London,30 October 2013

On 14 October 2013, the Malaysian Court of Appeal issued its judgment in Menteri Dalam Negeri v Titular Roman Catholic Archbishop of Kuala Lumpur, in which it ruled on whether a state prohibition on the use of the word “Allah” by a Roman Catholic publication was constitutional. In a decision which exposes the pervasive institutional discrimination against non-Muslims in Malaysia, the Court held that the imposition of the prohibition did not amount to a breach of the constitutional rights to freedom of speech and religion. 

The case related to a publication permit containing limitations issued by the government authorities in Malaysia to the Titular Roman Catholic Archbishop of Kuala Lumpur (the respondent) in relation to the publication “Herald – The Catholic Weekly”. The limitations included a prohibition on the use of the word “Allah”. The respondent challenged this prohibition, claiming it was illegal, null and void as a matter of administrative law and was in contravention of the fundamental constitutional rights to practise a religion other than Islam in peace and harmony (Article 3); freedom of religion (Article 11); freedom of speech and expression (Article 10); and instruct and educate the Catholic congregation in the Christian religion (Article 12). The High Court found in the respondent’s favour, quashing the prohibition. The government authorities appealed the decision to the Court of Appeal with seven other entities intervening in support of the government.

The Court of Appeal held that the government’s decision to impose the prohibition was correctly made in accordance with principles of administrative law. Furthermore, the prohibition was not in violation of the respondent’s constitutional rights. Addressing the issue of the respondent’s constitutional rights, the Court held that:

•  Article 3(1) of the Federal Constitution provides that Islam is the religion of the Federation but that other religions may be practised in peace and harmony. The prohibition did not violate Article 3(1). Islam’s constitutional importance was clear. The words “peace and harmony” in Article 3(1) were meant to protect the sanctity of Islam as the religion of the country and insulate it from any possible threats. The use of the word “Allah” by the publication had the potential to “disrupt the even tempo of the life of the Malaysian community” having an adverse effect on the sanctity of Islam envisaged by Article 3(1) and the right of other religions to be practised in peace and harmony.
• There was no violation of the respondent’s right to profess, practice and propagate his religion under Article 11. The history of the language of the bible showed that the word “Allah” was not used as the name of God and was not an integral or essential part of the faith and practice of Christianity.

The court did not address Article 10 (freedom of speech) or 12 (freedom to educate the Catholic population) of the Constitution.

ERT has long been concerned about the discrimination against minority religious groups in Malaysia and, in particular, about the restrictions on their freedom of speech and freedom to practise their religion. The present case is just one example of the widespread use of such prohibitions by the government to restrict the freedom of minority religious groups. ERT and its partner Tenaganita documented many other examples in its 2012 publication Washing the Tigers: Addressing Discrimination and Inequality in Malaysia. ERT is very disappointed that the promising decision that was made by the High Court in this case in 2009 has now been reversed. The Court of Appeal, by reiterating that “the sanctity of Islam” takes priority over fundamental constitutional rights, has demonstrated that Malaysia still fails to offer equality before the law to all religious groups. ERT urges the government to take up the recommendations made by ERT in Washing the Tigers, that: the Federal Constitution be amended to ensure full equality in all areas of life for all groups, including for all religious groups and, specifically, that Article 11 be amended to remove the discriminatory element relating to propagation of a religion other than Islam amongst Muslims.

To read ERT’s case summary click here

To read the judgments of the Court of Appeal click here

To read ERT’s Washing the Tigers: Addressing Discrimination and Inequality in Malaysia click here