Objection: In allowing the use of the word “Allah” would be illegal as it would be going against the existing laws to control and restrict the propagation of religious doctrine or belief among Muslims in various states.

The Judge took cognizance that 10 states have, pursuant to Article 11(4) of the Federal Constitution, enacted laws to control and restrict the propagation of religious doctrine or belief among Muslims and that Section 9 of the various State Enactments provide for an offence relating to the use of certain words and expressions listed in the relevant schedules which include the word “Allah”.

The Judge: On the seeming conflict between the State Enactments and the Federal Constitution, in constitutional interpretation, the Court must be mindful of the following principles, namely:

(i) the fundamental liberties guaranteed under Part 11 of the Federal Constitution must be generously interpreted and that a prismatic approach to interpretation must be adopted; the provisions of Part 11 contain concepts that house within them several separate rights and the duty of the Court is to discover whether that particular right claimed as infringed by state action is indeed submerged within a given concept;

(ii) provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively;

(iii) the test to be applied in determining whether a constitutionally guaranteed right has been violated is “whether it directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory’”;

(iv) the fundamental rights guaranteed under Part II is part of the basic structure of the Constitution and that Parliament cannot enact laws (including acts amending the Constitution) that violate the basic structure”. Two Approaches

1. The Judge agreed with the submission by the HERALD that the correct way of approaching Section 9 is that it ought to be read with Article 11(4).

For guidance in determining the mischief that the State Enactments sought to cure, the Judge referred to the preamble to the State Enactments where it provides:

“WHEREAS Article 11(4) of the Federal Constitution provides that State law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. AND WHEREAS it is now desired to make a law to control and restrict the propagation of non-Islamic religious doctrines and beliefs among persons professing the religion of Islam”.

The Judge then went on to hold that “If Section 9 is so read in conjunction with Article 11(4), the result will be that a non-Muslim could be committing an offence if he uses the word “Allah” to a Muslim but there would be no offence if it was used to a non-Muslim. Indeed Article 11(1) reinforces this position as it states, “Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it”. Clause 4 restricts a person’s right only to propagate his religious doctrine or belief to persons professing the religion of Islam. So long as he does not propagate his religion to persons not professing the religion of Islam, he commits no offence. It is significant to note that Article 11(1) gives freedom for a person to profess and practise his religion and the restriction is on the right to propagate”.

“If the Court does not accept such a construction, it would render the fundamental rights as enshrined in Articles 3, 8,10,11 and 12 relied on by the HERALD as illusory”.

2 . As an alternative approach of constitutional interpretation, the Judge adopted the doctrine of proportionality. The test is whether the legislative state action which includes also executive and administrative acts of the State is disproportionate to the object it seeks to achieve. In determining whether the limitation is arbitrary or excessive the Court has to apply the threefold test — whether legislative or executive — that infringe a fundamental right must:

(i) have an objective that is sufficiently important to justify limiting the right in question;

(ii) the measures designed by the relevant state action to meet its objective must have a rational nexus with that objective; and

(iii) the means used by the relevant state action to infringe the right asserted must be proportionate to the object it seeks to achieve.

Applying the above approach to the facts at issue:

On the one hand, the constitutional and fundamental rights of person professing the Christian faith to practise their religion and to impart their faith/religion to persons within their religious group and in this case, the Catholic Church comprises a large section of people from Sabah and Sarawak whose medium of instruction is Bahasa Malaysia and they have for years used religious material in which their God is called “Allah”; for that matter there is a large community who are Bahasa Malaysia speaking from Penang and Malacca.

AND

On the other hand, the object of Article 11(4) and the State Enactments is to protect or restrict propagation to persons of the Islamic faith.

Conclusion: The Judge held that “by no stretch of imagination can one say that Section 9 of the State Enactments may be well be proportionate to the object it seeks to achieve and the measure is therefore arbitrary and unconstitutional. Following this it shows the (Government) has therefore taken an irrelevant consideration”.