My son wrote this based on his knowledge of the law:

October 17, 2013 at 4:41pm

Have decided to air my views on the Herald case since I find it to be an interesting case (we hardly ever hear of landmark constitutional law cases in Malaysia) and well, it hits a little close to home (I was raised Catholic and used to read the Herald). Also, I think it’s important for us to know a bit more about our Federal Constitution, though I don’t profess to be an expert or anything. I originally just wanted to rant but then I realised that I had to justify it so erm.. it has become a bit of an essay lol.

VERY BRIEF FACTS

The Herald is a Catholic newspaper that has been in publication since around 1999. It applied for a publication permit under the Printing Presses and Publications Act 1984 (“Act”) for the year 2009. The Govt approved the permit subject to 2 special conditions (in addition to the general conditions which are provided for in the Act and any subsidiary legislation):

1) the word “Allah” was not to be used in the Malay version of the Herald; and

2) the word “TERHAD” was to appear on the front page of the Malay version of the Herald, to give an indication/meaning that the Herald was to be distributed in churches and to Christians only.

The Catholic Church (“Church”) went to court, seeking to quash the decision. The Church did not object to the 2nd condition but objected to the 1st condition on the ground that it was illegal, unreasonable, irrational and/or unconstitutional.

In December 2009, the High Court ruled in favour of the Church and quashed the decision. It essentially ruled that the decision was “illogical” and “irrational” as well as unconstitutional. The Govt appealed to the Court of Appeal and won (more on the appeal below).

The relevant Federal Constitution provisions

Article 3(1): Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.

Article 11(1): Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.

Article 11(4): State law and … federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.

Note: Assuming that all States have laws that prohibit a non-Muslim from “preaching” to a Muslim, the effect of Article 11 is that everyone has a right to profess and practise his religion AND Muslims can “preach” to non-Muslims BUT non-Muslims cannot “preach” to Muslims.

The decision of the Court of Appeal (“COA”)

The COA allowed the appeal of the Govt and held as follows:

a) the Govt had acted within its powers under the Act and had considered all relevant factors and had not taken into account any irrelevant factors

b) the insertion of the words “in peace and harmony” in Article 3(1) is to protect the sanctity of Islam and “also to insulate against any threat…to the religion of Islam

c) the most probable threat to Islam is the propagation of other religions to the followers of Islam and the restriction of proselytism has more to do with the preservation of public order than with religious priority

d) the usage of the word “Allah” in the Malay version of the Herald has the potential to disrupt the even tempo of the life of the Malaysian community

e) it will have an adverse effect upon the sanctity of Islam as envisaged in Article 3(1) and the right for other religions to be practised in peace and harmony

f) the Herald does not have a constitutional right to use the word “Allah” because it is not an integral part of the faith and practice of Christianity

g) since it was never an integral part of the faith, it is reasonable to conclude that the intended usage will cause confusion within the Islamic community and is surely not conducive to the peaceful and harmonious tempo of life in the country

SOME POINTS TO CONSIDER

Wednesbury unreasonableness

I was no lover of Public/Constitutional law back in university, but I can tell you that one of the landmark cases everyone had to know was the Wednesbury case. The following passage is a summary of the Wednesbury principle taken from the Wednesbury case itself:

“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere.”

Previous cases had already established that a decision could be overturned on grounds of illegality or procedural impropriety/unfairness. The Wednesbury case was significant because it also allowed a court to interfere based on the merits of the case. In other words, it allowed the court to look at the decision of the Govt and decide that even though the Govt had acted legally and had considered all relevant matters, the decision was still so unreasonable that no reasonable authority could ever come to it.

The COA did not even discuss this last point. It selectively quoted the first part of the Wednesbury case and held that it could not interfere because the Govt had acted within its powers under the Act and had considered all relevant factors. This is a trick lawyers use. They only quote the parts of the case which are favourable to them. But I would have expected the COA to be better than this and deal with whether the 1st Condition was “reasonable” or not. Note that the High Court had discussed this last point, which makes the omission even more glaring.

In peace and harmony

Article 3(1) of the Federal Constitution expressly provides that “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation”.

The COA found that this Article was inserted as a byproduct of the social contract by our founding fathers, and that the purpose and intention of the words “in peace and harmony” was to protect the sanctity of Islam as the religion of the country and to insulate it against any threat. This is an unnatural reading of the provisions in Article 3(1). The words in their clear and ordinary meaning provides for the right of other religions to be practiced without any interference or threat from others.

Integral part of faith and practice

The COA essentially held that to receive constitutional protection, it must be shown that the use of the word “Allah” was an integral part of the faith and practice of Christians. This was a very restrictive interpretation of Article 11 (the right to profess and practice one’s religion). In arriving at its decision, the COA relied on its previous decision in the case of Meor Atiqulrahman bin Ishak v Fatimah Sihi and the many Indian decisions referred to in that case. However, it is rather dubious that the COA chose to refer to its previous decision when that very same case was appealed to the Federal Court, which reformulated the test and held that:

“whether a practice is or is not an integral part of a religion is not the only factor that should be considered. Other factors are equally important in considering whether a particular law or regulation is constitutional or not under Article 11(1) of the Federal Constitution. I would therefore prefer the following approach. First, there must be a religion. Secondly, there must be a practice. Thirdly, the practice is a practice of that religion. All these having been proved, the court should then consider the importance of the practice in relation to the religion. This is where the question whether the practice is an integral part of the religion or not becomes relevant. If the practice is of a compulsory nature or “an integral part” of the religion, the court should give more weight to it. If it is not, the court, again depending on the degree of its importance, may give a lesser weight to it.”

With such binding Federal Court authority, the COA should not have referred to its own decision and the Indian cases (which are only persuasive and not binding). It is yet another glaring omission as the High Court had referred to the Federal Court judgment.

In addition, the COA apparently did some “quick research” on whether the word “Allah” had been used as the name of God or even a man in the Hebrew Scriptures or in the Old or New Testaments. Finding none, it proceeded to conclude that the word or name “Allah” was not an integral part of the faith. In addition, it referred to various academic/religious books and international articles and concluded that “the Christians themselves have not reached a consensus as to how to use the word “Allah”. It went even further and held that “if the word “Allah” is to be employed in the Malay versions of the Herald, there will be a risk of misrepresentation of God within Christianity itself… the potential for confusion is not confined only to Muslims but also to Christians”.

I think the COA’s approach leaves much to be desired. It apparently preferred to take judicial notice* of international facts and discussions (gleaned from its own independent research) regarding the use of the word “Allah” instead of considering the fact (established in evidence and accepted by the judge in the High Court) that millions of local Malaysians have been using the word “Allah” as part of the practice of their Christian religion.

*Note: To my non-lawyer friends, judicial notice refers to the situation where a court takes notice of and accepts any fact that is so well known or notorious that it does not need to be proved by adducing evidence in court e.g. World War II, the Great Depression, the increase of gun crime in Malaysia, Sept 11 etc. It is an exception to the normal rules on evidence and should only be used in clear cases.

In addition, it was presumptive of the COA to hold that the potential for confusion also extended to Christians when there is no such evidence of that being the case in Malaysia.

Confusion

There has been a lot of criticism of the COA’s decision based on the “confusion point”, and rightly so. Several points may be made.

First, it is to be noted that the Herald agreed to include the “TERHAD” warning on the front page of the Malay version and to limit distribution to churches and Christians only. In the off chance that a Muslim got their hands on a Herald paper, surely the warning would put them on notice that the publication was not intended for them.

Second, while the Constitution and State laws prohibit propagation/proselytization, just because someone may still be “confused” despite reasonable efforts to “unconfuse” them DOES NOT make it propagation/proselytization.

Finally, “confusion” is not a recognised ground to deny a person’s Constitutional right to profess and practice their religion.

The press release by the Malaysian Bar put it quite nicely:

“The decision does not in any way aid in addressing or resolving the alleged confusion amongst persons professing the religion of Islam, when in fact that word ‘Allah’ is used by more than one community in this country and by peoples of different faiths in the Arab world and other Muslim countries. Rather, the effect of the decision would be to encourage a perpetual state of confusion or ignorance as justifiable grounds for denying the rights of others. The course that ought to have been taken should be to educate those persons who would be confused and not to restrict or injunct the exercise of rights by others.”

Public order / security

The COA and Govt sought to justify the decision on the ground that the condition should be imposed in the interests of public order and security. Reference was made to the subsequent chaos which erupted after the High Court decision.

Again quoting Malaysian Bar press release:

“The decision unfortunately serves to reinforce the notion that the use or threat of violence would win the day in court. It is unacceptable that citizens are denied their Constitutional rights of religious freedom and expression on the basis that others who disagree or who are confused would resort to aggression. The law should not be interpreted and declared so as to condone, encourage, and perpetuate such aggression and threats of violence. Rather, the law ought to be visited upon those who would resort to threats or violence.”

I think there may be rare instances where public order may be invoked as a right to restrict one’s Constitutional rights (e.g. state of emergency or where there would be complete anarchy with no law and order and society just falls apart) but I would like to believe that we have not reached such an extreme state of affairs.

SUMMARY

The COA decision leaves much to be desired for the following reasons:

a) it inadequately applied the “Wednesbury unreasonableness” principle

b) it selectively quoted cases and disregarded binding Federal Court authority

c) it engaged in a strained and convoluted interpretation of Article 3(1) of the Federal Constitution

d) it has effectively established “confusion” as a new ground to restrict the Constitutional right to practice one’s religion; and

e) in effect, it has sent a message that the mere threat of violence may successfully restrict one’s Constitutional rights.

The COA had stated that “the welfare of an individual or group must yield to that of the community”. I would suggest that in this case, the decision of the COA has resulted in a situation where the interests of the community as a whole have yielded to the “welfare” of the confused and the violent.

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