Clerk can argue rights to import publications with 'Allah' word in Malaysia's High Court

Clerk can argue rights to import publications with 'Allah' word in Malaysia's High Court
Lim Heng Seng, lead counsel representing Jill Ireland Lawrence, with his team after the Court of Appeal's decision.

PUTRAJAYA - A clerk can now argue in High Court her constitutional rights to import religious publications containing the word 'Allah' to practise her religion and right to education.

The appellate court on Tuesday granted the bid by Jill Ireland Lawrence Bill, 34, to put forward her arguments at the High Court. She is seeking a declaration that she is guaranteed equality before the law and protected from discrimination against a citizen on the grounds of religion in the administration of the law.

The Court of Appeal also upheld an order for eight audio compact discs or CDs containing the word 'Allah' that were seized from Bill to be returned to her within a month.

Justice Tengku Maimun Tuan Mat, who chaired a three-man panel, held that senior Customs officer Suzanah Muin who ordered the seizure was not authorised to do so.

The judge said Suzanah would be fully competent to issue an interim order to withhold suspected printed materials but she was "ill-equipped" to issue the seizure order.

"The evidence in this case supported the finding of the High court judge that this has been a classic case of ultra vires (beyond the powers), where a public official had acted in excess of what the law had authorised her to act."

"It was done beyond the powers of Section 9 of the Printing, Presses and Publication Act 1984 as it was made by a person (Suzana) who was not the person envisaged by Parliament as the competent person who was empowered to make that order, said Justice Tengku Maimun.

In the panel are Court of Appeal judges Justice Zakaria Sam and Justice Abang Iskandar Abang Hashim.

Justice Tengku Maimun said that the letter dated July 7, 2008, that was signed by Suzanah to confiscate the CDs, was bad in law.

"There is clear demarcation between the power given to the home minister under Section 9 and the power bestowed upon the senior authorised officer under Section 9A of the Act.

"We noted that there was nothing stipulated in Section 9 of the Act indicating that the power of the minister could be delegated to a subordinate authority.

"The fact of the matter is that there is no getting away from the cardinal principle so entrenched in public law domain that the exercise of a statutory power may only be exercised in the manner as indicated by the legislature as expressed in the statutory provisions," said the judge.

The Bench also dismissed an appeal by the Home Minister and Government against the ruling for the return of the CDs to Bill.

Justice Tengku Maimun allowed Bill's appeal in part and varied the order issued by the High Court.

On Bill's bid that she has constitutional rights to import religious publications to practise her religion and right to education under Article 11 of the Federal Constitution, the panel remitted the case to be heard on merits before another High Court judge.

The appellate court has set July 2 for mention at the High Court. There is no order as to costs.

High Court (Appellate and Special Powers) judge Justice Zaleha Yusof had ruled last year that it was clear a senior authorised officer could only seize materials pending a decision of the minister.

Justice Zaleha found that in this case, the decision was made by Suzanah and not by then-Home Minister Tan Sri Syed Hamid Syed Albar himself.

Speaking to reporters here, Senior Federal Counsel Shamsul Bolhassan said that he would seek further instructions from the Attorney-General whether to file leave to appeal and stay against the court ruling.

SFC Shamsul had argued that the Home Minister clearly explained in his affidavits that the withholding of Bill's eight CDs containing the word "Allah" was made pursuant to the Government's 1986 directives on grounds of public security and public order.

Bill's lead counsel Lim Heng Seng said they would adduce evidence to support the application, among others that Bill has rights to use the word 'Allah' as her right to profess and practise her religion.

Commenting on the appellate court's decision, Lim said the court has made the right decision to uphold constitution.

"It is not a question of victory but upholding rule of law," said Lim.

Lawyer Gan Ping Sieu, who held a watching brief for MCA, said that the appellate court has addressed administrative law correctly that there was an abuse of power and it was beyond the powers' decision to seize the CDs.

"The court has referred constitutional issues back to the High Court. We wish for the judiciary to uphold the spirit of the Federal Constitution," added Gan.

Lawyer Andrew Khoo, who held a watching brief for Christian Federation of Malaysia, Bible Society of Malaysia and Anglican Diocese of West Malaysia, said it was a fair and brave decision by an independent panel of judges who are prepared not to give in to the pressures of certain segment of society who wanted to restrict freedom of religion for non-Muslims in the country and protect the constitutional rights of Malaysians.

Sidang Injil Borneo Sarawak president Rev Dr Justin Wan said they were glad with the court ruling and would fight up to the apex court to get justice in favour of their church member Bill.

On May 4, 2009, Bill obtained leave from the High Court to challenge the Home Minister's decision to seize eight CDs that contained the word Allah.

Among the titles of the CDs are Cara Menggunakan Kunci Kerajaan Allah, Cara Hidup Dalam Kerajaan Allah, Ibadah Yang Benar Dalam Kerajaan Allah and Hidup Benar Dalam Kerajaan Allah.

In her application for a judicial review, Bill sought to quash the minister's decision to seize the CDs at the Low-Cost Carrier Terminal (LCCT) on May 11, 2008, and for the return of her CDs.

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