CASE COMMENT: JILL IRELAND LAWRENCE BILL V MENTERI BAGI KEMENTERIAN DALAM NEGERI MALAYSIA & ANOR (HIGH COURT)

CASE LAW : JILL IRELAND LAWRENCE BILL V MENTERI BAGI KEMENTERIAN DALAM NEGERI MALAYSIA & ANOR (HIGH COURT) [JUDICIAL REVIEW NO: R4(2)-25-256-2008]

FACTS OF THE CASE

In this case, the applicant who is a native Bumiputra Christian from the Melanau tribe of Sarawak. On 11 May 2008, she were travelling from Jakarta, Indonesia and when ?she arrived at the Sepang Low Cost Carrier Terminal (LCCT), eight (8) Christian?educational compact discs (CD) which she had brought along with her were confiscated by the custom officer (respondent officer). The confiscation was based on the Directive issued by the Ministry of Home Affairs dated 5 December 1986 to all Christian publications regarding “Penggunaan Istillah/Perkataan Yang digunakan Dalam Penerbitan Agama Kristian Berbahasa Malaysia”.

The Directive stated that twelve (12) words are permitted to be used which consist the words of “Al-Kitab”, “Firman”, “Rasul”, “Syariat”, “Iman”, “Ibadah”, “Injil”, “Wahyu”, “Nabi”, “Syukur”, “Zikir” and “Doa”. If the publication were in the form of book or pamphlet that are meant to be disseminated or to be sold, the words for Christian Religion need to be written at the cover of the book or pamphlet respectively. Four (4) words are prohibited namely “Allah”, “Kaabah”, “Baitullah” and “Solat”. The 8CDs confiscated from her contained the words of Allah as stipulated in the Directive.

The Ministry of Home Affairs via a letter dated 7 July 2008 confiscated the 8 CDs belonging to her pursuant to Section 9 of Printing Presses and Publications Act 1984 (Act 301) [1] and sets out three ground for the confiscation, which is prohibited words, public order and breach the Standard Procedure of Department of Islamic Development Malaysia.

Dissatisfied with Ministry of Home Affairs, the applicant filed an ex parte application for leave for judicial review on 20 August 2008. The High Court only allowed the relief to quash the decision of the Ministry of Home Affairs to confiscate and seize the 8CDs and to return the 8CDs to the applicant. On 15 August 2014, the applicant filed her cross appeal against the High Court’s decision on the non-granting relief especially on Articles 8[2] ?and 11[3] ?of the Federal Constitution. The Court of Appeal in the Jill Ireland Appeal Case affirmed the High Court judge’s decision and allowed the cross-appeal in relation to her fundamental rights. The appeal was remitted back to High Court to hear the judicial review on her fundamental rights on equality and freedom of religion.

PUBLIC LAW ISSUES INVOLVED

The applicant in her amended prayer sought a declaration that pursuant to Articles 3 (religion of the Federation), 8 (equality), 11 (freedom of religion) and 12 (rights in respect of education) of the Federal Constitution. The applicant raised that it her constitutional right to import the 8CDs in the exercise of her religion and her right to education. ?

The contentious issue raised by the applicant is that the application of Section 9 of Act 301 which purportedly empower the Minister to issue and enforce the Directive is said to be unconstitutional. It is further contended that Section 9(1) of Act 301 does not authorize the Minister to intervene in religion freedom at all because it is not a general law affecting public order.

The applicant said to be discriminate on the ground of religion in the administration of Act 301. The claim for the discrimination arose from the exercise of powers under section 9(1) of Act 301 based on the prohibition imposed by the Directive.

JUDICIAL RESOLUTION OF THE ISSUES

Judge Nor Bee Binti Ariffin (High Court) on considering the facts and arguments in totality stated that Article 3(1) of the Federal Constitution provides “Islam is the religion of the Federation but other religions may be practiced in peace and harmony in any part of the Federation”. It also provides in Clause (4) that nothing in this Article derogates from any other provision of the Federal Constitution.

Judge Nor Bee further held that Article 3(1) does not override Article 11(1).?This means that constitutional rights in Articles 10, 11 and 12 are not extinguished despite the adoption of Islam as the religion of the Federation. This is as per Prof Dr Shad Saleem Faruqi[4] in his book at page 346, Document of Destiny : The Constitution of Federation of Malaya.

Court of Appeal in Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors (2020) made the following observation on Article 11 of Federal Constitution:

“This right to freedom of religion is sacrosanct, and distinct from other fundamental liberties for several reasons. For one, Article 11(1) unlike say Article 9 and 10, applies to every ‘person’ as opposed to every ‘citizen’. Further Article 11 does not have “derogation clause” (using the term loosely) similar to those contained in the phrase “save in the accordance with law” common to Articles 5 and 13. Even Article 8(1)?is subject to limits based on the reasonable classification test first propounded by the Federal Court in Mohamed Sidin v Public Prosecutor [1966] 1 LNS 107; [1967] 1 MLJ 106 read together with the express permissible exceptions enumerated in that Article permitting discrimination in certain situations.”???

The freedom of religion is non-derogable right that are so sacrosanct that even Article 150 (6A) of the Federal Constitution prohibits Parliament from making laws which seek to curtail the freedom of religion during times of emergency.[5]?The restrictions that the Federal Constitution authorizes in relation to freedom of religion are stipulated only in Article 11(4) [6] and 11(5) [7]. As such, there must be a general law that regulate public order, public health or morality.[8] Act 301 did not fall under the definition of Article 11(5).?

In furtherance, freedom of religion is not also subjected to Articles 149 and 150 powers. This can be seen in the case of Jamaluddin Othman v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor[9], where the Supreme Court held that the detention of a person without trial is permitted under Internal Security Act 1960 but the detention will however be unconstitutional when used against persons practicing their religion.

The sole basis for the confiscation by using the power under section 9(1) of Act 301 was the reliance on the prohibition imposed by the Directive. As the Minister had unlawfully issued the Directive under Act 301, which is found to be nullity, the Minister had unlawfully exercised the power section 9(1) of Act 301 to enforce the Directive.

Judge Nor Bee binti Ariffin in the view that the act of the respondents’ officer to prohibit the importation of the 8CDs on the ground of the Directive would be inconsistent with the provision of Article 11 of the Federal Constitution[10] and would not be valid unless the applicant’s action was shown to go well beyond what can normally be regarded as professing and practicing her religion.

Judge Nor Bee binti Ariffin went on stated that there was no dispute that the 8CDs were for her personal religious edification. There was no evidence adduced that the importation of the 8CDs went well beyond what can normally regarded as professing and practicing her religion. Right to profess and practice one’s religion should include right to the religious materials as stated in the US case of Jones v Opelika.[11] ?

The discrimination under Article 8 by the respondent was apparent from the offset. The Cabinet’s policy decision that had allowed the use of the four words subject to the specific conditions, was converted into an absolute prohibition for reasons best known to the Minister.

?COMMENTS AND CRITICISMS

Article 3(1) of the Federal Constitution declares Islam to be the religion of the Federation. [12] ?The words “Islam”, “Syariah” or “Islamic law” are mentioned at least 24 times in the Federal Constitution.[13] Apart of Islam, no other religion were visible in the?Federal Constitution. It must be noted that Islam is the religion of the State for 12 States except for the State of Sarawak which do not have official state religion. [14] Does this mean that Malaysia is an Islamic country and as such, the banned on the usage of the four words are justifiable.

Article 3(1) are subject to Clause (4) which states that “nothing in this Article derogates from any other provision of this Constitution”. Hence, the implication of Article 3(4) is that it is not the basic law of the land even though Islam has an exalted position. It is worth noting that Islamic principles cannot be adduced to challenge or invalidate any principle, institution or law established under the Constitution.[15] As seen in the case of Che Omar Che Soh v PP,[16] the litmus test of validity is the Constitution and not the principles of Islam.

In furtherance, Islamic law applies only to the 25 areas outlined in Schedule 9 List II Item 1.[17] In all other areas, secular or civil laws prevails and must be enacted in accordance with the Federal Constitution. Besides, non-muslims are not subjected to the jurisdiction of shariah court. [18]??

However, the wording of Article 3(1) also stated that all other religions are allowed to be practiced in peace and harmony. Since 1629, the Christian community in Sarawak has use of the word “Allah” in Bahasa Malaysia for the word of God in practising and professing their religion. It is undisputed that the use of the word “Allah” has led or cause to any public disorder. Jill Ireland were native of Sarawak and in the absence of official state religion or any state law as enshrined in Article 11(4) [19] of the Federal Constitution, Jill Ireland’s able exercise her freedom of religion in the use of the word “Allah” without restriction.

The outcome of Jill Ireland’s has cause mixed reaction in the communities. Three (3) sultans in the peninsula Malaysia (Johor, Selangor and Kedah) who is the head of the religion in the State has issue a statement on the banned use of the word “Allah” by the non-muslim. This is in line with State Enactment that disallows the use of the word “Allah” as provided under the Selangor Non-Muslim Religions (Control of Development Among Muslims, 1988) Enactment gazetted on 7 July 1988,[20] Johor Control and Restriction of the Development of Non-Muslim Religions Enactment 1991,[21] and Kedah Non-Islamic Religions (Control of Propagation Among Muslims) Enactment 1988. [22] As a matter of facts, 10 States except Penang, Sabah and Sarawak have state law on banning the use of the word Allah and other words. [23]?In respect to the Federal Territories, there is no equivalent federal law that mirror the States law on the prohibition of the word “Allah” though any person to proselytise a Muslim to a non-Islamic religion are provided under Section 5 of the Syariah Criminal Offences (Federal Territories) Act 1997.[24] ?

Question arises whether State has the jurisdiction or competency to make laws to control, restrict and prohibit the use of certain words and?expressions without any act of propagation. Article 11(4) [25] and Schedule 9 List II of Item 1[26] of the Federal Constitution only allow states to pass law to control or restrict the propagation of any religious doctrine or belief among Muslims. Muslims may propagate the Islamic religion to non–Muslims but not vice versa. It could be adduced that a state law can only be enacted to prevent a Christian from delivering a Bible which contains the word Allah to a Muslim but not if the person uses the same Bible for his own personal belief.

It could be argued that the State law are also contrary to Articles 3(1) [27] ?and 11(1) [28] ?of Federal Constitution that confer on every non-muslim the fundamental right to profess and practise his own religion in peace and harmony. Article 11(3)(a) states that “every religious group has the right to manage its own religious affairs”. A Malaysian’s right to freedom of religion is further entrenched under Article 12(3) which provides that “no person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own”. It is also against a person’s right to freedom of speech under Article 10. [29]

The observation by Human Right Committee in relation to Article 18 of the International Covenant on Civil and Political Rights (ICCPR) [30] were emphasized by the court at page 89 of the judgment. Malaysia are not party to ICCPR[31] and has only signed the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), International Convention on the Rights of the Child (CRC) and the International Convention on the Rights of Persons with Disabilities (CRPD) which domestic legislation has been enacted to reflects the same. Alas, it is puzzling that an international convention which Malaysia are not party and bind unto are being referred. It is akin to I don’t like you but I will use you anyway.

CONCLUSION

The dichotomy between Federal and State jurisdiction as stipulated under Article 74 must be reviewed especially Item 1 and 9[32] ?of the State List. This is to make sure that state legislation in conformation with Federal Constitution and to ensure that there will be no usurpation of powers. Alternatively, challenge can be made to the Federal Court under Articles 4(3) [33] ?and 128[34] ?respectively. ??

*Disclaimer: This article is written as part of requirement under the Administrative Law subject of the Master of Laws, University of Malaya. Actual written in May 2021.

[1]Section 9 (1) of Printing Presses and Publications Act 1984 stated that “Without prejudice to anything in this Act, the Minister may refuse the importation into Malaysia or withhold delivery or return to the sender thereof outside Malaysia any publication which he is satisfied contains any article, caricature, photograph, report, notes, writing, sound, music, statement or any other thing which is likely to be prejudicial to public order, morality, security, or which is likely to alarm public opinion, or which is likely to be contrary to any law or is otherwise prejudicial or is likely to be prejudicial to public interest or national interest.”

[2]Article 8(1) of the Federal Constitution stated that “All persons are equal before the law and entitled to the equal protection of the law”.

[3]Article 11(1) of the Federal Constitution stated that “Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it”.

[4]Holder of the Tun Hussein Onn Chair in International Studies at the Institute of Strategic and International Studies (ISIS) Malaysia and Holder of the Tunku Abdul Rahman Foundation Chair at University of Malaya. He was formerly eminent Member of the Malaysia n Judicial Appointments Commission.

[5]Article 150 (6A) of the Federal Constitution stated that “Clause (5) shall not extend the powers of Parliament with respect to any matter of Islamic law or the custom of the Malays, or with respect to any matter of native law or customs in the State of Sabah or Sarawak; nor shall Clause (6) validate any provision inconsistent with the provisions of this Constitution relating to any such matter or relating to religion, citizenship, or language.”???

[6]Article 11 (4) of the Federal Constitution stated that “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”.?

[7]Article 11 (5) of the Federal Constitution stated that “This Article does not authorize any act contrary to any general law relating to public order, public health or morality”.

[8]ibid

[9][1989] 1 MLJ 418

[10]ibid

[11][1941] 316 US 584

[12]Article 3(1) of the Federal Constitution stated that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”

[13]Articles 3(1), 3(2), 3(3), 3(5), 5(4), 11(4), 12(2), 34(1), 38(2) (b), 38(6)(d), 42(10), 76(2), 97(3), 121(1A), 145(3), 160(6A), 160(2), 161C (repealed), 161D (repealed), Fourth Schedule Parts I and II, Eight Schedule (2) (d), Ninth Schedule List I, Items 4(e) and (k), List II, Item 1 and Tenth Schedule Part III (13).

[14]The State of Sabah and Sarawak did not have official state religion on the formation of Malaysia in 1963. The State of Sabah subsequently amended its Constitution to incorporate Article 5A to make Islam as the religion of the State.??

[15]Emeritus Professor Datuk Dr Shad Saleem Faruqi, “Between Two Shores: Courts, The Constitution and the Shariah”.

[16][1988] 2 MLJ 55

[17]Schedule 9 List II Item 1 of the Federal Constitution stated “Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom”.

[18]Schedule 9 List II Item 1 of the Federal Constitution

[19] Article 11(4) of the Federal Constitution stated that “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”.

[20] Bernama, “Sultan: Use of ‘Allah’in BM Bible, Christian publications prohibited in Selangor”, The Star dated 23 March 2021 <https://www.nst.com.my/news/nation/2021/03/676350/sultan-use-allah-bm-bible-christian-publications-prohibited-selangor>

[21] Mohd Farhaan Shah, “Johor Ruler urges govt to follow through with appeal over use of ‘Allah’ by non-muslims, The Star dated 18 March 2021 <https://www.thestar.com.my/news/nation/2021/03/18/johor-ruler-urges-govt-to-follow-through-with-appeal-over-use-of-039allah039-by-non-muslims>

[22] “Use of ‘Allah‘ only for Muslims in Kedah, says State Ruler, The Star dated 12 May 2021 <https://www.thestar.com.my/news/nation/2021/05/12/use-of-039allah039-only-for-muslims-in-kedah-says-state-ruler>?

[23] Roger Tan, “Religion and the law”, Malaysian Bar dated 13 January 2014 <https://www.malaysianbar.org.my/article/news/legal-and-general-news/members-opinions/religion-and-the-law>

[24] Section 5 of the Syariah Criminal Offences (Federal Territories) Act 1997 provides that Any person who propagates religious doctrines or beliefs other than the religious doctrines or beliefs of the religion of Islam among persons professing the Islamic faith shall be guilty of an offence and shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.

[25]ibid

[26]ibid

[27]ibid

[28]ibid

[29] Article 10 of Federal Constitution stated that “(1) Subject to Clauses (2), (3) and (4)— (a) every citizen has the right to freedom of speech and expression; (b) all citizens have the right to assemble peaceably and without arms; (c) all citizens have the right to form associations”.

[30] Article 18 of ICCPR stated that “this right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching”.

[31] United Nations Human Rights Treaty Bodies, Ratification Status for Malaysia <https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=105&Lang=EN>

[32] Item 9 of List II State List stated that “Creation of offences in respect of any of the matter included in the State List or dealt with by State law, proofs of State law and of things done thereunder, and proof of any matter for purposes of State law”.

[33] Article 4(3) of the Federal Constitution states that “The validity of any law made by Parliament or the Legislature of any State shall not be questioned on the ground that it makes provision with respect to any matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws, except in proceedings for a declaration that the law is invalid on that ground or—

(a) if the law was made by Parliament, in proceedings between the Federation and one or more

(b) if the law was made by the Legislature of a State, in proceedings between the Federation and that State”.

[34] Article 128 (1) of the Federal Constitution stated that “The Federal Court shall, to the exclusion of any other court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jurisdiction—

(a) any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws; and

(b) disputes on any other question between States or between the Federation and any State”.