Far from putting the issue to rest, the Federal Court 4-3 majority judgment last Monday favourng the government over the Herald case now seems to be stirring the hornet's nest in the Jill Ireland case at the High Court in Kuala Lumpur this morning.
Senior counsel Philip Koh, who is keeping a watching brief for the Majlis or council of non-Muslims religions, pointed the case is not confined to Christians as Sikhs and others also use the word 'Allah' to refer to God in their Holy Scriptures. He cited the dissenting judgment of Datuk Zainum Ai that “a secular court such as ours is ill-equipped to determine the veracity, accuracy or even sincerity of subjective religious beliefs about doctrine and practices. Such disputes were certainly outside the recognised perimeters of judicial competence.”
In a very brief defence of the government that lasted only a few minutes, Senior Federal Counsel Munahyza Musafa together with Shamsul Bolhassan, submitted that the government was right is seizing the eight CDs belonging to Jill Ireland at the LCC Sepang airport on 11 May 2008. This was because they contain the word 'Allah which is prohibited by the cabinet and that they breached the guidelines on such words issued by Jakim and were a threat to public order. The rest of their defence is by way of written submission.
Jill, a bumi has same status as Malays
Nizam Bashir for Jill Ireland, together with Lim Heng Seng and Annou Xavier, argued that the word 'Allah' has been in use by Bumiputera Christians in the Borneo states for generations long before the formation of Malaysia in 1963. The word was already in use before the coming of Islam as indicated by the name of the father of the Prophet of Islam which was 'Abdullah' which means servant of Allah.
Munahyza disagreed because Allah in Islam refers only to one God whereas it refers to three Gods in Christianity.
Lim said Jill Ireland binti Lawrence Bill, 33, is a Malay speaking Sarawakian Bumiputera Christian of Melanau ethnicity. Defined as a native under both the state and Federal Constitutions, she, therefore, enjoys the same special position and protection as Malays and other natives of Sabah and Sarawak under Article 153. She uses the Malay language Bible -Alkitab – which contains the word 'Allah' to refer to God. She also uses the same word in other Christian resources including CDs as well as in church liturgy, songs, prayer, worship, and personal devotion and edification.
On 20 Aug 2008, she filed an application to the Kuala Lumpur High Court for a certiorati order to quash the minister's decision and for the return of her CDs and seven other declarations. She wants the court to declare that she has the constitutional right to own, use and import materials containing the word “Allah”, the legitimate expectation to profess and practise her religion including the right to use the word 'Allah' without discrimination and other reliefs.
The case is before Justice Datuk Zaleha Yusof. She is the same judge who heard the Sidang Injil Borneo Sabah (SIB) church's application for leave for a judicial review earlier. She dismissed it on 5 May 2014 on the grounds that she is bound by the Court of Appeal's decision on the Herald case that the use of the word 'Allah' to refer to God is not integral to the Christian faith. The SIB Sabah case involves the seizure of Christian publications containing the word 'Allah' in Bahasa Indonesia meant for religious education of their children at the Sepang airport in 2007 on transit to Kota Kinabalu.
Obiter and not binding
Lim, who is also the lead counsel in the SIB Sabah case, pointed out that the Federal Court in a majority decision on 23 June 2014 ruled that the Court of Appeal's position on the use of the word 'Allah' is not binding as it is merely an obiter (dictum); a by-the-way remark of the judge/s which is not necessary nor binding as legal precedent.
Lim's lengthy sumbsmission that lasted more than an hour, was that the Attorney General has already said the decision of the Court of Appeal is confined to the Bahasa edition of the Catholic Herald weekly newspaper.
Within hours following the Federal Court decision, the Prime Ministe's Office (PMO) has also released a statement that the decision applies only to the Herald and other Christians can continue to use the word 'Allah.' In short, he said both the Court of Appeal and Federal Court decisions are not legally binding nor have they set precedent as to the theology or exclusivity of the usage of the word 'Allah' in Jill Ireland's case.
In an impassioned plea, Lim said Jill Ireland is seeking justice from the court. “This case is not about Christians pitting themselves against Muslims; Christianity against Islam; or a citizen who is acting disloyally as some quarters would try to make a caricature of Malaysians who assert their rights in a court of law, but a native Bumiputera Chritian seeking her constitutional rights,” he said.
“She does so assured that the rule of law will be upheld and that she is not dealt with unlawfully by the government and that Putrajaya says what it means and means what it says.”
Fundamental liberties cannot be set aside even in an Emergency
Lim pointed out that the supremacy of the constitution and the rule of law appear to have been seriously subverted and transplanted by the alien doctrine of supremacy of the religious bureaucracy and the rule and dictates of the religious authority.
He said the Federal Constitution places Article 11 (guarantee of religious freedom) at the highest hierarchy of fundamental liberties together with the Article 8 (right to equality).
This can be seen from the manner in which the Federal Constitution jealously guards these rights from restrictions and controls compared with other fundamental liberties.
He added that even in a declaration of emergency rule, such fundamental liberties are protected and cannot be set aside.
Departmental aggression
There was a stunned silence in the courtroom packed with reporters from over 20 newspapers and agencies and lawyers when Lim went for the jugular when he described the government's action as “departmental aggression”. On watching briefs were lawyers for the Bible Society, the Ttitular Roman Catholic Archbishop, SIB Semananjung, SIB Sabah, SIB Sarawak, National Evangelical Christian Fellowship, Association of Churches in Sarawak, Sabah Council of Churches and the Majlis.
He said what has been perfectly lawful, legitimate and non-controversial on Malaysia Day 51 years ago and long before has, by an administrative act, been rendered unlawful and illegitimate and subject to departmental aggression on some notion that the use of the term 'Allah' in Christian publications causes confusion, raises religious sensitivities and poses a threat to public order.
“The purported exercise of statutory discretion under the PPPA on some pretext of confusion, sensitivity and national security where none existed before represents a shameful breach of the constitutional guarantees to the peoples of Sabah and Sarawak as part of the conditions for their states to sign the Malaysia Agreement.”
Acted outside their jurisdiction
Lim said the involvement of JAKIM, the federal Islamic Development agency, brings another objectionable feature of the administration of the Printing Presses and Publicatins Act 1984 (PPPA) by the minister and government into focus.
“There is clear evidence of surrender of discretionary power to an extraneous third party. As noted above, one of the three (3) grounds cited is “Melanggar Garis Panduan JAKIM”. Here we have a department which is not vested with any lawful authority in the administration of the PPPA dictating and directing how an officer under the PPPA is to exercise his powers,” he said.
“It is submitted that viewed objectively it is evident that rather than exercising an independent statutory discretionary power, the Minister had acted under the dictation of JAKIM.”
Lim highighted another instance where the governmnt had acted unconstitutionally. He said Islam, which is fundamentally a state matter under the Constitutional Lists, appears to have been intruded into by a Federal Minister and his officials.
“In prohibiting the use of the term “Allah” including the other terms “Baitullah”, “Solat” and “Kaabah” in the Arahan Kerajaan dated 19 May1986, they have transgressed into a matter which is not within their constitutional powers, “ he said.
He also said the Respondents who are Federal Government and a Federal Minister have taken upon themselves the constitutional power to control or restrict propagation of religious doctrine or faith among Muslims. This is a jurisdiction vested in the various state legislative assemblies pursuant to Article 11(4) of the Federal Constitution.
“The Respondent’s action constitutes an act on the part of the Federal Government and its officials using the PPPA to enforce the several state enactments controlling and restricting propagation. Enforcement of the enactment with regard to Selangor is by “authorized officers” appointed by the Ruler in Council. This is tantamount to a collateral use of the PPPA by federal agencies to enforce state enactments which are for the states to determine and not the Federal Government. Thus, the disputed decision constitutes not only unlawful and unconstitutional usurpation of state powers under the guise of the PPPA but also a colourable excuse and collateral use of the PPPA,”Lim said.
Background facts
Jill Ireland Case- KL High Court 9.00 a.m. Monday 30 June 2014
(Bahagian Rayuan dan Kuasa-kuasa Khas)
Permohonan Bagi Semakan kehakiman No: R25-256-2008 antara Jill Ireland binti Lawrence Bill dan Menteri Dalam Negeri Malaysia dan Kerejaan Malaysia.
Lead Counsel: Lim Heng Seng
Judge: Justice Datuk Zaleha Yusof
Watching Brief:
1. Andrew Khoo for BSM (Bible Society of Malaysia)
2. Rodney Koh for SIB Semananjung
3. Bobby Chew for SIB Sabah
4. Datuk Kenny Ng for SIB Sarawak
5. Lim Fang Say for NECF;
6. Leonard Shim for ACS (Association of Churches in Sarawak);
7. Bernard Scott for SCC.(Sabah Council of Churches).
Summary
Jill Ireland binti Lawrence Bill, 33, is a Malay speaking Sarawakian Bumiputera Christian of Melanau ethnicity. Defined as a native under both the state and Federal Constitutions, she, therefore, enjoys the same special position and protection as Malays and other natives of Sabah and Sarawak under Article 153. She uses the Malay language Bible -Alkitab – which contains the word 'Allah' to refer to God. She also uses the same word in other Christian resources including CDs as well as in church liturgy, songs, prayer, worship, and personal devotion and edification.
On 11 May 2008 she flew back from Indonesia to the LCC Sepang airport wth eight CDs for her personal use which contain the word 'Allah. These were seized by the Home Ministry allegedly under the Printing Presses and Publications Act 1984 (PPPA). The reasons being; “Istilah Larangan” (Prohibited Terms), “Ketenteraman Awam” (Public Order), and “Melanggar Garis Panduan JAKIM” (Breaches JAKIM’s Guidelines).
On 20 Aug 2008, she filed an application to the Kuala Lumpur High Court for a certiorati order to quash the minister's decision and for the return of her CDs and seven other declarations. She wants the court to declare that she has the constitutional right to own, use and import materials containing the word “Allah”, the legitimate expectation to profess and practise her religion including the right to use the word 'Allah' without discrimination and other reliefs.
Justice Zaleha is the same judge who heard the Sidang Injil Borneo Sabah (SIB) church's application for leave for a judicial review earlier and she dismissed it on 5 May 2014 on the grounds that she is bound by the Court of Appeal's decision on the Herald case that the use of the word 'Allah' to refer to God is not integral to the Christian faith. The SIB Sabah case involves the seizure of Christian publications containing the word 'Allah' in Bahasa Indonesia meant for religious education of their children at the Sepang airport in 2007 on transit to Kota Kinabalu.
However, the Federal Court in a majority decision on 23 June 2014 ruled that the Court of Appeal's position on the use of the word 'Allah' is not binding as it is merely an obiter (dictum); a by-the-way remark of the judge/s which is not necessary nor binding as legal precedent.
Highlights of submission
Lawyers for Jill Ireland are making additional submission that the Attorney General Chambers has already said the decision of the Court of Appeal is confined to the Bahasa edition of the Catholic Herald weekly newspaper.
Within hours following the Federal Court decision, the Prime Ministe's Office (PMO) has also released a statement that the decision applies only to the Herald and other Christians can continue to use the word 'Allah.' In short, both the Court of Appeal and Federal Court decisions are not legally binding nor have they set precedent as to the theology or exclusivity of the usage of the word 'Allah'.
Freedom of Religion
The Federal Constitution places Article 11 guarantee of religious freedom at the highest hierarchy of fundamental liberties together with the Article 8 right to equality.
This can be seen from the manner in which the Federal Constitution jealously guards these rights from restrictions and controls compared with other fundamental liberties.
Islam and Freedom of Religion in Sabah and Sarawak
When Sabah and Sarawak agreed to confederate with Malaya to form Malaysia in 1963, the word 'Allah' was already in use there for generations by Bumiputera Christians there. The first time it was used as a portion of Christian Scriptures published in the Malay language was in 1629.
The Merdeka Constitution (1957) allows for Islam to be the religion of the federation. However, when Malaya wanted this provision to be extended to the Malaysia Constitution (1963), both Sabah and Sarawak wanted specific quarantees for complete freedom of religion that is in practice in the Borneo states.
The Malaysia Constitution (1963) thus explicitly guarantee religious freedom with a special position of Islam as the official religion of the Federation. The Malaysia Constitution guarantees the religious rights of natives Bumipitera Christians in Sabah and Sarawak and complete freedom of religion would be guaranteed in the Federal Constitution and further that there would be no hindrance placed on the practice of other religions.
Any claim to exclusivity of the term 'Allah' at the expense of the native Bumiputera Christians of Sabah and Sarawak cannot prevail given the constitutional provisions on religious liberty and freedom. The decision to confiscate the eight CDs because they contain the word 'Allah' is a clear unconstitutional infringement of Jill Ireland's rights.
The purported exercise of statutory discretion under the PPPA on some pretext of confusion, sensitivity and national security where none existed before represents a shameful breach of the constitutional guarantees to the peoples of Sabah and Sarawak as part of the conditions for their states to sign the Malaysia Agreement.
What has been perfectly lawful, legitimate and non-controversial on Malaysia Day 51 years ago and long before has, by an administrative act, been rendered unlawful and illegitimate and subject to departmental aggression on some notion that the use of the term 'Allah' in Christian publications causes confusion, raises religious sensitivities and poses a threat to public order.
Unconstitutionality: Federal Power and state jurisdiction
Another constitutional issue is the division of powers between the federal and the constituent state governments. Islam, which is fundamentally a state matter under the Constitutional Lists, appears to have been intruded into by a Federal Minister and his officials.
The Respondents who are the Federal Government and a Federal Minister have taken upon themselves matters which are within the province of the states. In prohibiting the use of the term “Allah” including the other terms “Baitullah”, “Solat” and “Kaabah” in the Arahan Kerajaan dated 19 May1986, they have transgressed into a matter which is not within their constitutional powers.
The Respondents who are Federal Government and a Federal Minister have taken upon themselves the constitutional power to control or restrict propagation of religious doctrine or faith among Muslims. This is a jurisdiction vested in the various state legislative assemblies pursuant to Article 11(4) of the Federal Constitution.
The Respondent’s action constitutes an act on the part of the Federal Government and its officials using the PPPA to enforce the several state enactments controlling and restricting propagation. Enforcement of the enactment with regard to Selangor is by “authorized officers” appointed by the Ruler in Council. This is tantamount to a collateral use of the PPPA by federal agencies to enforce state enactments which are for the states to determine and not the Federal Government. Thus the disputed decision constitutes not only unlawful and unconstitutional usurpation of state powers under the guise of the PPPA but also a colourable excuse and collateral use of the PPPA.
Illegality: Acting at behest of Jakim
The involvement of JAKIM brings another objectionable feature of the administration of the PPPA by the minister and government into focus. There is clear evidence of surrender of discretionary power to an extraneous third party. As noted above, one of the three (3) grounds cited is “Melanggar Garis Panduan JAKIM”. Here we have a department which is not vested with any lawful authority in the administration of the PPPA dictating and directing how an officer under the PPPA is to exercise his powers.
It is submitted that viewed objectively it is evident that rather than exercising an independent statutory discretionary power, the Minister had acted under the dictation of JAKIM. - Media statement issued by Jill Ireland's support group
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