On 17 March 2021, the High Court in Malaya at Kuala Lumpur, Malaysia delivered a landmark judgment in Jill Ireland’s case, nullifying the 1986 Directive (the impugned Directive) by the Ministry of Home Affairs, which imposed an absolute ban on the word “Allah” for all Christian publications.

Facts

The applicant, Jill Ireland, is a Christian from Sarawak, Malaysia. In May 2008, eight Christian educational CDs belonging to her, which contained the word “Allah” in their titles, were confiscated by a customs officer at the Ministry of Home Affairs. This confiscation was carried out using the power conferred on the Minister under section 9(1) of the Printing Presses and Publications Act 1984 (Act 301).

The respondents, the Minister of Home Affairs and the Government of Malaysia, argued that the impugned Directive was to ‘avoid any confusion among the Muslims and Christians community which is likely to be prejudicial to public order and creating religious sensitivity amongst the Malaysians’.

Judgment

Judge Datuk Nor Bee Ariffin held that the impugned Directive and the exercise of the ministerial power under Act 301 are:

Illegal: they are inconsistent with the Cabinet’s policy decision in 1986, which does not envisage an absolute ban; effectively permitting the use of the word “Allah” in Christian publications only with the condition of stipulating “UNTUK AGAMA KRISTIAN” (for Christian faith) on their front page. Further, the Minister is not empowered to enact a subsidiary legislation (the impugned Directive). Thus, the impugned Directive is unlawful (para 71-91, 123-40).

Irrational: there is no evidence that the use of the word “Allah” has caused confusion or threat to public order as purported by the Minister. Applying the Wednesbury reasonableness test, the Court held that ‘the decision of the Minister in imposing such prohibition is so outrageous in its defiance of logic that no sensible person could have arrived at the decision he had made’ (para 141).

Unconstitutional: the prohibition infringes the appellant’s right to freedom of religion under Article 11(1) of the Federal Constitution and her right to equality under Article 8. ‘The right to profess and practise one’s religion’ pursuant to Article 11 includes ‘the right to have access to religious materials’. The administration of the impugned Directive is also discriminatory because if it were intended to avoid confusion amongst the Muslims, it should not be used to target the applicant because Christians in Sabah and Sarawak are not restricted to use the word ‘Allah’. (para 201-204) (obiter).

Further, the Court highlighted the indisputable historical evidence of the use of the word “Allah” by the Christian community in Sarawak. Undeniably, ‘the Christian community of Sabah and Sarawak have been using the word “Allah” in Bahasa Malaysia for the word of God for more than 400 years in the profession and practice of their Christian faith’ (para 164-165).

Notably, the Court emphasised that the decision in the present case was not predicated on theological or religious considerations, namely the prohibition on the use of the word “Allah” per se. Rather, it was based on the lawfulness of the exercise of the ministerial power and the constitutionality of the impugned Directive. This permitted the Court to quash the impugned Directive as null and void whilst remaining ‘guided by’ the precedential majority decision by the Federal Court in Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri (Minister of Home Affairs) & Ors (the ‘Herald’ case) (para 34).

In the Herald case, the High Court held that the prohibition of the word “Allah” in Herald, a local Catholic newspaper, was illegal and unconstitutional, and that the applicant had a constitutional right to use the word “Allah”. However, this was set aside by the Court of Appeal.

The High Court in the Jill Ireland case distinguished the ‘Herald’ case from the present case by arguing that the ‘Herald’ case dealt with the constitutionality of the use of the word “Allah” in isolation, without taking into consideration the impugned Directive. The Court construed the Federal Court judgment in the ‘Herald’ case as holding that both the constitutionality of the use of the word “Allah” and the impugned Directive should be considered hand-in-hand. In this manner, the High Court has construed the scope of the ‘Herald’ case more narrowly, as applying only when it pertains to the constitutionality of the use of the word “Allah” in and itself.

Update – On 18 April 2023, the government has withdrawn its appeal against the High Court’s March 2021 decision, which had quashed a government ban on the use of the word “Allah” in all Christian publications in Malaysia by filing a notice of discontinuance.”  Source: Malaymail; Free Malaysia Today.