A Brief Comment on the Court of Appeal’s Judgment in the Case of the Titular Roman Catholic Archbishop of Kuala Lumpur.
The unanimous decision of the Court of Appeal in Minister for Home Affairs and others v Titular Roman Catholic Archbishop of Kuala Lumpur (Civil Appeal No.W-01-1-2010, 14 October 2013) discusses some issues of fundamental importance in Malaysian constitutional law. The burden of this comment is that the court was fundamentally mistaken on a number of issues.
The case, known colloquially as the ‘Allah’ case, concerns the disputed right of a Catholic publication circulating in Malaysia, the Herald — the Catholic Weekly (‘the Herald’) to use ‘Allah’ as the word for the Christian God in its Bahasa Malaysia version. The Minister used the licensing procedure under the Printing Presses and Publications Act 1984, section 26(2)(d), which includes the power to impose conditions on licensed publications, to prohibit the Herald from using the word ‘Allah’ to denote the Christian God. The case arose from the Archbishop’s petition for judicial review of this condition, which was upheld by Justice Lau Bee Lan in the High Court of Kuala Lumpur in December 2009, which decision was then appealed successfully by the Minister to the Court of Appeal. It is material to note that the licence included two conditions, i.e. not simply the ‘Allah’ prohibition, but a restriction to circulation to Catholic churches and amongst Catholics: this latter condition was fully accepted by the Archbishop. The High Court granted an order of certiorari to quash the Minister’s decision, and issued declarations to the effect that the Archbishop had a constitutional right to use the word ‘Allah’ in the Herald.
The three Judges were agreed that the central issue was whether the Minister was acting within his powers under the statute; as the Court indicated, the concern is, as always in judicial review cases, not with the merits of the decision but with the manner in which the decision was made.
The first problem with the Court’s verdict is that it did not follow through on this premise and two of the judgments explore the substantive moral issue of whether the Herald should use the word ‘Allah’ as an aspect of the practice of Christianity amongst Malay-speaking Christians; with respect, the Court had already correctly stated that the issue was whether the Minister used his powers lawfully, and it is submitted that the exploration of this issue, taking up most of one of the three judgments and part of another, is quite irrelevant to the appeal. Scholars of comparative theology may well take up the Court’s use of scholarly sources in reaching its view (which it is suggested is either obiter dicta or per curiam).
Turning to the second, central issue of the Minister’s powers, the Court of Appeal based its decision on the interpretation of ‘public order’. The condition, in standard form set out in the First Schedule to the Printing Presses and Publications (Licences and Permits) Rules 1984, passed under the 1984 Act, prohibits material ‘which is prejudicial to or is likely to be prejudicial to public order, morality, security … or which is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to the public interest or the national interest’ (1984 Rules, Form B, para.6). The Court adopted an extremely wide view of the meaning of these words, adopting the language of national security, citing several cases on this topic suggesting that the scope of judicial review is severely restricted in such cases. The reasoning here, it is submitted, faulty in a number of respects. First, whether a matter is a one of national security does not depend solely on the Minister’s assertion that it is such a matter; the Court is obliged to satisfy itself that national security is in fact in question; there was no evidence of this. Secondly, given that the Herald was, with the Archbishop’s agreement, restricted to Catholics and their churches, it hard to see how anybody could conclude that national security was actually in question. Much of the decision is taken up with the statutory restrictions on the propagation of other religions amongst Muslims and the Minister’s attention to this issue. But again the issue seems irrelevant to the case. There was clearly no propagation of Christianity in a publication meant for Catholics only, especially when this very restriction was imposed by the Minister himself and the Archbishop agreed to it. Thirdly, a restrictive approach to cases of national security is evident preeminently in detention and deportation cases involving terrorism. These cases are very far from the facts considered in this appeal, which deals with freedom of expression and freedom of religion.
One odd feature of the facts of the case is that although the Herald had been circulating since 1999 (8 years before a restriction was imposed by the Minister), there had been no evidence of any prejudicial effect on public order. However, after the High Court’s decision, the Court of Appeal notes, there were some attacks on mosques and churches. Therefore the factual situation was different when the Minister made his decision from that which obtained when the Court of Appeal gave judgment. The Court concluded easily that the minister acted well within the law, but the judgments do not state with any clarity what considerations the court considered relevant or otherwise. Such an exercise seems essential, however, given that the appeal turns precisely on what considerations are relevant and irrelevant. The fact that the court decision seems to have provoked adverse responses by a few people raises some further troubling issues.
Admittedly the statute allows the Minister to consider likely effects on public order (note, ‘likely’, not ‘possible’). However, the Court seems to ignore here one very relevant matter. If the Minister is allowed to restrict acts which may provoke a hostile reaction or create a hostile environment, then he is in effect surrendering his exercise of discretion to those who pose the greatest or voice the loudest threat to public order, i.e. those who hold the most extreme views on the matter, and are prepared to threaten public order in expressing them. No government, surely, can properly restrict the exercise of individual liberty on the ground that it is likely to provoke a hostile reaction? In the present instance one wonders if it was the peaceful circulation of the Herald that was prejudicial to public order; or was public order prejudiced rather by the fact that the Minister had highlighted the issue as a threat to Islam? As we have seen this claim is very far-fetched. Yet the Court goes even further than this in concluding that ‘the application for judicial review on matters of the nature as in this appeal militates against the spirit of ‘peaceful and harmonious’ co-existence of other religion [sic] in this country [my italics]’.
The bottom line here is that if the state pays attention to violence or threats resulting from a court decision, even to the extent of discouraging citizens from testing the extent of their rights in litigation, then it is not just public order but the rule of law itself, and indeed the foundation of the state that is based on it, that is threatened. In this sense taking into account such violence or threats (as opposed to lawfully expressed disagreement, which can of course be quite relevant) cannot be a relevant consideration in the making of a ministerial decision; and a court surely has no business at all in ruling that a judicial review application in itself can be contrary to law – what is lawful is for the Court to decide and it cannot do so if cases are not allowed to be brought to it out of fear of the consequences, including the express disapproval by the court itself of the very initiation of an application for judicial review.
As has been indicated the case goes further than this to consider constitutional issues. The focus here is on the words ‘in peace and harmony’ in Article 3(1) which states: ‘Islam is the religion of the Federation but other religions may be practiced in peace and harmony in any part of the Federation’. The Court of Appeal has interpreted the phrase ‘in peace and harmony’ in the light of Article 11(4) which allows state law to restrict the propagation of other religions amongst Muslims. In doing so the Court has cited a passage from my own book, Law, Government and the Constitution in Malaysia (1996, p201), where I have stated that Article 11(4) in restricting proselytism has more to do with preservation of public order than with religious priority. This comment did not address Article 3(1). However, the tenor of the Court’s judgments on this issue suggests that they interpret ‘peace and harmony’ as protecting ‘the sanctity of Islam as the religion of the country and also to insulate against any threat faced or any possible and probable threat to the religion of Islam’. With respect, this reading goes directly against the passage cited concerning Article 11(4). But apart from that it adopts a curiously narrow interpretation of ‘peace and harmony’. Surely peace and harmony exist between two (at least) entities. This phrase might plausibly mean either i) that other religions may be practised provided they do not disturb the Muslim community in the practice of Islam; or ii) that other religions may be practised without being disturbed by others in the practice of such religion. Surely it should mean both of the above? The provision looks like an injunction to peace and harmony on the part of all in relation to all, not an injunction directed only to non-Muslims in their relation to Muslims. It cannot be case that Article 3(1) says nothing, for example, about the relations between Hindus and Buddhists, or between Catholics and Protestants. As the Court itself stated, Article 3(1) is indeed an aspect of the social contract, and it is surely intended to bind all citizens irrespective of religion. If Article 3 is to be read as in effect incorporating Article 11(4) , then it is odd that its five clauses make no reference whatever to Article 11(4) or to the issue of propagation. This excursus into Article 3(1) seems both wrong in principle and irrelevant to the case. As we have seen, propagation is an issue which simply does not arise on the facts. And yet the Court states that ‘it is reasonable to conclude that the intended usage will cause unnecessary confusion within the Islamic community and is surely not conducive to the peaceful and harmonious tempo of life in the country’. One remains baffled by the idea that Catholics speaking to each other about God could impinge upon the sanctity of Islam, cause confusion, or be a threat of any kind to anybody, let alone to national security.
Finally we have the issue of freedom of religion. The High Court found that the Minister had ignored the consideration that for centuries the word ‘God’ has been translated and used as ‘Allah’ in Malay and Indonesian translations of the Bible, and that ‘Allah’ has been used by Malay-speaking Christians in all parts of Malaysia. The Court of Appeal has turned this into a constitutional issue of freedom of religion, and has held that this usage is not an essential part of the practice of Christianity. Here one questions why freedom of religion means freedom to practise religion only in ways that are an essential part of that faith. Should the right question not rather be whether there is any consideration that prevents a person from practicing their religion in the way they think fit? After all, what is essential and orthodox in one type of religious practice might be anathema to adherents of a different mode of practice even within that same religion.
The ‘Allah’ case has raised a number of basic issues and it is to be hoped that an opportunity will be furnished in the Federal Court to revisit these issues and reach a better decision.