 11 of the Federal Constitution. The Supreme Court upheld the decision of the High Court (Jamaluddin bin Othman v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1989] 1 MLJ 368) that the Minister has no power to detain a person under the ISA contrary to his right to profess and practise his religion which is guaranteed under Article 11 of the Federal Constitution. The act of restricting such freedom is inconsistent with Article 11 and would not be valid (see p 419D-I) [ABOA Vol. 1, p 290].
43.
The ISA asserts the right to exercise special powers under the power vested in
Article 149(1)(f) of the Federal Constitution which explicitly permits provisions of law to stop or prevent action “which is prejudicial to public order in, or the security of the Federation or any part thereof”. Such legislation for national security and public order cannot prevail over Article 11 of the Federal Constitution. A fortiori, the PPPA cannot prevail against the said Article 11. It is not a general law relating to public order as seen in its Preamble which reads: “An Act to regulate the use of printing presses and the printing, importation, production, reproduction, publishing and distribution of publications and for matters connected therewith” [ABOA Vol. 1, p 59]
PART F.
FREEDOM OF RELIGION: PROHIBITION VIOLATES [ARTICLE 11(1) and (3) READ WITH ARTICLE 3]
44.
Article 11 of the Federal Constitution provides as follows – “11. Freedom of religion (1) Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it. Page 13 of 86
(2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part the purposes of a religion other than his own. (3) Every religious group has the right: (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire and own property and hold and administer it in accordance with law. (4) State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. (5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.” 45.
The Respondents’ ground for the outright prohibition on the use of the word “Allah”
in the purported exercise of powers under Section 7 of the PPPA [ABOA Vol. 1, pp 6163] is public order and to avoid misunderstanding between Muslims and Christians. This appears in the first sentence of paragraph 4 of the 1986 Government Directive [Exhibit “SHM-3” of Respondents’ SM Affidavit ; Exhibit “SHA-2” of Respondents’ SHA Affidavit] as follows: “Tujuan Kerajaan mengambil ketetapan berhubung dengan istilah/perkataan serta syarat di atas kepada penerbitan agama Kristian adalah semata-mata untuk menjaga ketenteraman awam dan mengelakkan berlakunya salah faham diantara umat Islam dengan penganut-penganut ugama Kristian.” F (1) Submission on Constitutionality re Article 11(1) The absolute prohibition on the use of the word “Allah” purportedly pursuant to powers under PPPA is unlawful and unconstitutional
46.
The effect of the 1986 Government Directive is that Christians who worship in BM,
including the Applicant are prohibited from having access to any publication which has the word “Allah”, a direct denial of their right to profess and practise their freedom of religion.
Page 14 of 86
47.
The Respondents’ 1986 Government Directive issued in the purported exercise of
powers under the PPPA prohibits all Christian publications from using the word “Allah”. In enforcing the directive and purportedly acting under the PPPA, Christian publications have been subjected to enforcement action purportedly in the exercise of powers under the PPPA and continue to be liable to such action solely on the ground that they contain the word regardless of their contents. The 1986 Government Directive is both unlawful and unconstitutional.
The 1986 Government Directive is unconstitutional
48.
The 1986 Government Directive is unconstitutional. It infringes on the right of the
Applicant and her co-religionists who worship in BM to practise their religion as guaranteed under Article 11(1) of the Federal Constitution. It impacts negatively on their freedom to practise their Christian faith in peace and harmony in any part of the Federation as guaranteed by Article 3 of the Federal Constitution when their Christian publications can be seized, detained and impounded by officers of the Respondents in the purported exercise of powers under the PPPA.
49.
In Jones v Opelika [1941] 316 US 584, it was held that the right to profess and
practise one’s religion encompasses the right to have access to religious materials. In ruling on the legality of a requirement of a license for selling and distributing religious printed propaganda the Court treated the right to do so as part of the freedom of speech, press and religion [ABOA Vol. 1, pp 377-379].
50.
It is respectfully submitted that the exercise by the Applicant and her co-religionists
of their fundamental right to practise their religion by having access to their Holy Scriptures and other Christian religious literature has been not only restricted but absolutely denied by the 1986 Government Directive.
51.
International and regional conventions and the decisions of commissions and
courts established under such conventions are not part of Malaysian domestic law until Page 15 of 86
they have been incorporated into laws passed by Parliament. They are however relevant in interpreting fundamental liberty guarantees in our Malaysian Federal Constitution.
52.
In Public Prosecutor v Yuneswaran a/l Ramaraj [2015] 6 MLJ 47
(“Yuneswaran”), Raus Sharif PCA (as he then was) referred to the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) and decisions of the European Court of Human Rights (see para 36, 38, 43) [ABOA Vol. 1, pp 408-412].
53.
In Yuneswaran (supra), the Court of Appeal had to decide on the constitutionality
of section 9(5) of the Peaceful Assembly Act 2012 (“PAA”) and whether the requirement to give notice prior to the exercise of the right to assemble peaceably is a ‘restriction’ within the meaning of Article 10(2)(b) of the Federal Constitution.
54.
In doing so, the learned President of the Court of Appeal held that the PAA was in
accordance with international norms in the imposition of a ten day notification period. The learned President examined the position of Article 11 of the ECHR and the limitations placed on State authorities in imposing restrictions on the exercise of that right. The Court of Appeal considered decisions of the European Court of Human Rights in relation to the requirement to give prior or advanced notice and the consistency with Article 11 of the ECHR and proceeded to accept and apply principles expressed therein.
55.
Article 9 of the ECHR is worded as follows:-
Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. [ABOA Vol. 1, p 423]
Page 16 of 86
56.
Article 9 of the ECHR is essentially a reproduction of Article 18 of the United
Nations Universal Declaration on Human Rights. These two articles clearly state the principle that everyone has the right to freedom of thought, conscience and religion and that this right includes the freedom to change his religion or belief and freedom either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. These two articles correspond to the Article 11 of the Federal Constitution guaranteeing freedom of religion.
57.
The European Court of Human Rights in Church of Jesus Christ of Latter-Day
Saints v United Kingdom [2014] ECHR 7552/09 established the general principle that the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. The principle of State neutrality and impartiality in exercising its regulatory power in the sphere of religious freedom and its relations with different religions, denominations and beliefs must also be observed, The Court held: “Finally, in this connection, the Court recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. The State therefore has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and its relations with different religions, denominations and beliefs.” (at para 29) [ABOA Vol. 1, pp 438-439] 58.
The 1986 Government Directive in effect is tantamount to the Respondents
determining that it is not legitimate for Christians to use the word “Allah” and that such is only legitimate and should be for the exclusive use in Islam. This is a power which the Respondents do not have and to do so is to transgress the limitations of their executive power. This transgression would be particularly more acute a limitation in this case where the means of expressing belief is shared by both the majority and minority faith communities, in this case Muslims and Christians respectively. By making such a determination to prohibit Christians in their publications the Respondents have exceeded
Page 17 of 86
their bounds and have abandoned their duties of neutrality and impartiality and instead demonstrated clear bias and impartiality in exercising their executive power.
59.
The protection afforded by Article 9 of the ECHR has two aspects. Firstly, it
provides negative protection from interference. Secondly, the State also has a positive obligation to ensure the peaceful enjoyment of the rights guaranteed by Article 9. This may, in some circumstances, involve the State taking measures to repress conduct which is incompatible with respect for the freedom of thought, conscience and religion of others.
60.
In Otto-Preminger-Institute v Austria (1994) 19 EHRR 34, the European Court
of Human Rights explicated on the scope of Article 9 of the ECHR and its implications. When religious beliefs were opposed or denied in an extreme way, this could be regarded as a ‘malicious violation of the spirit of tolerance’ with the result that the State had a positive duty to repress such opposition. The Court went further to say:“Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines. Indeed, in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them.” (at para 47) [ABOA Vol. 1, p 459] 61.
The Respondents had also breached their negative obligation by the 1986
Government Directive in prohibiting the peaceful, legitimate, historical and generational use of the word by Christians. In not even countering much less repressing the conduct of those who opposed or denied the right of Christians to use the term “Allah”, the Respondents have violated their positive obligation to ensure the peaceful enjoyment of their religious rights. This is even more serious an abdication of the positive obligation when Article 3 of the Federal Constitution expressly and unequivocally provides that other Page 18 of 86
religions which includes Christianity may be practised in peace and harmony in any part of the Federation.
62.
It can hardly be seriously disputed that this is a restriction on the right of Christians
to profess and practise their religion. Prima facie therefore it violates the constitutional guarantee of Article 11(1) of the Federal Constitution. It will be struck down as unconstitutional unless such action can be saved by the permissible restrictions under Article 11(5) of the Federal Constitution (applying Sivarasa (supra) [ABOA Vol. 1, pp 8586] and Muhammad Hilman Idham & Ors v. Kerajaan Malaysia & Ors [2011] 9 CLJ 50 (“Muhammad Hilman”) [ABOA Vol. 1, p 304]). The use of the word “Allah” is not an act contrary to any general law on public order
63.
Article 11(5) of the Federal Constitution provides that “This Article does not
authorize any act contrary to any general law relating to public order, public health or morality.”
64.
The use of the word “Allah” by the Applicant and her co-religionists is not an “act
contrary to any general law relating to public order, public health or morality”. She had not acted in a manner in breach of Article 11(5) of the Federal Constitution. There is no general law relating to public order or for that matter public health or morality that prohibits the use of the word.
65.
As seen in Part E above, legislation for national security and public order enacted
under Article 149 and Article 150 of the Federal Constitution cannot prevail over Article 11 of the Federal Constitution.
66.
The ISA 1960 (now repealed) vests the government with the authority to exercise
special powers under the power vested in Article 149(1)(f) of the Federal Constitution. This provision explicitly permits action to stop or prevent action “which is prejudicial to Page 19 of 86
public order in, or the security of the Federation or any part thereof”. Nevertheless such legislation for national security and public order cannot prevail over Article 11 of the Federal Constitution (see also paragraphs 40-43 above).
67.
The PPPA is not a general law affecting public order. The PPPA states in its
preamble that it is “An Act to regulate the use of printing presses and the printing, importation, production, reproduction, publishing and distribution of publications and for matters connected therewith”. From its preamble and the other provisions of the PPPA it is plain that it is not a general law on public order but a specific law directed at regulating the licensing of printing presses, issuance of permits to publish newspapers and the control of undesirable publications which are enforced by penal sanctions. The said legislation not being a general law relating to public order cannot be used to restrict the freedom of the Applicant and her co-religionists to practise their religion by the issuance and enforcement of the 1986 Government Directive. What exceptional legislation like the ISA 1960 which specifically addresses public order and national security matters cannot do, surely the PPPA will be even more prohibited from doing and certainly not in the guise and form of the 1986 Government Directive.
The
1986
Government
Directive
prohibition
audited
against
the
Meor
Artiqulrahman 6-steps test
68.
The Federal Court in Meor Atiqulrahman Ishak & Ors v. Fatimah Sihi & Ors
[2006] 4 CLJ 1 (“Meor Atiqulrahman”) sets out how State action which impacts on religious practice is to be audited (at para 17-21) [ABOA Vol. 1, pp 334-335].
69.
Applying the 6-steps test set out in Meor Atiqulrahman (supra), the 1986
Government Directive is plainly inconsistent with the Applicant’s Article 11 rights.
70.
Firstly, there is no dispute that Christianity is a religion.
71.
Secondly, there is no dispute that there is a practice. The 1986 Government Page 20 of 86
Directive itself acknowledges that this is a word common to both Islam and Christianity.
72.
Thirdly, there is also no dispute that the practice of using the term "Allah" is a
practice of the Christian religion. This is a matter of historical record. Christians and Churches who use BM in the profession and practice of Christianity use the word “Allah” as a referent to God. This is a practice of Christian native Bumiputra communities of Sabah and Sarawak as well as the Orang Asli and the Babas of Peninsular Malaysia. They use their Holy Scriptures, ALKITAB in BM in which the referent to the Almighty Creator God is the term "Allah" [Applicant’s PJW, MJT, DJW and ART Affidavits and NKW’s First and Supplemental Reports].
73.
The use of the word “Allah” is a practice which has been adhered to for centuries
and by generations long before Merdeka in 1957 and the formation of Malaysia in 1963. With regard to Sabah and Sarawak well before their homes joined Malaya to form the enlarged Federation of Malaysia native Bumiputra Christians of Sabah and Sarawak have been using the word. [para 5-8 of Applicant’s PJW Affidavit ; para 5, 15-16 of Applicant’s ART Affidavit; para 6 of Applicant’s MJT Affidavit ; para 5, 13-14 of Applicant’s DJW Affidavit].
74.
The word also appears in the Holy Scriptures of the Christian religion since from
as early as the 17th century until the early 20th century. These use the word “Allah” thus providing undeniable evidence that the Christians who profess and practise Christianity in BM have been using the word “Allah” in the BM/BI Bible and in their worship long before Merdeka Day or Malaysia Day [pages 14-20 of NKW’s First Report]:
1629
A. C. Ruyl translated the Gospel / Injil of Matthew into Bahasa Melayu. ‘Allah’ was used in the following example: “maka angkou memerin’ja nama Emanuel artin’ja Allahu (the Greek word THEOS) serta segala kita“ (Matt. 1:23). The translations that followed also retained the word “Allah” among the following translations:
Page 21 of 86
1631
Dictionarivm : Malaico-Latinvm = Latino-Malaicvm. Rome. n Alla, vel alla-te-alla Deus
1646
Van Hasel’s translation: Luke and John (surviving copies in the libraries of the University of Amsterdam, Netherlands and the University of Cambridge, UK.
1733
Translation of the Book of Genesis by M. Leijdecker “Pada mulanja dedjadikanlah Allah akan swarga dan dunja.“ (Gen. 1:1). This is the first complete Malay Bible.
1879
Translation of the Book of Isaiah by H. C. Klinkert “Bahwa-sanja Allah djoega salamatkoe.“ (Isaiah 12:2). This is the second complete Malay Bible.
1890
Kebaktian Sa’hari Harian- “Ia Elkhadir dan kakal Allah”
1895
Christian Doctrine : Pengajaran Mesehi – Terpendek “Saval : Siapa sudah jadikan kami? Jawab : Allah Taala Saval : Brapa ada Allah? Jawab : Satu sahja, dan tida buleh ada lebeh sari satu Allah“
1915
Kitab Sembahyang Dalam Greja (Portions of the Book of Common Prayer in the Malay Language) published by SPCK London.
1938
Translation of the Gospel / Injil of John
75.
Up until today, the word “Allah” is used in the Holy Scriptures for e.g., the Alkitab
Berita Baik edisi 1996 [pages 1-9 and Exhibit “MJT-1” of Applicant’s MJT Affidavit], the Alkitab dalam Bahasa Melayu Versi Terjemahan Formal edisi 2014 [page 10-19 and Exhibit “MJT-1” of Applicant’s MJT Affidavit ; pages 1-4 and Exhibit “ART-1” of Applicant’s ART Affidavit] and the Alkitab Versi Borneo versi 2015 [pages 5-7 and Exhibit “ART-1” of Applicant’s ART Affidavit], as well as in published Christian literature and publication, such as Buku Sembahyang, Peraturan-Peraturan Sembahyang dan Puji-Pujian Kristian, Peraturan Kebaktian, Pendirian Iman dan Doktrin Keprcayaan, Upacara Pembatisan, Penguburan Orang Mati, Lagu Sembah Muji Tuhan, Nyani Lemken Tuhan and Garis Panduan Pembelajaraan Agama Kristian [Exhibit “ART-2” of Applicant’s ART Affidavit ; Exhibits “MJT-2” and “MJT-3” of Applicant’s MJT Page 22 of 86
Affidavit ; Exhibits “JUS-2” and “JUS-3” of Applicant’s DJW Affidavit].
76.
The Holy Scriptures of the BM-speaking native community of Sabah and Sarawak,
the ALKITAB, uses the term “Allah” for God, while the term “Tuhan” is used for Lord [para 9-10 of Applicant’s ART Affidavit; para 17-21 of Applicant’s MJT Affidavit]. This is the same with the ALKITAB in BI. The term is used in all aspects of the practice of their faith from the earliest days owing to BM being the lingua franca of the region among the native peoples as well as consequent to the successful implementation of the National Education Policy [para 8-9 of Applicant’s PJW Affidavit ; para 13-14 of Applicant’s ART Affidavit ; para 13-14 of Applicant’s MJT Affidavit ; para 15-16 of Applicant’s DJW Affidavit].
63.
Pendita Jok Wan, the former President of the SIB Sarawak who was born in 1935
makes reference to the “Kitab Perjanjian Baharu serta dengan Zubur” printed in 1949 which his parents had used. This publication contains the word “Allah” [para 5-8 and Exhibit “JW-1” of Applicant’s PJW Affidavit].
77.
With regard to Sabah and Sarawak, Pendita Jok Wan states as follows: “Pada zaman sekarang adalah satu hakikat bahawa kebanyakan umat Kristian di kawasan luar bandar di Sarawak dan Sabah adalah anak-anak watan bumiputera daripada pelbagai suku kaum di Sabah dan Sarawak, dan mereka menggunakan Bahasa Malaysia/Melayu yang merupakan bahasa kebangsaan semasa beribadah dan juga semasa pengajaran dan pendidikan agama.” “Istilah Allah telah digunakan terus-menerus dari generasi Kristian Bumiputera Sarawak dan Sabah sehingga sekarang dalam kitab suci, agama Kristian, iaitu ALKITAB, dan dalam semua penerbitan termasuk bahan pembacaan serta audiovisual seperti cereka padat visual tanpa gangguan dan tanpa menjejaskan ketenteraman awam di masyarakat Malaysia yang berbilang kaum dan agama.” [para 10 and 11 of Applicant’s PJW Affidavit]
78.
Fourthly, the use of the term is all important. The word “Allah” appears in the Holy
Scriptures in BM (ALKITAB) as well as in the native languages, for e.g. Iban, Lunbawang, Tagal, Saban, Kayan, Kenyah, Penan and Berawan, of native Bumiputra Christians of Page 23 of 86
Sabah and Sarawak [para 6, 15 and Exhibit “ART-1” of Applicant’s ART Affidavit ; para 7 and Exhibit “MJT-1” of Applicant’s MJT Affidavit ; para 6 and Exhibit “JUS1” of Applicant’s DJW Affidavit].
79.
The use of the word “Allah” is not only all important; it is core to as well as the
essence of the Christian religion professed and practised by the BM-speaking Christians in Malaysia. The affidavit evidence which is not denied is that: Kepercayaan kepada Allah dan penggunaan istilah “Allah” adalah bahagian dan amalan asas serta inti sari agama Kristian yang dianuti dan diamalkan oleh komuniti Kristian Malaysia dan kumpulan gereja yang menggunakan bahasa Melayu, terutamanya Bumiputera Sarawak dan Sabah. [para 23 of Applicant’s MJT Affidavit] Kepercayaan kepada Allah dan penggunaan istilah “Allah” adalah amat penting dalam penganutan dan pengamalan serta intisari agama Kristian warga Sarawak dan Sabah. Agama Kristian kami tanpa Allah dan istilah “Allah” mencacatkan doktrin agama Kristian yang menjadi asas penganutan dan pengamalan agama Kristian. [para 11 of Applicant’s DJW Affidavit] Kepercayaan kepada Allah dan istilah “Allah” adalah bahagian dan amalan asas serta inti sari agama Kristian yang dianuti dan diamalkan oleh kumpulan Kristian Malaysia yang menggunakan bahasa Melayu. Agama Kristian kami tanpa Allah dan istilah “Allah” merupakan kecacatan kepada doktrin agama Kristian yang menjadi asas kepada penganutan agama Kristian. [para 19 of Applicant’s ART Affidavit] 80.
Christians regard the name “Allah” as sacred and highly exalt His name. The
affidavit evidence which is not denied is that: Bagi umat Kristian, sebutan “Allah” sudah menjadi sembahan yang amat sakral dan dijunjung tinggi keagungannya. [para 17 of Applicant’s MJT Affidavit] Bagi umat Kristian, sebutan “Allah” sudah menjadi sembahan yang amat sakral dan dijunjung tinggi keagungannya. [para 17 of Applicant’s DJW Affidavit] Bagi umat Kristian yang percaya kepada Allah, sebutan “Allah” dan seruan kepada-Nya sudah menjadi sembahan yang amat sakral dan dijunjung tinggi Page 24 of 86
keagungannya. [para 17 of Applicant’s ART Affidavit] 81.
The word “Allah” is used in the doctrine of the Trinity which is central and integral
to Christianity. The affidavit evidence which is not denied is that: “Pengakuan Iman Rasuli” memberikan ajaran yang jelas tentang Allah Triniti, satu ajaran yang begitu sentral dan integral dalam agama Kristian. [para 9 of Applicant’s MJT Affidavit] Justeru kepercayaan kepada Allah dan penggunaan istilah “Allah” merupakan sebahagian daripada asas doktrin Kristian (the fundamental of Christian doctrines) yang tidak boleh diabaikan. [para 20 of Applicant’s MJT Affidavit] [P]enggunaan istilah “Allah” adalah begitu sentral dalam ajaran doktrin Kristian tentang Allah Triniti. Kami sekali-kali tidak akan mengabaikan ajaran Allah Triniti baik yang tercantum dalam “Pendirian Iman” ini mahupun dalam ajaran Alkitab. [para 8 of Applicant’s DJW Affidavit] Kepercayaan kepada Allah dan istilah “Allah” telah lama menjiwai segala aspek akidah kami sehingga ketiadaan istilah “Allah” dalam Kitab Suci bermakna ketiadaan kepercayaan Kristian. [para 18 of Applicant’s ART Affidavit] [P]enggunaan istilah “Allah” merupakan sebahagian daripada asas doktrin agama Kristian yang tidak boleh diabaikan. [para 10 of Applicant’s ART Affidavit] 82.
The use of the word “Allah” has serious doctrinal significance in describing the
concept of the Trinity: Allah Bapa (God the Father), Allah Anak (God the Son) and Allah Roh Kudus (God the Holy Spirit) as can be seen in the declaration of the Apostle’s Creed (Pengakuan Iman Rasuli); this doctrine is essential and integral to the Christian faith [para 7-8 and Exhibit “ART-2” of Applicant’s ART Affidavit ; para 8-10 and Exhibit “MJT2” of Applicant’s MJT Affidavit ; para 7-8 of Applicant’s DJW Affidavit].
83.
The word “Allah” cannot be replaced with the word “Tuhan” when translating the
terms “Tuhan ALLAH” (Lord God) in describing the Lord Jesus who is Himself God in the ALKITAB. To do so would result in a duplicity of Gods (Tuhan TUHAN) which is blasphemous as Christians believe in only one God who is revealed in the Holy Trinity
Page 25 of 86
[para 9-10 of Applicant’s ART Affidavit ; para 17-21 of Applicant’s MJT Affidavit]. Without Allah and the term “Allah” there would be a doctrinal defect in the profession and practice of Christianity among the native Bumiputra Christians of Sabah and Sarawak [para 18-19 of Applicant’s ART Affidavit ; para 22-23 of Applicant’s MJT Affidavit ; para 11 of Applicant’s DJW Affidavit].
84.
Without using both “Allah” and “Tuhan” together, Christians who worship in BM are
unable to affirm the fullness of Biblical revelation which teaches the deity of Jesus Christ who is distinct from God the Father which is the basis for the Christian Confession of the Trinitarian God, i.e. the heart of all Christian Creeds and catechisms used in Christian worship, prayers, baptism and religious instruction. Hence “Allah” is essential and integral to an authentic expression of Christian faith and doctrine [see Part I of NKW’s Supplemental Report].
85.
Christians who worship in BM have used the word “Allah” for generations and its
use has become integral in every aspect of the Christian life. The affidavit evidence which has not been denied is that: Setelah sekian lama penggunaan istilah “Allah” diturunkan kepada kami, maka tidak hairanlah istilah ini sudah menjadi perkataan yang integral dalam semua aspek hidup Kristian kami, khususnya dalam penyembahan dan ibadat kami. Tanpanya, amalan kepercayaan kami sungguh tidak bermakna dan serba kekurangan. [para 16 of Applicant’s MJT Affidavit] Setelah sekian lama penggunaan istilah “Allah” diturunkan kepada kami, maka tidak hairanlah istilah ini sudah menjadi perkataan yang integral dalam semua aspek hidup Kristian kami, khususnya dalam penyembahan dan ibadat kami. [para 17 of Applicant’s DJW Affidavit] Setelah sekian lama kepercayaan kepada Allah dan penggunaan istilah “Allah” diturunkan kepada kami, maka tidak hairanlah istilah ini sudah menjadi perkataan yang amat penting dan integral dalam semua aspek hidup Kristian. [para 16 of Applicant’s ART Affidavit] 86.
The word “Allah” is used in all aspects of the liturgy, worship, prayers and religious
education of this community, from birth to baptismal rights to marriage and to final rites Page 26 of 86
[para 8, 10, 11 of Applicant’s PJW Affidavit ; para 7, 8, 11-12 of Applicant’s ART Affidavit ; para 8-12 and Exhibit “MJT-3” of Applicant’s MJT Affidavit; para 7-9 and Exhibits “JUS-2” and “JUS-3” of Applicant’s DJW Affidavit].
87.
The word “Allah” lies at the heart of the profession and practice of the Christian
faith among the native Bumiputra Christian community of Sabah and Sarawak whether or not they still reside in Sabah and Sarawak or have moved to reside in Peninsular Malaysia [para 8-10 of Applicant’s PJW Affidavit ; para 5, 13-14 of Applicant’s ART Affidavit ; para 12-14, 16 of Applicant’s MJT Affidavit ; para 10, 16-17, 22-23 of Applicant’s DJW Affidavit].
88.
The use of the word “Allah” in the profession and practice of Christianity is not only
all important but is fundamental to the doctrine of Christianity and cannot be separated from the religion. The affidavit evidence which has not been denied is that:
Amalan ini bukan sahaja penting bahkan satu perkara asas (fundamental) dan tidak boleh dipisahkan daripada agama Kristian. [para 6 of Applicant’s MJT Affidavit] Amalan rujukan kepada “Allah” ialah satu hakikat di Malaysia khususnya di Sarawak dan Sabah turun-temurun. Amalan ini bukan sahaja amat penting bahkan ialah satu perkara asas (fundamental) dan tidak boleh dipisahkan daripada agama Kristian. [para 5 of Applicant’s DJW Affidavit] Amalan ini bukan sahaja penting bahkan satu perkara asas (fundamental) dan tidak boleh dipisahkan daripada agama Kristian. [para 5 of Applicant’s ART Affidavit] 89.
Fifthly, the drastic implications of the prohibition on the use of the term "Allah" can
hardly be overstated. The profession and practice of Christianity by BM speaking Christians will be distorted beyond recognition. The Holy Book (ALKITAB) of this community will have to be replaced with another scripture in order to comply with the 1986 Government Directive. Otherwise, they will be subject to enforcement actions under the PPPA. The practice of the faith in terms of liturgy, worship and religious education will also be drastically changed. Indeed not only will the ALKITAB be prohibited but all literary Page 27 of 86
and audio-visual publications will be outlawed if they do not substitute the word “Allah” with another term [para 15-19 of Applicant’s ART Affidavit ; para 16-24 of Applicant’s MJT Affidavit ; para 11, 13-16 of Applicant’s DJW Affidavit].
90.
With regard to the fifth step, the prohibition is tantamount to an outright ban of the
practice of the Christian faith in the manner in which the native Bumiputra communities of Sabah and Sarawak have practised their faith for generations. What is more fundamental and needs more anxious protection than the very term which believers use to refer to God in their language of faith? The prohibition on the term “Allah” applied to the Christian religion as practised among BM-speaking Christians from the native Christian population of Sabah and Sarawak can only be a gross violation of their fundamental religious liberty.
91.
Sixthly, with regard to the circumstances in which it was imposed, it is apposite
that Meor Artiqurahman (supra) observes that Malaysia is a multi-racial, multilingual and multi-religious nation with miraculous success in terms of unity, peace and prosperity (at para 45) [ABOA Vol. 1, p 340].
92.
The administrative prohibition on centuries’ old generational practice in peace and
harmony is at absolute odds with the fabric of the Malaysian nation and her peoples who enjoy a common citizenship of many races and religions. Malaya and subsequently Malaysia was established under the Federal Constitution to be a multi-racial and multireligious nation. The 1986 Government Directive undermines the very foundations of the Malaysian nation established by the Federal Constitution. The Respondents have significantly failed to offer any plausible explanation on what the public order circumstances were such as to cause the grievous assault on the religious rights of her citizens who worship in BM which warranted the 1986 Government Directive.
93.
The established and time-honoured test for constitutionality of legislation (and this
would apply to executive actions) is set out in the case of Nordin bin Salleh & Anor v Dewan Undangan Negeri Kelantan & Ors [1992] 1 MLJ 343 (“Nordin bin Salleh”). In Page 28 of 86
considering the validity of Article XXXIA Laws of the Constitution of Kelantan (First Part) (Amendment) Enactment 1991 vis-à-vis Article 10(1)(c) of the Federal Constitution, the High Court had this to say: “Where, therefore, the statute directly affects the fundamental right, or its inevitable effect on the fundamental right is such that it makes the exercise of the right ineffective or illusory, the statute must be held to be unconstitutional, and must be struck down. Applying this test, it is crystal clear that article XXXIA of the Kelantan State Constitution imposes a restriction on the exercise by the plaintiffs here, of the right of association guaranteed by art 10(1)(c) of the Federal Constitution. The impugned art XXXIA of the Kelantan State Constitution has the inevitable effect of restricting the exercise by the plaintiffs of their fundamental right to resign from a political party, and to that extent this art XXXIA of the Kelantan State Constitution is unconstitutional, and is therefore void.” (at p 357G-H) [ABOA Vol. 1, pp 356 - 357] 94.
In Chandanmal Chopra and another v. State of West Bengal AIR 1986 Cal.
(“Chandanmal Chopra”), the High Court in India dismissed a petition to ban and forfeit every copy of the Koran on the purported grounds that it contained matters punishable under the Indian Penal Code. The High Court held that the Koran is held sacred by Muslims. No action could be taken against it and the order prayed for would go against the Indian Constitution and violate Article 25 [freedom of religion]. Banning the Koran or forfeiting every copy would not only violate Article 25 but would amount to abolishing the Muslim religion itself. The Court went on to hold that by the petition the petitioner had insulted or attempted to insult the Muslim religion and religious belief of Muslims within the Penal Code and is an affront to Islam’s Supreme Scriptural Authority (see para 3437) [ABOA Vol. 1, pp 365 - 366]. Likewise, the 1986 Government Directive has the same unconstitutional and unacceptable effect.
95.
The ALKITAB is the Holy Scriptures of Christians who profess and practise their
faith using BM. Churches using BM including the indigenous native Churches of Sabah and Sarawak use BM in their worship, liturgy and instruction. This has come about due to the fact that BM is the lingua franca together with decades of instruction in the national Page 29 of 86
language BM. Prohibiting the use of the term "Allah" is tantamount to abolishing the Holy Scriptures which is fundamental to their religion together with illegalizing all Christian BM publications. Every other religious material in BM would suffer the same fate of prohibition, seizure and confiscation. This is surely as insulting and an affront to these native Bumiputra Christians as it is to Muslims in Chandanmal Chopra (supra). The 1986 Government Directive which dictates how the Christian faith community of native Bumiputra Christians ought to refer to the Supreme Creator God by banning them from using the referent "Allah" and subsequently action taken under the PPPA is therefore unconstitutional.
96.
From the above and based on the evidence in the Applicant’s affidavits, it is clear
that the use of the word “Allah” in the Holy Scriptures of Christians and in all religious publications can only be a practice which comes within the protection of the Federal Constitution. What needs more critical guarantee and protection than the very term which believers use to refer to God in their language of faith. The crystal clear evidence before this Honourable Court is that the prohibition on the term “Allah” applied to the Christian religion as practised by BM-speaking Christians from the native Christian population of Sabah and Sarawak and other BM-speaking Malaysians is a gross violation of their fundamental religious liberty.
97.
In a string of cases the European Court of Human Rights has decided that as a
matter of principle, it might be thought that the question as to whether or not a particular activity was a ‘manifestation’ of a particular religion or belief as protected by Article 9 of the ECHR is a matter which was to be determined by the sincere convictions of the adherent. If not, the court must engage in the activity of ‘scriptural interpretation’ (see Manoussakis and Others v Greece (1996) 23 EHRR 387 at para 41 [ABOA Vol. 2, p 482]).
98.
It is for followers of the Christian faith, in this case Christians who profess and
practise Christianity in BM to determine that the word “Allah” is in fact a manifestation of the Christian religion. Page 30 of 86
F (2) Submission on Constitutionality re Article 11(3)
99.
Further, it is also unconstitutional as the Respondents’ 1986 Government Directive
purports to assert the power to dictate the use of terms and/or to prohibit the use of terms to refer to God for the Christian faith. The Respondents claim to have the power to dictate to the BM-speaking Christian communities who are almost wholly from the native population that the term for God which they have been using for generations ought to be replaced with another term. This is clearly an unlawful interference with the constitutional freedom of religion guaranteed by Article 11(3) of the Federal Constitution of a religious group, in this case the native Bumiputra BM-speaking Christian congregation to manage their own religious affairs with regard to how God should be referred to in their ALKITAB and their religious publications.
100.
In The Commissioner, Hindu Religious Endowments, Madras v Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 AIR 282 (“Hindu Religious Endowments”), the Supreme Court of India was considering the issue of whether having regard to the fundamental rights guaranteed under the Constitution in matters of religion and religious institutions belonging to particular religious denominations, the law regulating the framing of a scheme interfering with the management of the Math (a section of a religious denomination in India) and its affairs by the Mathadhipati (head/superior of the Math) conflicted with the provisions of articles 19(1)(f) and 26 of the Constitution. In disposing of the general contentions raised in this appeal, the court held that under article 26, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. A law that takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause 26 (at para 22) [ABOA Vol. 1, p 499].
Page 31 of 86
101.
The Christian community as a religious group which uses BM in the profession
and practice of their faith enjoys complete autonomy under Article 11(3) of the Federal Constitution in the matter of determining how they should practise their religion. With regard to the tenets of their religion, they have the right guaranteed by the Federal Constitution to determine the term to be used to refer to the God they worship. No outside authority be it the Minister of Home Affairs or another religious group should have any jurisdiction to interfere with their decision by dictating the choice of words which they can or cannot use in the profession and practice of their religion.
PART G.
EQUALITY
AND
NON-DISCRIMINATION:
PROHIBITION
IS
UNCONSTITUTIONAL [ARTICLE 8]
102.
Article 8 of the Federal Constitution provides as follows:
(1) All persons are equal before the law and entitled to the equal protection of the law. (2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment. G (1) Submission on Constitutionality re Article 8(1)
103.
The trilogy of cases beginning with Badan Peguam Malaysia (supra) [ABOA
Vol.1, p 213] followed by Lee Kwan Woh (supra) [ABOA Vol.1, pp 169-171] and then Sivarasa (supra) [ABOA Vol.1, pp 91-92] establishes 3 all-important principles pertinent to Article 8. These are: (a) Article 8 must be all-pervasive when interpreting other constitutional provisions, especially on fundamental liberties; (b) fundamental liberties constitutional provisions have to be interpreted to be consistent with one another and especially with Article 8; and (c) Article 8(1) is to ensure that legislative, administrative Page 32 of 86
and judicial action is objectively fair.
104.
With regard to principle (c) above, the same houses within it the doctrine of
reasonableness and proportionality which is the test to be used when determining whether any form of State action (executive, legislative or judicial) is arbitrary or excessive when it is asserted that a fundamental right is alleged to have been infringed.
105.
In Sivarasa (supra), the Federal Court proceeded further to identify the two distinct
constitutional rights guaranteed under Article 8(1) of the Federal Constitution, viz. equality before the law and equal protection of the law as follows: [21] Article 8(1) provides that: “All persons are equal before the law and entitled to the equal protection of the law”. As may be seen, the article guarantees two separate and distinct rights, namely, (i) equality before the law; and (ii) equal protection of the law. It cannot be over-emphasised that in accordance with well settled principles of constitutional interpretation each of these rights must be treated as a separate and distinct right despite an overlap as will be seen later in this judgment. Indeed, each right is derived from a distinctly different source. The framers of our Constitution (like the framers of the Indian Constitution) derived the equality clause from the Constitution of the Irish Free State. The equality doctrine in reality is drawn from Dicey’s Rule of Law one of the pillars of which is that persons are equal before the law. As pointed out by Chandrachud J in Indira Nehru Ghandi v. Raj Narain AIR [1975] SC 2299, 2470: Dicey gave three meanings to rule of law: Absence of arbitrary power, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by ordinary law courts and that the Constitution is not the source but the consequence of the rights of individuals, as defined and enforced by the Courts. (emphasis added) [22] The framers drew the equal protection clause from the 14thAmendment to the Constitution of the United States which reads: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [ABOA Vol. 1, p 92 - 93] 106.
In Lee Kwan Woh (supra), the Federal Court set out in a gist the jurisprudence on Page 33 of 86
the significance of fairness of State action housed in Article 8 of the Federal Constitution as follows:
[12] The third principle is this. A court when interpreting the other provisions of our Constitution, in particular, those appearing in Part II thereof, must do so in the light of what has been correctly referred to as 'the humanising and all pervading provisions of art 8(1)' (see Barat Estates Sdn Bhd & Anor v Parawakan a/l Subramaniam & Ors [2000] 4 MLJ 107). That article reads: 'All persons are equal before the law and entitled to the equal protection of the law.' In Badan Peguam Malaysia this court in the majority judgment of Hashim Yusoff FCJ also accepted and applied the following statement of the Court of Appeal in Dr Mohd Nasir Hashim v Menteri Dalam Negeri Malaysia: When interpreting the other parts of the Constitution, the court must bear in mind all the providing provision of art 8(1). That article guarantees fairness of all forms of State action. See, Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261. The effect of art 8(1) is to ensure that legislative, administrative and judicial action is objectively fair. It also houses within it the doctrine of proportionality which is the test to be used when determining whether any form of state action (executive, legislative or judicial) is arbitrary or excessive when it is asserted that a fundamental right is alleged to have been infringed. See Om Kumar v Union of India AIR 2000 SC 3689. [ABOA Vol.1, pp 169 - 170] 107.
Both substantive and procedural fairness are therefore housed in Article 8 of the
Federal Constitution. In Sivarasa (supra), the Federal Court in pronouncing on the doctrine of procedural and substantive fairness housed in Article 8 drew an important distinction between State legislative and executive powers. State action which impact upon fundamental liberties must be consistent with Article 8 standards of substantive fairness; however, State legislative action is not subject to the requirement of procedural fairness.
108.
The full implication of State action which violates fundamental liberties and the
exemption from procedural fairness with regard to State legislative action is enunciated in Sivarasa (supra) as follows:
[18] Following the majority decision of this court in Badan Peguam Malaysia v. Page 34 of 86
Kerajaan Malaysia, the other provisions of the Constitution must be interpreted in keeping with the doctrine of procedural and substantive fairness housed in art. 8(1). Thommen J in Shri Sitaram Sugar Co Ltd v. Union of India & Ors [1990] 3 SCC 223 at p 251 explained the effect of art. 14 of the Indian Constitution which is the equipollent of our art. 8(1) as follows: Any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of art. 14 of the Constitution. As stated in EP Royappa v. State of Tamil Nadu [1974] 4 SCC3 ‘equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch’. Unguided and unrestricted power is affected by the vice of discrimination: Maneka Gandhiv Union of India. The principle of equality enshrined in art. 14 must guide every State action, whether it be legislative, executive, or quasi-judicial: Ramana Dayaram Shetty v. International Airport Authority of India [1979] 3 SCC 489, 511-12, Ajay Hasia v. Khalid Mujib Sehravardi [1981] 1 SCC 722 and DS Nakara v. Union of India [1983] 1 SCC 305. [19] Accordingly, when state action is challenged as violating a fundamental right, for example, the right to livelihood or the personal liberty to participate in the governance of the Malaysian Bar under art. 5(1), art. 8(1) will at once be engaged. When resolving the issue, the court should not limit itself within traditional and narrow doctrinaire limits. Instead it should, subject to the qualification that will be made in a moment, ask itself the question: is the state action alleged to violate a fundamental right procedurally and substantively fair. The violation of a fundamental right where it occurs in consequence of executive or administrative action must not only be in consequence of a fair procedure but should also in substance be fair, that is to say, it must meet the test of proportionality housed in the second, that is to say, the equal protection limb of art. 8(1). However, where the state action is primary or secondary legislation, that is to say, an Act of Parliament or subsidiary legislation made by the authority of Parliament, the test of constitutionality is only based on substantive fairness: no question arising on whether the legislation is the product of a fair procedure. This is because the doctrine of procedural fairness does not apply to legislative action of any sort. See, Bates v. Lord Hailsham of St. Marylebone [1972] 1 WLR 1373; Union of India v. Cynamide India Ltd AIR [1987] SC 1802. [ABOA Vol. 1, pp 91-92] 109.
The Federal Court in Azmi bin Sharom (supra) departed from Sivarasa (supra)
but only in one material respect. This is in relation to the lawful exercise of legislative power of Parliament to, by law, impose restrictions on fundamental liberties (in that case freedom of speech). Azmi bin Sharom (supra) modified Sivarasa (supra) and qualifies it in that laws enacted by Parliament in the interest of the subject matters enumerated
Page 35 of 86
which restrict fundamental liberties need not be reasonable; however the requirement of proportionality remains intact. The Federal Court held as follows:
[37] For those reasons, we are inclined to agree with the view of the Supreme Court in Pung Chen Choon, that it is not for the court to determine whether the restriction imposed by the Legislature pursuant to art 10(2) is reasonable or otherwise. That, in our opinion, is a matter strictly within the discretion of the Legislature and not within the purview of the court. … [42] The proportionality principle/test was explained by the Court of Appeal in Dr Mohd Nasir Hashim in the passage we earlier quoted at para 33. In short, the learned judge said that the legislation or executive action must not only be objectively fair but must also be proportionate to the object sought to be achieved. [43] In this regard, we agree with the learned judge in Sivarasa Rasiah, that the restriction that may be imposed by the Legislature under art 10(2) is not without limit. This means to say that the law promulgated under art 10(2) must pass the proportionality test in order to be valid. This, in our view is in line with the test laid down in Pung Chen Choon discussed earlier…. [ABOA Vol. 1, pp 249, 250] 110.
The above departure from Sivarasa (supra) in Azmi bin Sharom (supra) does not
affect the doctrine of constitutional law that executive or administrative action which interfere with fundamental liberties have therefore to be both reasonable and proportionate. They must be objectively fair and not arbitrary. Otherwise, they will be held to be unconstitutional.
111.
The jurisprudence contained in the authorities above (and also from Indian case
law) is captured in the treatise by MP Jain on Indian Constitutional Law (Fifth Edition 2003) [Vol 1] at page 1046 when he expounded on Article 15 of the Indian Constitution which is the equivalent to Article 8 of the Federal Constitution as follows:
Another notable principle developed by the Supreme Court out of Art. 14 is that every action of the government, or any of its instrumentalities, must be informed by reason. Any state action which is not informed by reason cannot be protected as it would be easy for the citizens to question such an action as being arbitrary. “Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all powers Page 36 of 86
must be for public good instead of being an abuse of power.” The government and other public authorities must act reasonably and fairly and that each action of such authorities must pass the test of reasonableness. [ABOA Vol. 1, pp 1085-1086] 112.
The imperative to treat every citizen equally with respect and not be subject to the
interference or imposition of the majority is the subject of a remarkable dictum of Md Raus Sharif PCA (as he then was) in Yuneswaran (supra) where he declared in resounding terms:
[36] Based on the above, we are of the view that every interest of the citizen must be treated equally. It is settled jurisprudence in public law that rights of one set of citizens cannot override the rights of another. Surely, the exercise of that right must be balanced with each other. That was what the PAA was intended to regulate. We are fortified in our view by the decision of the Indian Supreme Court in the case of Re RamlilaMaidan Incident [2012] 3 MLJ 443; [2012] INSC 138 where it was held at p 11 para 32: The restriction placed on a fundamental right would have to be examined with reference to the concept of fundamental duties and non-interference with liberty of others. Therefore, a restriction on the right to assemble and raise protest has also to be examined on similar parameters and values. In other words, when you assert your right, you must respect the freedom of others. Besides imposition of a restriction by the State, the non-interference with liberties of others is an essential condition for assertion of the right to freedom of speech and expression. In the case of Dr. D.C. Saxena v Hon’ble the Chief Justice of India (1996) 5 SCC 216, this court held: 31 If maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious, viz., that society accepts free speech and expression and also puts limits on the right of the majority. Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The State has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. (Emphasis added.) [ABOA Vol. 1, p 408] Page 37 of 86
113.
The 1986 Government Directive is far from being objectively fair. It is arbitrary. It
also offends the doctrine of proportionality. It is an infringement of the constitutional right to religious freedom. Of grave significance too is the fact that the 1986 Government Directive is discriminatory. It asserts the perceived rights and sensitivities of the majority faith community while not respecting the freedom and rights of others. The State executive action is an imposition of a restriction upon and interferes with the liberties of the minority faith community.
Lack of proportionality
114.
The 1986 Government Directive which constitutes State executive action fails each
of the 3 elements of the 3-fold test set out in Sivarasa (supra) where the Federal Court adopted Lord Steyn’s 3-fold test in Secretary of State For The Home Department, Ex Parte Daly [2001] UKHL 26 for proportionality as follows:-
[30] It will be seen from a reading of the speech of Lord Steyn in Daly that the threefold test is applicable not only to test the validity of legislation but also executive and administrative acts of the state. In other words, all forms of state action — whether legislative or executive — that infringe a fundamental right must (a) have an objective that is sufficiently important to justify limiting the right in question; (b) the measures designed by the relevant state action to meet its objective must have a rational nexus with that objective; and (c) the means used by the relevant state action to infringe the right asserted must be proportionate to the object it seeks to achieve. [ABOA Vol. 1, p 97] 115.
What is the objective of the 1986 Government Directive that is sufficiently important
to justify the administrative measure of absolutely prohibiting the Applicant’s and her coreligionists’ right to continue the centuries’ old and generational use of the word “Allah” which is their fundamental constitutional right? The Respondents’ rationale for the prohibition on the term “Allah” is said to be public order.
116.
In the first place there is no evidential basis at all for the public order ground. (see
also Part J (2) below). Without such basis, what is left ultimately is the purported Page 38 of 86
misunderstanding and confusion arising from the use of the common word by both the Muslim and Christian faith communities. Is this sufficiently important to justify the prohibition on the use of the word by Christians? The answer must surely be in the negative. Indeed, if there is such misunderstanding and confusion, the objective to deal with misunderstanding and confusion must lie in adequate education by State religious authorities rather than prohibiting the religious rights of other faith communities.
117.
Contrary to the Respondent’s view, Syahredzan Bin Johan, a Malaysian Muslim
Malay, in his Applicant’s SJ Affidavit asserts that that his Islamic faith has not been threatened, affected, confused or influenced by his Christian and Sikh friends’ practice of their religion notwithstanding their use of the word “Allah” by them. He further averred his belief that the practices of non-Islam religions in Malaysia will not raise confusion to any believers of Islam and that the use of the word “Allah” in the profession and practice of the non-Islam religions has not affected the peace and harmony in Malaysia since Merdeka until today. [see para 6-8 of Applicant’s SJ Affidavit].
118.
Dr. Azmi Bin Sharom who is also a Malaysian Muslim Malay states a view contrary
to that of the Respondents. If there is any threat to public order by a fraction of the Muslim community in Malaysia for e.g. by making accusations, holding demonstrations or attacking Christian holy places because of the use of the word “Allah” by the Christians in peace and harmony, it is that fraction of Muslims who are threatening public order and not the Christian community [see paras 14-15 of Applicant’s AS Affidavit].
119.
The purported objective to deal with misunderstanding and confusion plainly has
no rational nexus to the extreme administrative action of absolutely denying the use of the word by BM-speaking Christians. Even if it can be so by some extraordinary stretch of reasoning, such State action must surely be excessive given that the massive impact of the blanket prohibition on the entire practice and profession of Christianity.
120.
The lack of rationality in the outright ban can be further seen by the many instances
where the 1986 Government Directive was used to seize Christian BM publications by Page 39 of 86
minor officials. When there was opposition and appeals to higher authorities, these were then released. This shows that the public order objective is simply fanciful. The affidavit evidence in this regard has not been disputed, contradicted or denied.
121.
What is now plain is that minor officials using the 1986 Government Directive seize
any BM Christian publications only for the violation of constitutional rights to be rectified by the very top echelons of powers of the 2nd Respondent when appeals are lodged. This demolishes the public order basis for the outright ban in the 1986 Government Directive. The word “Allah” in itself appearing in any Christian publication cannot logically or rationally be a public order threat.
122.
Plainly, the 2nd Respondent at the highest level acknowledges that the ban is
unlawful and unconstitutional, hence the abrogation of the actions of minor officials to seize Christian publications. This is also manifest in the issuance of a letter dated 11.4.2011 to the Christian Federation of Malaysia (CFM) by the Prime Minister of the 2nd Respondent (“10-Point Solution”) [Exhibit “TKB-1” of Applicant’s TKB Affidavit].
123.
The 10-Point Solution is a clear acknowledgement that the use of the word “Allah”
in Christian publication which is the referent for God in the ALKITAB cannot be prejudicial to public order. It addressed the matter of the importation, printing, distribution and use of the ALKITAB in BM/BI and in the indigenous languages of Sabah and Sarawak all of which contain the word “Allah”.
124.
The 10-Point Solution is significant in pointing to what might represent a
proportionate measure to perceived misunderstanding and confusion. The 10-Point Solution provides that for Sabah and Sarawak, in recognition of the large Christian community in these States, there are no conditions attached to the importation and local printing of the Bibles in all languages, including BM/BI and indigenous languages. For West Malaysia, taking into account the interest of the larger Muslim community there, Bibles in BM/BI, imported or printed, will have the words “Christian Publication” and the cross sign printed on the front covers. Page 40 of 86
125.
As the word “Allah” which appears in the Alkitab is also used in all Christian
publications, the use of the word in the latter can hardly or logically be deemed to be prejudicial to public order. Hence the 10-Point Solution has superseded the 1986 Government Directive. Unfortunately, officials of the Ministry of the 1st Respondent insist that the 1986 Government Directive has never been withdrawn and continues to be in force; hence justifying their unlawful and unconstitutional action by relying on the same.
126.
Should any measure be considered necessary at all to deal with the perceived
confusion and misunderstanding, the 10-Point Solution may perhaps arguably be one which fulfils the 3 conditions for proportionality in the Respondents’ administrative action on the use of the word “Allah”. The 1986 Government Directive however remains in force and has never been withdrawn, hence the imperative for the declaratory orders sought herein.
Lack of substantive fairness (Arbitrariness)
127.
It is further submitted that the 1986 Government Directive offends the principle
that there must be substantive fairness of State action which is housed in Article 8 of the Federal Constitution. Administrative action must be objectively fair. Such is the test to be used when determining whether any form of State action is arbitrary or excessive. The administrative action taken by the Respondents is far from being objectively fair. The 1986 Government Directive is one which is substantively unfair and is on the contrary arbitrary or excessive in the manner the Applicant’s fundamental constitutional right is being infringed.
128.
The Respondents’ 1986 Government Directive lacks substantial fairness as well
as suffers from an absence of the requisite qualitative standard of reasonableness. Besides the factors set out above for lack of proportionality, the 1986 Government Directive is one which is arbitrary or excessive in the manner the Applicant’s fundamental constitutional right is being infringed. Page 41 of 86
(a)
The freedom of religion of every person consists of freedom not only to profess but to practise and, subject to State law, to propagate his religion. The provision declaring Islam as the religion of the Federation qualifies the same by declaring that other religions may be practised in peace and harmony in any part of the federation. Malaysian Christians who use BM for their worship are however placed under a total ban over their religious publications which may be seized and subject to other enforcement action under the PPPA.
(b)
The word “Allah” has been used for generations by Malaysian Christians who use BM in the practice and profession of their faith and in their Holy Scriptures and all Christian publications.
(c)
The term is used in all aspects of the practice of their faith from the earliest days owing to BM being the lingua franca of the region among the native peoples as well as the consequence of the successful implementation of the National Education Policy. It is unacceptable and repugnant that these Christians who are the products of the national education system are now being penalized for being educated under the very policy of the 2 nd Respondent.
(d)
Christians who profess and practise their faith using BM have been calling upon “Allah” all their lives and they regard the name “Allah” as sacred and highly exalt His name. To expect them to now revert to another name is unjust, harsh and oppressive.
(e)
The Holy Scriptures and all Christian publications of the native BMspeaking community of Sabah and Sarawak, the ALKITAB, uses the term “Allah” for God, while the term “Tuhan” is used for Lord and these are integral to the doctrine of Christianity. To require a change to these Page 42 of 86
terminologies would be to undermine the Christian religion as practised by Christians and churches using BM in the profession and practice of their faith.
(f)
The Holy Scriptures, the Alkitab and all Christian publications are now rendered unlawful and subject to enforcement action under the PPPA as they all use the word “Allah” solely on the ground that they contain the word regardless of their contents due to the 1986 Government Directive issued in the purported exercise of powers under the PPPA.
(g)
The 1986 Government Directive would have the consequence that all religious materials are required to use another word to denote the BM word for God instead of the word “Allah” when such is and has always been the word used for God in the Church and throughout the BM-speaking community of native Christians in Malaysia.
(h)
The 1986 Government Directive is tantamount to the State/Executive unlawfully interfering with the administration of religious affairs of the religious group i.e., the congregation of BM-speaking Christians and Churches in regards to how the Christian faith community of native Bumiputra Christians ought to refer to the Supreme Creator God.
(i)
The use of the word for generations until today had not caused any prejudice to public order on the purported reason of confusion and religious sensitivity. Even if there is any confusion, such could be resolved by adequate education by State religious authorities and inter-religious dialogues and accommodation.
(j)
The 1986 Government Directive ban on a long established religious practice over the generations being prohibited purportedly to prevent some unsubstantiated
public
order
ground
is
harsh,
draconian
and
Page 43 of 86
disproportionate to what is claimed to be a public order justification.
(k)
There is the significant absence of an adequate and authoritative evidentiary basis for the prejudice to public order justification raised by the Respondents as a ground for the omnibus prohibition.
(l)
It should not be the fault of Christians who are using the word “Allah” in the profession and practice of their religion peaceably when there is any threat to public order which might be caused by a fraction of the community in Malaysia who disagree with their use.
(m)
The BM-speaking Christian community have been using the word for generations in Malaysia but they were not given the right to be heard before the 1986 Government Directive was issued and implemented.
(n)
The claim to exclusivity of the word “Allah” to Islam is likewise without basis and indeed contradicted by authoritative Islamic scholars.
(o)
Notwithstanding the word “Allah” is common to both Islam and Christianity the Respondents’ 1986 Government Directive discriminates against BMspeaking Christians who are a minority faith community in Malaysia.
(p)
It is undisputed that the Holy Al-Quran itself contains verses which associate the word with Christians’ belief in God, yet the Respondents assert that the word is exclusive to Islam.
(q)
The use of the word “Allah” is not only in the BM/BI Alkitab but also in bibles in other native languages of Sabah and Sarawak as well as in the holy scriptures of the Sikh religion and hence contradicts the Respondents’ claim of exclusivity of the word “Allah” to Islam.
Page 44 of 86
(r)
The Respondents were wholly misguided to take the position in limiting the Applicant’s religious rights to only the freedom to profess [“menganuti”] and ignoring her right to practise [“mengamal”] her religion. It is tantamount to the Respondents acknowledging that Christians can call upon and profess “Allah” with their mouths but cannot have the word appear in either their Holy Scriptures or in any religious literature or publications.
(s)
The 1986 Government Directive, which is still in force, without any qualification absolutely prohibits the use of the word in all Christian publications. Officials of the Respondents implement the same only to have their actions revoked when escalated to the highest levels of the 2nd Respondent. This puts to lie the public order ground for the 1986 Government Directive.
(t)
Non-Muslims were assured at the formation of Malaya that their civil rights will be protected notwithstanding the declaration of Islam as the religion of the Federation.
(u)
They were also assured at the formation of Malaysia that that there will be no change to the freedom of worship which they have hitherto enjoyed when these two territories joined the then Malaya to form the enlarged Federation of Malaysia in 1963.
(v)
Notwithstanding the guarantees of no impairment to the prevailing state of religious freedom, rights and liberties which are then entrenched in the Federal Constitution what was a perfectly lawful exercise of religious practice pre-Merdeka and pre-Malaysia is now prohibited and worse, castigated as being contrary to public order and exclusive to Islam.
129.
In Muhammad Hilman (supra), the Court of Appeal held that imposing a ban on
political activities by students under the University and University Colleges Act 1984 is Page 45 of 86
unconstitutional. Applying the jurisprudence laid out in Sivarasa (supra) the Court of Appeal held as follows:
[8] It is not disputed that the impugned provision of the UUCA is a restriction on the students right to freedom of speech, and, therefore, prima facie, violates the constitutional guarantee of cl. (1)(a) of art.10. It is also not disputed that unless such a provision can be saved by the permissible restrictions as provided for by cl. (2)(a) of art. 10, the provision is unconstitutional. [ABOA Vol. 1, p 304] 130.
Muhammad Hilman (supra) is a challenge on a legislative breach of Article 10 of
the Federal Constitution. Here the challenges pertain to an administrative breach in the issuance and enforcement of the 1986 Government Directive. This is a prima facie violation of the constitutional guarantee of equality before the law and freedom from discrimination. It has not been justified by any permissible exception under Article 8 or Article 11 or by any other provision of the Federal Constitution.
Lack of procedural fairness
131.
In Sivarasa (supra), the Federal Court pronounced on the doctrine of procedural
and substantive fairness and its implications on arbitrary exercise of State powers (at para 18-19) [ABOA Vol. 1, pp 91-92].
132.
In SIS Forum (Malaysia) v Dato’ Seri Syed Hamid bin Syed Jaafar Albar
(Menteri Dalam Negeri) [2010] 2 MLJ 377 (“SIS Forum (Malaysia)”), the High Court held that a book which has been in circulation for two years in Malaysia ought not to have been prohibited without hearing the affected party. This was in accordance with the doctrine of legitimate expectation (at para 35) [ABOA Vol. 2, p 959]. The High Court decision was affirmed by the Court of Appeal in Dato' Seri Syed Hamid Syed Jaafar Albar (Menteri Dalam Negeri) v. SIS Forum (Malaysia) [2012] 9 CLJ 297 (“Dato’ Syed Hamid Albar”) [ABOA Vol. 2, p 961-971].
133.
The BM-speaking Christian community have been using the word for generations.
They were never afforded the right to be heard before the 1986 Government Directive Page 46 of 86
was issued and implemented. This constitutes procedural impropriety and constitutes a violation of the constitutional protection of procedural fairness contained in Article 8 of the Federal Constitution.
134.
The second doctrine of natural justice found in the maxim audi altera partem is
well established and needs no elaboration. It clearly applies in this case where fundamental liberties of the Applicant are affected.
G (2) Submission on Constitutionality re Article 8(2)
135.
Article 8(2) of the Federal Constitution expressly prohibits discrimination against
citizens on the grounds of inter alia religion, except, however, as is expressly authorised by the Constitution. There are no provisions in the Federal Constitution which expressly authorizes discrimination on the grounds of religion.
136.
Discrimination on grounds other than those expressly prohibited may be justified
on the basis that there was rational classification. Thus, in Sivarasa (supra), applying the established test that a law must operate alike on all persons under like circumstances, the Federal Court held that classifying advocates and solicitors to those who hold office in a political party and those who do not is a reasonable classification for the purpose of permitting a member of the profession from having a say in the governance of the profession (para 26) [ABOA Vol. 1, p 95].
137.
Discrimination on any of the prohibited grounds including religion is however not
excusable on the ground that there was reasonable classification. The authoritative text, MP Jain on Indian Constitutional Law (Fifth Edition 2003) at page 1056 (Vol 1) states the law on Article 15 which is the equivalent to Article 8(2) of the Federal Constitution as follows: “Art. 15 is a facet of Art. 14. Like Art. 14, Art. 15(1) also covers the entire range of state activities. But, in a way, the scope of Art. 15 is narrower than that of Art. 14 in several respects. Page 47 of 86
One, while Art. 14 is general in nature in the sense that it applied both to citizens as well as non-citizens, Art. 15(1) covers only the Indian citizens… Two, while Art. 14 permits any reasonable classification on the basis of any rational criterion, under Art. 15(1), certain grounds mentioned herein can never form the basis of classification.” [ABOA Vol. 2, p 507] 138.
In Kathi Raning Rawat v State of Saurashtra AIR 1952 SC 123 (“Kathi
Raning”), the Indian Supreme Court held that the position under Article 14 and Articles 15 and 16 are different where the equal protection claims under Article 14 are examined with the presumption that the State action is reasonable and justified as seen below: “All legislative differentiation is not necessarily discriminatory. In fact, the word "discrimination" does not occur in article 14. The expression "discriminate against" is used in article 15 (1) and article. 16(2), and it means, according to the Oxford Dictionary, "to make an adverse distinction with regard to; to distinguish unfavourably from others". Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under article 14 is different. Equal protection claims under that article are examined with the presumption that the State action is reasonable and justified.” [ABOA Vol. 2, p 525] 139.
In Rani Raj Rajeshwari Devi v The State Of U.P. & Ors AIR 1954 All 608, the
Allahabad High Court applied Kathi Raning (supra) and held that while classification is permissible, it cannot be based on any of the factors mentioned in Articles 15 and 16. The Allahabad High Court held that no evasion of the Constitution can be permitted merely by calling an act classification and not discrimination as seen below: “72. These decisions are based, if I might say so with respect, upon the language of the Constitution and are also in accordance with its spirit. The framers of the Constitution were citizens of India hailing from all parts of the country. They were fully aware of the difficulties, disabilities and prejudices which exist in various parts of the country. They decided that those difficulties should not operate against anyone in the new India that is coming into being and that all prejudices which provide the basis for injustice to any class of citizens should be strictly suppressed. Page 48 of 86
It was with this object that Articles 15 and 16 were given a place in the Part relating to Fundamental Rights. The framers of the Constitution knew full well that women were, in many parts of the country, still backward -- that is why under Article 15(3) legislation discriminating in their favour is permitted -- and yet they forbade discrimination against them. No evasion of the Constitution can be permitted merely by calling an act classification and not discrimination. 73. In this view of the matter, it is not really necessary to discuss the question whether the classification is reasonable or not. A classification which the Constitution forbids cannot possibly be said to be reasonable. Moreover, it has been held in several cases, of which I need refer to only two, that a provision which leaves the choice to subjective discretion -- not justiciable -- of any executive authority is not reasonable.” [ABOA Vol 2, p 553] 140.
In Srinivasa Aiyar v Saraswathi Ammal AIR 1952 Mad 193 (“Srinivasa Aiyar”),
the Madras High Court held that if the statute prohibits classification on a particular basis as do Articles 15 and 16, the law cannot be justified on the ground that notwithstanding that it contravenes the prohibition on the ground that it attempts at a reasonable classification based upon real, substantial and reasonable grounds. [ABOA Vol. 2, p 559]
141.
In PP v Datuk Haji Harun & Ors [1976] 2 MLJ 116 (“Datuk Harun Haji Idris”),
the High Court citing Kathi Raning (supra) and Srinivasa Aiyar (supra) held: “Article 8(2) contains a specific and particular application of the principle of equality before the law and equal protection of the law embodied in Article 8(1). Therefore, discrimination against any citizen only on the grounds of religion, race, descent or place of birth or any of them in any law is prohibited under Article 8(2) and such discrimination cannot be validated by having recourse to the principle of reasonable classification which is permitted by Article 8(1) (Srinivasa Aiyar v Saraswathi Ammal AIR 1952 Mad 193, 195 at p. 195;Kathi Raning Rawat v State of Saurashtra AIR 1952 SC 123 at p 125).” [ABOA Vol. 1, p 565] 142.
In Noorfadilla Ahmad Saikin v Chayed Basirun & Ors [2012] 1 CLJ 769
(“Noorfadilla”), the High Court held that the principle of reasonable classification is only applicable to Article 8(1) and does not apply to Article 8(2). The High Court in Noorfadilla (supra) citing Datuk Harun Haji Idris (supra) held:
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[39] It has been argued by the defendants that by applying the principle of reasonable classification, it is justified to discriminate pregnant women. However, with due respect, the principle of reasonable classification is only applicable to art. 8(1) and does not apply to art. 8(2) of the Federal Constitution. [ABOA Vol. 1, p 565] 143.
The ECHR has non-discrimination articles similar to Article 8(2) where specific
grounds on which there shall be no discrimination are identified. Article 14 of the ECHR is worded as follows:“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” [ABOA Vol. 1, p 424] 144.
Decisions of the European Court of Human Rights will be a helpful guide for this
Honourable Court. The Court’s approach to discrimination are no different from the Indian Supreme Court. In general, the cases alleging discrimination under Article 14 have required the claimant to prove a difference of treatment. However, if there is sufficient evidence of the possibility of discrimination then the burden may shift to the State. The case ‘establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations’ (see ‘The Law of Human Rights’ 2nd Edition, Vol. 1, By Richard Clayton QC and Hugh Tomlinson QC, Oxford University Press at page 1687, paragraph 17.157 [ABOA Vol. 1, pp 590-591]).
145.
In Stubbings v United Kingdom (1996) 23 EHRR 213, the claimants’ claims for
damages premised on sexual abuse was dismissed as it was time-barred. Before the European Court of Human Rights, the claimants claimed breach of Article 14 in that the difference in the rules applied to themselves and other types of claimants was discriminatory. It was further held in this case that: ‘not every difference in treatment will amount to a violation of Article 14. Instead, it must be established that the other persons in an analogous or relevantly similar situation enjoy preferential treatment and that there is no objective or reasonable justification for the distinction.’ (at para 72) [ABOA Vol. 1, p 607] Page 50 of 86
146.
Where however, the differentiation is based exclusively or decisively on one of the
grounds which are prohibited in the ECHR, such discrimination cannot be capable of being justified. In Timishev v Russia (2007) 44 EHRR 37, the Court considered a refusal by traffic police to allow an ethnic Chechen, to travel between regions following the destruction of his home in Chechnya in the course of a military operation. The police had been instructed to prevent interval travel by ethnic Chechens. The Court found a breach of Article 2 of the Fourth Protocol and Article 14. It said that discrimination on grounds of actual or perceived ethnicity was a form of racial discrimination which was ‘a particularly invidious kind of discrimination and, in view of its perilous consequences, required from the authorities special vigilance and vigorous reaction’. Noting that the government had not offered any justification for the difference in treatment between persons of Chechen and non-Chechen ethnic origin in the enjoyment of their right to liberty of movement, the Court held that: ‘no difference in treatment that was based exclusively or to a decisive extent on a person’s ethnic origin was capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures’. (at para 58) [ABOA Vol. 2, p 622] 147.
In Hoffmann v Austria (1993) 17 EHHR 293, the Court accepted that Articles 9
and 14 of the ECHR had been breached by the refusal of custody to a mother because she was a Jehovah’s Witness, her husband and children being Catholics. Although the protection of the children’s rights was a legitimate aim, a distinction based essentially on a difference in religion alone was not acceptable. The Court held: “Such a difference in treatment is discriminatory in the absence of an “objective and reasonable justification, that is, if it is not justified by a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised” (at para 33) [ABOA Vol. 2, p 633] 148.
There is clearly a discrimination by the Respondents between Muslims and non-
Muslims in the implementation of the PPPA with regard to the use of the term “Allah” which appears in the Holy Scriptures and religious publications of both faith communities. Page 51 of 86
The 1986 Government Directive draws the distinction between Christians and Muslims. Muslims are permitted to use the word “Allah” in their publications while Christians are banned from doing so. This is plainly unconstitutional being one of the prohibited grounds for discrimination.
149.
Premised on the jurisprudence in the Malaysian and Indian case laws as well as
the European Court of Human Rights, the 1986 Government Directive which prohibits Christians from using the word “Allah” which is common to both religions is in and of itself unconstitutional. The discriminatory 1986 Government Directive cannot be excused on any attempt to present a case of rational classification. Neither is it saved by any of exceptions set out in Article 8(5) or any other provisions of the Federal Constitution.
PART H.
150.
ARTICLE 3 (1) DOES NOT NEGATE ARTICLES 11 AND 8 RIGHTS
There is a misapprehension that Article 3(1) of the Federal Constitution
supervenes other provisions of the Federal Constitution including the fundamental liberties articles (see Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 CLJ 541 (FC) (“Catholic Herald”) [ABOA Vol. 2, pp 638719]). With all due respect this is an erroneous and fundamentally flawed construction of Article 3 of the Federal Constitution
151.
Article 3(1) of the Federal Constitution reads as follows:
(1) "Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation: 152.
Article 3(1) however is qualified by Article 3(4): “Article 3(4): Nothing in this Article derogates from any other provision of this Constitution.”
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153.
The Malay version of Article 3(4) of the Federal Constitution is even clearer in
making plain the intention of Article 3(1): “Perkara 3(4) Tiada apa-apa jua dalam Perkara ini mengurangkan mana-mana peruntukan lain dalam Perlembagaan ini.” 154.
In Teoh Eng Huat (supra), the Federal Court examined the legislative history of
the Federal Constitution to ascertain the legislative intent of the Federal Constitution. The apex court was concerned with the construction of Article 3(1) in the Malayan Merdeka Constitution of 1957. The Federal Court cited with approval a passage from the Reid Commission that reference to Islam in the Federal Constitution shall not prejudice the civil rights of non-Muslims (at 301H–302C) [ABOA Vol. 1, pp 229-230]. The full legislative intent and the correct construction has to be given to the Article 3(1) implications.
155.
The full legislative intent behind Article 3(1) and the proper construction of Article
3(1) have to be discerned from and are borne out by a comprehensive review of the history of the Malayan Merdeka Constitution of 1957 and the Malaysian Constitution of 1963.
156.
Article 3(1) was included in response to the Memorandum of the Alliance Party to
the Reid Commission. Although the majority of the Reid Commission did not support the proposal, the minority view of Mr. Justice Abdul Hamid prevailed.
157.
The religion provision in Article 3(1) as we find it today therefore found expression
in the Federal Constitution which was adopted for the new Federation of Malaya. It is important to note the caveats placed on this proposal by the Alliance Party which is mentioned in the Reid Commission Report (supra) at page 73 and it reads as follows: “In the memorandum submitted by the Alliance it was stated -“the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non Muslim nationals professing and practising other religions and shall not imply that the state is not a secular state.” [ABOA Vol. 2, p 254] Page 53 of 86
158.
In proposing that the Alliance Party's recommendation to the Reid Commission be
accepted, Mr. Justice Abdul Hamid observed at page 99 of the said Reid Commission Report (supra) that:
"A provision like one suggested above is innocuous. Not less than 15 countries of the world have a provision of this type entrenched in their Constitutions. Among the Christian countries, which have such a provision in their Constitutions, are Ireland (Art. 6), Norway (Art. 1), Denmark (Art. 3), Spain (Art. 6), Argentina (Art. 2), Bolivia (Art.3), Panama (Art. 36) and Paraguay (Art.3). Among the Muslim countries are Afghanistan (Art.1), Iran (Art.1), Iraq (Art. 13), Jordan (Art. 2), Saudi Arabia (Art. 7), and Syria (Art. 3). Thailand is an instance in which Buddhism has been enjoined to be the religion of the King who is required by the Constitution to uphold that religion (Constitution of Thailand (Art. 7)). If in these countries a religion has been declared to be the religion of the State and that declaration has not been found to have caused hardships to anybody no harm will ensue if such a declaration of Malayan States a provision of this type already exists. All that is required to be done is to transplant it from the State Constitutions and to embed it in the Federal". [ABOA Vol. 1, p 255] 159.
The historical background to the insertion of Article 3(1) of the Federal Constitution
has been comprehensively analysed by Professor Joseph M Fernando. In his book, “The Making of the Malayan Constitution” [ABOA Vol. 2, pp 720-723], the learned author ably demonstrated that the founding fathers of the Constitution manifestly did not countenance that its introduction impairs the democratic secular nature of the Constitution [ABOA Vol. 2, pp 722-723]. A fortiori it was never intended to circumscribe the civil rights of the members of the minority communities.
160.
There was therefore a need to negate any connotation that Article 3 will have any
negative implications on other religions hitherto freely practised in Malaya. The text therefore goes on to provide almost uno flatu the additional phrase “but all other religions may be practised in any part of the Federation”. This rider clearly and unequivocally qualifies and limits the provision stipulating Islam to be the religion of the Federation leaving no room for any prospect of the article impacting the religious freedom of Malaysians who are adherents of other non-Islamic religions.
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161.
Article 3(1) of the Federal Constitution as finally enacted therefore reads as
follows: “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”. The interposition of the conjunction “but” instead of “and” following the phrase “Islam is the religion of the Federation” is manifestly an expression of legislative intent to scrupulously limit the purport of Article 3 with regard to Islam being made the religion of the Federation.
162.
In the above regard, Hashim Yeop A. Sani, a former Chief Justice records for
posterity the purport and intent of Article 3(1) at page 151 in his book, “Our Constitution”, as follows:
"There was general agreement that if such a provision [Article 3] was to be inserted, it must be made very clear that it must not affect the civil rights of non Muslims. It would appear that a compromise resolution resulted in the present Article 3 of the Constitution. The words "Islam is the religion of the Federation" appearing in clause (1) of that Article has no legal effect and that the intention was probably to impose conditions on federal ceremonies to be conducted according to Muslim rites". (emphasis added) [ABOA Vol. 2, p 725] 163.
The fact that such a provision was intended to be innocuous also means that the
Article was not to bear negatively upon any other provision of the Federal Constitution; hence the anxious non-derogatory provision in Clause 4 of the said Article 3 of the Federal Constitution that “Nothing in this Article derogates from any other provision of this Constitution.”
164.
Article 3(1) therefore cannot reduce, negate or undermine any of the other
provisions of the Federal Constitution including the fundamental rights of all citizens. There should be no impairment of the rights of non-Muslims in Malaysia to the freedom to profess and practise their religion under Articles 8 and 11.
165.
The Malay version of Article 3 of the Federal Constitution is even clearer in making
it plain that the said Article 3 will indeed be innocuous and will not undermine any of the other provisions of the Federal Constitution including the fundamental rights of all
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citizens: “Perkara 3(4) Tiada apa-apa jua dalam Perkara ini mengurangkan mana-mana peruntukan lain dalam Perlembagaan ini.” 166.
The implication of making Islam the religion of the Federation in Article 3(1) is
further clarified and recorded in a most important constitutional document in the form of the “White Paper on the Constitutional Proposals for the Federation of Malaya” (supra) tabled in the Legislative Council. The paper reaffirmed the continuance of the secular basis of the Federation notwithstanding the provision that Islam is the religion of the Federation in the following terms:
"There has been included in the proposed Federal Constitution that Islam is the religion of the Federation. This will no way affect the present position of the Federation as a secular State..." [ABOA Vol. 1, p 257] 167.
The Constitutional arrangement regarding Islam as the religion of the Federation
and the guarantee of religious freedom was revisited at the formation of Malaysia.
168.
The special concerns of the Borneo territories of Sabah and Sarawak (collectively
referred to as “Sabah and Sarawak”) and their peoples were thoroughly discussed. These were painstakingly recorded in several preparatory documents at various stages of the process of consultation prior to the Malaysia Agreement. They form part of the legislative history of the enlarged Federation of Malaysia. The underlying premises and rationale for important articles of the Constitution were revisited. They were either reaffirmed or modified with regard to their application to Sabah and Sarawak.
169.
After the Governments of the United Kingdom (UK) and Federation of Malaya had
come to the view that the inclusion of Sabah and Sarawak in the proposed Federation of Malaysia was desirable and in the best interest of the peoples of these State entities, a Commission of Enquiry was established. It consisted of two nominees each of the UK and Malayan Governments under the Chairmanship of Lord Cobbold (hence the reference to the “Cobbold Commission”). The terms of reference were inter alia to Page 56 of 86
ascertain the views of the peoples of Sabah and Sarawak on the question of the two State entities joining in to form Malaysia and to make recommendations in the light of the Cobbold Commission’s assessment.
170.
In early 1962, the Colonial Governments of Sarawak and North Borneo issued
Government Papers to announce the setting up and work of the Cobbold Commission. The papers explained why the creation of a greater Malaysian nation was desirable and outlined the framework of the new federation.
171.
Very significantly, these Government Papers go out of the way to assure the
peoples of Sabah and Sarawak on the matters which are considered important to them in particular with regard to the position of Islam and their freedom of religion. Thus the Government Paper “Malaysia and Sarawak” (supra) states unequivocally at paragraph 15 as follows: “People have wondered whether the fact that Islam is the official religion of the Federation of Malaya would affect religious freedom in Sarawak as part of Malaysia. This has been clarified at the recent Consultative Committee Meeting. Although Malaysia would have Islam as the official religion of the enlarged Federation there would be no hindrance placed on the practice of other religions. Complete freedom of religion would be guaranteed in the Federal Constitution. Sarawak has at the present has no established religion and it would not be required to accept Islam as its State religion”. (item 15, page 78) [ABOA Vol. 1, p 268] 172.
The corresponding Government Paper, “North Borneo and Malaysia” (supra) in
turn states at paragraph 10: “The deliberations of the Consultative Committee have done much to clarify the position of religion in Malaysia. Islam is the official religion of the Federation of Malaya. Although Malaysia would have Islam as the official religion of the enlarged Federation there would be no hindrance would be placed on the practice of other religions. Complete freedom of religion would be guaranteed in the Federal Constitution. North Borneo, which at present has no established religion, would not be required to accept Islam as its State religion.” (item 10, page 73) [ABOA Vol. 1, p 263]
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173.
The reference to the Malaysia Solidarity Consultative Committee in both
Government Papers is significant. It provides the context to the assurance on religious freedom made by the respective Colonial Governments. Such freedom will be freely exercisable in a nation which is secular and not a religious State. The “Memorandum on Malaysia” (supra) at paragraph 13 states as follows: “The Committee directed a great deal of attention to the question of Islam as the religion of the Federation. It is satisfied that the acceptance of Islam would not endanger religious freedom within Malaysia nor will it make Malaysia any less secular. The present Constitution of the Federation of Malaya, which would serve as the basis for the new Federation has adequately guaranteed that other religions may be practised in peace and harmony in any part of the Federation.” (item 13, page 81) [ABOA Vol. 1, p 271] 174.
The Cobbold Commission Report (supra) records deep anxieties over the
position of Article 3 of the Federal Constitution which provides that Islam is to be the religion of the Federation. The Cobbold Commission noted the reservations, and even outright opposition, of the non-Muslim Communities of the two territories to the provision making Islam the religion of the Federation. Unremarkably, the Muslim communities voiced unreserved support for the said provision.
175.
The concerns and anxieties of the non-Muslims and non-Malay components of the
population stemmed from the concern over the prospect of Malay/Muslim domination. The Cobbold Commission referring to the opposition to the name "Malaysia" noted in the Cobbold Commission Report (supra) that:
"This opposition stems from the same cause as the anxieties about Religion, Language and the Head of Federation, with which we deal elsewhere in this Section. They all reflect the fears held by non-Malays and non-Muslims that the effect of Malaysia will be to put them in a position inferior to that of the Malays and Muslims." (item (d)) [ABOA Vol. 1, p 259] 176.
The two Malayan members recorded the responses of Muslims and non-Muslims
to Article 3. Muslims, they note, would welcome the provision. However, among nonMuslims there was a range from outright rejection to non-objection by a “substantial Page 58 of 86
number who would not object to the present practice in the Federation of Malaya, as they are satisfied with the provisions for fundamental liberties and freedom of religion in the Malayan Constitution” (item (e)(ii)) [ABOA Vol. 2, p 259]. The Malayan members then made the following recommendation in the Cobbold Commission Report: “Taking these points fully into consideration, we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no way jeopardizes freedom of religion in the Federation, which in effect would be secular.” (item (e)(ii)) [ABOA Vol. 1, p 260] 177.
The Cobbold Commission Report (supra) was followed up by the Inter-
Governmental Committee (“IGC”) to work out the constitutional arrangements for the new Malaysian Federation including safeguards for the special interests of Sabah and Sarawak. Five political parties of Sabah decided to submit a joint memorandum to the IGC setting out the areas which they considered to be most crucial to Sabah and its people. These matters, now popularly referred to in Sabah as "the Twenty Points" were the agenda for the work of the IGC comprising representatives of the 3 entities set up for the purpose of arriving at a consensus on the issues [ABOA Vol. 1, pp 278-280]. Top on the list of this memorandum subsequently popularly referred to as the “20 Point Memorandum” is Religion. Sarawak also submitted a memorandum containing 18 points to serve as a basis for the deliberations of the IGC [ABOA Vol. 1, p 281]. The Report of IGC (supra) recommended that: “No amendment is required to Article 3(1), which provides "Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation." (at p 21) [ABOA Vol. 1, p 287] 178.
The construction of Article 3 included in the Merdeka Constitution of 1957 and then
agreed to be retained by the State entities of Sabah and Sarawak in the Malaysian Constitution of 1963 must therefore be construed in the light of both sets of legislative documents. It need hardly be gainsaid that the reason for retaining the said Article 3 without any modifications or further qualifications are the solemn assurances of the
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Malayan members on both the secular nature of the new Malaysia as well as the guarantee of freedom of religion. Further, it is pertinent to point out that as reported by the Malayan members, the basis of the non-objections of the substantial numbers of nonMuslim peoples of Sabah and Sarawak are also based on these two important underlying premises.
179.
The first premise of non-objection to Article 3 is to be found in the significance of
the phrase “present practice in the Federation of Malaya” given in the assurance by the Malayan members of the Cobbold Commission. Non-Muslim peoples of Sabah and Sarawak were prepared to accept the present practice which existed in the Malaya prior to Malaysia Day. Under the said “present practice” in 1963, the constitutional arrangements agreed for Islam is that for Islam to be the religion for official Federal purposes. As practised then in 1963, there were no unwarranted intrusions into the religious freedoms and rights of non-Muslims or hardships imposed upon non-Muslims in this respect.
180.
Notably, there were no curbs on the right of non-Muslims to use the word “Allah”
as a referent to God in their own religion. Non-Muslim peoples of Sabah and Sarawak were left in no doubt that there will be no prohibitions in this regard or for that matter any other limitations if their States agreed to confederate with the States of Malaya to form the greater Malaysian nation.
181.
The second premise is that the civil rights and liberties of non-Muslims are
assured; and this is to be found in the guarantee of fundamental liberties, including freedom of religion as provided in Part II of the Merdeka Constitution of 1957.
182.
From the constitutional history of the Merdeka Constitution of 1957 which then
became the Malaysian Constitution of 1963, the legislative intent of Articles 3 and 11 becomes plain. Both sets of constitutional documents explicitly guarantee religious freedom in the context of a polity which is secular albeit with a special position for Islam as the official religion of the Federation. The Merdeka Constitution of 1957 guaranteed Page 60 of 86
non-Muslims that in such a nation, their religious freedom will be honoured and their civil rights will be respected. On this basis, the Malaysian Federal Constitution of 1963 is built on the Merdeka foundation to guarantee the religious rights of native Bumiputra Christians in the Borneo State entities of Sabah and Sarawak which they enjoyed long before and up to Malaysia Day in terms acknowledging that “complete freedom of religion would be guaranteed in the Federal Constitution” and further that “there would be no hindrance placed on the practice of other religions.”
183.
Such guaranteed rights solemnly agreed upon as fundamental conditions for the
union of Sabah and Sarawak with Peninsular Malaysia cannot be abrogated by any attempt at a revisionist construction of Article 3(1) of the Federal Constitution of Malaysia which will tantamount to a rewriting of the supreme law of the nation.
PART I.
184.
THE EXPERT REPORTS
Expert Reports have been filed by the Applicant. These are Dr. Ng Kam Weng’s
first report (“NKW’s First Report”) and Supplemental Report (“NKW’s Supplemental Report”).
185.
Likewise, the Respondents have filed their Expert Reports. These are Dr. Mohd
Sani Bardon’s first report (“MSB’s First Report”) and supplemental report (“MSB’s Supplemental Report”) together with Profesor Madya Dr. Khadijah Mohd Khambali @ Hambali’s first report (“KHK’s First Report”) and supplemental report (“KHK’s Supplemental Report”).
186.
The Applicant’s Expert, Dr. Ng Kam Weng sets out in his reports the historical,
linguistic and theological reasons as well as the views of contemporary commentators for the use of the word “Allah” by BM-speaking Christians for many centuries across the generations to express their faith.
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187.
The Respondents’ Expert Reports of Profesor Madya Dr. Khadijah Mohd Khambali
@ Hambali (“Prof. Khadijah”) are an analysis of the word “Allah” according to the perspective of Islamic thought.
188.
The Respondents’ Expert Reports of Dr. Mohd Sani Badron (“Dr. Mohd Sani”)
consist of information and clarification on the meaning of the word “Allah” and its misuse; how the word is wrongly used by Christians and the implications; the Muslim community’s claim on the word “Allah”; factual errors that “Allah” is not an Arabic term and not derived from Hebrew; the assessment of the Malay language experts like Munshi Abdullah; the basis for resolving the controversy and the position of Christians in the Netherlands, Rome, the United States, the Arab lands and Indonesia.
189.
In relation to expert evidence, the principles set out in section 48 of the Evidence
Act 1950 are relevant [ABOA Vol. 1, p 9]. When the court has to form an opinion as to the existence of any general custom or right, the opinion as to the existence of such custom or right of persons who would be likely to know of its existence, if it existed, is relevant. In this case the key question for the determination of this Honourable Court focuses on the custom or practice of Christians who profess and practise the Christian faith in BM.
190.
At the outset it is noted here that Dr. Mohd. Sani and Prof. Khadijah are not
experts in the Christian religion and indeed they do not assert so. They do not have the qualifications or expertise to render any opinion on the profession and practice of Christianity by BM-speaking Christians and Churches in Malaysia or indeed elsewhere. In particular they have no expertise on the use of the word “Allah” and its all importance as well as essentiality to Christians who profess and practise their faith in BM. These are the substantive questions posed before this Honourable Court for determination.
191.
The Supreme Court of India held in Hindu Religious Endowments (supra) at
page 14 that in examining Hindu customary rights as to what constitutes the essential part of a religion it is primarily to be ascertained with reference to the doctrines of that Page 62 of 86
religion itself (at para 19) [ABOA Vol. 1, p 498].
192.
It is also significant that Dr. Mohd Sani attempts to offer views which are not
pertinent to the determination of this case by giving his views from his own Islamic perspective of the concept of “Allah” in contrast with that of Christianity, the purported misuse of the word and also what he states to be the Muslim community’s claim on the word “Allah”. In this regard his testimony does not satisfy the principle in Hindu Religious Endowments (supra). Neither he, nor Prof. Khadijah, made any effort to address the key issues of this case whether there is a practice of the use of the word “Allah” from the perspective of the Christian faith as professed and practised by Christians and Churches who use BM as their faith language and whether such a practice is all important or essential to their religion by reference to the doctrines of Christianity itself.
193.
The contents of Dr. Mohd Sani’s reports indeed do not in any way detract from the
substantial affidavit evidence of key leaders of the BM-speaking churches of Malaysia and of Dr. Ng Kam Weng’s expert reports of the historical and generational use of the word “Allah” and its utmost significance in the profession and practice of Christianity among the native populations of Sabah and Sarawak as well as the Orang Asli and Babas of West Malaysia.
194.
What Dr. Mohd Sani’s reports are tantamount to are a narrative of criticisms of the
use of word “Allah” by Christians who worship using the lingua franca of the region and the national language which is BM in terms of linguistics based on perceived sensitivity to Muslims. He and Prof. Khadijah also take issue with the translation of certain religious terminologies. He also attempts to refer to the views of fringe groups in other countries who would like to have BM-speaking Christians change their generational and centuries’ old practice of using “Allah” in their Holy Scriptures, their religious literature and publications. These do not hearken to the issues placed before this Honourable Court. Instead they divert and distract from the key constitutional question for determination. Even if his views are vaguely relevant, they have been comprehensively dealt with by Dr. Ng Kam Weng and need not be repeated here. Likewise the views of Prof. Khadijah. Page 63 of 86
195.
Nevertheless, this submission will address several issues raised in the
Respondents’ expert reports to demonstrate that they are without basis bearing in mind that in any event these are irrelevant to the matters in issue.
I (1)
The word “Allah” is not exclusive to Islam
196.
The Respondents through their Expert Reports assert that the word “Allah” is a
term exclusive to Islam and Muslims in this country. This appears to be advanced to offer some premise to support the express statement made by Suzanah Hj. Muin, but not by the 1st Respondent, that the holy word “Allah” is exclusive to Islam and that such is clearly stated in the Al-Quran as well as the Federal Constitution [para 13 of Respondents’ SM Affidavit].
197.
The Respondents’ views as reflected in Suzanah Hj. Muin’s statement is
erroneous. It discloses a fundamentally flawed understanding of Article 3 of the Federal Constitution. Nothing in the said article or anywhere else in the Federal Constitution is there such a statement that “Allah” is exclusive to Islam.
198.
The Respondents are also in error when they say that the word "Allah" is exclusive
to Islam. The premise for their Experts’ views are that: (a) Christians have a different understanding of Allah from Muslims, and (b) that the word “Allah” is a personal name and that such name is uniquely associated with the God of Islam.
199.
Differences in theological doctrine and understanding between two religions
cannot form the basis that one religion and not the other can use a particular religious terminology. If there were no differences at all there will not be religions but only one religion. Such discriminatory action would all the more be untenable on the grounds of confusion or such like misunderstanding or sensitivity. Most certainly, it cannot be done solely on the say-so of one or two scholars like Prof. Khadijah as in this case.
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200.
In SIS Forum (Malaysia) (supra), the Minister’s reasons for banning the book is
that it is prejudicial to public order as its contents are contrary inter alia to the Islamic faith and law and will cause ‘confusion’ in the minds of women in the Muslim community and are based on the author’s personal understanding. At the High Court, the learned Judge held that JAKIM’s views with regard to ‘confusion’ amongst Muslims are not public order issues [ABOA Vol. 2, pp 958-959]. The Court of Appeal upheld the High Court in rejecting the association between the alleged confusion among Muslims and the public order ground for the ban [ABOA Vol. 2, pp 970-971]. The Court of Appeal held that even if there was breach of JAKIM’s Guidelines that does not address the issue of prejudice to public order [ABOA Vol. 2, pp 970-971]. Likewise, theological differences that might purportedly cause confusion to Muslims cannot conceivably be a basis for prohibiting the practices of another religion on public order grounds. It is noted that in this case one of the grounds for withholding delivery of the Applicant’s 8 CDs was “Melanggar Garis Panduan JAKIM” (“Breach JAKIM’s Guidelines”) [Exhibit “SHM-2” of Respondent’s SM Affidavit].
201.
In response to Dr. Mohd Sani’s contention that Christians should not be allowed
to use the word “Allah”, Dr. Ng Kam Weng in Part B of his NKW’s Supplemental Report cites 4 Malaysian Muslims scholars, namely: a) Tuan Guru Haji Abdul Hadi Awang, (b) Ustaz Wan Ji, (c) Perlis Mufti Datuk Dr. Asri Zainul Abidin, and (d) Islamic Scholar Dr. Mujahid Yusof Rawa. He also cites 6 international sources namely: (a) Islamic Society of North America (ISNA), (b) Indonesian scholar Dr Ulil Abshar Abdall, (c) Muslim scholar and chairman at the Nawawi Foundation Umar F. Abd-Allah, (d) chairman of the Al-Hikmah mosque in Astoria, New York Shamsi Ali, (e) American Muslim theologian Resa Azlan, and (f) Kuwait's Muslim Brotherhood leader Dr Tareq Suwaidan.
202.
Both Malaysian and International scholars attest that both Muslims and non-
Muslims use the same reference to Allah. They cite verses of the Al-Quran and Al-Hadith which affirm that Christians and Jews in fact use the word “Allah”. Despite theological differences, they were not prohibited from using the word common to both religions.
Page 65 of 86
203.
Two examples of such verses from the Al-Quran will suffice to demonstrate the
use of the word “Allah” by non-Muslims as set out below:
Surah 29 Al-Ankabut (The Spider) 61. If you were to ask them: “Who has created the heavens and the earth and subjected the sun and the moon?” They will surely reply: “Allâh.” How then are they deviating (as polytheists and disbelievers)? 63. If you were to ask them: “Who sends down water (rain) from the sky, and gives life therewith to the earth after its death?“ They will surely reply: “Allâh.” Say: “All the praises and thanks be to Allâh!” Nay! Most of them have no sense. Surah 31. Surah Luqman 25. And if you (O Muhammad ) ask them: “Who has created the heavens and the earth,” they will certainly say: “Allâh.” Say: “All the praises and thanks be to Allâh!” But most of them know not. 26. To Allâh belongs whatsoever is in the heavens and the earth. Verily, Allâh, He is Al-Ghani (Rich, Free of all wants), Worthy of all praise. 204.
In regards to these verses along with several other verses, Tuan Guru Haji Abdul
Hadi Awang commented that these verses reveal that the polytheists (mushrikins) nonMuslims during the time of the Holy Prophet P.B.U.H. also acknowledge the existence of Allah following their Tauhid Rububiyyah instincts that there is a Creator God notwithstanding that in their beliefs they do not accept the oneness of Allah in worship and way of life [see pages 1-4 of NKW Supplemental Report].
205.
Ustaz Wan Ji also commented that when the non-Muslims answered “Allah” in
their reply to the Holy Prophet’s question on who is the creator of heaven and earth, Allah had not instructed the Holy Prophet to attack or restrain them from saying the word “Allah”. Dr. Mujahid Yusof Rawa went on to comment that the verses mean that “Allah” is universal, and its linguistic value is general without getting into theological nuances [see pages 4-6 of NKW Supplemental Report].
206.
Theologically, the Holy Al-Quran and the Holy Bible (ALKITAB) connote distinct Page 66 of 86
Islamic and Christian doctrines and concepts of God. The term “Allah” is used by both faith communities. It has never been objectionable either as recorded in the Holy AlQuran or anywhere in the Muslim world for Christians to use the word “Allah” or to assert that the word is exclusive to Islam.
207.
Dr. Ng Kam Weng’s First and Supplemental Reports provide a sound and solid
academic basis for the non-exclusivity of the word which is consistent with the Islamic scholars cited above. The use of “Allah” in Christian Holy Scriptures is linguistically accurate and historically appropriate as:
(a)
The term “Allah” is from the Arabic language which coexisted and dynamically interacted with other cognate Semitic languages like Hebrew and Aramaic hence the word also appears in other Semitic languages from the point of etymology and semantics [see Part C of NKW’s Supplemental Report];
(b)
The word “Allah” comes from two words “Al” and “Ilah” to denote the highest god among other gods who each has a name [see Part C of NKW’s Supplemental Report];
(c)
The word “Allah” was already in use before the arrival of Islam e.g. the name of the Holy Prophet’s father who died a polytheist, Abdullah ibn AbdulMuttalib, and hence is not unique to the Arabic language and neither is it a creation of the Muslims nor did its existence begin in the Al-Quran [see Part C of NKW’s Supplemental Report]. (See also para 13(c) of Applicant’s AAZ Affidavit of Dr. Abdul Aziz Bari which cited Dr. Asri as stating that Christians have used the word “Allah” long before the Holy Prophet’s time.)
(d)
Bible translators when translating the Bible into the Malay language took into consideration how language assumes different socio-linguistics at different stratas of society and adopted the word “Allah” in their translation Page 67 of 86
of Scripture, liturgy and education materials since they share the same religious sentiments, beliefs and psychological harmony with their coreligionists in the Middle East and North Africa [see Part D of NKW’s Supplemental Report];
(e)
Historically, when a local community adopts a newly arrived religion, it also adopts the name(s) of the deity commended by the new religion and as the Malay language was never exclusive to the Muslims alone from the historical context of South East Asia and had accepted a lot of loan words for e.g. from the Sanskrit language hence Christians in the Malay Archipelago have as much right as Muslims in the Archipelago to use “Allah” since both of them did not invent the word, but adopted it from earlier co-religionists [see Part D of NKW’s Supplemental Report];
(f)
Different religious communities were able to use the same word (in this case “Allah”) to refer to the deity they owe allegiance to right from before the beginning of Islam for e.g., Zoroasterian Dualists, Sikh monotheists, Coptic and Chaldean Trinitarians and no State has ever attempted to prohibit the use of the word by other citizens and reserved the right to use it only to the dominant religion [see Part D of NKW’s Supplemental Report].
208.
The second premise for Dr. Mohd Sani and Prof. Khadijah to contend that “Allah”
is exclusive to Islam is that “Allah” is a personal name or proper noun uniquely associated with the God of Islam. These assertions are also contested by their fellow Islamic scholars. Dr. Ng Kam Weng cites American Muslim theologian, Resa Azlan who wrote the international bestseller “No God But God: The Origins, Evolution, and Future of Islam” who stressed that the word “Allah” was merely an Arabic term for God and is a construction of the word al-Ilah. He was further quoted as follows:
"Al-Ilah means 'The God'. Allah is not the name of God. Frankly, anyone who thinks Page 68 of 86
that Allah is the name of God, is not just incorrect, but is going against the Quran itself. It is almost a blasphemous thought to think that Allah has a name. "And this is not an interpretation. It is a historical fact." 209.
Likewise, Indonesian scholar, Dr Ulil Abshar Abdalla holds the view that “the word
“Allah” as it was a general term to refer to God” and “The term ‘Allah’ comes from two words which are ‘Al’ ‘and ‘Ilah’ which means God.” “The people of Mecca also used the word ‘Allah’ before Islam came.”
210.
Dr. Ng Kam Weng’s Supplemental Report provides the academic basis for the
views of the scholars cited above that:
(a)
The word “Allah” is not a personal name as it is a general appellative (i.e., a common noun) capable of being used in reference to a whole class of entities although it can also be used with an individual reference [see Part E of NKW’s Supplemental Report];
(b)
The word “Allah” is not a proper noun in the Arabic language being derived from “al-ilah” because a word or noun that accepts an article ‘al-‘ (i.e. equivalent of ‘the’ in the English language) is ipso facto a common noun and as the morphology of the word “Allah” changes in relation to various syntactical relations and according to rules of grammar just like any other generic noun [see Part E of NKW’s Supplemental Report];
(c)
The word “al-ilah” was used within a Christian context before the emergence of Islam [see Part E of NKW’s Supplemental Report];
(d)
While some may use a common noun as a proper noun as a specific label for identification, they cannot deny the right of other people to the customary usage of the word as a common noun [see Part E of NKW’s Supplemental Report];
Page 69 of 86
211.
The view that the word “Allah” is exclusive to Islam on the premise that
theologically Christians have a different understanding of Allah from Muslims is therefore incorrect. It certainly does not find any authority in the Holy Scripture of Islam, the AlQuran. Likewise, the other premise for claiming exclusivity that the word “Allah” is the personal name of God.
I (2)
Criticism of translation of Bible
212.
Dr. Mohd Sani and Prof. Khadijah also allege inconsistency and incompetence of
Christian translators. Neither of them are experts in biblical translation. Their criticisms have been met with a robust response by Dr. Ng Kam Weng in Parts G and H of NKW’s Supplemental Report.
213.
Dr. Mohd Sani raised linguistics and translation issues which have also been
comprehensively dealt with by Dr. Ng Kam Weng. One example would suffice to show that Dr. Mohd Sani’s views are in error and demonstrates his lack of standing and expertise to criticize how religious terminologies are translated. Dr. Mohd Sani had raised the purported inaccuracy of using the word “Yesus” instead of “Isa”.
214.
Dr. Ng Kam Weng in his response states that Dr. Mohd Sani appears to doubt the
sincerity of BM-speaking Christians when they explain that the use of the word “Allah” follows the long standing historical tradition of Arab Christians. Dr. Mohd Sani retorts that Christians should then be using “Isa” rather than “Yesus”.
215.
Dr. Ng Kam Weng’s response (in Part G. 2. of NKW’s Supplemental Report) is that
had Dr. Mohd Sani been better informed about Arabic Christianity he would have known the fact that the traditional Arabic name for Jesus is “Yasu’” and that historically this has been used by Arab Christians and not another name like “Isa” for Jesus. He further clarifies that linguists can easily explain how the Hebrew name “Yeshua’” becomes Page 70 of 86
“Yasu’” in traditional Arabic, following the rules of phonetics change when a foreign name is accepted into a different language.
PART J:
THE 1986 GOVERNMENT DIRECTIVE IS UNLAWFUL
J (1) The 1986 Government Directive is ultra vires the PPPA
216.
The 1986 Government Directive is unlawful because Section 7 or any other
provisions of the PPPA does not authorize the Respondents to issue a blanket ban of any word from being used. The 1st Respondents cannot do so by Gazette notification and certainly not by the mere issuance of a government directive, in this case the 1986 Government Directive.
217.
Under Section 7 of the PPPA, the 1st Respondent may if he is satisfied that any
publication is contrary to public order by order published in the Gazette prohibit absolutely or subject to conditions the printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of that publication [ABOA Vol. 1, pp 61-63].
218.
Likewise, under Sections 9 and 9A which only apply to imported publications the
1st Respondent or an authorized officer may refuse importation or withhold the delivery or return to the sender outside Malaysia any publication which he considers to be prejudicial to public order [ABOA Vol. 1, pp 65-66].
219.
The PPPA therefore does not authorize the Minister to issue a blanket ban of any
word from being used and/or to do so by the mere issuance of a government directive, in this case the 1986 Government Directive. Both authorized officers appointed under the Page 71 of 86
PPPA and the 1st Respondent, the Minister of Home Affairs consider themselves bound to implement the 1986 Government Directive [para 16-18 of Respondents’ SM Affidavit ; para 6-7, 9-10 of Respondents’ SHA Affidavit]. Plainly, the 1986 Government Directive has been elevated to and applied as though it was law.
220.
The 1986 Government Directive is premised on the ground of public order arising
from confusion and misunderstanding and sensitivity. There is serious lack of any evidential basis to support this ground (see below).
J (2) There is no evidentiary basis for 1986 Government Directive that there is a threat to public order
221.
Public order and even national security claims are reviewable by the High Court in
the exercise of its judicial review powers. The High Court in the exercise of its judicial review powers requires that there ought to be adequate reliable and authoritative evidence. The Court is not to accept the say-so of the Minister. In J.P. Berthelsen v. Director General of Immigration, Malaysia & Ors [1987] 1 MLJ 134 (“Berthelsen”), the then Supreme Court declared that “no reliance can be placed in that regard on a mere ipse dixit of the first respondent”. In Berthelsen, the then Supreme Court observed that there must be adequate evidence from authoritative sources as follows: “We would add that in any event adequate evidence from responsible and authoritative sources would be necessary on the security aspect and no reliance can be placed in that regard on a mere ipse dixit of the first respondent to that effect in the notice of cancellation of the employment pass which the learned Judge purported to accept without more ado.” (emphasis added) (at 138D-E) [ABOA Vol. 2, p 730] 222.
In Bugdaycay v Secretary of State for the Home Department [1987] 1 AC 514
(“Bugdaycay”), the House of Lords held that: “…although the question whether there was a danger that the removal of a person claiming refugee status to a third country would result in his return to the country where he feared persecution lay exclusively within the jurisdiction of the Page 72 of 86
Secretary of State, that question had not been adequately considered by him in relation to M. and the decision to remove him having been made without considering the evidence adduced of such danger, the order would be quashed.” (at 516) [ABOA Vol. 2, p 733] 223.
In delivering the above judgment in Bugdaycay (supra), Lord Templeman stated
as follows: “In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process. In the case of Mr. Musisi, a first reading of the evidence filed on behalf of the Secretary of State and Mr. Musisi, gives rise to a suspicion that the dangers and doubts involved in sending Mr. Musisi back to Kenya have not been adequately considered and resolved. As a result of the analysis of the evidence undertaken…I am not satisfied that the Secretary of State took into account or adequately resolved the ambiguities and uncertainties which surround the conduct and policy of the authorities in Kenya. With relief I gratefully concur in the reasoning of my noble and learned friend…and agree that the orders made in respect of Mr. Musisi should be quashed.” (emphasis added) (at p 537H-538B) [ABOA Vol. 2, pp 754-755] 224.
The principle in Bugdaycay (supra) above has been applied in Chng Suan Tze
v The Minister for Home Affairs & Ors and other appeals [1988] 1 SLR 132; [1989] 1 MLJ 69 (“Chng Suan Tze”) where the Court of Appeal had held, inter alia, that – “…although a court will not question the executive’s decision as to what national security requires, the court can examine whether the executive’s decision was in fact based on national security considerations…” (at p 90F) [ABOA Vol. 2, p 777] 225.
The Federal Court in Mohamad Ezam Mohd Noor v. Ketua Polis Negara &
Other Appeals [2002] 4 CLJ 309 (“Mohamad Ezam”) applied the same principle in Chng Suan Tze above. In delivering the judgment of the Federal Court, Steve Shim CJ (Sabah & Sarawak) stated as follows – “Here, the court is entitled to inquire into the basis for the detaining authority’s reason to believe that the appellants had acted or were about to act or were likely to act in a manner prejudicial to the security of Malaysia. As I have said before, on Page 73 of 86
the basis of the affidavits filed by the respondent, there is nothing to indicate or suggest the existence of any material particulars or evidence in support of the detaining authority’s reason to believe in terms of s 73(1)(b) aforesaid.” (at 345ab) [ABOA Vol. 2, p 814] 226.
From the evidence filed in the affidavits of the Respondents, there is no adequate
reliable and authoritative evidentiary basis for the 1986 Government Directive. It is based on the say-so of the Respondents that the use of the term causes confusion and religious sensitivity leading to the purported perceived threat to public order.
227.
The 1st Respondent in the Respondents’ SHA Affidavit refers to what he claims to
be the impact of the decision in the High Court Judicial Review Application No. R1-25-282009 (i.e. the Catholic Herald case) [para 8 of Respondents’ SHA Affidavit]. He refers to the disturbance, confusion, anger and the lack of public peace and threat to public safety in connection with the use of the word “Allah” in the Catholic Herald case (supra) and asks this Honourable Court to take judicial notice of the same [para 8 of Respondents’ SHA Affidavit].
228.
Judicial notice is a rule in section 56 of the Evidence Act 1950 that a fact judicially
noticeable need not be proved [ABOA Vol. 1, p 10]. The matters which the 1st Respondent is seeking judicial notice of do not fall within the specified categories of facts which the court shall take judicial notice of (see section 57(1) [ABOA Vol. 1, pp 10-12]).
229.
Aside from the specified categories, the court may take judicial notice of what
is notorious and what everybody knows. Once the fact in question is too notorious to be the subject of serious dispute, then the court can and should take judicial notice of the same (see Sarkar Law of Evidence, Malaysia Edition, Vol. II, at page 1666, 1702 [ABOA Vol. 2, 860-862]).
230.
However, it is humbly submitted that judicial notice should not be taken of the
alleged facts of disturbance, confusion, anger and the lack of public peace and threat to public safety in connection with the use of the word “Allah” in the Catholic Herald case
Page 74 of 86
(supra) as these allegations cannot be regarded as notorious facts. Further, the court also may refuse to exercise its discretion to take judicial notice pursuant to section 57(3) of the Evidence Act 1950 [ABOA Vol. 1, p 12] unless and until the 1st Respondent produces any such book or document as it considers necessary to enable it to do so.
231.
The 1st Respondent did not cite any particular case of public disorder. This
Honourable Court is being asked to take judicial notice of vague matters which remain as mere speculations and hardly count as facts of public disorder due to the use of the word “Allah” by Christians.
232.
Indeed, the Respondents had declined to produce the very evidentiary basis for
their public order reasons when they resisted the Applicant’s application for discovery of the following documents bearing on the 1986 Government Directive:
(a)
Documents containing the reasons and/or basis for the Government Order dated 5.12.1986, i.e.; the 1986 Government Directive;
(b)
Documents showing that there is confusion among Malaysians purportedly arising from the usage of the term “Allah” in BM Christian publications; and
(c)
Documents showing the existence of threats to the public order purportedly arising from the usage of the term “Allah” in BM Christian publications.
233.
Instead the Respondents chose to rely on what they had vaguely alleged in their
Respondents’ SHA Affidavit as well as Respondents’ SM Affidavit. The conduct of the Respondents show that they simply do not have any evidentiary basis for the 1986 Government Directive prohibiting the use of the term "Allah" on public order grounds.
234.
The affidavit evidence relied upon in the Respondents’ SHA Affidavit is devoid of
particularity and wholly without any nexus between the centuries’ old usage of the word “Allah” and the post-Catholic Herald acts of mischief. Page 75 of 86
235.
Further, it is trite law that a decision-maker must act on facts, information and
materials available to the decision-maker at the time of the decision. The 1st Respondent’s averment represents an ex post facto attempt to create an evidential basis for the reasons for the 1986 Government Directive where none exists. This is not permitted. The authorities cited below show that there must be in existence material particulars or evidence and that these material particulars or evidence must exist at the time the decision was made. This is also the law expounded in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481, where the Minister in that case was obliged to act on facts, information and materials available to him at the time he decided the way he did (at p 519B – 519H) [ABOA Vol. 2, p 901].
236.
In contrast with this bald statement and the absence of any evidence, is the
statement of fact as affirmed inter alia in the Applicant’s PJW Affidavit, Applicant’s MJT Affidavit, Applicant’s ART Affidavit and Applicant’s DJW Affidavit. Paragraph 6 of the Applicant’s PJW Affidavit - which has not been denied, disputed, challenged or controverted by the Respondents – states that the use of the term "Allah" as a referent to the Almighty Creator God for generations by the Christian community has not created any threat to public order in the following words:
Perkara ini adalah satu hakikat di Malaysia keseluruhannya dan khususnya di Sarawak dan Sabah turun-temurun di mana dalam Kitab suci agama Kristian Bahasa Melayu/Kebangsaan wujud istilah Allah sebagai rujukan kepada Tuhan Pencipta Yang Maha Esa. Kitab suci agama Kristian Bahasa Indonesia yang juga diguna oleh umat Kristian juga mengguna istilah tersebut. Juga saya katakan bahawa juga adalah satu hakikat bahawa perkara yang tersebut diatas wujud tanpa mengancam keselamatan dan ketenteraman awam serta menimbulkan sensitiviti keagamaan di kalangan rakyat Malaysia.
237.
It is further submitted that if on the other hand the Respondents did have any
evidential material at all, this Honourable Court may draw an adverse inference against the Respondents under Section 114(g) of the Evidence Act 1950 [ABOA Vol. 1, pp 1314] that the incidents had nothing to do with the centuries’ long use of the word “Allah” by Page 76 of 86
many generations of Christians in Malaysia and that throughout the world there has never been an issue with this until the Respondents took the unprecedented step of prohibiting the same.
238.
In SIS Forum (Malaysia) (supra), the High Court judge expounded on the law
pertinent to the exercise of discretion on matters of public order as follows: “[29] As accepted by both parties, the discretion exercised by the honourable Minister is open to an objective assessment by this court in order to determine whether the pre-condition for its exercise has been satisfied on the facts. The decision of the Minister is, by our jurisprudence, not to be regarded as final although the statutory formula may appear to indicate so. Here, as in other provisions, the discretion is to be exercised is stated as being in the honourable Minister’s ‘absolute discretion’. But it must still stand the test of whether it has been properly exercised in law, since the question whether the decision has been taken on the ground of public order’ is a question of law. See Merdeka University Berhad v Government of Malaysia [1981] 2 MLJ 356 where it was stated the correct view is ‘for an objective approach to the formula to be preferred and this means that the discretion would be reviewable and the deciding authority has in fact to have reasonable grounds and it is insufficient if he merely thinks he has reasonable grounds’. This approach has been further emphasised by the Federal Court very recently in Darma Suria bin Risman Saleh v Menteri Dalam Negeri, Malaysia & Ors [2010] 1 CLJ 300 where it is said: Applying this test which apart from being binding precedent is the correct statement of the law, in the present instance it is insufficient if the Minister thought he had reasonable grounds to be satisfied that the appellant had acted in a manner prejudicial to public order. The question that a court must ask itself is whether a reasonable Minister apprised of the material set out in the statement of facts would objectively be satisfied that the actions of the appellant were prejudicial to public order.” “[34] Again I need to refer to the recent Federal Court decision in Darma Suria bin Risman Saleh where the term ‘public order’ has been analysed in depth. Citing and approving the local decision in Re application of Tan Boon Liat @ Allen; Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1976] 2 MLJ 83 and the Indian Supreme Court decision in Collector and District Magistrate v S Sultan AIR 2008 SC 2096, the Federal Court describes an act which is prejudicial to public order as something which disrupts or has the potential to disrupt ‘the even tempo of the life of the community’, or ‘public safety and tranquillity’. In Collector and District Magistrate, it is said that ‘public order’ is synonymous with ‘public safety’ and ‘tranquillity’, and that public order if disturbed, must lead to public disorder. On the facts and evidence before this court in this present case, I fail to find the Page 77 of 86
objective facts to support the Minister’s decision. There are just seven pages of text objected to, out of 200 odd pages. The book itself was in circulation for over two years in Malaysia before the Minister decided to ban it. If the seven passages are capable of creating a public order problem, there appears to be a singular absence of such likelihood for the two years. Some may not agree with the critiques found in the book, and this is only to be expected in an academic text, which is what the book is, but to conclude that it creates a public order issue is something that cannot stand objective scrutiny. To that extent an error of law is established on the facts. In Chong Chong Wah & Anor v Sivasubramanian [1974] 1 MLJ 38, the Federal Court held that the court had the jurisdiction to determine the validity or propriety of the seizure and impounding of a book under the Control of Imported Publications Act 1958, where it had not been shown that it was seized or impounded under the Ordinance as a prejudicial publication. So it is here in the context of the present Act.” [ABOA Vol. 2, pp 957, 959] 239.
In Dato’ Syed Hamid Albar (supra), the Court of Appeal upheld the decision of
the High Court in quashing the prohibition of the book “Muslim Women and the Challenges of Islamic Extremism” by the Minister of Home Affairs pursuant to Section 7 of the PPPA. The Minister’s reasons for doing so are that the book was prejudicial to public order as its contents are contrary inter alia to the Islamic faith and will cause ‘confusion’ in the minds of women in the Muslim community. In doing so, the Court of Appeal noted that “no evidence of actual prejudice to public order was produced” and that the book had been in circulation for 2 years before the ban (at para 18-19) [ABOA Vol. 2, p 970].
240.
Similarly, in the present case from the examination of the affidavit evidence of the
Respondents, there is plainly no evidentiary basis for viewing the centuries’ old and generational use of the word as causing prejudice to public order. The 1986 Government Directive to put it simply is unlawful and should be declared to be so.
241.
Significantly, the Court of Appeal in Dato' Syed Hamid Albar (supra) noted that
the book had been in circulation for 2 years before the ban (at para 18-19) [ABOA Vol. 2, p 970]. Even taking Malaysia Day as a start date, the said term has been used by native Bumiputra Christians of Sabah and Sarawak, and the ALKITAB together with other Christian publications have been in circulation, for no less than 50 years. The undisputed fact is that the word "Allah" has been in use not only before Malaysia Day but for many Page 78 of 86
generations and centuries.
242.
It is noted here that one of the grounds for withholding delivery of the Applicant’s
8 CDs was “Melanggar Garis Panduan JAKIM” (“Breach JAKIM’s Guidelines”) [Exhibit “SHM-2” of Respondent’s SM Affidavit]. The role of JAKIM in decision-making under the PPPA has been given judicial consideration in SIS Forum (Malaysia) (supra). At the High Court, the Learned Judge held that JAKIM’s views with regard to ‘confusion’ amongst Muslims do not bind the Minister. The latter has to make his own appraisal under the PPPA (at para 33) [ABOA Vol. 2, p 958]. This decision was upheld by the Court of Appeal which rejected the ‘confusion’ argument; hence and likewise the ground of ‘public order’ (at para 20-21) [ABOA Vol. 2, 970-971].
PART K.
243.
GROUNDS FOR DECLARATORY RELIEFS ESTABLISHED
There are clear constitutional violations of Articles 8 and 11 of the Federal
Constitution. The Respondents have also failed to act in accordance with the law set out in the PPPA. The 1986 Government Directive is therefore flawed and ought to be declared so.
244.
On the grant of the declaratory relief sought, the decision of the Supreme Court in
Datuk Syed Kechik Bin Syed Mohamed v Government of Malaysia & Anor [1979] 2 MLJ 101 upheld the decision of the High Court that as the applicant had a real fear that he may be expelled from Sabah, it is desirable for the court to declare whether or not the Federal and State Governments have a right to expel the applicant so that all parties concerned know exactly where they stand (at p 103H) [ABOA Vol. 2, p 974]. In that case, the Supreme Court also referred to the submission of counsel for the applicant based on various authorities that a declaratory order will eliminate anxiety of having to live under a cloud of fear (at p 107G) [ABOA Vol. 2, p 978].
245.
The Minister and officers of the Ministry of Home Affairs have maintained that the Page 79 of 86
1986 Government Directive has not been withdrawn and remains in force. They have asserted that they are responsible for implementing the 1986 Government Directive under the PPPA. They will continue to enforce the 1986 Government Directive in the purported exercise of powers under the PPPA. This is a threat to the constitutional rights of the Applicant and other Christians who use BM in the profession and practice of their religion.
246.
The declaratory reliefs are sought to protect their constitutional rights. The grant
of declaratory orders will eliminate the anxiety of having to live under a cloud of fear. It will remove the Sword of Damocles hanging over their heads and ensure for them their rights as fellow citizens who are constitutionally guaranteed the right to profess and practise their religion in peace and harmony throughout the Federation.
247.
On the foregoing it is humbly submitted that the Applicant ought to be granted the
declarations sought.
PART L.
DECLARATORY RELIEFS SOUGHT
L (1) Main Declaratory Reliefs
248.
The Court of Appeal in Menteri Bagi Kementerian Dalam Negeri & Anor v Jill
Ireland Lawrence Bill & Another Appeal [2015] 7 CLJ 727 (“Menteri Bagi Kementerian Dalam Negeri”) have directed that the two main declaratory reliefs pertaining to Article 11 and Article 8 of the Federal Constitution are to be determined by this Honourable Court (at para 41) [ABOA Vol. 2, pp 997-998].
249.
The Court of Appeal in Menteri Bagi Kementerian Dalam Negeri (supra) has
held that these reliefs can be heard and determined by this Honourable Court as they are not inextricably tied down specifically with the use of the word “Allah” and would not amount to a collateral challenge of the prohibition of the use of the word “Allah” in the Page 80 of 86
State Enactments which must be done by way of Article 4(4) of the Federal Constitution as decided in the Catholic Herald (supra) Federal Court decision (at para 39-40) [ABOA Vol. 2, p 997].
250.
The Applicant seeks the above declarations for which leave has been allowed with
some slight amendments in light of the factual matrix of this case and the legal issues posed to this Honourable Court for determination:
(i)
prayer (c) namely, “A declaration pursuant to art. 11 of the Federal Constitution that it is the constitutional rights of the applicant to have access to Christian publications in the exercise of her rights to practise religion and her right to education in her religion”;
(ii)
prayer (d) namely, “A declaration pursuant to art. 8 that the applicant is guaranteed equality of all persons before the law and is protected from discrimination against citizen, on the grounds of religion in the administration of the law i.e., the Printing Presses And Publications Act 1984 (Act 301) and Customs Act 1967”;
L (2) Consequential and Other / Further Reliefs
251.
The Applicant has also in this judicial review application sought:
(a)
prayer 2(l), Order 53 Statement – that all necessary and consequential directions and orders which this Honourable Court deems fit and proper be given (“Consequential Reliefs”) and
(b)
prayer 2(j), Order 53 Statement – all other and further relief which this Honourable Court deems fit and proper (“Other and Further Reliefs”).
252.
The Consequential and/or Other and Further Reliefs sought have been set out in Page 81 of 86
the Annexure B to the Applicant’s Notice of Intention (2) as follows:
(1)
A declaration that the Applicant 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;
(2)
A declaration that the Applicant together with other native Bumiputra Christians of Sabah and Sarawak have the legitimate expectations 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;
(3)
A declaration that the Respondents’ decision to withhold delivery of the Publications under the Printing Presses And Publications Act 1984 on the grounds of “Istilah Larangan” (“Prohibited Terms”) i.e., the terms set out in the Government Directive issued by the Publication Control Division of the Ministry of Home Affairs Circular: KDN: 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;
(4)
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 is unlawful and unconstitutional.
(5)
A declaration that in the exercise of powers under the Printing Presses And Publications Act 1984, an authorized officer and/or the Minister is not authorized to deny the Applicant her constitutional right to have access to religious publications including the right to own, to possess, to use and to import publications which contain the religious terminology used as a referent to God in the Alkitab which is the Bible in the Malay and Indonesian languages in the exercise of her freedom to practise her religion pursuant to Article 3, 8, 11 and 12 of the Federal Constitution;
(6)
A declaration that in the exercise of the powers under the Printing Presses And Publications Act 1984 by an authorized officer and/or the Minister the refusal of importation into Malaysia and/or the withholding of delivery of any religious publications solely on the ground that the said publications contain the religious terminology used as a referent to God in the Alkitab which is the Bible in the Malay and Indonesian languages is unlawful and unconstitutional.
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Consequential Reliefs
253.
The Applicants have sought for all Consequential Reliefs which this Honourable
Court deems fit and proper under Paragraph 2(l) of the Order 53 Statement.
254.
The High Court in judicial review application has the power to order consequential
reliefs in addition to the powers to review the decision of the tribunal on the merits and to substitute a different decision in place of the tribunal’s decision without remitting it to the tribunal for re-adjudication. The Federal Court in Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2004] 2 MLJ 288 (“Petroliam Nasional”) cited R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 (“R Rama Chandran”):
The Federal Court [in R Rama Chandran v The Industrial Court of Malaysia [1997] 1 MLJ 145], in a majority decision, has held, inter alia, that in judicial review proceedings, the courts have the following powers: (a) to review the decision of a tribunal on the merits; (b) to substitute a different decision in place of the tribunal’s decision without remitting in to the tribunal for re-adjudication; and (c) to order consequential relief. (emphasis added) (at para 9) [ABOA Vol. 2, p 1005] 255.
In R Rama Chandran (supra), the Federal Court had held that consequential relief
is ancillary to the main relief to ameliorate or improve the position of the Applicant (see also MP Jain’s Administrative Law of Malaysia and Singapore updated by Dr. Damien J Cremean (4th Ed.) where the concept of the courts’ power to mould relief is expounded [ABOA Vol. 2, pp 1010-1014]).
256.
The Applicants seek consequential reliefs ancillary to the two main declaratory
reliefs which have been remitted to this Honourable Court in order to ameliorate the situation of the Applicant and her co-religionists.
257.
The Federal Constitution provisions on religious freedom would have been a Page 83 of 86
sufficient guarantee but for administrative actions which violate solemnly assured continuation of rights of Sabah and Sarawakian Christians. The Bumiputra Christians of Sabah and Sarawak were fully assured that their full rights to religious liberty will be respected and honoured when these territorial entities agreed to confederate with Malaya to form the greater Malaysian nation. After 54 years of confederative relations it is plain that there is a need to ameliorate the obstructive actions of administrative officials and to reinforce the full extent of the rights housed in Article 11 read together with Article 3(1) of the Federal Constitution. These rights are both the constitutional rights as well as the legitimate expectations of Sabah and Sarawak Christians. Therefore, the prayer for the consequential reliefs in Items (1) and (2) mentioned above.
258.
From the foregoing submission it is established that: (a) the 1986 Government
Directive is not only unlawful but unconstitutional, and (b) the public order ground is without an evidentiary basis. Furthermore in SIS Forum (Malaysia) (supra), the High Court (upheld by the Court of Appeal) has ruled that the Minister is not bound by JAKIM’s views and he has to exercise his own judgment (at para 12, 33) [ABOA Vol. 2, pp 951, 958]. Therefore, the consequential relief set out in Item (3) mentioned above.
259.
The source of the cloud of uncertainty concerning the use of the word “Allah” in the
Christian publications is the 1986 Government Directive which is both unlawful and unconstitutional. This Directive has never been withdrawn and remains in force. It is the basis for the Respondents and their officers to justify their acts of infringing the rights of the Applicant and her co-religionists under Articles 11 and 8 of the Federal Constitution in relation to their religious publications. Therefore, the consequential relief set out in Item (4) mentioned above.
260.
From the foregoing submission it is also plain that as evident from a letter dated
11.4.2011 to the Christian Federation of Malaysia (CFM) by the Prime Minister of the 2 nd Respondent (“10-Point Solution”), the 2nd Respondent has acknowledged the right of Christians to have full access to the Alkitab which uses the word “Allah” and hence the use in Christian publications. Further, the 2nd
Respondent at the highest level Page 84 of 86
acknowledges that the ban is unlawful and unconstitutional, hence the abrogation of the actions of minor officials to seize Christian publications. Therefore the consequential reliefs set out in items (5) and (6) mentioned above.
Other and Further Reliefs
261.
The Applicants have also sought for all Other and Further Reliefs which this
Honourable Court deems fit and proper under Paragraph 2(j) of the Order 53 Statement.
262.
“Other and further reliefs” is also commonly referred to as “omnibus prayer” or
“general prayer for relief”.
263.
Such relief prayed for must not be treated as a mere ornament to pleadings, in this
case the Order 53 Statement, devoid of any meaning (see Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v. Balakrishnan Kaliannan [2013] 7 CLJ 413, Federal Court which referred to Lim Eng Kay v. Jaafar Mohamed Said [1982] 2 MLJ 156 at para 21 [ABOA Vol. 2, pp 1026-1027]).
264.
The courts should award such relief as is appropriate in the circumstances of the
case so long as the Applicant is not asking for any relief inconsistent with the relief which is expressly asked for (see Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 at p 301H-301I [ABOA Vol. 2, p 1077]).
265.
It is respectfully submitted that together with the main declaratory reliefs these
Other and Further Reliefs can be granted as the Applicant has fulfilled the requirements for the same.
266.
These Other and Further Reliefs would be consistent with the primary reliefs
sought in the Order 53 Statement as well as the facts deposed to in the Affidavits filed by the Applicant.
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267.
These reliefs are clearly claimed based on issues or questions which have been
pleaded.
268.
This Honourable Court in its wider role in the field of public law such as this case
may mould the relief to suit the justice of a particular case (see Tan Tek Seng (supra) at p 301H-301I [ABOA Vol. 2, p 1077])
269.
In the alternative, the Applicant also humbly submits that there is a clear case for
this Honourable Court to grant the Consequential and/or Other and Further Reliefs set out in Annexure B to the Applicant’s Notice of Intention (2).
270.
The object of avoiding misunderstanding and confusion by Muslims if indeed such
exist can be rationally met by the condition that they be stamped with a cross and the phrase “Christian Publication” [Exhibit “JD-2” of Applicant’s JD Affidavit].
Dated this 16th day of October, 2017.
_________________________ Lim Heng Seng (Annou Xavier, Tan Hooi Ping and Gokul Radhakrishnan with him) Counsel for the Applicant The “APPLICANT’S WRITTEN SUBMISSION” is filed by Messrs. Azri, Lee Swee Seng & Co., of Unit 210, Level 2, Block A, Pusat Dagangan Phileo Damansara 2, Jalan 16/11, Off Jalan Damansara, 46350 Petaling Jaya, Selangor Darul Ehsan, solicitors of the abovenamed Applicant. Tel : 03-79323663 Faks : 03-79323098 Ruj. kami : ALSS/AX/3.12/3356/08
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