The Court of Appeal on 10 September 2013 heard the Home Minister and the Government’s appeal against the High Court decision that allowed the Catholic Herald newspaper to use of the word 'Allah'.
Other parties to the appeal included 6 State Islamic Bodies and the Malaysian Chinese Muslim Association (MCMA).
Various other parties held a watching brief in support of the Kuala Lumpur Archbishop, the Respondent to the Appeal.
These include Sijil Injil Borneo, Sabah Council of Churches, Sarawak Council of Churches, Malaysian Council of Churches, Christian Federation of Malaysia and the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST).
The brief arguments in court are set out as follows:
Government’s submissions
Suzana Atan, Senior Federal Counsel submitted that the discretion accorded to the Home Minister under Section 6 of the Printing, Presses and Publication Act (PPPA) is an unfettered discretion. Judicial process via a Judicial Review of the Home Minister’s decision is not suitable when the Home Minister has to maintain public order.
She argued that the High Court Judge was wrong to hold that there must be actual incidences of public disorder before the Home Minister can invoke his discretion. She reasoned that the Home Minister can take pre-emptive measures.
She also submitted that the use of the word ‘Allah’ by Christians would cause confusion, since ‘Allah’ used by Muslims refers to the ONE God, whereas ‘Allah’ used by Christians refers to the concept of the Trinity i.e. the Father, Son and the Holy Spirit.
She finally submitted that the use of the word ‘Allah' in The Herald contravenes the State Enactments which makes it an offence to propagate Christianity to a Muslim (anti-propagation laws). These State Enactments provide a list of words (that include the word ‘Allah’) which cannot be associated with religions other than Islam. She relied on the words, ‘any law’ in S6 PPPA to confer the Minister with the power to prohibit the use of the word ‘Allah’ since the use of the word would violate these State Enactments.
State Islamic Bodies’ submission
Mubashir Mansor, counsel for the Terengganu Islamic body took the argument that the issue is non-justiciable. He argued that if Christians want to use the word 'Allah', they must first obtain the permission of the Ruler, the head of Islam in their respective States. He also agreed with the Government’s stand that the Minister took into account the anti-propagation laws when issuing the directive. He nevertheless conceded that it is a translation problem when translating from English to Bahasa Malaysia.
Hanif Khatari, counsel for MCMA submitted on two issues:-
a) That the Church failed to put forward sufficient material before the court to prove that 'Allah' is the correct translation for God; and
b) That Article 3(1) of the Federal Constitution imposes an obligation on the Federation to promote Islam.
He submits that this means other religions must be allowed to practice in peace and harmony with the religion of Islam.
Tan Sri Abdul Aziz, counsel for the Selangor State Islamic body explained that his Methuselah-like age has given him the benefit of experience. He submitted as follows;
a) The position of Islam in the Constitution is paramount, and
b) Allah is the Muslim God. Allah is not part of the Catholic faith. The Malay Bible is a translation and is not authentic, and
c) If the word Allah has been used in Sabah and Sarawak, it is not the Christian religion.
Counsels for the remaining appellants for the other State Islamic bodies adopted the above mentioned submissions.
Submissions by the Respondent
Mr Porres Royan, Counsel for the Kuala Lumpur Archbishop submitted that the Minister does not have an unfettered discretion. The exercise of his powers is still subject to review by the court notwithstanding the presence of ouster provisions in the legislation.
On the issue of national security/public order, he argued that the Government must produce some material before the Court and that a potential threat is insufficient. Porres referred the Court to various authorities which held that confusion does not constitute a public order issue.
He continued to submit that the Government has accepted that the word ‘Allah’ can be used in the Bible as enunciated in the 10 Point Solution. He argued that there is no reason why the word cannot be used in the Herald.
With respect to the various State Enactments (anti-propagation laws), Porres submitted that these Enactments must be read in light of Article 11(4) of the Federal Constitution; He explained that if a non-Muslim uses the word Allah to another non-Muslim, there is no propagation and therefore there is no offence.
He argued that the genesis of the Federal Constitution is to protect the minorities. He quoted Article 11(3)(1) of the Federal Constitution in support. The Article provides that every religious group has the right to manage its own religious affairs.
He also submitted that it does not mean the word Allah cannot be used by other religions, just because Islam uses the word.
Use of another word other than Allah
The Court enquired if there is another word in the Malay language in place of Allah.
Mr Benjamin Dawson, counsel for the KL Archbishop responded that that there is no other word for God other than Allah. Tuhan means Lord, he explained. He further submitted that the term Lord and God are used differently in the Bible. If the word Allah is used to propagate the religion, there are ample laws to enforce for non-compliance.
Reply by the Appellants
Ms Atan for the Government in response submitted that Bahasa Indonesia (Indonesian language) is not Bahasa Malaysia (Malay language). The 10 point solution is on the importation of the Bible and not on the usage of the word 'Allah'.
Mubashir counsel for the Terengganu State Islamic body submitted that the Respondent has failed to show that the word 'Allah' is an integral part of the Christian religion
A similar submission in reply was made by counsel for the Selangor State Islamic body who submitted that Allah is not an integral part of the Catholic faith. He argued that it is an integral part of the Muslim faith.
Decision Deferred
The Court of Appeal deferred its decision and informed that the decision will be delivered before the end of October 2013. The Court of Appeal was presided by Justice Mohamed Apandi bin Haji Ali and with him were Justices Abdul Aziz Bin Abdul Rahim and Mohd. Zawawi Bin Salleh, respectively.
The Kuala Lumpur Archbishop was represented by Porres Royan, Selvarajah, Benjamin Dawson and Annou Xavier.