The Court of Appeal’s flawed approach to the ‘kalimah Allah’ case – Wei Meng Lim-Kabaa

The recent decision of the Court of Appeal in the case of the “Titular Roman Catholic Archbishop of Kuala Lumpur” (popularly known as the “kalimah Allah case”) is both disappointing and also shocking.

Disappointing because the Court of Appeal missed an opportunity to innovatively advance the law on use of executive discretionary powers to restrict a fundamental right guaranteed by the supreme law of the country, and shocking because the right to religious freedom, as well as to free speech, so important in a multi-ethnic, multi-cultural and developing country, has been eroded with the balance tipped against a minority religious group.

In its judgment, the Court showed a lack of appreciation that the issue at hand is not simply one relating to the exercise of a discretionary power by the Minister under the Printing Presses and Publication Act 1984 (PPPA), but one which strikes at the heart of religious freedom guaranteed by the Malaysian Constitution, and which also calls into question the constitutional validity of state laws prohibiting use of certain Islamic words among non-Muslims ostensibly authorised under Article 11(4) of the Constitution.

A judicial review on an exercise of ministerial discretion in such a context must therefore go beyond the mere question of whether the power was exercised arbitrarily and unreasonably, and consider whether the specific restriction itself was necessary for the purpose it was intended to serve, and whether the measure taken was proportionate to the purpose so intended.

Without such an analysis, the Court of Appeal failed to offer any helpful guidance on how the executive should consider the “public order/national security” ground in the context of such a draconian measure imposed which has the effect of violating a fundamental liberty.

In essence, the court simply supported the ministerial decision by applying the reasoning of the ministry itself laid out in the ministry’s letter to the respondent without regard for analysing the submissions of the Respondent, and thus came out perceptibly biased in favour of measures which, in its view, would help preserve one religion.

Court at pains to support Ministerial decision

What is even more troubling is that the Court referred to Article 3 of the Constitution to, erroneously, “sanctify” Islam thus pitching one religion against another, and went on to portray a likely “ill feeling” of one community (in reality it could be just some individuals among that community) as though it were the entire “Malaysian” community. On this basis, public order was viewed as “welfare” of a minority community giving way to a larger community, and under Article 3 of the Constitution, all minority religions must be in harmony with Islam!

Sweeping factual statements of a highly provocative nature were made with no evidentiary support – as an example, not for one moment would a right minded Malaysian believe that Islam is “under threat” when it is the official religion and the greater majority of the population are Muslims.

It is incomprehensible why the court was at such pains to support the ministerial decision; in so doing so, it went even further than the “facts and circumstances” purported to have been considered by the ministry itself. It is shameful that against such drastic exercise of executive powers, the court showed not one iota of support for the fundamental right of a minority community. As though this was not enough, the Court also provided its own view on the use of the term “Allah” in the Christian religion based on limited research, and failed to consider expert evidence of the respondent nor the many expert opinions of renowned theologians – if it did, it would have come to a different view.

Necessity and proportionality when restricting a fundamental right

An outcome question is whether the public order/national security rationale as a restriction on free speech trumps the right to religious practice. Constitutional law would have benefited from more judicial analysis on the linkages between the two provisions in the Constitution; yet the Court of Appeal failed to do so, and simply deferred to the minister’s decision.

Under international legal principles, restrictions on a fundamental right (in this case, restrictions on the right to free speech is permitted under Article 10(2) of the Constitution) should be assessed based on two important principles, namely necessity for an intended purpose, and proportionality of the restrictive measure to that purpose.

The purpose of the ban on the word “Allah” is, ostensibly, to avoid “confusion” among the Muslims which may potentially lead to a breakdown in public order (the High Court ruled that there is no such evidence, particularly since the papers circulate within a small non-Muslim circle). The restriction considered to avert a disruption in public order, unfortunately entails the Catholic Malay language newspaper not being able to call God by the name the Malay-speaking Catholic church (and wider Christian church) has traditionally been using, and which is therefore very much part of its religious practice.

To consider the issue of necessity, an assessment would have to be undertaken based on a balancing of the likelihood of a disruption in public order against the effectiveness of a prohibition imposed on a religious newspaper with limited circulation, in averting a potential disruption.

The availability of other measures less draconian than the one under challenge should be considered, bearing in mind that the prohibition of the word is only one of two measures imposed. Would not the other measure of restricted circulation suffice? Could there be another measure imposed which would not risk violating a fundamental right, given that the likelihood of a disruption in public order is limited? As it is, a fundamental right is violated without public order being actually disrupted.

In regard to the element of proportionality, the effect and consequences of the restriction imposed would need to be assessed against the objective to avert a potential for disruption of public order. In this case, surely a restriction which has the effect of violating two fundamental rights – the right to freedom of religious practice and the right to print a Catholic newsletter for internal circulation – by any logic, will be disproportionate to the purpose sought to be achieved by the restriction, particularly given that an actual disruption in public order is highly unlikely.

The effect of the prohibition on the Malay-speaking Christian community is so severe that it would render meaningless the exercise of its right to religious practices, and would also render meaningless the right of the Catholic Church to print its Malay language Christian newsletter.

Unfair to ignore impact of restrictive act

The name used by any religious community to refer to God strikes deep into the heart of that religious community. A fair and equitable decision would have looked at the impact and consequences of the prohibition imposed by the Ministry on use of God’s name on the community suffering the prohibition, rather than on another which is said to be confused and which may create public disorder.

If the court were to be sensitive to protecting the fundamental rights enshrined in the Constitution, it should consider the rights of the community most negatively impacted by the restrictive act of the executive, and therefore need to be protected by the court. That is what courts are for.

What is already entrenched in the Constitution and is not challenged by any party, or a community not threatened by the action of the executive, does not need the court to further its protection. - loyarburok.com,