BA’KELALAN assemblyman Baru Bian late yesterday said he was disappointed with Prime Minister Anwar Ibrahim’s earlier statement on the withdrawal of the appeal in the “Allah” usage case.

He said it must be noted that the source of all the problems, which culminated in the filing of the case, is the 1986 administrative directive by the Home Ministry banning the use of certain words by non-Muslims.

While we may agree with Baru on the above, we must consider what justice Nor Bee Ariffin said of the administrative directive, referred to in the judgement as “the impugned directive”.

Having considered the impugned directive at length, the learned judge said:

“It is my view that the impugned directive is inconsistent with the cabinet’s policy decision.”

The cabinet’s policy decision refers to the decision made by the cabinet on May 19, 1986.

The home minister contended the impugned directive was the law and policy of the government, and all Christian publications were not permitted to use the words “Allah”, “Kaabah”, “solat” and “baitullah”.

The minister further contended that his ministry, which was in charge of regulating, printing and publishing the material, was made responsible to execute and enforce the law and policy of the government.

To this contention, Nor Bee said: “The process that had taken place as can be distilled from the [facts] is that when the PM passed to the Home Ministry the cabinet’s policy decision, what followed next was the issuance of the impugned directive by the Publication Control Division of the Home Ministry.

“In other words, the Home Ministry was executing the cabinet’s policy decision by making and issuing the impugned directive.

“Under the circumstances, the impugned directive then must mirror the cabinet’s policy decision. The question is whether it did.

“Upon painstakingly perusing all evidence adduced in these proceedings, I entertained serious doubt over whether the cabinet’s policy decision was incorporated in the impugned directive, as there appears to be marked discrepancies between the cabinet’s policy decision and the impugned directive.”

The learned judge continued: “In my view, on a true and proper construction of the [facts], the cabinet’s policy decision did not impose a total ban on the four words ‘Allah’, ‘Kaabah’, ‘baitullah’ and ‘solat’. The impugned directive did. The cabinet could not, in my view, have imposed a total prohibition.”

Accordingly, the impugned directive was inconsistent with the cabinet’s policy decision. The learned judge ruled that the applicant, Jill Ireland, was entitled to the declaration sought that the impugned directive is invalid.

There were two other declarations the applicant sought from the court.

The first was a declaration that pursuant to articles 1, 3, 8 and 12 of the Federal Constitution, it was her constitutional right to import eight CDs, which were confiscated from her by Home Ministry officers, in the exercise of her right to practise her religion and her right to education.

The second was a declaration that pursuant to article 8 of the Federal Constitution, she was guaranteed equality of all persons before the law and was protected from discrimination against citizens on the grounds of religion in the administration of the law, namely the Printing Presses and Publications Act 1984 (Act 301) and the Customs Act 1967 (Act 235).

On the first, the judge referred to the work of eminent constitutional scholar Shad Saleem Faruqi who wrote in “Document of Destiny: The Constitution of the Federation of Malaya” that the constitutional rights in articles 10, 11 and 12 of the constitution are not extinguished despite the adoption of Islam as the religion of the federation.

She then referred to the observation of the Court of Appeal in Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors and another appeal [2021] 1 MLJ 120 that the “right to freedom of religion is sacrosanct, and distinct from other fundamental liberties”.

The judge consequently ruled there was no power to restrict religious freedom provided in article 11 of the constitution, other than restrictions set out in clauses 4 and 5.

Clause 4 provides that the state legislature may through state laws control or restrict the propagation of any doctrine or belief to persons professing Islam.

Clause 5 provides that the religious rights conferred by article 11 do not authorise any act contrary to general laws relating to public order, public health or morality.

Accordingly, there must be a general law that regulates public order, public health or morality. Act 301, though, is not that law.

On the second declaration, the learned judge ruled the discrimination against the applicant was apparent from the outset. The cabinet’s policy decision that had allowed the use of the four words subject to the specific conditions, was converted into an absolute prohibition for reasons best known to the home minister.

The applicant was therefore granted the two declarations sought.

It must therefore be noted that, and as conceded by the judge herself, a general law can regulate public order, public health or morality. Act 301 is not that law.

But that, respectfully, is the view of a single judge.

My point is also this: the government should allow the appeal to complete its course, instead of withdrawing it.

In these ways, appeals further the rule of law. – May 17, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.