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Religious Liberty

Title: Submission
Description: SIB vs Minister of Internal Security & the Government of Malaysia

Please click here: The Full Submission.

SUMMARY

The SIB Sunday School Supervisor brought in certain publications from Indonesia. The Publications consists of Sunday School materials for the religious education of the children of the Church. These publications were detained by the Customs authorities under the Customs Act 1967 and handed over to the officers of the Ministry of Internal Security (Kementerian Keselamatan Dalam Negeri, KKDN).

Acting under the Printing Presses & Publications Act 1984, an officer of the Ministry prohibited the importation and withheld the delivery of publications. The KKDN Minister affirmed the decision through a letter dated 24.10.07, stating plainly that religious publications containing any of the 4 words “Allah”, “Kaabah”, “Baitullah” and “Solat” – which are exclusive to the religion of Islam – are prohibited from being distributed in Malaysia. Several reasons were given: 

  1. that Article 3(1) of the Federal Constitution states that Islam is the official religion of the Federation; 
     
  2. that Article 11(4) of the Federal Constitution permits laws to be made to control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam; 
     
  3. that several states have made laws to control or restrict propagation among persons professing the religion of Islam and have prohibited the use of certain words or phrases of the religion of Islam in publications of other religions;
  4. that due to the differences in the words and phrases prohibited, confusion has arisen as to what words and phrases are prohibited in particular in Christian publications in the Indonesian language; 
     
  5. that in the late 1970s and early 1980s there was uneasiness [kegelisahan] among the community and problems of enforcement among religious officers in the various states due to differences as to the words and phrases prohibited; 
     
  6. that following the above, the issue had become sensitive and had been classified as a security issue;  
     
  7. that the Government had decided that the KKDN which controls published materials under Section 7(1) of the Printing Presses And Publications Act 1984 is to deal with the issue; 
     
  8. that the Government had gazetted the prohibition of the Alkitab in Malaysia under Section 22 of the Internal Security Act 1960 – Internal Security (Prohibition of Documents) (No. 3) Order 1982; 
     
  9. that special exemption was made to the said prohibition permitting the Alkitab to be possessed by Christians in churches – Internal Security (Prohibition of Documents) (No. 4) Order 1982;  
     
  10. that there was continuing confusion and uneasiness in the community when enforcement on the use of the words and phrases in religious publications was not effective; 
  11. that on 19th May 1986, the Government had decided that the words “Allah”, “Kaabah”, “Baitullah” and “Solat” are words and phrases exclusive to the religion of Islam and cannot be used in published materials of other religions except to explain concepts pertaining to the religion of Islam: 
     
  12. that a KKDN circular dated 5th Dec 1986 was issued to Christian publishers to comply with that decision;    
      
  13. that the Government had permitted the use of the Alkitab by Christians in churches only and not in any other places; but that permission did not extend to other Christian publications other than the translation of the Bible in Bahasa Malaysia, i.e. the Alkitab;  
       
  14. that the Government practices religious freedom as enshrined in the Federal Constitution but bears the responsibility of avoiding any confusion in the community of various religions – for if confusion were to occur will threaten security and public order;  
      
  15. that religious sensitivity must be respected and preserved by all;  
      
  16. that the SIB as a religious institution with a large number of followers also bears the responsibility for promoting religious harmony in the community. 

Grounds for Judicial Review

The SIB is seeking leave to apply for judicial review of the KKDN decision.

The grounds for judicial review are: KKDN had 

  1. acted unconstitutionally, 
     
  2. erred in law and/or 
     
  3. acted in excess of and/or without jurisdiction and/or 
     
  4. denied the SIB its legitimate expectations when it made the decision to refuse the importation and to withhold the delivery of the publications. 

The reliefs sought are in short based on (a) administrative law grounds of illegality and irrationality and (b) unconstitutionality and (c) denial of legitimate expectations.

1. Illegality

(a) The Minister erred in law when he failed to take into account various relevant considerations, which ought to have been taken into account. These are among other things:

  1. the Christian usage of the word “Allah” predates Islam being the name of God in the old Arabic Bible as well as in the modern Arabic Bible used by Christians in Egypt, Lebanon, Iraq, Indonesia, Malaysia, Brunei and other places in Asia, Africa etc. There is no problem and/or breach of public order and/or sensitivity to persons professing the religion of Islam in these countries; 
     
  2. In Bahasa Malaysia and Bahasa Indonesia, the word “Allah” has been used continuously in the printed edition of the Matthew’s Gospel in Malay in 1629, in the first complete Malay Bible in 1733 and in the second complete Malay Bible in 1879 until today in the Perjanjian Baru and the Alkitab; 
     
  3. that the Bahasa Malaysia speaking Christian native peoples of Peninsular Malaysia, Sarawak and Sabah had always and have continuously and consistently used the word “Allah” for generations and the said word “Allah” is used in the Bahasa Malaysia and Bahasa Indonesian translations of the Bible used throughout Malaysia; 
     
  4. that the Publications consist of Sunday school materials intended for the religious instruction of children of Bahasa Malaysia speaking congregationists and are not for sale or distribution outside the Church; 
     
  5. that the Publications contains nothing which is likely to cause public alarm and/or which touches on the sensitivities of the religion of Islam; 
     
  6. (vi) that the prohibition of the Publications is in any event unlawful and unconstitutional in that it violates Articles 3, 8, 11, 12, 74, 76 and 149 of the Federal Constitution; 
     
  7. that access to and use of the Publications are in pursuance of the right of the SIB members to instruct their children and is protected by Articles 3, 8, 11 and 12 of the Federal Constitution;
       
  8. that the Internal Security (Prohibition of Documents) Order 1982 prohibiting absolutely the printing, publication, sale, issue, circulations or possession of the Alkitab and the issuance of the KKDN circular dated 5th Dec 1986 is unconstitutional, being inconsistent with Articles 3, 8, 11,12 74, 76 and 149 of the Federal Constitution.(viii)


(b) There is no factual basis for KKDN policy circular dated 5th Dec 1986 – the word “Allah” is exclusive to the religion of Islam and that it cannot be used in published materials of other religions except to explain concepts pertaining to the religion of Islam.

2. Constitutional rights and unconstitutionality

The Federal Constitution is the supreme law of the land which is binding on both Federal Government, and its Ministers. Therefore both the legislative and executive arms of government are bound to act constitutionally.

The declaratory reliefs sought are, among others, as follows:

 (a)     It is the constitutional right of the SIB to import the Publications in the exercise of their right to practise their religion (Article 11);

 (b)     It is the constitutional right of the SIB and its members (Article 11 & 12):

  1. to use the term “Allah” in the Bahasa Malaysia and/or Bahasa Indonesia translations of the Holy Bible as well as in all religious publications and materials in the exercise of their right to  instruct their children in their religion;
     
  2. to import the Publications in the exercise of their right to  instruct their children in their religion;

(c)  In accordance with Article 8, the SIB and its members are guaranteed “equality of all persons before the law” and are protected from any form of “discrimination against citizens” in the administration of the law, in particular of the Printing Presses And Publications Act 1984 and of the Internal Security Act 1960;

(d)   In accordance with Article 3(1) which guarantees the right of all religions to be practised in peace and harmony in any part of the federation, and in accordance with Article 8 read with Article 11, the SIB and its members are entitled to use the word “Allah” and to have access to the Alkitab in Bahasa Malaysia and Bahasa Indonesia and all published materials including the right

  1. to own, to possess, and to use not only in churches but in any place, dwelling or building in the practice of their religion; and
  2. to import published materials containing the word “Allah”;

(e)   Article 3(1) stating that Islam is the official religion of the Federation does not authorise the Government to prohibit the use of the term “Allah” and/or to prohibit possession of the Alkitab in Bahasa Malaysia and Bahasa Indonesia and all published materials;

(f)    The order prohibiting absolutely the printing, publication, sale, issue, circulation or possession of the Alkitab purportedly under Section 22 of the Internal Security Act 1960 is in excess and ultra vires of the said Act and/or unconstitutional and therefore null and void and of no effect;

(g)   The decision to permit the use of the Alkitab by Christians in churches only and not in any other places is unconstitutional and null and void being contrary to Articles 3, 8, 11 and 12 of the Federal Constitution;

(h)   The government’s action in categorising the use of the words “Allah, “Baitullah”, “Solat” and “Kaabah” as “sensitive” and as a “security issue” followed by making the order prohibiting absolutely the printing, publication, sale, issue, circulations or possession of the Alkitab and the issuance of the KKDN circular dated 5th Dec 1986 is an unconstitutional exercise of executive and/or legislative power; it is therefore null and void being contrary to Article 3, 8, 11, 12,  74, 76 and 80 of the Federal Constitution;

3.         Irrationality/unreasonableness

The KKDN Minister’s decision and action is irrational, perverse and illogical:

(a)   While the Bahasa Malaysia speaking congregations are permitted to use the word “Allah” for worship and instruction and that the same is permitted in the Alkitab, the same cannot be used in the instruction of children of in other religious publications including the Publications;

(b)   The Sunday School teachers who instruct the children are required to use another word to denote the Bahasa Malaysia word for “God” instead of the word “Allah” when such is and has always been the word used for the word “God” in the Church and throughout the Bahasa Malaysia speaking Christian community.

 4.         Legitimate expectations

It is the legitimate expectations of the Natives of Sabah, Christians and non-Muslims, to fully exercise their rights to religious freedom.

The Report of the Commission of Enquiry, North Borneo and Sarawak, 1962, (commonly referred to as the Cobbold Commission after the name of its Chairman) noted the reservations of the non-Muslim Communities of the two territories to the provision making Islam the religion of the Federation.  The views of the two members from the Federation of Malaya which prevailed over the British members contain the assurance that:

“Taking these points fully into consideration, we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no way jeopardizes freedom of religion in the Federation, which in effect would be secular.”

Therefore the federal government and all its ministers are obliged to meet and to fulfill the legitimate expectations of the SIB and its members with regard to the protection of their religious rights including the freedom to practice their religion without unlawful or unconstitutional interference.

 



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