I received a copy of Datuk Nor Bee Ariffin's 96 page judgment in the case of 'Jill Ireland v Menteri Dalam Negeri & Kerajaan Malaysia' a few days ago. The actual decision was handed down on March 10.
The written judgment is comprehensive and difficult to digest, even for a 80 year old lawyer like me. For the general public, perhaps many will get lost halfway through. As I read it, I missed the comparatively simpler and shorter judgments of our distinguished Judges of yesteryears.
The facts of the case are as follows. Jill Ireland (the applicant) had challenged the government's actions in confiscating her 8 educational compact discs (CDs) containing the word "Allah" in their titles, which were meant for her personal use. That event took place on May 11, 2008 at the Sepang Low Cost Carrier Terminal (LCCT) airport upon her return from Jakarta, Indonesia.
On August 28, 2008, she filed an ex parte application for leave for judicial review, seeking the following reliefs, inter alia –
(a) certiorari to quash the decision of the Home Ministry;
(b) mandams to have the CDs returned to her;
(c) a declaration that under Article 11 she has the right to import the CDs to practise her religion;
(d) a declaration that under Article 8 she is protected from discrimination;
(e) a declaration that under Article 11 she is entitled to continue to use the word "Allah".
On May 4, 2009, leave was granted and the court began to hear the case. On July 21, 2014, after hearing submissions, the High Court granted her two orders – (a) certiorari to quash the seizure by the Home Ministry, and (b) mandamus, to return her CDs. The court did not address the constitutional issues.
The government and the Home Ministry appealed and the applicant also cross-appealed. On June 23, 2015, the Court of Appeal dismissed the appeal and allowed in part the cross-appeal. The constitutional issues were then sent back to the High Court to be heard.
The High Court heard submissions on the constitutional issues in October and November 2017. It was scheduled to deliver its decision in March 2018 but due to various reasons, it was deferred several times over the years.
Finally, on March 10, 2021, the High Court granted the following orders to the applicant –
Affirming her constitutional right to education and to practise her religion;
Affirming her constitutional guarantee against discrimination on religious grounds;
Declaring the Home Ministry's ban of "Allah" in Christian publications as unlawful and unconstitutional.
On March 15, the federal government gave notice of appeal. Significantly, in paragraph [7] of her judgment, the trial Judge described the applicant in the following words –
"She is a Malaysian citizen, a native Bumiputra Christian from the Melanau tribe of Sarawak. She has been schooled in the National Education System using Bahasa Malaysia as the medium of instruction. The applicant and her family have been using Bahasa Malaysia as their faith language in worship, prayers, intercession and in receiving religious instructions. They also use the Al-Kitab in Bahasa Indonesia and rely upon Bahasa Indonesia written and audio-visual materials in the practice of their Christian faith"
The trial Judge held there was no dispute that the 8 CDs confiscated by the government were "for her personal religious edification". She also held that the "impugned Directive" (issued by the Home Ministry dated 5 December 1986 prohibiting the use of 4 words – "Allah", "Kaabah", Baitullah" and "Solat") is contrary to Article 11(1) and therefore the applicant is entitled to the declaration sought in paragraph (c) – i.e. she has the right to import the CDs to practise her religion.
Finally, the trial Judge held that the "discrimination by the first respondent was apparent from the outset", and consequently the applicant is "entitled to the declaration sought in paragraph (d)" – i.e. that under Article 8 she is protected from discrimination.
What next? Several parties, including a Malay Ruler, had expressed concerns about the decision. Solicitor-General Datuk Abdul Razak Musa had confirmed that the notice of appeal was filed at the Court of Appeal on March 12.
A lot of work has to be done by the appellants' counsel, advisors and scholars, in the months ahead if they plan to have the Court of Appeal overturn the High Court's decision. We wait and see.
The writer, a former federal counsel at the Attorney-General's Chambers, is deputy chairman of the Kuala Lumpur Foundation to Criminalise War
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times
