The Judge had, earlier, dismissed the applications of the Majlis Agama Islam of the various states and the Chinese Muslim Association to intervene in the proceedings.

Objection: That “the issue of whether any publication in whatever form by a non- Muslim individual or body or entity that uses the sacred word of “Allah” can be permitted in law is one that is within the absolute discretion of the Rulers and the Yang di- Pertuan Agong (YPDA) (in respect of Penang, Malacca, Sabah, Sarawak and the federal Territories) as the respective Heads of Islam and is therefore non-justiciable.

The Judge: Dismissed their arguments on the following grounds, namely:

(i) the Federal Constitution and the State Constitutions clearly provide that the Rulers and the YDPA as the Heads of Islam in the States and the Federal Territories have exclusive authority only on Islamic affairs and Malay customs;

(ii) the control and regulation of all publications are governed by the Printing Presses and Publications Act 1984 and only the Minister for Home Affairs and not the Rulers and the YDPA can decide what is permitted to be published;

(iii) the present judicial review is not a review of a decision of the Rulers or the YDPA but only a judicial review of the Minister’s decision to ban the use of the word “Allah” by the Herald. Since the Rulers or the YDPA cannot make any decision in respect of any publications and matters connected therewith, the issue of non justiciability does not arise;

(iv) since the Minister has taken the position that only he has the exclusive power to impose a condition on the HERALD’s publication permit to prohibit the use of the word, “Allah”, any argument that only the Rulers or the YDPA has such powers or absolute discretion makes a complete mockery of the Minister’s stated position and powers;

(v) non justiciability is a ground for the civil courts to decline jurisdiction only when it is absolutely clear that the “judicial process is totally inept to deal with the sort of problems which it involves”. The civil courts are not only competent but are duty bound to exercise their jurisdiction when the issue is one that concerns the fundamental liberties of freedom of expression and religion of the HERALD under Articles 10 and 11 of the Federal Constitution;

(vi) the Rulers and YDPA have no prerogative powers to govern the affairs of other religions and the fact that the affairs of other religions are governed not by the Rulers and YDPA but by their own religious groups is clearly enshrined in Article 11(3) of the Federal Constitution. If any action is taken by the Rulers and the YDPA which affect the affairs of non Islamic religions, such action would be construed as unconstitutional. Further, if any laws other than those set out in Article 11(4) of the Federal Constitution are passed, such laws would also be construed as unconstitutional;

(vii) the legislative intent of the State Enactments is determined by the language of the Enactments and in so determining, the Court when called upon to do so can examine the constitutionality of these Enactments in so far as they affect the fundamental liberties of non Muslims.