The government has erred in issuing the 1986 ban on the use of the word "Allah" by non-Muslims, ruled the Kuala Lumpur High Court.
Thus, a Melanau Christian has the right to use the word “Allah” for religious and educational purposes.
Judge Nor Bee Ariffin today allowed the legal action by Jill Ireland in the 13-year long-running saga.
Ireland initially instituted an action for the return of Malay-language Christian CDs and religious books seized by Malaysian customs authorities at the Kuala Lumpur Low-Cost Terminal (LCCT), Sepang, in 2008.
However, following a court order ordering the items returned to the clerk in 2015, her legal battle has since then became one seeking court declaration over the right to use the word “Allah”.
Ireland was seeking a declaration that her constitutional right to practice her religion was violated by the imposition of a restriction or ban on the import of educational materials.
She also wanted a declaration that the use of the Publication and Printing Presses Act (PPPA) 1984 and the Customs Act 1967 to seize the CDs was an infringement on equality under the law.
Today's High Court decision came after numerous postponements since at least 2018, following several attempts to settle the matter.
This decision though is distinguishable and does not contradict a previous precedent set by the Federal Court in 2015, when it dismissed the "Allah" appeal by the Roman Catholic Church.
When reading out the lengthy judgment, Nor Bee said the home ministry's directive dated Dec 5, 1986, banning the use of "Allah", "Kaabah", "Baitullah", "Solat" by non-Muslims, has no statutory backing and is therefore illegal and irrational.
The directive, issued under the Printing Presses and Publications Act 1984 (PPPA), was relied on by the authorities when they confiscated the eight CDs in 2008.
Nor Bee, a Court of Appeal judge who is sitting as a High Court judge, pointed out that the directive went above and beyond what was aimed for by the cabinet then.
She said the PPPA is only a law to check undesirable publications and not for the purpose of maintaining public order, public morality and health.
“If the minister does not follow the law regulating the exercise of his power, then he has acted illegally, as he had gone beyond the limit of his power.
“In the present case, the minister has not acted according to the act (PPPA),” Nor Bee said.
The judge pointed out that there is no evidence the use of the word “Allah” by the indigenous Bahasa Malaysia-speaking Christian communities of Sabah and Sarawak for over 400 years has ever threatened public order.
“It is not disputed that Bahasa Malaysia has been the language of the native people in Sabah and Sarawak.
“As can be discerned from affidavits by the applicant (Ireland) and several other affidavits, all of which have not been rebutted, it cannot be denied that the Christian community in Sabah and Sarawak used 'Allah' in Bahasa Malaysia in practicing their religion for centuries.
“It is also an established fact that use of the word 'Allah' has not led to public disorder,” she said.
The judge noted that affidavits by three Muslims tendered in court previously shown that the trio was not confused by the use of the word "Allah” by Christians.
Previous government's 10-point-solution
Nor Bee said the directive also went against the cabinet’s perspective on the issue, pointing at the previous administration’s reliance on the 10-point-solution to help resolve the issue of the word “Allah”.
In 2011, the then government had proposed the 10-point-solution to solve the issue of the use of the word “Allah” in the Bahasa Malaysia and Bahasa Indonesia versions of the Bible.
Those versions of the Bible are widely used for religious education by the Christian communities in Sabah and Sarawak. The premier then was Najib Abdul Razak.
“The 10-point-solution demonstrates the cabinet’s acceptance of the word 'Allah' use, which was never an issue in Sabah and Sarawak.
“It (word 'Allah') can be used in both states without restriction, and no conditions attached to local use of the Bible for indigenous communities there.
“I have reason to believe that the 10-point solution shows an all-encompassing religious tolerance pushed by the cabinet.
“If the cabinet had withdrawn the impugned (1986) directive when the 10-point solution (was proposed), there would not have been an issue,” Nor Bee said.
The judge also said that Ireland’s fundamental right to practice her faith has been violated via the 2008 seizure of the eight CDs.
“There was no dispute that the eight CDs were for her religious practice. There was no evidence to show that this ever went beyond her right to practice one’s own religion,” the judge said.
When met after proceedings, Ireland’s counsel Annou Xavier said the ruling struck down the 1986 directive involving the ban of the use of the word “Allah” by non-Muslims.
Meanwhile, his co-counsel Lim Heng Seng lauded the verdict as one that displays the judiciary’s readiness to safeguard the sanctity of the Federal Constitution and rule of law.
“The ruling demonstrates the court being prepared to uphold the supremacy of the Federal Constitution and the rule of law,” he said.
When asked of the ruling in relation to the one by the Federal Court in the Roman Catholic Church “Allah” matter, Lim explained that this ruling can be distinguished from the earlier case.
The lawyer said this is because the earlier case involved a challenge to a state enactment, while the present one does not involve any challenge against the state enactment.
Senior federal counsel Shamsul Bolhassan, who acted for the two respondents in the matter, said they have yet to decide whether to appeal the judge’s decision.
He represents the home minister (who was not named) and the Malaysian government.
Ireland, who was not seen present in court, was also represented by lawyer Tan Hooi Ping.
Lawyer Mohamed Haniff Khatri Abdulla, who acted for the Federal Territories Islamic Religious Council (MAIWP) and the Selangor Islamic Religious Council (MAIS), was present as amicus curiae in the matter.
Under the law, the Latin term amicus curiae means "friend of the court", namely someone who is not a party to a case but assists the court by offering information, expertise, or insight that has a bearing on the issues in the case.
Lawyers Simon SC Lim, Rodney Koh, Andrew Khoo and Cyrus Tiu conducted a watching brief for political party MCA, religious group SIB Semenanjung, the Christian Federation of Malaysia and the Bar Council respectively.