Jill Ireland Lawrence Bill v.

Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 231

A JILL IRELAND LAWRENCE BILL v. MENTERI BAGI

KEMENTERIAN DALAM NEGERI MALAYSIA & ANOR
HIGH COURT MALAYA, KUALA LUMPUR
NOR BEE ARIFFIN J
[JUDICIAL REVIEW NO: R4(2)-25-256-2008]
B
17 MARCH 2021
[2021] CLJ JT(7)

ADMINISTRATIVE LAW: Judicial review – Directive – Validity and

constitutionality – Christian publications in form of educational audio compact
C discs carrying word ‘Allah’ seized and confiscated following Directive issued by
Ministry of Home Affairs – Directive prohibited, inter alia, use of word ‘Allah’ in
Christian publications – Whether Directive mirrored and consistent with Cabinet's
policy decision – Whether Directive had statutory backing – Whether Minister
acted legally – Whether actions within limits of power prescribed by law – Whether
D Directive legal, valid and lawful – Whether had legal effects – Whether there was
adequate, reliable and authoritative evidentiary basis for Directive – Whether there
was disruption to public order and tranquility warranting Directive – Printing
Presses And Publications Act 1984, ss. 7(1), 9(1), 26(2)(d)
CONSTITUTIONAL LAW: Fundamental liberties – Freedom of religion –
E Christian publications in form of educational audio compact discs (‘CDs’) carrying
word ‘Allah’ seized and confiscated following Directive issued by Ministry of Home
Affairs – Directive prohibited, inter alia, use of word ‘Allah’ in Christian
publications – Constitutional right to import CDs in exercise of right to practice
religion and right to education – Whether there was deprivation of freedom of
F religion – Whether Directive offended art. 11 of Federal Constitution
CONSTITUTIONAL LAW: Fundamental liberties – Equality – Equality of all
persons before law and protection from discrimination against citizen – Christian
publications in form of educational audio compact discs carrying word ‘Allah’ seized
and confiscated following Directive issued by Ministry of Home Affairs – Directive
G prohibited, inter alia, use of word ‘Allah’ in Christian publications – Whether there
was inequality before law – Whether Directive offended art. 8 of Federal
Constitution
In 1986, a Directive was issued by the Ministry of Home Affairs (‘Ministry’)
then, to all Christian publications, which (i) permitted, subject to condition,
H
the use of 12 words; and (ii) prohibited the use of four words, which included
‘Allah’ (‘Directive’). In 2008, the applicant had landed at the Sepang Low
Cost Carrier Terminal, from Indonesia, when eight Christian educational
audio compact discs (‘CDs’) belonging to her, which carried the word ‘Allah’
in each of the titles, were confiscated. According to the applicant, a
I Malaysian, as a native Bumiputra Christian from Sarawak, (i) she and her
family used Bahasa Malaysia as their faith language in worship, prayers,
intercession and in receiving religious instructions; and (ii) used the AlKitab
and other written and audio-visual materials, which were all in Bahasa
232 Current Law Journal [2021] 4 CLJ

Indonesia, in the practice of their Christian faith. The applicant was detained A
and the Ministry at the material time confiscated the CDs (‘Ministry’s
decision’). Hence, the applicant commenced judicial review against the
Minister of Home Affairs (‘Minister’) and the Government of Malaysia
(‘Government’) (‘respondents’), at the High Court, seeking, inter alia, (i) an
order of certiorari to quash the Ministry’s decision (‘prayer (a)’); (ii) an order B
of mandamus to direct the Minister to return the CDs to the applicant (‘prayer
(b)’); (iii) a declaration that, pursuant to art. 11 of the Federal Constitution
('FC'), it was the constitutional right of the applicant to import the CDs in
the exercise of her right to practice religion and right to education (‘prayer
(c)’); and (iv) a declaration that, pursuant to art. 8 of the FC, the applicant
C
was guaranteed equality of all persons before the law and was protected from
discrimination against citizens, inter alia, on the grounds of religion in the
administration of the law, in particular the Customs Act 1967 and the
Printing Presses and Publications Act 1984 (‘Act’) (‘prayer (d)’). The High
Court allowed prayers (a) and (b). At the Court of Appeal, the respondents
D
filed an appeal against the High Court's decision while the applicant filed a
cross appeal. The Court of Appeal dismissed the respondent’s appeal and
allowed the applicant’s cross appeal; the judicial review matter was remitted
back to the present High Court to hear prayers (c) and (d). Even though the
direction by the Court of Appeal, in remitting the case to this court, was to
determine the constitutional issues in prayers (c) and (d) only, the applicant E
sought to amend and add to, inter alia, prayer (d) to seek a declaration that
the Directive issued by the Publication Control Division of the Ministry ie,
Circular: S. 59/3/9/A dated 5 December 1986, was unlawful and
unconstitutional (‘prayer (d)(B)’). The primary issue that arose in the present
judicial review concerned the validity and constitutionality of the Directive. F
Opposing the declaratory reliefs sought by the applicant, the respondents
argued that (i) the Directive was a Cabinet decision which related to the
policy of the Government, at that point of time, to avoid any confusion
among the Muslim and Christian community, which was likely to be
prejudicial to public order and could create religious sensitivity among G
Malaysians; (ii) the Act gives the power to the Minister to exercise his
discretion when it comes to any publication which he feels is prejudicial to
public order, as exercised in this case; and (iii) there could not be any
violation of religious freedom because the right to freedom of religion was
not absolute as it was still subject to general law relating to public order
H
pursuant to art. 11 of the FC and it was here that the Act, a Federal law
provided for by art. 11(5) of the FC that related to public order, came into
play.

I
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 233

A Held (allowing application; granting declarations sought in prayers (c), (d)

and (d)(B)):
(1) A letter dated 19 May 1986 from the Prime Minister (‘PM’) to the
Secretary General, the Ministry then, showed that the Cabinet had
discussed and the Deputy Prime Minister (‘DPM’) was assigned to
B determine the words permitted/prohibited to be used in the Christian
religion, with the note from the DPM (‘DPM’s note’) (‘PM’s letter’).
The DPM’s note was couched in unambiguous terms and related to the
subject ‘Istilah/Perkataan Islam di dalam ‘AlKitab’ yang Tidak Boleh
Digunakan’. The AlKitab was an Indonesian translation of the Bible
C where the word ‘Allah’ appeared. The DPM’s note simply meant that
12 words could be used unconditionally while four words could be used
subject to the condition ‘... di luar kulit (muka depan) buku-buku itu
ditulis perkataan ‘Untuk Agama Kristian’ (‘condition in the DPM’s
note’). The PM’s letter endorsed the ‘Keputusan’ contained in the
D DPM’s note. It was reasonable to infer that the ‘Keputusan’ in the
DPM’s note became the Cabinet’s policy decision on the words that
could and could not be used by the Christian religion. (paras 72, 74 &
82)
(2) The Directive must mirror the Cabinet’s policy decision. However,
E there appeared to be marked discrepancies between the Cabinet’s policy
decision and the Directive. There was a departure in the Directive from
the Cabinet’s policy decision. In relation to the 12 words, there was
attached, in the Directive, the words ‘Sekiranya penerbitan berbentuk
buku atau risalah yang hendak disebarkan atau dijual perkataan ‘Untuk
F Agama Kristian’ disyaratkan ditulis di kulit luar (muka depan) buku atau
risalah tersebut’. These words did not appear in the DPM’s note.
Regarding the four words, the condition in the DPM’s note did not
appear in the Directive. On a true and proper construction of the PM’s
letter and the DPM’s note, the Cabinet’s policy decision did not impose
a total ban on the four words; the Directive did. (paras 79, 83 & 84)
G
(3) The Cabinet could not have imposed a total prohibition because the
subject matter of the two documents were related to the AlKitab. In
force, at the material time, was P.U. (A) 134/1982 which concerned
the AlKitab, made under s. 22 of the Internal Security Act 1960.
H P.U. (A) 134/1982 prohibited the printing, publication, sale, issue,
circulation or possession of the AlKitab. However, the prohibition did
not apply to the possession or use in churches of the AlKitab by persons
professing the Christian religion throughout the country. This essentially
meant that the AlKitab, which carried the word ‘Allah’, could be used
but within the confines of churches only. If the Cabinet’s policy decision
I
was to impose a total prohibition of the four words, P.U. (A) 134/1982
would have been repealed, modified or varied to reflect the new policy.
This was not done. (paras 91, 92, 94 & 95)
234 Current Law Journal [2021] 4 CLJ

(4) The Directive was inconsistent with the Cabinet’s policy decision. The A
effect of departing from the Cabinet’s policy decision would mean that
it did not lie in the Minister’s mouth to claim that the Directive was
based on the Cabinet’s policy decision. The Directive, was simply a
stand-alone Directive issued by the Publication Control Division of the
Ministry. (paras 98 & 99) B
(5) The inference to be drawn was that the respondents treated the Directive
as a subsidiary legislation having the force of law and was legitimately
used as the basis to exercise the power under s. 9(1) of the Act to
confiscate the CDs. Formatting aside, the Directive could be regarded
as a subsidiary legislation provided that it was made under the Act and C
had legislative effect. However, the Directive did not state the Act
pursuant to which it was made. Furthermore, from its long title and the
other provisions of the Act, read and taken as a whole, it was plain that
the Act was not a general law on public order but a specific law directed
at regulating the licensing of printing presses, issuance of permits to D
publish newspapers and the control of undesirable publications which
were enforced by penal sanctions. There was nowhere in the Act, and
the rule-making provision in s. 26 of the Act, that provided the Minister
with the power to issue a subsidiary legislation which imposed a
prohibition on the use of the four words in all Christian publications.
E
The Minister's rule-making power, in s. 26 of the Act, deals with
procedural-related matters; he was not given the power to make rules
pertaining to the Directive. Therefore, the issuance of the Directive was
undoubtedly outside the ambit of s. 26 of the Act. The Directive could
not be a subsidiary legislation that had legislative effect made in the
F
purported exercise of the powers under the Act. (paras 105, 110, 116,
119, 122, 123, 125-127)
(6) If the Minister did not follow the law that regulated the exercise of his
powers, then he had acted illegally because his actions had gone beyond
the limits of the power prescribed by the law. There occasioned a
G
substantive ultra vires. An error in law had occurred when the
respondents treated the Directive as being validly made under the Act
when it was not. The applicant was, therefore, entitled to the declaration
sought that the Directive was invalid. The Directive stood without any
statutory backing and, certainly, could not prevail over P.U. (A) 134/
1982. The end result was that the Directive was illegal, unlawful and H
was a nullity for want of jurisdiction. The Directive was devoid of any
legal effect whatsoever from inception. It followed that the prohibition
on the use of the four words, imposed by the Directive, could not be
legally sustained. The decision in making and issuing the Directive was
also irrational and perverse as there was a total disregard to the fact that I
it would be in direct conflict with P.U. (A) 134/1982. (paras 128,
130, 132, 133, 135, 137 & 138)
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 235

A (7) There was no adequate, reliable and authoritative evidentiary basis for
the Directive. Although the Minister indicated that the basis for the
making of the Directive was on the ground of public order, he did not
provide supporting reasons. In any case, whether public order justified
the making of the Directive was no longer relevant in view of the finding
B that there was a clear lack of power to issue the Directive under the Act.
Furthermore, the Minister did not say how, where and when such
confusion and misunderstanding had broken the peace and tranquility in
Malaysia. The reliance on public order or threat to public order in
making the Directive was irrational and perverse. (paras 143, 160, 166
& 176)
C
(8) The discrimination was apparent from the outset. The act of the
respondents’ officer in prohibiting the importation of the CDs on the
ground of the Directive would be inconsistent with the provision of
art. 11 of the FC and would not be valid unless the applicant’s action
D was shown to go well beyond what could normally be regarded as
professing and practising her religion. The CDs were, undisputedly, for
her personal religious edification. Right to profess and practise one’s
religion should also include the right to the religious materials. The
prohibition in the Directive offended the provision of art. 11(1) of the
FC. Thus, the applicant was entitled to the declarations sought in the
E
prayers (c) and (d). (paras 201-204)
Obiter:
(1) Bahasa Malaysia had been the lingua franca for the native people of
Sabah and Sarawak. The Christian community of Sabah and Sarawak
F have been using the word ‘Allah’ in Bahasa Malaysia, for the word
‘God’, for over 400 years and have not caused problems leading to
public disorder. The Minister’s decision, which was being challenged,
was not predicated on theological considerations; his decision was
predicated on the consideration of public order. It was incumbent upon
G the court not to travel out of the parameters the judicial review was
placed in. (paras 34, 164 & 165)
Case(s) referred to:
Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1984] 1 KB 223
(refd)
H Berjaya Times Square Sdn Bhd v. M-Concept Sdn Bhd [2010] 1 CLJ 269 FC (refd)
Bugdaycay v. Secretary of State for the Home Department [1987] 1 AC 514 (refd)
Chng Suan Tze v. The Minister of Home Affairs & Ors And Other Appeals [1988] 1 LNS
162 CA (refd)
CL Verna v. State of Madhya Pradesh, AIR 1990 SC 463 (refd)
Council for Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374 (refd)
I Darma Suria Risman Saleh v. Menteri Dalam Negeri, Malaysia & Ors [2010] 1 CLJ 300
FC (refd)
236 Current Law Journal [2021] 4 CLJ

Dato’ Menteri Othman Baginda & Anor v. Dato’ Ombi Syed Alwi Syed Idrus [1984] 1 A
CLJ 28; [1984] 1 CLJ (Rep) 98 FC (refd)
Datuk Syed Kechik Syed Mohamed v. Government of Malaysia & Anor [1978] 1 LNS
44 FC (refd)
Eu Finance Bhd v. Lim Yoke Foo [1982] 1 LNS 21 FC (refd)
Hadmor Productions Ltd & Ors v. Hamilton & Anor [1982] 2 WLR 322 (refd)
Hassan Marsom & Ors v. Mohd Hady Ya’akop [2018] 7 CLJ 403 FC (refd) B
Indian Airlines Corporation v. Sukhdeo Rai AIR 1971 SC 1828 (refd)
Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals
[2018] 3 CLJ 145 FC (refd)
Iftikar Ahmed Khan v. Perwira Affin Bank Bhd [2018] 1 CLJ 415 FC (refd)
Jerry WA Dusing & Anor v. Menteri Keselamatan Dalam Negeri Malaysia & Anor; Majlis
Agama Islam Wilayah Persekutuan (Proposed Intervener) [2017] 3 CLJ 474 HC (refd) C
John Peter Berthelsen v. Director-General Of Immigration, Malaysia & Ors [1986] 2 CLJ
409; [1986] CLJ (Rep) 160 SC (refd)
Jones v. Opelika [1941] 316 US 584 (refd)
Karam Singh v. Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs) Malaysia
[1969] 1 LNS 65 FC (refd)
D
Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 FC (refd)
Ketua Pegawai Penguatkuasa Agama & Ors v. Maqsood Ahmad & Ors And Another
Appeal [2020] 10 CLJ 748 CA (refd)
Kruse v. Johnson [1898] 2 QB 91 (refd)
Lim Kim Cheong v. Lee Johnson [1993] 1 SLR 313 (refd)
Menteri Bagi Kementerian Dalam Negeri & Anor v. Jill Ireland Lawrence Bill & Another E
Appeal [2015] 7 CLJ 727 CA (refd)
Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop of Kuala Lumpur
[2013] 8 CLJ 890 CA (refd)
Minister For Home Affairs, Malaysia & Anor v. Jamaluddin Othman [1989] 1 CLJ 1044;
[1989] 1 CLJ (Rep) 105; [1989] 1 MLJ 418 SC (refd)
Mohamad Ezam Mohd Noor v. Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309 F
FC (refd)
Mohd Faizal Musa v. Menteri Keselamatan Dalam Negeri [2018] 9 CLJ 496 CA (refd)
NVJ Menon v. The Great Eastern Life Assurance Company Ltd [2004] 3 CLJ 96 CA (refd)
Pacific Forest Industries Sdn Bhd & Anor v. Lin Wen-Chih & Anor [2009] 6 CLJ 430
FC (refd)
Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd G
[1978] 1 LNS 143 FC (refd)
Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625 FC (refd)
R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 FC (refd)
Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 FC (refd)
Sakapp Commodities (M) Sdn Bhd v. Cecil Abraham [1998] 4 CLJ 812 CA (refd)
SIS Forum (Malaysia) v. Dato’ Seri Syed Hamid bin Syed Jaafar Albar (Menteri Dalam H
Negeri) [2010] 2 MLJ 377 (refd)
Teng Boon How v. PP [1993] 4 CLJ 545 SC (refd)
Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri & Anor
[2010] 2 CLJ 208 HC (refd)
Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors
I
[2014] 6 CLJ 541 FC (refd)
ZI Publications Sdn Bhd & Anor v. Kerajaan Negeri Selangor; Kerajaan Malaysia & Anor
(Intervener) [2015] 8 CLJ 621 FC (refd)
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 237

A Legislation referred to:

Customs Act 1967, s. 102
Federal Constitution, arts. 3(1), (4), 4, 8, 10, 11(1), (4), (5), 12, 128, 149, 150
Internal Security Act 1960 (repealed), ss. 8(1), 22
Interpretation Acts 1948 and 1967, ss. 3, 23(1)
Printing Presses And Publications Act 1984, ss. 7(1), 9(1), 26(2)(d)
B Rules of the High Court 1980, O. 53 rr. 3(2), 7
Specific Relief Act 1950, s. 41
Other source(s) referred to:
MP Jain, Administrative Law of Malaysia And Singapore, 2nd edn, 1989, Malayan
Law Journal, pp 57, 58, 105, 347
C Prof Dr Shad Saleem Faruqi, Document of Destiny: The Constitution of the Federation
of Malaya (Star Publications (Malaysia) Berhad, 2008), pp 331-332 & 346
For the applicant - Lim Heng Seng, Annou Xavier & Tan Hooi Ping; M/s Azri, Lee Swee
Seng & Co
For the respondents - Shamsul Bolhassan; SFC
Amicus curiae:
D
For MAIS & MIWP - Haniff Khatri; M/s Haniff Khatri
For MAIS - Zirwatul Hanan Abdul Rahman; M/s Azaine & Fakhrul
Watching Brief:
For MCA - SC Lim & Chew Sin Chi
For SIB Semenanjung - Rodney Koh
E For Persekutuan Kristian Malaysia (Christian Federation of Malaysia) - Andrew Khoo
Chin Hock
For Majlis Peguam Malaysia - Cyrus Tiu Foo Woei
For Catholic Lawyers’ Society Kuala Lumpur - Stanislars Cross
Reported by Najib Tamby
F JUDGMENT
Nor Bee Ariffin J:
Introduction
[1] A Directive was issued by the Ministry of Home Affairs dated
G 5 December 1986 (the impugned Directive) to all Christian publications
regarding “Penggunaan Istillah/Perkataan Yang digunakan Dalam
Penerbitan Agama Kristian Berbahasa Malaysia”. The impugned Directive
stated that 12 words “AlKitab”, “Firman”, “Rasul”, “Syariat”, “Iman”,
“Ibadah”, “Injil”, “Wahyu”, “Nabi”, “Syukur”, “Zikir” and “Doa” are
H permitted to be used and “Sekiranya penerbitan tersebut berbentuk buku atau
risalah yang hendak disebarkan atau dijual perkataan “UNTUK AGAMA
KRISTIAN”, disyaratkan ditulis di kulit luar (muka depan) buku atau risalah
tersebut.” Four words namely “Allah”, “Kaabah”, “Baitullah” and “Solat”
are prohibited.
I [2] The respondent claimed that the impugned Directive was a Cabinet
decision and it relates to the policy of the Government at that point of time.
Public order formed the underlying basis the impugned Directive was made.
238 Current Law Journal [2021] 4 CLJ

[3] As the impugned Directive has not been withdrawn, the officers of the A
respondents continue to exercise the power under s. 9(1) of the Printing
Presses And Publications Act 1984 (Act 301) and Customs Act 1967 (Act
235) to enforce the same.
[4] This judicial review application arose out of the confiscation and the
detention by the respondents’ officers, in enforcing the impugned Directive, B
of the applicant’s eight Christian educational audio compact discs (the eight
CDs) belonging to her which had carried the word “Allah” in each of the
eight titles, when she landed at the Sepang Low Cost Carrier Terminal
(LCCT) on 11 May 2008 from Jakarta, Indonesia. The applicant claimed
that in so doing, the respondents had violated her constitutional rights under C
arts. 8, 10, 11 and 12 of the Federal Constitution (FC).
[5] On 10 March 2021, I delivered my decision on the application,
indicating that it was not the full text that would be read out. The following
is the full text of my reasons for the decision I have arrived at.
D
Background Facts
[6] The factual narrative of the applicant’s case was set out in the
judgment of the Court of Appeal in Menteri Bagi Kementerian Dalam Negeri &
Anor v. Jill Ireland Lawrence Bill & Another Appeal reported in [2015] 7 CLJ
727 (Jill Ireland appeal case). The facts are now revisited to include the E
events that had taken place following the decision of the appellate court.
[7] The applicant’s case is that she is a Malaysian citizen, a native
Bumiputra Christian from the Melanau tribe of Sarawak. She has been
schooled in the National Education System using Bahasa Malaysia as the
medium of instruction. The applicant and her family have been using Bahasa F
Malaysia as their faith language in worship, prayers, intercession and in
receiving religious instructions. They also use the AlKitab in Bahasa
Indonesia and rely upon Bahasa Indonesia written and audio-visual materials
in the practice of their Christian faith.
G
[8] The eight CDs which she had brought along with her when she landed
at LCCT are entitled:
(i) Cara Menggunakan Kunci Kerajaan Allah;
(ii) Cara Hidup Dalam Kerajaan Allah;
H
(iii) Ibadah Yang Benar Dalam Kerajaan Allah;
(iv) Metode Pemuridan Kerajaan Allah;
(v) Pribadi Yang Bertumbuh Dalam Kerajaan Allah;
(vi) Hidup Benar Dalam Kerajaan Allah; I
(vii) Pemerintahan Kerajaan Allah Dalam Hidup Kita; and
(viii) Rahsia Kerajaan Allah.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 239

A [9] The eight CDs according to the applicant were for her personal
religious edification.
[10] At the LCCT, a customs officer detained the eight CDs on account that
they had carried the word “Allah” in each of the eight titles.

B [11] On the same day, ie, on 11 May 2008, the applicant was served with
a notice of goods detention (notis tahanan barangan) under s. 102 of the
Customs Act 1967 (Act 235).
[12] By a letter dated 7 July 2008, the Ministry of Home Affairs
confiscated the eight CDs belonging to the applicant as set out in Lampiran
C K pursuant to s. 9 of Act 301. Lampiran K is the list of the eight CDs and
sets out three grounds for the confiscation of the same, namely Istilah
Larangan, Ketenteraman Awam and Melanggar Garis Panduan JAKIM.
[13] Dissatisfied with the decision, on 20 August 2008, the applicant filed
an ex parte application for leave for judicial review and sought the following
D reliefs:
(a) an order for certiorari to quash the decision of the Ministry of Home
Affairs to confiscate and seize the eight CDs on the grounds stated in the
Ministry’s letter dated 7 July 2008;
E (b) an order for mandamus for the purpose of directing the first respondent
to return the eight CDs to the applicant be issued;
(c) a declaration that pursuant to art. 11 of the FC, it is the constitutional
rights of the applicant to import the eight CDs in the exercise of her right
to practice religion and right to education;
F
(d) a declaration that pursuant to art. 8 of the FC, the applicant is guaranteed
equality of all persons before the law and is protected from
discrimination against citizens, inter alia on the grounds of religion in the
administration of the law, in particular Act 301 and Act 235;
G (e) a declaration that pursuant to art. 8 and art. 11 of the FC, the applicant
is entitled to use and/or to continue to use the word “Allah” and to have
access including the right to own, to possess, to use and to import
publications which contain the word “Allah” in the said publications
including the eight CDs in the exercise of her freedom to practise
H
religion;
(f) a declaration that it is the legitimate expectation of the applicant to
exercise her right to use and/or to continue to use the word “Allah” and
have and continue to have the right to own, to possess, to use and to
import published materials notwithstanding the use of the word “Allah”
I in the said publications including the eight CDs in the exercise of her
freedom to practise religion;
240 Current Law Journal [2021] 4 CLJ

(g) an order that all further proceedings in respect of the decision of the A
Ministry of Home Affairs be stayed until determination and disposal of
the application herein;
(h) an award of damages including exemplary damages for unlawful and
unconstitutional conduct of the respondents in regard to action taken on
the eight CDs; B

(i) that all necessary and consequential directions and orders which the
court deems fit and proper be given;
(j) all other and further reliefs which the court deems fit and proper; and
C
(k) the costs to be in the cause.
[14] On 4 May 2009, leave was granted by the learned High Court Judge
to hear the substantive application.
[15] On 21 July 2014, after the hearing on the substantive judicial review
proceedings, the learned High Court Judge only allowed the applicant’s D
reliefs in paras. (a) and (b).
[16] The respondents filed their appeal on 22 July 2014 against the learned
High Court Judge’s decision in granting the orders of certiorari and of
mandamus against the first respondent.
E
[17] The applicant filed her cross-appeal on 15 August 2014 against the
non-granting by the learned High Court Judge of reliefs sought in prayers (c),
(d), (e), (f), (h), (i) and (j).
[18] On 23 June 2015, the Court of Appeal in the Jill Ireland appeal case
dismissed the respondents’ appeal and affirmed the learned High Court F
Judge’s order in respect of prayers (a) and (b) and allowed the cross-appeal
by the applicant in part and remitted the judicial review application to the
High Court to hear on two of the four remaining declaratory reliefs in prayers
(c) and (d).
G
[19] On 11 August 2015 and 15 September 2015, Majlis Agama Islam
Wilayah Persekutuan (MAIWP) and Majlis Agama Islam Selangor (MAIS)
respectively filed their applications to intervene (encls. 36 and 38).
[20] At the material time when the parties in the present proceedings had
filed their submissions, there was pending in the Court of Appeal the case
H
of Jerry WA Dusing & Anor v. Menteri Keselamatan Dalam Negeri Malaysia &
Anor; Majlis Agama Islam Wilayah Persekutuan (Proposed Intervener) [2017] 3
CLJ 474 arising from the decision in Semakan Kehakiman No: R2-25-407-
2007 (the Sidang Injil Borneo case).
[21] On 11 August 2016 by agreement of all parties, the hearing of the I
applications in encls. 36 and 38 were adjourned to await the outcome of the
appeal in the Sidang Injil Borneo case.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 241

A [22] The Court of Appeal gave its decision on the Sidang Injil Borneo case
on 30 September 2016.
[23] Following the decision of the Court of Appeal, MAIWP withdrew
encl. 36 on 28 October 2016 and was given permission by this court to
appear as amicus curiae for the substantive hearing.
B
[24] MAIS proceeded with encl. 38. Hearing date was fixed for
16 December 2016. This court dismissed the intervention application on
13 March 2017 but invited MAIS to appear as amicus curiae.
The Cause Papers
C
[25] The cause papers in this application are:
(i) application for judicial review dated 20 August 2008 (encl. 1);
(ii) statement pursuant to O. 53 r. 3(2) of the Rules of the High Court 1980
(ROC) dated 20 August 2008 (encl. 2);
D
(iii) notice of intention to amend statement pursuant to O. 53 r. 7 of ROC
dated 9 August 2017 (encl. 40);
(iv) notice of intention to apply for necessary and consequential directions
and orders and/for further reliefs dated 9 August 2017 (encl. 40);
E
(v) notice of hearing of the applicant’s judicial review application dated
18 May 2009 (encl. 5);
(vi) affidavit-in-support by Jill Ireland binti Lawrence Bill affirmed on
20 August 2008 (encl. 3);
F (vii) affidavit-in-reply by Suzanah binti Haji Muin affirmed on 28 August
2009 (encl. 6);
(viii) affidavit-in-reply by Jok Wan affirmed on 10 November 2009
(encl. 7);

G (ix) affidavit-in-reply by Syed Hamid bin S. Jaafar Albar affirmed on

2 June 2010 (encl. 15);
(x) affidavit by Professor Madya Dr. Khadijah Mohd Khambali @
Hambali affirmed on 11 January 2010 (encl. 16) exhibiting her expert
report (KHK’s first report);
H
(xi) affidavit by Dr. Mohd Sani Badron affirmed on 11 January 2010
(encl. 17) exhibiting his expert report (MSB’s first report);
(xii) affidavit by Ng Kam Weng affirmed on 13 June 2011 (encl. 29)
exhibiting his expert report (NKW’s first report);
I (xiii) affidavit by Tan Kong Beng affirmed on 10 January 2014 (encl. 34);
(xiv) affidavit by Syahredzan bin Johan affirmed on 15 January 2014
(encl. 35);
242 Current Law Journal [2021] 4 CLJ

(xv) affidavit by Dr. Azmi bin Sharom affirmed on 13 January 2014 A

(encl. 36);
(xvi) affidavit by Dr. Abdul Aziz bin Bari affirmed on 15 January 2014
(encl. 37);
(xvii) affidavit by Jerry WA Dusing @ Jerry W Patel affirmed on 27 July B
2017 (encl. 39);
(xviii) affidavit by Professor Madya Dr. Khadijah Mohd Khambali @
Hambali affirmed on 9 August 2017 (encl. 41) exhibiting her expert
report (KHK’s second report);
C
(xix) affidavit by Dr. Mohd Sani Badron affirmed on 9 August 2017
(encl. 42) exhibiting his expert report (MSB’s second report);
(xx) affidavit by Alfred Rosmin Tais affirmed on 8 September 2017
(encl. 43);
(xxi) affidavit by Bishop Melter Jiki Tais affirmed on 11 September 2017 D
(encl. 44);
(xxii) affidavit by Reverend Justin Wan affirmed on 11 September 2017
(encl. 45);
(xxiii) affidavit by Ng Kam Weng affirmed on 8 September 2017 (encl. 46) E
exhibiting his expert report (NKW’s first report).
The Court Of Appeal Decision In Jill Ireland Appeal Case
[26] In allowing the applicant’s cross-appeal in the Jill Ireland appeal case
against the decision of the High Court in declining to consider the prayers
F
sought regarding her constitutional rights, the Court of Appeal held at p. 743:
[39] With respect, we agree with her, partially. We agree with her that any
prayer that had sought to challenge the prohibition of the use of the word
‘Allah’, following the decision of the majority in the Federal Court in the
Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri
G
& Ors [2014] 6 CLJ 541, must not be done in a collateral manner. The
Enactment which had contained those prohibitions on the use of the
word ‘Allah’ has to be challenged specifically for want of jurisdiction. The
impugned provisions in the Enactment cannot be challenged in isolation,
as was done in this case. To that extent we would agree with the learned
judge’s decision on the applicant’s prayers that were not granted.
H
[40] However, we noted that there were prayers that were not inextricably
tied down specifically with the use of the word ‘Allah’ especially those
which were predicated upon the deprivation of freedom of religion [art.
11] and the right to equality or freedom from discrimination [art. 8] which
we believe, could and ought to have been dealt with by the learned judge,
but were not. That would relate to the declarations that were sought for I
as contained in prayers (c) and (d) of the application. ….
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 243

A [41] Premised on the above, we hereby allow the cross-appeal by the

applicant in part, by us making the following varying order that this case
be remitted back to the High Court to hear and consider the applicant’s:
(i) prayer (c) namely;
(c) a declaration pursuant to art. 11 of the Federal Constitution
B that it is the constitutional rights of the applicant to import the
publications in the exercise of her rights to practice religion and
right to education; and
(ii) prayer (d) namely;
(d) a declaration pursuant to art. 8 that the applicant is guaranteed
C
equality of all persons before the law and is protected from
discrimination against citizen, on the grounds of religion in the
administration of the law i.e. the Printing Presses And
Publications Act 1984 (Act 301) and Customs Act 1967.
[27] The applicant did not file an application for leave to appeal to the
D Federal Court against the decision of the Court of Appeal, including in
dismissing prayers (e) and (f).
[28] In Titular Roman Catholic Archbishop of Kuala Lumpur [2010] 2 CLJ
208, the applicant at the High Court had challenged the validity and
constitutionality of s. 9 of the various Non-Islamic Religions (Control of
E
Propagation Amongst Muslims) Enactment 1988 (the impugned provision).
The applicant’s application sought, inter alia, for an order of certiorari to
quash the first respondent’s decision dated 7 January 2009 that the
applicant’s publication permit was subject to the condition that the applicant
was prohibited from using the word “Allah” in Herald – The Catholic
F Weekly. The learned High Court Judge held that the decision was illegal and
unconstitutional and that the applicant had a constitutional right to use the
word “Allah”.
[29] However, the Court of Appeal set aside the orders and the decision of
the learned High Court Judge and held that the first respondent’s decision to
G
impose a condition on the Herald came squarely within the function and
statutory powers of the Minister, and was intra vires the Federal Constitution
and Act 301.
[30] The applicant sought leave from the Federal Court to appeal against
H the decision of the Court of Appeal in ruling that the first respondent, in
prohibiting the applicant from using the word “Allah” in the Malay version
of its weekly publication (‘the Herald’), was acting intra vires the law and the
FC.
[31] The majority decision in the Federal Court was of the view that the
I net effect of the finding of the High Court was that the impugned provision
was invalid, null and void, and unconstitutional and that the respective States
Legislatures have no power to enact the impugned provision. The Federal
244 Current Law Journal [2021] 4 CLJ

Court held that the learned High Court Judge ought not to have entertained A
the challenge on the validity and constitutionality of the impugned provision
as such a constitutional challenge can only be made pursuant to arts. 4 and
128 of the FC:
[43] Premised on the above, I hold that the High Court Judge ought not
to have entertained the challenge on the validity or constitutionality of B
the impugned provision for two reasons, namely procedural non-
compliance and for want of jurisdiction. The findings of the High Court
judge that the impugned provision is unconstitutional was rightly set aside
by the Court of Appeal.
[44] The constitutional questions posed in Part B of this application C
concern the rights as guaranteed by arts. 3, 8, 10 and 12 of the Federal
Constitution. However, I must emphasise that these questions relate to
the usage of the word “Allah” in the Herald. I am of the view that these
questions could not be considered in isolation without taking into
consideration the impugned provision. As it is my finding that a challenge
on the validity and constitutionality of the impugned provision could not D
be made for the reasons stated earlier, therefore, it is not open to this
court to consider the questions posed in Part B.
[32] It is plain and clear that the Court of Appeal in the Jill Ireland appeal
case has, in light of the Federal Court majority decision in Titular Roman
Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 E
CLJ 541 – FC, narrowed the issues that can be ventilated in this judicial
proceeding and confined them only to the declaratory reliefs sought by the
applicant based on arts. 8 and 11 of the FC in paras. (c) and (d). These are
prayers that were found not inextricably tied down specifically with the use
of the word “Allah” and thus was not caught by the majority decision in the F
Federal Court.
[33] The Court of Appeal decision is explicit in its terms. It is not for this
court to decide on issues that had sought to challenge the prohibition on the
use of the word “Allah” as the same could not be done in a collateral manner.
That was the reason for not remitting prayers (e) and (f) because the G
Enactments which contained those prohibitions on the use of the word
“Allah” had to be challenged specifically for want of jurisdiction and the
impugned provision in the Enactment could not be challenged in isolation.
This court would not descend into the controversy.
[34] This, in my view, will necessarily exclude this court from canvassing H
the theological issues. I am guided by the majority decision in the Federal
Court in the Titular Roman Catholic Archbishop of Kuala Lumpur, supra, which
did not proceed with the question in Part C that relate to theology issues as
the facts show that the Minister’s decision was never premised on theological
consideration and found that the views expressed by the learned judges of the I
Court of Appeal on those issues were mere obiter. Likewise, as the facts in
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 245

A the present judicial review show, the Minister’s decision that was being
challenged was not predicated on theological considerations. His decision
was predicated on public order consideration.
[35] Therefore, it is incumbent on me to proceed cautiously so as not to
travel out of the parameters/setting the further conduct of this judicial review
B was placed in.
Enclosure 40
[36] Even though the direction by the Court of Appeal in remitting the case
to this court was to determine the constitutional issues in prayers (c) and (d)
C only, however, the applicant had on 9 August 2017 filed encl. 40 which is
a notice pursuant to O. 53 r. 7 of the ROC to (a) amend the statement filed
pursuant to O. 53 r. 3(2) of the ROC as contained in Lampiran A; and (b)
to seek to substitute the prayers in para. 2(i) and/or 2(j) of the statement with
the necessary and consequential directions and orders and/or further reliefs
D as contained in Lampiran B.
Lampiran A
[37] In Lampiran A, the proposed amendments to the statement are as
follows:
E (i) as regards para. (c), the insertion of arts. 3, 8 and 12 of the Federal
Constitution;
(ii) as regards para. (d), two new paragraphs were introduced, namely paras.
(d)(A) and (d)(B). They read:
(d) (A) declaration that the Applicant together with other native
F
Bumiputra Christians of Sabah and Sarawak have the
constitutional right to practice their Christian religion freely and
without hindrance including the right to use all religious
terminologies in the Malay and Indonesian languages in the same
manner as they have always done so when Sabah and Sarawak
G joined Malaya to form the Federation of Malaysia in 1963;
(d) (B) a declaration that the Government Directive issued by the
Publication Control Division of the Ministry of Home Affairs
Circular : S. 59/3/9/A Klt.2 dated 5.12.1986 is unlawful and
unconstitutional.
H Lampiran B
[38] In Lampiran B, the proposed amendments to the statement are as
follows:

I
246 Current Law Journal [2021] 4 CLJ

Necessary And Consequential Direction And Orders And/Or Further A

Reliefs
(1) A declaration that the Applicant together with other native
Bumiputra Christians of Sabah and Sarawak have the constitutional
right to practise their Christian religion freely and without hindrance
including the right to use all religious terminologies in the Malay B
and Indonesian languages in the same manner as they have always
done so when Sabah and Sarawak joined Malaya to form the
Federation of Malaysia in 1963;
(2) A declaration that the Applicant together with other native
Bumiputra Christians of Sabah and Sarawak have the legitimate
C
expectation to practise their Christians religion freely and without
hindrance including the right to use all religious terminologies in the
Malay and Indonesian languages in the same manner as they have
always done so when Sabah and Sarawak joined Malaya to form
the Federation of Malaysia in 1963;
(3) A declaration that the Respondents’ decision to withhold delivery D
of the Publications under the Printing Presses And Publications Act
1984 on the grounds of “Istilah Larangan” (“Prohibited Terms’) i.e.,
the terms set out in the Government Directive issued by the
Publication Control Division of the Ministry of Home Affairs
Circular: KDN: S.59/3/9/A Klt.2 dated 5.12.1986; “Ketenteraman
Awam” (“Public Order”) and “Melanggar Garis Panduan JAKIM” E
(Breach of JAKIM’s Guidelines”) is unlawful and unconstitutional;
(4) A declaration that the Government Directive issued by the
Publication Control Division of the Ministry of Home Affairs
Circular: S.59/3/9/A Klt.2 dated 5.12.1986 is unlawful and
unconstitutional; F

(5) A declaration that in the exercise of powers under the Printing

Presses And Publications Act 1984, an authorised officer and/or the
Minister is not authorised to deny the Applicant her constitutional
right to have access to religious publications including the right to
own, to possess, to use and to import publications which contain the G
religious terminology used as a reference to God in the AlKitab
which is the Bible in the Malay and Indonesian languages in the
exercise of her freedom to practise her religion pursuant to Article
3, 8, 11 and 12 of the Federal Constitution;
(6) A declaration that in the exercise of the powers under the Printing
H
Presses And Publications Act 1984 by an authorised officer and/or
the Minister the refusal of importation into Malaysia and/or the
withholding of delivery of any religious publications solely on the
ground that the said religious publications contain the religious
terminology used as a reference to God in the Alkitab which is Bible
in the Malay and Indonesian language is unlawful and
I
unconstitutional.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 247

A [39] Order 53 r. 7 of the ROC requires order to be made by the judge.

Inadvertently, there was no order made on encl. 40 to allow the amendment
to the statement. Notwithstanding there was no order made, I do not think
that there is any impediment for me to proceed with the proceedings and
make decisions on the issues based on the proposed amendment statement.
B [40] The respondents were fully aware of encl. 40. It was duly served on
the respondents. It was listed as one of the cause papers in learned Senior
Federal Counsel’s (SFC) written submission. Learned SFC did not raise any
objection at the hearing of the judicial proceedings when learned counsels
made his submission on the amended statement. The learned SFC had in turn
C also submitted on the same, opposing the reliefs sought by the applicant. It
was clear to me that the respondents were not taken by surprise, prejudiced,
embarrassed or misled.
[41] The decision of the Federal Court in Iftikar Ahmed Khan v. Perwira Affin
Bank Bhd [2018] 1 CLJ 415 is a case on point. Even though the facts in that
D case are not on all fours with the present case as Iftikar Ahmed Khan supra,
deals with the cause of action not pleaded, but the principle expounded by
the Federal Court can be applied to the problem at hand. Abu Samah Nordin
FCJ in delivering the decision of the Federal Court said:
[38] The cases cited by both counsels to us clearly show that the law on
E
the first question posed by the appellant is settled. It is this. In a case
where the matter or material facts are not pleaded but evidence is led
without objections at trial, the court is duty bound to consider such
evidence although it may be a departure from the pleading. It has the
effect of curing defect in the pleading. In such a case, the opposite party
is not taken by surprise, prejudiced, embarrassed or misled. The exception
F
is where the evidence represents a radical departure from the pleading and
is not just a variation, modification or development of what has been
alleged in the pleading. Dato Hamzah Abdul Majid v. Omega Securities Sdn
Bhd [2015] 9 CLJ 677 is an illustration of a case where there was a radical
departure from the pleading. … .
G [42] In essence, the basis for the amendments to paras. (c) and (d) according
to learned counsel for the applicant and as I understand it to be, is as follows.
[43] As the case developed, the applicant found that the very root of her
problem is the impugned Directive. It is the applicant’s case that firstly, the
impugned Directive was arbitrarily made under Act 301 and is ultra vires the
H
Act and secondly, the impugned Directive was unlawfully used as a basis to
invoke the use of power under s. 9(1) of Act 301.
[44] The basis to introduce the detailed account of the consequential orders
is that they are ancillary to the main reliefs. Reference was made to the case
I of Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625; [2004]
2 MLJ 288 and R Rama Chandran v. Industrial Court of Malaysia & Anor [1997]
1 CLJ 147 in support of the application.
248 Current Law Journal [2021] 4 CLJ

[45] The applicant averred that she was given the two declarations to be A
heard. So long as that right under arts. 8 and 11 is encumbered by the
impugned Directive, the right is illusory and ineffective because at any
moment some officials will use Act 301 to seize her publications. Thus, to
do effective justice, to ameliorate the position of the applicant if the principal
declarations are granted to her, there should be these other consequential B
reliefs as well.
[46] Needless to say, these amendments too, are subject to the parameters
set by the Court of Appeal in Jill Ireland appeal case. Having heard the
parties in these proceedings until its conclusion, in the circumstances, my
findings on the amendment sought are as follows. C

Amendment In Lampiran A
[47] The context of para. (d)(A) is substantially similar to the context in
para. (e), but worded differently. It will be recalled that the Court of Appeal
had only remitted for determination paras. (c) and (d) and not paras. (e) and D
(f). There was no leave to appeal against the decision of the Court of Appeal
for not remitting paras. (e) and (f) filed by the applicant in the Federal Court.
Thus the decision of the Court of Appeal is taken to be final. In my view,
it is fundamentally wrong to revive para. (e) by means of the amendment
sought to the statement.
E
[48] As regards the amendment in the proposed para. (d)(B), significantly,
the impugned Directive was the basis for the exercise of the power under
s. 9(1) of Act 301 by the first respondent when confiscating the eight CDs.
The Minister at the material time was Syed Hamid b. S. Jaafar Albar. He
affirmed an affidavit in encl. 15 giving justification in arriving at the decision F
to withhold the eight CDs:
6. Selanjutnya saya menyatakan bahawa:
6.1 Suatu Arahan Kerajaan bertarikh 19/5/1986 telah dikeluarkan
melarang sama sekali penggunaan istilah Allah, Kaabah, Solat dan
Baitullah di dalam penerbitan AlKitab; G

(Salinan arahan tersebut adalah dilampirkan di sini dan ditandakan

sebagai Ekshibit “SHA-1”)
6.2 Selanjutnya pada 5/12/1986, Kerajaan telah mengeluarkan suatu
arahan khusus bagi semua penerbitan Kristian bahawa penggunaan
istilah Allah, Kaabah, Solat dan Baitullah adalah dilarang sama H
sekali di dalam semua penerbitan;
(Salinan arahan tersebut adalah dilampirkan di sini dan ditandakan
sebagai Ekshibit “SHA-2”)

I
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 249

A 6.3 Antara sebab larangan empat (4) perkataan tersebut adalah untuk
mengelakkan berlakunya sebarang salah faham di antara penganut
Islam dengan penganut Kristian yang boleh mengancam
keselamatan dan ketenteraman awam serta menimbulkan sensitiviti
keagamaan di kalangan rakyat Malaysia; dan

B 6.4 Arahan bertarikh 5/12/1986 tersebut masih berterusan dan tidak

pernah ditarik balik.
[49] The impugned Directive was the same Government Directive 1986
that was referred to by the High Court in Titular Roman Catholic Archbishop
of Kuala Lumpur v. Menteri Dalam Negeri & Anor [2010] 2 CLJ 208 and by the
C Court of Appeal in Menteri Dalam Negeri & Ors v. Titular Roman Catholic
Archbishop of Kuala Lumpur [2013] 8 CLJ 890; [2013] 6 MLRA 8.
[50] The impugned Directive did not come under scrutiny then in both the
High Court and the Court of Appeal even though Abdul Aziz Abdul Rahim
JCA did enquire from learned counsel for the respondents whether the
D respondents had taken any action to protest against or to challenge the same.
This can be seen from the passage below appearing at p. 941 (CLJ); p. 39
(MLRA) of the report:
[80] The 1986 Directive has never been withdrawn and still in force. Mr
Porres Royan, learned counsel for the respondent was asked whether the
E respondent took any action to protest against or to challenge the 1986
Directive. His response was that to the best of his knowledge there was
none. Then he said (and this is from the Bar but without any objection
from any of the appellants) at that time the Herald was not yet in
publication …

F [51] The impugned Directive will be canvassed in this judgment but again,
not without the constraint alluded to.
[52] In respect of Lampiran B, my concern is:
(i) the proposed para. (1) is similar word per word with the proposed para.
(d)(A) of Lampiran A;
G
(ii) the context of the proposed para. 2 is substantially similar to para. (f)
that was not remitted by the Court of Appeal;
(iii) the proposed para. 3 is the administrative relief that has already been
dealt with by the learned judge.
H
(iv) the proposed para. 4 is similar to the proposed para. (d)(B) in Lampiran
A.
(v) the proposed paras. 5 and 6 are similar in context to the prayers in paras.
(c) and (d) of the main declaratory reliefs.
I
[53] In the result, what is left for determination in Lampiran B are issues
that are already subsumed in the two constitutional issues remitted by the
Court of Appeal in paras. (c) and (d).
250 Current Law Journal [2021] 4 CLJ

The Law On Judicial Review A

[54] There is a host of well-known high authorities that had firmly

determined the law on judicial review. I need only to refer to the cases
below.
[55] In R Rama Chandran, supra, Edgar Joseph Jr FCJ held at p. 172 of the B
report:
It is often said that judicial review is concerned not with the decision but
the decision-making process. (See, e.g. Chief Constable of North Wales v.
Evans [1982] 1 WLR 1155). This proposition, at full face value, may well
convey the impression that the jurisdiction of the Courts in judicial review
C
proceedings is confined to cases where the aggrieved party has not
received fair treatment by the authority to which he has been subjected.
Put differently, in the words of Lord Diplock in Council of Civil Service
Unions v. Minister for the Civil Service [1985] AC 374, where the impugned
decision is flawed on the ground of procedural impropriety.
But, Lord Diplock’s other grounds for impugning a decision susceptible D
to judicial review makes it abundantly clear that such a decision is also
open to challenge on grounds of ‘illegality’ and ‘irrationality’ and , in
practice, this permits the Courts to scrutinise such decisions not only for
process, but also for substance.
In this context it is useful to note how Lord Diplock defined the three E
grounds of review, to wit, (i) illegality, (ii) irrationality and (iii) procedural
impropriety. This is how he put it:
By ‘illegality’ as a ground for judicial review I mean that the decision
maker must understand directly the law that regulates his decision making
power and must give effect to it. Whether he has or not is par excellence F
a justiciable question to be decided in the event of a dispute, by those
persons, the Judges, by whom the judicial power of the state is exercised.
By ‘irrationality’ I mean what can now be succinctly referred to as
‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses
Limited v. Wednesbury Corporation [1948] 1 KB 223). It applies to a decision
G
which is so outrageous in its defiance of logic or of accepted moral
standards that no sensible person who had applied his mind to the
question to be decided could have arrived at it. Whether a decision falls
within this category, is a question that Judges by their training and
experience should be well equipped to answer, or else there would be
something badly wrong with our judicial system. To justify the Courts’
H
exercise of this role, resort I think is today no longer needed to Viscount
Radcliffe’s indigenous explanation in Edwards (Inspector of Taxes) v. Bairstow
[1956] AC 14, of irrationality as a ground for a Court’s reversal of a
decision by ascribing it to an inferred though undefinable mistake of law
by the decision-maker. ‘Irrationality’ by now can stand on its own feet as
an accepted ground on which a decision may be attacked by judicial I
review.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 251

A I have described the third head as ‘procedural impropriety‘ rather than

failure to observe basic rules of natural justice or failing to act with
procedural fairness towards the person who will be affected by the
decision. This is because susceptibility to judicial review under this head
covers also failure by an administrative tribunal to observe procedural
rules that are expressly laid down in the legislative instrument by which
B its jurisdiction is conferred, even where such failure does not involve any
denial of natural justice.
Lord Diplock also mentioned ‘proportionality” as a possible fourth ground
of review which called for development.
[56] In Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8
C
CLJ 629, an Industrial Court case, one of the questions of law formulated
for determination was what is the function of the court in an application for
judicial review and what is the correct test to be applied in reviewing the
finding of facts made by the Industrial Court. Raus Shariff FCJ (as His
Lordship then was) delivering the judgment of the court said:
D
[15] … Historically, judicial review was only concerned with the decision
making process where the impugned decision is flawed on the ground of
procedural impropriety. However, over the years, our courts have made
inroads into this field of administrative law. Rama Chandran is the mother
of all those cases. The Federal Court in a landmark decision has held that
E the decision of inferior tribunals may be reviewed on the grounds of
“illegality”, “irrationality” and possibly “proportionality” which permits
the courts to scrutinise the decision not only for process but also for
substance. It allowed the courts to go into the merits of the matter. Thus,
the distinction between review and appeal no longer holds.

F [57] The issue of what test should be applicable in judicial review,

subjective or objective was raised and considered by the Federal Court in
Titular Roman Catholic Archbishop of Kuala Lumpur, supra. In this case, the
leave questions before the Federal Court were divided into three parts, under
the headings of administrative law questions, constitutional law questions
and general questions.
G
[58] The administrative law questions relate to the test in judicial review.
The applicant argued that the Court of Appeal, in determining the
reasonableness of the first respondent’s decision, had applied the wrong
subjective test instead of the objective test. Arifin Zakaria CJ in delivering
H the majority decision held that the test applicable is the objective test:
[27] Having considered the issue at hand, I agree with learned counsel
for the applicant that the law on judicial review has advanced from the
subjective to that of the objective test. Hence, in Merdeka University Berhad
v. Government of Malaysia [1982] 2 MLJ 243, FC, Suffian LP observed:
I
252 Current Law Journal [2021] 4 CLJ

It will be noted that s 6 used the formula “If the Yang di-Pertuan A
Agong is satisfied etc.” In the past such subjective formula would
have barred the courts from going behind His Majesty’s reasons
for his decision to reject the plaintiff’s application; but, as stated
by the learned judge, administrative law has since so far advanced
such that today such a subjective formula no longer excludes
judicial review if objective facts have to be ascertained before B
arriving at such satisfaction and the test of unreasonableness is not
whether a particular person considers a particular course
unreasonable, but whether it could be said that no reasonable
person could consider that course reasonable - see the cases cited
by the learned judge at p 360.
C
(See also Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri
Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, FC; …).
As laid down by the above authorities it is therefore trite that the
test applicable in judicial review is the objective test.
[59] It is trite that judicial review would lie if a decision maker had made D
a decision that is illegal, irrational or procedurally improper. In this present
case, the applicant contends that the action of the respondents is illegal,
irrational and unconstitutional.
Decision
E
[60] The applicant claimed that in enforcing the impugned Directive and
purportedly acting under s. 9(1) of Act 301, Christian publications have been
subjected to enforcement action under Act 301 and continue to be liable to
such action solely on the ground that they contained the word “Allah”
regardless of their contents. This, she claimed, is a direct denial of her right F
to profess and practise her freedom of religion.
[61] The core issue now in this judicial review is the applicant’s challenge
that the impugned Directive is invalid and unconstitutional.
The Impugned Directive
G
[62] As the validity of the impugned Directive comes under judicial
scrutiny for the first time in this proceeding, it is pertinent to ask this
question – if the impugned Directive was followed through the years
unquestionably because it was never challenged in any court of law before,
whether one can mount a challenge now?
H
[63] I find no reason to exclude this issue from being ventilated. In this
context, I adopt the observations made by eminent author M.P Jain in
Administrative Law of Malaysia And Singapore (2nd edn, 1989, Malayan Law
Journal) at p. 105:
I
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 253

A The nature of the judicial function vis-a-vis delegated legislation has the
following characteristic as becomes clear from the House of Lords’
decision in Hoffman-La Roche. The courts do not act on their own motion
or initiative. Their jurisdiction to determine whether delegated legislation
is ultra vires arises only when its validity is challenged in proceedings inter
partes either brought by one party to enforce the law against another party,
B or brought by a party whose interest are affected by the law so declared
and having locus standi to challenge the vires of the delegated legislation
in question.
The judgment of a court that any piece of delegated legislation is void
as being ultra vires the parent Act or inconsistent with any Act or the
C Constitution renders it incapable of ever having had any legal effect upon
the rights and duties of the parties to the proceedings. Although such a
decision is directly binding only as between the parties to the proceedings
in which it was made, because of the doctrine of precedent, the benefit
of the decision accrues to all other persons whose legal rights have been
interfered with in reliance on the law which the delegated legislation
D purported to declare. Finally, until there is a challenge to the validity of
some delegated legislation, and the same is upheld or invalidated by a
court of law, there is presumption of the validity of the delegated
legislation as well as the legality of acts done in pursuance thereof. In the
words of Lord Diplock in Hoffman:

E All that can be usefully said is that the presumption that

subordinate legislation is intra vires prevails in the absence of
rebuttal, and that it cannot be rebutted except by a party to legal
proceedings in a court of competent jurisdiction who has locus
standi to challenge the validity of the subordinate legislation in
question.
F
[64] Locus standi of the applicant in mounting this challenge is never an
issue as between the parties. In any event, the applicant has the locus standi
because her interest was affected by the impugned Directive as the
confiscation of her eight CDs was based on the impugned Directive despite
the fact that the impugned Directive was directed towards the publishers.
G The respondents have allowed their officers to enforce the impugned
Directive against her.
[65] In challenging the validity and constitutionality of the impugned
Directive, the line of submission adopted by learned counsels for the
applicant was predominantly on the prohibition on the use of the word
H
“Allah”. It was submitted that the impugned Directive is draconian,
arbitrarily made and discriminatory in nature, that it distinguishes the
Muslims from the non-Muslims whereby the non-Muslims, the Christians in
this case, are not allowed to use the word “Allah” whilst the Muslims are
allowed to use the word even though historically both have been using the
I word. To justify the use by the Christians, references to the verses in the
Al-Quran were brought in to show that there is no prohibition in the religion
254 Current Law Journal [2021] 4 CLJ

of Islam to the use of the word “Allah” by the non-Muslims. Learned SFC A
too made similar references in his rebuttal submission. So did learned
counsels representing MAIWP and MAIS when invited to address this court.
[66] It is also to be observed that learned counsels for the applicant
informed this court that they are not challenging the State Enactments in any
collateral way. This court takes cognisance that similar stance too was taken B
by the applicant in the earlier proceeding of this judicial review. The learned
High Court Judge in the earlier proceedings, in not granting the applicant’s
constitutional prayers, however opined that although the applicant was not
challenging the State Enactments, the issue however could not be considered
without taking into consideration the provision of the Enactments; the C
validity and constitutionality. Reproduced below are the excerpts of the
learned High Court Judge’s decision appearing at p. 742 in the Jill Ireland
appeal case:
[37] We must revert to the judgment of the learned judge to see how she
had dealt with the applicant’s prayers which she had subsequently D
declined to grant. That must necessarily lead us to p. 719 of the appeal
records. It was contained in para. [16] of her judgment as follows:
The applicant in this application also seeks for certain declarations
concerning her rights as guaranteed by Articles 8 and 11 of the
Federal Constitution. In the respondent’s affidavit in Enclosure 6, E
the respondent states that the applicant’s action in bringing the 8
CDs will lead to violation of provision of state enactments on
control and restriction of propagation of non-Islamic religion
among Muslims pertaining to the prohibition of certain words or
phrases by non-Islamic religion. Although the applicant is not
challenging those Enactments, but in my view, the issue here F
cannot be considered without taking into consideration the
provision of those enactments; its validity and constitutionality.
[38] In para. 17 of her judgment, the learned judge had gone on to say
as follows:
The question on the usage of the word: “Allah” which the G
applicant argues to be her right guaranteed by Articles 8 and 11 of
the Federal Constitution, cannot in my view be considered in
isolation without taking into consideration the validity and
constitutionality of those laws as well …
[67] As mentioned, the Court of Appeal had agreed with the learned High H
Court Judge’s decision.
[68] Needless to say, and without more, the same constraint applies. I am
duty-bound to abstain from considering any challenges on the prohibition of
the use of the word “Allah” in considering the challenge on the impugned
Directive as the challenge on such prohibition must not be done in a I
collateral manner.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 255

A [69] Having said that, I shall now proceed to consider the issues pertaining
to the impugned Directive. This court will examine the decision in issuing
the impugned Directive not only in relation to the process but also for
substance in order to ascertain if such decision was tainted with illegality,
irrationality or even procedural impropriety within the established principles
B governing the law on judicial review. In my view, the impugned Directive
has, foremost, to be validly issued in accordance with the law in order for
the prohibition imposed therein to be legally sustained. If the impugned
Directive was validly issued and not offending the FC, then the only way to
challenge the prohibition on the use of the word of “Allah” found therein,
will be in the manner as stipulated in the majority decision of the Federal
C
Court in the Titular Roman Catholic Archbishop of Kuala Lumpur.
[70] To recapitulate, the respondents’ case is that the impugned Directive
was a Cabinet’s decision which relates to the policy of the Government at
that point of time to avoid any confusion among the Muslims and Christians
D community which is likely to be prejudicial to public order and creating
religious sensitivity amongst the Malaysians.
[71] The Cabinet’s policy decision referred to by the respondents was the
decision made by the Cabinet on 19 May 1986.
[72] This was confirmed by the Minister in his affidavit in encl. 15.
E
Marked as exh. SHA1 was a letter dated 19 May 1986 from the Prime
Minister (PM) to the Secretary General, the Ministry of Home Affairs,
which showed that the Cabinet had discussed and the Deputy Prime Minister
(DPM) was assigned to determine on the words permitted to be used and
prohibited from use in the Christian religion, with the note from the DPM
F dated 16 May 1986 appended thereto (DPM’s note). The DPM’s note also
appeared as exh. “SHM4” in encl. 6).
[73] Reproduced below are the PM’s letter and the DPM’s note:

I
256 Current Law Journal [2021] 4 CLJ

A. The PM’s letter: A

I
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 257

A B. The DPM’s Note:

I
258 Current Law Journal [2021] 4 CLJ

H
[74] It is apparent that the PM’s letter endorsed the ‘Keputusan’ contained
in the DPM’ note. Thus, it is reasonable to infer that the “Keputusan” in the
DPM’s note became the Cabinet’s policy decision on the words that can and
cannot be used by the Christian religion (the Cabinet’s policy decision).
[75] Approximately seven months later, the impugned Directive was I
issued and it is reproduced below:
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 259

I
260 Current Law Journal [2021] 4 CLJ

I
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 261

A [76] In his affidavit in encl. 15, the Minister explained the content of the
impugned Directive:
7. Selaras dengan peruntukan undang-undang dan polisi kerajaan,
semua penerbitan Kristian tidak boleh menggunakan istilah Allah,
Kaabah, Solat dan Baitullah dan Kementerian Dalam Negeri sebagai
B kementerian yang mengawal selia percetakan dan penerbitan adalah
bertanggungjawab untuk melaksanakan dan menguatkuasakan undang-
undang dan polisi-polisi kerajaan tersebut khususnya di bawah Akta 301.
…
9. Oleh itu, saya sesungguhnya percaya bahawa keputusan melarang
C semua penerbitan Kristian menggunakan istilah Allah, Kaabah, Solat dan
Baitullah sejak 1986 dan perlaksanaan serta penguatkuasaan larangan
oleh pihak kementerian itu adalah tepat.
10. Saya merujuk kepada Afidavit Jawapan Responden Suzanah bin Haji
Muin yang telah diikrarkan pada 28/8/2009 dan bersetuju serta
D mengesahkan bahawa tindakan beliau tersebut adalah selaras dengan
tindakan melaksanakan dan menguatkuasakan undang-undang dan
polisi kerajaan sejak tahun 1986 tersebut melalui peruntukan di bawah
Akta 301. (emphasis added)
[77] From paras. 7 and 10 of the Minister’s affidavit above, the Minister
E described the impugned Directive as “undang-undang dan polisi kerajaan” –
the law and the policy of the Government. The Minister averred that
consistent with the law and the policy of the Government, all Christian
publications are not permitted to use the words “Allah”, “Kaabah”, “Solat”
and “Baitullah”. His Ministry having the charge of regulating, printing and
publication, was made responsible to execute and enforce the said law and
F
the policy of the Government under Act 301.
[78] The process that had taken place as can be distilled from the PM’s
letter, the DPM’s note and the impugned Directive is that when the PM
passed over to the Ministry of Home Affairs the Cabinet’s policy decision,
G what followed next was the issuance of the impugned Directive by the
Bahagian Kawalan Penerbitan of the Ministry of Home Affairs. In other
words, the Ministry of Home Affairs was executing the Cabinet’s policy
decision by making and issuing the impugned Directive.
[79] In the circumstances, the impugned Directive then must mirror the
H Cabinet’s policy decision. The question is whether it did? Upon
painstakingly perusing through all evidence adduced in this proceedings, I
entertained serious doubt whether the Cabinet’s policy decision was
incorporated in the impugned Directive as there appears to be marked
discrepancies between the Cabinet’s policy decision and the impugned
I Directive. My reasons are as follows.
262 Current Law Journal [2021] 4 CLJ

[80] Paragraph 1 of the DPM’s note stated that 12 words “AlKitab”, A

“Firman”, “Rasul”, “Syariat”, “Iman”, “Ibadah”, “Injil”, “Wahyu”,
“Nabi”, “Syukur”, “Zikir” and “Doa” were permitted to be used. There
was no condition attached to the use of these words.
[81] Paragraph 2 of the DPM’s note stated that four words “Allah”,
“Kaabah”, “Baitullah” and “Solat” were not permitted to be used and B
appearing immediately below the four words were these words “Dengan
syarat di luar kulit (muka depan) buku-buku itu ditulis perkataan “UNTUK
AGAMA KRISTIAN”.
[82] The DPM’s note relates to the subject “Istilah/Perkataan Islam Di
C
Dalam “AlKitab” Yang Tidak Boleh Digunakan”. The AlKitab is an
Indonesian translation of the Bible where the word “Allah” appears therein.
The DPM’s note was couched in unambiguous terms. The plain and clear
language in DPM’s note in my view simply means that the 12 words can be
used unconditionally while the four words cannot be used but the four words
can be used subject to the condition stated immediately below the four D
words. It is crucial to bear in mind that the words “ Dengan syarat di luar
kulit (muka depan) buku-buku itu ditulis perkataan “UNTUK AGAMA
KRISTIAN” appeared only in para. 2 and not para. 1 of the DPM’s note.
[83] However, there is a marked departure in the impugned Directive from
E
the Cabinet’s policy decision as contained in the DPM’s note.
[84] Firstly, with regard to the 12 words. There is now attached in
para. 2 of the impugned Directive these words “Sekiranya penerbitan
tersebut berbentuk buku atau risalah yang hendak disebarkan atau dijual
perkataan “UNTUK AGAMA KRISTIAN”, disyaratkan ditulis di kulit luar F
(muka depan) buku atau risalah tersebut.” These words do not appear in
para. 1 of the DPM’s note.
[85] Secondly, with regard to the four words namely “Allah”, “Kaabah”,
“Baitullah” and “Solat”, the words “Dengan syarat di kulit luar (muka
depan) buku-buku itu ditulis perkataan “UNTUK AGAMA KRISTIAN” as G
appeared in the para. 2 of the DPM’s note, are not there in para. 3 of the
impugned Directive.
[86] I accept that the words “Dengan syarat di kulit luar (muka depan)
buku-buku itu ditulis perkataan ‘UNTUK AGAMA KRISTIAN’” as
appeared in the DPM’s note and the words “Sekiranya penerbitan tersebut H
berbentuk buku atau risalah yang hendak disebarkan atau dijual perkataan
‘UNTUK AGAMA KRISTIAN’, disyaratkan ditulis di kulit luar (muka
depan) buku atau risalah tersebut” as appeared in the impugned Directive,
would carry similar effect.
I
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 263

A [87] Even if one is to argue that the words “Dengan syarat di kulit luar
(muka depan) buku-buku itu ditulis perkataan ‘UNTUK AGAMA
KRISTIAN’ appearing in the DPM’s note referred not only to para. 2 but
it is all encompassing, meaning to say that the conditions apply for both
usages of the 12 words as well as the four words, what that line of argument
B takes us to is that those words would appear in para. 2 as well as para. 3 of
the impugned Directive. In so far as it concerned the 12 words, that have
now been accounted for, with the insertion of the words “Sekiranya
penerbitan tersebut berbentuk buku atau risalah yang hendak disebarkan atau
dijual perkataan ‘UNTUK AGAMA KRISTIAN’, disyaratkan ditulis di
kulit luar (muka depan) buku atau risalah tersebut” in para. 2 of the
C
impugned Directive.
[88] But, what is pressing is why the same words “Sekiranya penerbitan
tersebut berbentuk buku atau risalah yang hendak disebarkan atau dijual
perkataan ‘UNTUK AGAMA KRISTIAN’, disyaratkan ditulis di kulit luar
D (muka depan) buku atau risalah tersebut” were omitted from para. 3 of the
impugned Directive?
[89] It is by no means clear that by virtue of the impugned Directive, the
use of the 12 words is now subject to the conditions as specified in
para. 2 and the use of the four words have now become absolutely prohibited
E as shown in para. 3.
[90] Construction of documents is a question of law (see NVJ Menon v. The
Great Eastern Life Assurance Company Ltd [2004] 3 CLJ 96; [2004] 3 MLJ 38).
The court is concerned only to discover what the instrument means (Berjaya
Times Square Sdn Bhd v. M-Concept Sdn Bhd [2010] 1 CLJ 269; [2010] 1 MLJ
F 597).
[91] In my view, on a true and proper construction of the PM’s letter and
the DPM’s note, the Cabinet’s policy decision did not impose a total ban on
the four words “Allah”, “Kaabah”, “Baitullah” and “Solat”. The impugned
Directive did. The Cabinet could not, in my view have imposed a total
G
prohibition because the subject matter of the two documents relates to the
AlKitab. In force at the material time was P.U. (A) 134/1982 which also
concerned the AlKitab.
[92] P.U. (A) 134/1982 is an Order made under s. 22 of the Internal
H Security Act 1960 (Act 82) which prohibits the printing, publication, sale,
issue, circulation or possession of the AlKitab which was prejudicial to the
national interest and security of the Federation but the prohibition ie, the
printing, publication, etc shall not apply to the possession or use in churches
of the AlKitab by persons professing the Christian religion throughout the
country.
I
264 Current Law Journal [2021] 4 CLJ

[93] P.U. (A) 134/1982 is reproduced below: A

INTERNAL SECURITY ACT 1960

INTERNAL SECURITY (PROHIBITION OF PUBLICATIONS
(NO. 4) ORDER 1982
Act 82. In exercise of the powers conferred upon the Minister B
P.U.(B) of Home Affairs by section 22 of the Internal Security
398/76 Act 1960 and delegated to him, the Deputy Minister
makes the following Order:
Citation 1. This Order may be cited as the Internal Security
(Prohibition of Publication) (No. 4) Order 1982.
C
Prohibition 2. The printing, publication, sale, issue, circulation or
of possession of the publication which is described in the
publication Schedule and which is prejudicial to the national interest
and security of the Federation is prohibited, subject
to the condition that this prohibition shall not apply to
the possession or use in Churches of such publication by D
persons professing the Christian religion, through out
Malaysia.
3. The Internal Security (Prohibition of Documents Repeal.
(No. 3) Order 1982 in repealed. P.U.(A)
15/82. E

SCHEDULE
Title of Publisher Printer Language
“ALKITAB” Lembaga Alkitab Printed Indonesia F
Indonesia di Korea
Jakarta 1979
Diperbuat pada 22hb Mac 1982
[KHEDN: O.59/3/9/A;PN.(PU²)24 Pt.II]
Abdul Rahim Datuk Tamby Chik, G
Deputy Minister of Home Affairs
[94] One can see from P.U. (A) 134/1982 that it repealed P.U. (A)
15/1982. Vide P.U. (A) 15/1982, an absolute prohibition was imposed on
the printing, publication, sale, issue, circulation or possession of the AlKitab
throughout Malaysia. This essentially means the use of the word “Allah” was H
absolutely prohibited. But in a couple of months later, the absolute
prohibition was lifted when P.U. (A) 134/1982 was made. The prohibition
on the printing, publication, sale, issue, circulation or possession of the
AlKitab throughout Malaysia was maintained but that prohibition does not
apply to possession or use of the AlKitab by the Christians in churches I
throughout Malaysia. This essentially means the AlKitab that carries the
word “Allah” can be used but within the confines of churches only.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 265

A [95] If the Cabinet’s policy decision was to impose a total prohibition on

the four words, it is reasonable to expect that P.U. (A) 134/1982 would be
repealed or modified or varied to reflect the new policy. This is because the
effect of a total prohibition would extend to possession or use in the
churches. That was not done. It does not stand to reason that if both are
B allowed to co-exist and I shall revert to this in the later part of this judgment.
In addition, I would also pose this question, why the need for the DPM’s
note to carry the words “Sekiranya penerbitan tersebut berbentuk buku atau
risalah yang hendak disebarkan atau dijual perkataan ‘UNTUK AGAMA
KRISTIAN’, disyaratkan ditulis di kulit luar (muka depan) buku atau risalah
tersebut” in para. 2 if a total prohibition was to be imposed?
C
[96] For reasons best known only to the Bahagian Kawalan Penerbitan of
the Ministry of Home Affairs, and which remained unexplained, the clear
words of the DPM’s note with regard to the use of the four words that ought
to have been taken into account, was wholly disregarded and substituted
D instead with the imposition of a total prohibition. Learned SFC’s submission
that the impugned Directive did not impose total or absolute prohibition on
the use of the words “Allah”, “Kaabah”, “Baitullah” and “Solat”, is based
on misapprehension of facts. There is a total ban.
[97] There is no evidence to the effect that there were changes brought
E about to the Cabinet’s policy decision or that the Cabinet had endorsed the
changes made to its decision as contained in the impugned Directives.
[98] In the absence thereof and exhs. “SHA1” and “SHA2” (and exh.
SHM3) taken together, it is my view that the impugned Directive is
inconsistent with the Cabinet’s policy decision.
F
[99] The effect of departing from the Cabinet’s policy decision would mean
it does not lie in the Minister’s mouth to claim that the impugned Directive
was based on the Cabinet’s policy decision. It might have emanated from the
Cabinet’s policy decision to begin with but the material discrepancy as
demonstrated, have cut off the link. The impugned Directive, in my view is
G
simply a stand-alone Directive, so to speak, issued by the Bahagian Kawalan
Penerbitan of the Ministry of Home Affairs.
[100] Perhaps, if the Cabinet’s policy decision was correctly, properly and
validly carried into effect by using the appropriate law under the charge of
H the Ministry of Home Affairs, there may not even be this judicial review
proceedings. This is because, in my view, the Cabinet’s policy decision is
wider in scope than the provisions of P.U. (A) 134/1982. Effectively the use
of the four words is permissible even outside the confines of churches subject
to the conditions as prescribed. If the applicant has accepted P.U. (A) 134/
1982, there is every reason to believe that the Cabinet’s policy decision
I
would be equally acceptable.
266 Current Law Journal [2021] 4 CLJ

[101] It is acknowledged that this marked departure from the express A

provision of the Cabinet’s policy decision, was not addressed by the parties
during the hearing.
[102] It matters not, in my view, whether the parties were asked or not
asked by this court to submit on the departure.
B
[103] In our adversarial system, the role of this court is to provide to all
parties to the controversy and their advocates, the opportunity to present
evidence and to argue their point of view in trying to determine the truth of
the matter. That was done. This court does not assume the role of
investigator as is the case in an inquisitorial system. In Teng Boon How v. PP
C
[1993] 4 CLJ 545; [1993] 3 MLJ 561, the Supreme Court observed at p. 552
(CLJ); p. 562 (MLJ):
It was Lord Greene MR who explained that justice is best done by a judge
who holds the balance between the contending parties without herself/
himself taking part in their disputations.
D
[104] This is not a case where the respondents have been denied of being
informed of any point adverse to them that is going to be relied on by this
court, where they must be given the opportunity of stating what their answers
would be (Hadmor Productions Ltd And Others v. Hamilton and Another [1982]
2 WLR 322; Pacific Forest Industries Sdn Bhd & Anor v. Lin Wen-Chih & Anor E
[2009] 6 CLJ 430). Exhibits SHA1 and SHM2 are the respondents’
documents. The discrepancies are manifestly apparent on the face of the
records and the respondents would have been able to identify them if the
documents were given due, proper and appropriate examination. The
respondents only have themselves to be blamed if they had not done so.
F
Illegality And Irrationality Issues
[105] The inconsistency issue aside, indisputably, the Minister referred to
the impugned Directive as the law. Learned SFC maintained the stance that
there was nothing illegal about the impugned Directive and unless and until
it is withdrawn, it continues to be in force and commands compliance. Thus, G
the inference to be drawn is that the respondents have treated the impugned
Directive issued by the Ministry as a subsidiary legislation having the force
of law and was legitimately used as the basis to exercise the power under
s. 9(1) of Act 301 to confiscate the eight CDs.
H
[106] Is the impugned Directive a subsidiary legislation or subordinate
legislation or delegated legislation as the terminology is commonly referred
to?
[107] Subsidiary legislation is defined in s. 3 of the Interpretation Acts 1948
and 1967 (Act 388) as follows: I
“subsidiary legislation” means any proclamation, rule, regulation, order,
notification, by-law or other instrument made under any Act, Enactment,
Ordinance or other lawful authority and having legislative effect;.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 267

A [108] Subsection 23(1) of Act 388 provides:

Any subsidiary legislation that is inconsistent with an Act (including the
Act under which the subsidiary legislation was made) shall be void to the
extent of the inconsistency.
[109] Learned author M.P Jain in his book Administrative Law of Malaysia
B
And Singapore, supra, said that s. 23 of Act 388 is the foundation of the
doctrine of judicial review of subsidiary legislation (see pp. 79 and 80). Such
a challenge can be sustained when delegated legislation goes beyond the
scope of the authority conferred by the parent statute. This is known as
substantive ultra vires which refers to the scope, extent and range of power
C conferred by the statute to make subsidiary legislation. The learned author
went on to say:
As Lord Diplock pointed out in McEldowney v. Forde, where the validity
of subordinate legislation is challenged, the court has a three-fold task:
first, to determine the meaning of the words used in the Act of Parliament
D itself to describe the subordinate legislation which the delegate is
authorised to make; second, to determine the meaning of the subordinate
legislation itself and, finally, to decide whether the subordinate legislation
complies with the description.
[110] Thus, the impugned Directive can be regarded as a subsidiary
E legislation (formatting aside) provided that it is made under Act 301 and it
has legislative effect. Learned author M.P Jain explained the effect of the
definition of “subsidiary legislation” in these words at p. 57:
This means that an order, notification, etc. can be regarded as subsidiary
legislation only if it has a “legislative effect.” Some of the terms
F mentioned here are also used indiscriminately for “administrative” acts as
well. The definition in the Interpretation Act emphasises two aspects of
subsidiary legislation: (i) it is made under an Act of the Legislature (or
Ordinance): and (ii) it has legislative effect. It means that every order,
notification etc. is not subsidiary legislation: it is so only if it has
‘legislative’ effect; if it is not ‘legislative’ in nature, it is not subsidiary
G legislation; it may then be regarded as “administrative” in nature …”
[111] There is a difference between what is legislative and what is
administrative. Learned author MP Jain further explained at p. 58 on how
one distinguishes between the two:

H How to distinguish between ‘legislative’ and ‘administrative’? The

distinction between these two concepts is very difficult to draw as there
is no articulate norm to evaluate whether an order or function made or
discharged by an authority is legislative or administrative. A general test
often propounded for the purpose is that an instrument (howsoever
designated) is legislative in character if it is of general application, but is
I administrative in nature if applicable not generally but to specific cases.
268 Current Law Journal [2021] 4 CLJ

[112] In Indian Airlines Corporation v. Sukhdeo Rai AIR 1971 SC 1828, the A
Supreme Court held that “But all rules and regulations made by the
authorities in pursuance of a power under a statute do not necessarily have
the force of law. In Kruse v. Johnson [1898] 2 QB 91 at p. 96) while
considering the validity of a bye-law made by a county council Lord Russell
described a bye-law having the force of law as one affecting the public or B
some section of the public, imposed by some authority clothed with statutory
powers, ordering something to be done or not to be done and accompanied
by some sanction or penalty for its non-observance.”
[113] Bearing in mind the three-fold task in McEldowney v. Forde and Kruse
v. Johnson, the impugned Directive in my view cannot be regarded as a C
subsidiary legislation.
[114] At the risk of repetition, from the affidavit of the Minister, his
Ministry will be implementing the Cabinet’s policy decision. How this was
supposed to be done would be through the law under the charge of the
Minister of Home Affairs. In this regard, it is Act 301. D

[115] The impugned Directive was signed not by the Minister but by his
officer from that department on behalf of the Ministry’s Secretary General.
There is no explanation why that was so and why the Minister himself did
not sign it. For convenience, further reference in this judgment with regard
E
to the individual responsible for the issuance of the impugned Directive,
shall be reference to the Minister. The Minister has acknowledged the
issuance of the impugned Directive by his Ministry.
[116] The impugned Directive did not state the provision of Act 301
pursuant to which it is was made. If the respondent claimed that the F
impugned Directive is law, the provision of Act 301 would have been spelt
out. When it did not, then it is incumbent on this court to find out whether
Act 301 empowers the Minister to issue the impugned Directive.
[117] It is elementary that one must read and construe the law, in the present
case – Act 301, as a whole and in the context to discover whether there is G
such power (see Bennion on Statutory Interpretation, 6th edn; NS Bindra’s on
Interpretation of Statutes, 10th edn.)
[118] The long title of Act 301 which indicates the general purpose/object
and the scope of the Act provides – “An Act to regulate the use of printing
presses and the printing, importation, production, reproduction, publishing H
and distribution of publications and for matters connected therewith”.
[119] From its long title and the other provisions of Act 301 read and taken
as a whole, it is plain and clear that Act 301 is not a general law on public
order but a specific law directed at regulating the licensing of printing
I
presses, issuance of permits to publish newspapers and the control of
undesirable publications which are enforced by penal sanctions.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 269

A [120] Part IV of Act 301 deals with control of undesirable publications. The
relevant provisions on power to impose prohibition are found in ss. 7 and
9. Reproduced below are the excerpts of s. 7(1) and 9(1):
Undesirable publications
7(1) If the Minister is satisfied that any publication contains any article,
B
caricature, photograph, report, notes, writing, sound, music, statement or
any other thing which is in any manner prejudicial to or likely to be
prejudicial to public order, morality, security, or which is likely to alarm
public opinion, or which is likely to be contrary to any law or is otherwise
prejudicial to or is likely to be prejudicial to public interest or national
C interest, he may in his absolute discretion by order published in the Gazette
prohibit, either absolutely or subject to such conditions as may be
prescribed, the printing, importation, production, reproduction, publishing,
sale, issue, circulation, distribution or possession of the publication and
future publication of the publisher concerned.
Undesirable publication may be refused importation
D
9(1) Without prejudice to anything in this Act, the Minister may refuse
the importation into Malaysia or withhold delivery or return to the sender
thereof outside Malaysia any publication which he is satisfied contains
any article, caricature, photograph, report, notes, writing, sound, music,
statement or any other thing which is likely to be prejudicial to public
E order, morality, security, or which is likely to alarm public opinion, or
which is likely to be contrary to any law or is otherwise prejudicial or is
likely to be prejudicial to public interest or national interest.
[121] In the Jill Ireland appeal case, the Court of Appeal held at p. 740 “…
there is no getting away from the cardinal principle so entrenched in public
F law domain that the exercise of a statutory power may only be exercised in
the manner as intended by the legislature as expressed in the statutory
provisions”.
[122] Looking at the two provisions above, the Minister is empowered to
impose prohibition on and refuse importation of any publication if the
G
Minister is satisfied that the elements prescribed in the said provisions are
present in the said publication. Even if one is to assume that Act 301 is a
general law on public order as maintained by learned SFC (to which I
disagree), there is nowhere in the said provisions and in any other provisions
and the rule making provision in s. 26 which I shall advert to later, that
H provide the Minister with the power to issue a subsidiary legislation which
imposed prohibition on the use of the four words in all Christian publications
– “Perkataan yang tidak boleh dipakai atau digunakan dalam penerbitan
Kristian di negara ini ...” The publishers were reminded “… supaya
mematuhi arahan Kerajaan dalam semua bentuk penerbitan agama Kristian
I yang diterbitkan”.
270 Current Law Journal [2021] 4 CLJ

[123] The Minister’s rule making power in s. 26 deals substantively with A

procedural related matters. It is apparent that the Minister is not given the
power under s. 26 to make rules pertaining to the impugned Directive.
[124] I am mindful of the Printing Presses and Publications (Licences and
Permits) Rules 1984 made pursuant to s. 26(2)(d) of Act 301, published as
P.U. (A) 305/1984. I do not see any relevance of this subsidiary legislation, B
which came under consideration in Titular Roman Catholic Archbishop of
Kuala Lumpur in the High Court and the Court of Appeal, to the issuance
of the impugned Directive. The impugned Directive made no reference
whatsoever to P.U. (A) 305/1984 and matters pertaining to conditions
attached to licences and permits of the publishers was never an issue. In any C
event, as the respondents have treated the impugned Directive as law, there
is no subsidiary legislation made under s. 26 in respect of the impugned
Directive in the same manner P.U. (A) 305/1984 was made.
[125] The issuance of the impugned Directive is undoubtedly outside the
ambit of s. 26. D

[126] There is a clear lack of statutory power to make and issue the
impugned Directive under Act 301.
[127] Therefore, the impugned Directive cannot be a subsidiary legislation
that has legislative effect made in the purported exercise of the powers under E
Act 301.
[128] The Minister must understand the law that regulates his decision-
making power and he must give effect to it. If the Minister does not follow
the law that regulates the exercise of his powers, then he had acted illegally
because his action had gone beyond the limits of the power prescribed by the F
law. In this present case, the Minister has not acted according to the law by
wrongly giving himself the jurisdiction to act by misconstruing the provisions
of Act 301. Consequently, there is occasioned what is described as a
substantive ultra vires. MP Jain explained at p. 347:
G
In substantive ultra vires, the main concern of the courts is to see that the
authority exercises its discretionary power according to, and within the
limits set by, the statute. The first principle of the rule of law is that the
authority exercising discretionary power has to act according to law; it
should confine itself within the ambit and scope of, and not exceed, the
powers conferred on it by law; and if the authority steps out of the limits H
set by the controlling statute, then its act is invalid. The court review is
based on the hypothesis that in conferring discretion, the legislature could
not have intended that the concerned authority should be the sole judge
of the extent of its powers. If it were so, the authority will come to enjoy
a completely uncanalised power which would be the negation of the rule
of law. The courts are thus obligated to ensure that no authority exceeds I
its powers or go contrary to law.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 271

A [129] Zainun Ali FCJ in Indira Gandhi Mutho v. Pengarah Jabatan Agama
Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145; [2018] 1 MLJ 545
cited the Federal Court case of Pengarah Tanah dan Galian, Wilayah
Persekutuan v. Sri Lempah Enterprise Sdn Bhd [1978] 1 LNS 143; [1979] 1 MLJ
135 and said that the Executive decision is subject to legal limits:
B [116] … At the outset, it is axiomatic that any exercise of legal power,
including discretionary power, is subject to legal limits. In the celebrated
pronouncement of Raja Azlan Shah CJ (as His Royal Highness then was)
in Pengarah Tanah dan Galian, Wilayah Persekutuan (at p 148):
Every power must have legal limits, otherwise there is dictatorship.
C In particular, it is a stringent requirement that a discretion should
be exercised for a proper purpose, and that it should not be
exercised unreasonably. In other words, every discretion cannot be
free from legal restraint; where it is wrongly exercised, it becomes
the duty of the courts to intervene. The courts are the only
defence of the liberty of the subject against departmental
D aggression. In these days when government departments and
public authorities have such great powers and influence, this is a
most important safeguard for the ordinary citizen; so that the
courts can see that these great powers and influence are exercised
in accordance with law. I would once again emphasise what has
often been said before, that ‘public bodies must be compelled to
E observe the law and it is essential that bureaucracy should be kept
in its place’ (per Danckwertts LJ in Bradbury v. London Borough of
Enfield [1967]3 All ER 434 at p 442).
[117] In that case, the Federal Court held that the Land Executive
Committee, being a creature of statute, possess only such power as
F conferred by Parliament; ‘therefore when a power vested in it is exceeded
any act done in excess of the power is invalid as being ultra vires’ (at p 148).
[130] In the premises, I hold that the applicant is entitled to the declaration
sought that the impugned Directive is invalid. In this case, an error in law
had occurred when the respondents had treated the impugned Directive as
G being validly made under Act 301 when it was not justified or authorised by
any provision of the said Act, and in allowing its enforcement under s. 9(1)
of the same Act.
[131] Even if it is said that the impugned Directive is purely administrative
(which is not the position taken by the respondent), the Minister is at no
H
liberty to have unfettered discretion as to what he wishes to do. His decision
is still constrained to legal limits and to the control of the court. In this
instant case, the power under Act 301 was exercised in excess of jurisdiction.
The court is duty-bound to intervene so as to keep the Minister in his place
and not to act arbitrarily (see Pengarah Tanah dan Galian, Wilayah Persekutuan
I v. Sri Lempah Enterprise Sdn Bhd, supra).
272 Current Law Journal [2021] 4 CLJ

[132] The impugned Directive stands without any statutory backing and A
certainly cannot prevail over P.U. (A) 134/1982. In the case of C.L. Verna
v. State of Madhya Pradesh, AIR 1990 SC 463, a Government notification was
struck down as ultra vires a statutory rule. The Supreme Court held that an
administrative instruction can supplement a statute but it cannot compete
with a statutory rule and if there be contrary provisions in the rule, the B
administrative instructions must give way and the rule shall prevail.
[133] Thus, the end result is that the impugned Directive is illegal, unlawful
and is a nullity for want of jurisdiction.
[134] What is the effect of a nullity? In Eu Finance Bhd v. Lim Yoke Foo
C
[1982] 1 LNS 21; [1982] 2 MLJ 37, a land matter, Abdoolcader J speaking
for the Federal Court held at p. 39 (MLJ):
The general rule is that where an order is a nullity, an appeal is somewhat
useless as despite any decision on appeal, such an order can be
successfully attacked in collateral proceedings; it can be disregarded and
D
impeached in any proceedings, before any court or tribunal and whenever
it is relied upon, – in other words, it is subject to collateral attack. In
collateral proceedings the court may declare an act that purports to bind
to be non-existent. In Harkness v. Bell’s Asbestos and Engineering Ltd., Lord
Diplock LJ (now a Law Lord) said (at page 736) that ‘it has been long
laid down that where an order is a nullity, the person whom the order E
purports to affect has the option either of ignoring it or of going to the
court and asking for it to be set aside’.
Where a decision is null by reason of want of jurisdiction, it cannot be
cured in any appellate proceedings; failure to take advantage of this
somewhat futile remedy does not affect the nullity inherent in the
challenged decision. The party affected by the reason may appeal ‘but he F
is not bound to (do so), because he is at liberty to treat the act as void’.
(Birmingham (Churchwardens and Overseers) v. Shaw (at page 880 per Denman
CJ)). In Barnard v. National Dock Labour Board it was said that, as a notice
of suspension made by the local board was a nullity, ‘the fact that there
was an unsuccessful appeal on it cannot turn that which was a nullity into
G
an effective suspension’ (at page 34 per Singleton LJ) Ridge v. Baldwin is
to the same effect.
Lord Denning said in Director of Public Prosecutor v. Head ( at page 111) that
if an order was void, it would in law be a nullity and there would be no
need for an order to quash it as it would be automatically null and void
without more ado ... H

[135] Applying the principle enunciated in the case above, the impugned
Directive is devoid of any legal effect whatsoever from the inception. It
follows that the prohibition on the use of the four words imposed by the
impugned Directive cannot be legally sustained.
I
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 273

A [136] It is noteworthy to reproduce again how learned author MP Jain

described the effect of a subsidiary legislation that is found to be void as being
ultra vires the parent Act:
The judgment of a court that any piece of delegated legislation is void
as being ultra vires the parent Act or inconsistent with any Act or the
B Constitution renders it incapable of ever having had any legal effect upon
the rights and duties of the parties to the proceedings. Although such a
decision is directly binding only as between the parties to the proceedings
in which it was made, because of the doctrine of precedent, the benefit
of the decision accrues to all other persons whose legal rights have been
interfered with in reliance on the law which the delegated legislation
C purported to declare.
[137] The statement above is self-explanatory on the legal impact of the
impugned Directive found to be void and a nullity.
[138] The decision in making and issuing the impugned Directive is also
D irrational and perverse when there was a total disregard to the fact that the
impugned Directive would be in direct conflict with P.U. (A) 134/1982. A
matter which the Minister ought to have taken into account and which he did
not.
[139] I accept that P.U. (A) 134/1982 relates to the AlKitab. The impugned
E Directive relates to an absolute prohibition on the use of the four words in
all Christian publications, and by necessary implication, the prohibition
would include the AlKitab. As the impugned Directive presumably refers to
future publications, ie, from 5 December 1986 and thereafter, what happen
then to the printing, etc permitted by P.U. (A) 134/1982 for the possession
F and use of the AlKitab which carries the word “Allah” within the confines
of churches, which has the force of law indefinitely until the said Order is
revoked?
[140] Next, how could the Minister not conform to the Cabinet’s policy
decision and substitute it instead by imposing a total prohibition on the four
G words in the Christian publications?
[141] It is obvious that the impugned Directive is fraught with issues. In the
circumstances, it is my finding that the decision in imposing such prohibition
had not passed the test of Wednesbury principle of reasonableness in Associated
Provincial Picture Houses Limited v. Wednesbury Corporation [1984] 1 KB 223.
H The decision of the Minister is so outrageous in its defiance of logic that no
sensible person could have arrived at the decision he had made.
Public Order Issue
[142] As mentioned earlier, public order forms the underlying basis on
I which the impugned Directive was made.
274 Current Law Journal [2021] 4 CLJ

[143] Whether public order justifies the making of the impugned Directive A
is no longer relevant in view of my finding that there is a clear lack of power
to issue the impugned Directive under Act 301. However, for completeness,
I shall proceed to analyse the arguments by both parties on this subject.
[144] Learned SFC submitted that ‘potential disruption of the even tempo
of the community’ is a basis to restrict the fundamental liberties of freedom B
of expression and freedom to practice one’s religion. It is so when any
particular activity comes within the scope of being prejudicial to public
order.
[145] This means that when such exercise of discretion by the Minister
C
becomes a subject of a judicial review, it is the duty of the court to execute
a balancing exercise between the requirement of national security and public
order with that of the interest and freedom of an individual. As a general
principle, as decided by case law, the courts will give great weight to the
views of the Executive on matters of national security.
D
[146] I am mindful of high authorities on the unsuitability of judicial review
on matters related to national security or public order or tranquillity. The
legal proposition distilled from these authorities is that the assessment
whether the contents of the publication is likely to be prejudicial to public
order is within the realm of the Executive who has access to the relevant
E
information and thus in this case, it is the Minister and not the court. In
Council for Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374,
Lord Fraser said at p 402:
The decision on whether the requirements of national security outweigh
the duty of fairness in any particular case is for the Government and not
F
for the courts; the Government alone has access to the necessary
information, and in any event the judicial process is unsuitable for
reaching decisions on national security.
(see the Federal Court cases of Karam Singh v. Menteri Hal Ehwal Dalam Negeri
(Minister of Home Affairs) Malaysia [1969] 1 LNS 65; [1969] 2 MLJ 129,
G
Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 and Darma Suria
Risman Saleh v. Menteri Dalam Negeri, Malaysia & Ors [2010] 1 CLJ 300).
[147] In Darma Suria Risman Saleh v. Menteri Dalam Negeri, Malaysia & Ors
[2010] 1 CLJ 300, the Federal Court held that an act is prejudicial to public
order if it disrupts or has the potential to disrupt public safety and tranquility. H
Gopal Sri Ram JCA said:
[11] In our judgment whether an act of smuggling is prejudicial to public
order depends on the facts and circumstances of each case. If it disrupt
or has the potential to disrupt the even tempo of the life of the
community it would prejudice public order. It would also come within the
I
scope of public order where it disrupt or has the potential to disrupt public
safety and tranquility.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 275

A [148] The Federal Court in this case said that the phrase “likely to be
prejudicial to public order” does not necessarily refer to the existence of
actual public disorder because public disorder includes anything potential to
disrupt public order.
[149] What is the correct test to be adopted in reviewing the impugned
B Directive? In Darma Suria, supra it was observed by the Federal Court that
in determining whether an act may fall under public order or otherwise:
... The true test is not the kind, but the potentiality of the act in question
…

C [150] By the Federal Court decision in Darma Suria, supra the issue whether
there must first be evidence of actual occurrence of public disorder or
disturbance to public order or that such occurrence is imminent, is not the
correct test in determining the legality of the impugned Directive. This is due
to the fact that the term “prejudicial” by itself would cover a situation where
the potentiality of the act to disturb the even tempo of life would suffice.
D
[151] There is no doubt that the authorities mentioned above are binding on
this court.
[152] However, high authorities also showed that in the exercise of its
judicial review powers, the court requires that there ought to be adequate,
E reliable and authoritative evidence.
[153] Learned counsel for the applicant referred this court to the Supreme
Court case of John Peter Berthelsen v. Director-General Of Immigration, Malaysia
& Ors [1986] 2 CLJ 409; [1986] CLJ (Rep) 160; [1987] 1 MLJ 134, the House
of Lord case of Bugdaycay v. Secretary of State for the Home Department [1987]
F
1 AC 514, the Singapore Court of Appeal of Chng Suan Tze v. The Minister
of Home Affairs & Ors and Other Appeals [1988] 1 LNS 162; [1989] 1 MLJ 69)
and the Federal Court case of Mohamad Ezam Mohd Noor v. Ketua Polis Negara
& Other Appeals [2002] 4 CLJ 309 to support the contention that public order
and even national security claims are reviewable by the High Court in the
G exercise of its judicial review powers. The High Court in this case requires
that there ought to be adequate, reliable and authoritative evidence.
[154] In J.P. Berthelsen, supra, the Supreme Court at p. 166 (CLJ); p. 138
(MLJ) held:
H We would add that in any event adequate evidence from responsible an
authoritative sources would be necessary on the security aspect and no
reliance can be placed in that regard on a mere ipse dixit of the first
respondent to that effect in the notice of cancellation of the employment
pass which the learned Judge purported to accept without more ado.

I [155] The House of Lords in Bugdaycay, supra, it was reported at the

headnote at p. 516:
276 Current Law Journal [2021] 4 CLJ

… although the question whether there was a danger that the removal A
of a person claiming refugee status to a third country would result in his
return to the country where he feared persecution lay exclusively within
the jurisdiction of the Secretary of State, that question had not been
adequately considered by him in relation to M. and the decision to
remove him having been made without considering the evidence adduced
of such danger, the order would be quashed. B

[156] In delivering the above judgment in Bugdaycay, supra, Lord

Templeman stated as follows at pp. 537 to 538:
In my opinion where the result of a flawed decision may imperil life or
liberty a special responsibility lies on the court in the examination of the C
decision-making process. In the case of Mr. Musisi, a first reading of the
evidence filed on behalf of the Secretary of State and Mr. Musisi, gives
rise to a suspicion that the dangers and doubts involved in sending Mr.
Musisi back to Kenya have not been adequately considered and resolved.
As a result of the analysis of the evidence undertaken … I am not
satisfied that the Secretary of State took into account or adequately D
resolved the ambiguities and uncertainties which surround the conduct
and policy of the authorities in Kenya. With relief I gratefully concur in
the reasoning of my noble and learned friend, Lord Bridge of Harwich,
and agree that the orders made in respect of Mr. Musisi should be
quashed.
E
[157] In Chng Suan Tze, supra the Court of Appeal held at p. 83 (MLJ):
It is clear that where a decision is based on considerations of national
security, judicial review of that decision would be precluded. In such cases,
the decision would be based on a consideration of what national security
requires, and the authorities are unanimous in holding that what national
security requires is to be left solely to those who are responsible for F
national security: the Zamora and GCHQ case. However, in these cases,
it has to be shown to the court that considerations of national security
were involved. Those responsible for national security are the sole judges
of what action is necessary in the interests of national security, but that
does not preclude the judicial function of determining whether the
G
decision was in fact based on grounds of national security.
… although a court will not question the executive’s decision as to what
national security requires, the court can examine whether the executive’s
decision was in fact based on national security considerations …
[158] The Federal Court in Mohamad Ezam Mohd Noor v. Ketua Polis Negara H
& Other Appeals [2002] 4 CLJ 309 applied the same principle in Chng Suan
Tze, supra. In delivering the judgment of the Federal Court, Steve Shim CJ
(Sabah & Sarawak) stated at p. 345 as follows:
Here, the court is entitled to inquire into the basis for the detaining
authority’s reason to believe that the appellants had acted or were about I
to act or were likely to act in a manner prejudicial to the security of
Malaysia. As I have said before, on the basis of the affidavits filed by the
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 277

A respondent, there is nothing to indicate or suggest the existence of any

material particulars or evidence in support of the detaining authority’s
reason to believe in terms of s. 73(1)(b) aforesaid.
[159] Thus, adequate evidence from responsible and authoritative sources is
necessary on the public order aspect.
B
[160] It is obvious that from the evidence filed in the affidavits of the
respondents, there is no adequate, reliable and authoritative evidentiary basis
for the impugned Directive. It is to be noted that although the Minister
indicated that the basis for the making of the impugned Directive was on the
ground of public order but he did not provide any supporting reasons. There
C was no affidavit evidence of any disruption or any potential to disrupt the
public order before and at the material time when the impugned Directive
was made or even when the Cabinet made its policy decision. The
respondents did not cite any particular case of public disorder.
[161] In my view, this court must not readily accept the ipse dixit of the
D
Minister. The only reason advanced by the Minister that the use of the word
“Allah” had caused confusion and religious sensitivity leading to the
purported perceived threat to public order, was the impact of the decision
in the High Court Judicial Review Application No. R1-25-28-2009 (the High
Court case of Titular Roman Catholic Archbishop of Kuala Lumpur, supra) as
E found in para. 8 of encl. 15:
8. Saya ingin menyatakan bahawa Mahkamah Yang Mulia ini boleh
mengambil pengiktirafan kehakiman (“judicial notice”) bahawa
terdapatnya ancaman berhubung isu kalimah Allah sebagaimana
impak yang berlaku akibat keputusan kes Mahkamah Tinggi Kuala
F Lumpur dalam Permohonan Semakan Kehakiman No. R1-25-28-
2009 antara Titular Roman Catholic Archbishop of Kuala Lumpur
v Menteri Dalam Negeri & 1 Lagi pada 31 Disember 2009 berhubung
penggunaan kalimah Allah dalam Majalah “Herald – the Catholic
Weekly” yang telah menimbulkan kekacauan, huru hara,
kemarahan, ketidaktenteraman awam dan mengancam keselamatan
G rakyat.
[162] The Minister was making ex post facto justification of public order and
asking this court to take judicial notice over the untoward incidents which
took place well past two decades from the date of the Cabinet’s policy
decision and the impugned Directive. However, nothing really turns on the
H
judicial notice point. The subject matter was not pursued as it was not
submitted on by learned SFC.
[163] I agree with learned counsel for the applicant that a decision-maker
must act on facts, information and materials available to the decision-maker
at the time of the decision. The Minister’s averment represents an ex post facto
I
attempt to create an evidential basis for the impugned Directive where none
exists.
278 Current Law Journal [2021] 4 CLJ

[164] It is not disputed that Bahasa Malaysia has been the lingua franca for A
the native peoples of Sabah and Sarawak living in their home States and in
West Malaysia. Taking the evidence adduced in this judicial review as a
whole, as can be discerned from the affidavits filed by the applicant in
encl. 3 and several other affidavits including the affidavits in encls. 7, 29, 34,
37, 43, 44 and 45, all of which have not been refuted, it cannot be disputed B
that the Christian community of Sabah and Sarawak have been using the
word “Allah” in Bahasa Malaysia for the word for God for generations in
the practice of their religion in the profession and practice of their Christian
faith. It is also an established fact that the word “Allah” that has been used,
has not caused problems leading to public disorder.
C
[165] The uncontroverted historical evidence that the use of the word
“Allah” by the applicant and her Christian community in Sarawak was over
400 years, since the year 1629, cannot be ignored. Before this court, there
was absence of evidence of public disorder in all these years, just like the two
years in the case of SIS Forum (Malaysia) v. Dato’ Seri Syed Hamid bin Syed D
Jaafar Albar (Menteri Dalam Negeri) [2010] 2 MLJ 377, which concerns a book
published by SIS Forum entitled Muslim Women and the Challenge of Islamic
Extremism which was banned by the Minister who acted under s. 7(1) of Act
301 on the ground of public order, after the book was in circulation for over
two years in Malaysia.
E
[166] If the ground of public order failed, the only other ground that the
Minister relied on in the making and issuance of the impugned Directive was
to avoid confusion and misunderstanding that could arise if the common
word “Allah” is used by both the Muslim and Christian communities. This,
he claimed may affect peace and harmony. It was so asserted but the Minister F
did not say how, where and when such confusion and the misunderstanding
has broken our peace and tranquility.
[167] Three Muslims deponents, Syahredzan Johan, Dr Aziz Bari and Azmi
Sharom had in their affidavits stated that they were not confused by the use
of the word “Allah” by the Christians. In the face of their depositions, it is G
for the respondent to bring forward people who say that they were confused
when the Christians use the word “Allah”. None was forthcoming. But of
course notwithstanding there being no affidavit filed, common sense dictates
that the three deponents cannot possibly represent the Muslims in the
country to show that there is no such confusion. To me, the affidavits by the H
three deponents served to illustrate that there cannot be confusion to the
extent that required a total prohibition to be imposed. The Cabinet’s policy
decision “Dengan syarat di kulit luar (muka depan) buku-buku itu ditulis
perkataan ‘UNTUK AGAMA KRISTIAN’” negate any suggestion to that
effect.
I
[168] As there is no shred of evidence on any alleged confusion or
misunderstanding leading to public disorder shown by the respondents, that
reason too must fail.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 279

A [169] Even post the date of the impugned Directive, the Ten Point Solution
is an instance which clearly shows that there is no public order issue or threat
to public order.
Ten Point Solution

B [170] The Ten Point Solution was set out in a letter dated 14 April 2011
from the then Prime Minister to the Christian Federation of Malaysia (see
exh. “TKB1”). The letter showed that the Government came up with the Ten
Point Solution following discussion held with the Christian Federation of
Malaysia and other Christian groups to resolve the Bahasa Malaysia/
Indonesia Bible and also other religious issues. The Ten Point Solution was
C
a Cabinet decision.
[171] It appears that this is not the first time the Ten Point Solution was
raised and canvassed in court. According to learned counsel for the amicus
curiae Encik Haniff Khatri, a motion was filed by the Roman Titular
D Archbishop of Kuala Lumpur to set aside the notice of appeal in the Titular
Roman Catholic Archbishop of Kuala Lumpur case. He was one of the counsels
appearing before the Court of Appeal. One of the grounds ventilated was the
validity of the Ten Point Solution. The Court of Appeal dismissed the
motion.
E [172] In summary, the Ten Point Solution demonstrated the Cabinet’s
acceptance and acknowledgment that the usage of the word “Allah” is never
an issue in Sabah and Sarawak and the Christians are allowed to use the word
in the two States without restrictions. For that matter, in recognition of the
large Christian community in Sabah and Sarawak, there are no conditions
F that are attached to the importation and local printing of the Bible in all
languages, including Bahasa Malaysia, Bahasa Indonesia and indigenous
languages. However for West Malaysia, taking into account the interest of
the larger Muslim community there, the Bibles in Bahasa Malaysia or Bahasa
Indonesia imported or printed will have the words “Christian Publication”
and the “cross” sign printed on the front covers. By doing this, one will not
G
be confused that this is a Christian publication. The end result, as submitted
by the learned SFC, is that the Ten Point Solution has in fact settled the
qualms of the applicants and her fellow congregation.
[173] I have reason to believe, premised on the submissions of both parties,
H that the Ten Point Solution is an all encompassing religious tolerance
initiated by the Cabinet that may provide the solution to end the long
standing religious controversy as there seems to me to be a consensus
between the parties in resolving rather than entering into religious debates
and polemic on the use of the word “Allah”.
I [174] However, despite the strong commitment shown by the Cabinet, the
impugned Directive was allowed to remain and has never been withdrawn
till to date. Even after nearly a decade following its announcement, the
uncertainty continues as to whether the Ten Point Solution would ever be
280 Current Law Journal [2021] 4 CLJ

effectively implemented. If the Cabinet had withdrawn the impugned A

Directive when the announcement on the Ten Point Solution was made,
there would really be no serious dispute before this court anymore.
[175] The Ten Point Solution certainly cannot remedy the illegality of the
impugned Directive. As submitted by Encik Haniff Khatri, it has no force
of law. The Ten Point Solution in my view has no bearing to this proceedings B
other than to show that it was devised not because of issues pertaining to
public order or threat to public order. A closer look at the opening words
of the Prime Minister’s letter – “As we are all aware, the impounding of the
Bible in Bahasa Malaysia/Indonesia has triggered concerns and tensions
within the country which we have to address urgently to prevent these from C
escalating any further.” – clearly indicates that the concern of the
Government then was over the impounding of the Bibles by the second
respondent’s officers. There could not be any issue of public order or threat
to public order if the Cabinet alone that has access to the necessary
information on national security, had taken a much more liberal approach D
in manning the religious issues compared to the position previously taken as
demonstrated in P.U. (A) 134/1982.
[176] To conclude on this issue of public order or threat to public order, I
find that the evidence taken in totality shows that the respondents’ ground
of public order for the issuance of the impugned Directive, is not supported. E
The first respondent’s reliance on public order or threat to public order in
making the impugned Directive is irrational and perverse.
Constitutional Issues
[177] I make a note that learned counsel for the applicant has undertaken F
extensive researches into the legislative history of the Merdeka Constitution
of 1957 and subsequently of the Malaysian Constitution of 1963. The
documents presented to this court consist of the following: (a) the Report of
the Federation of Malaya Constitutional Commission 1957; (b) the White
Paper on the Constitutional Proposals for the Federation of Malaya; (c) the
G
Malaysia and Sarawak dated 4 January 1962 (Government Paper) published
by the authority of the Government of Sarawak; (d) the North Borneo and
Malaysia dated 31 January 1962 (Government Paper) issued by the authority
of the Government of North Borneo; (e) the Memorandum on Malaysia
submitted by the Malaysia Solidarity Consultative Committee dated
3 February 1962; (f) the Report of the Commission of Enquiry, North H
Borneo and Sarawak 1962 (Cobbold Commission Report); and (g) the Report
of IGC set up to work out the constitutional arrangements for the new
Malaysian Federation including safeguards for the special interests of Sabah
and Sarawak. This is to demonstrate that the States of Sarawak and Sabah
were guaranteed the freedom of religion before they joined the Federation. I
These are uncontroverted documents.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 281

A [178] The starting point on the issue of constitutionality of the impugned

Directive is this question, whether the declaration sought ought to be granted
in view of the fact that the impugned Directive is a nullity from the
inception, whether it would have served any purpose?
[179] The remedy of declaration under s. 41 of the Specific Relief Act 1950
B is discretionary in nature. The Court of Appeal in Sakapp Commodities (M)
Sdn Bhd v. Cecil Abraham [1998] 4 CLJ 812; [1998] 4 MLJ 651) held that
while the power to make a declaration is almost unlimited yet, the remedy
of declaration may be refused upon settled principles and there is a wide
variety of circumstances in which declaratory relief may be denied in the
C exercise of discretion. Among others, upon an issue which is of no practical
consequence (Lim Kim Cheong v. Lee Johnson [1993] 1 SLR 313).
[180] In Hassan Marsom & Ors v Mohd Hady Ya’akop [2018] 7 CLJ 403;
[2018] 5 MLJ 141, the case which involved a custodial assault and police
brutality against the respondent who was suspected to be involved in a crime
D which never was, the issue of when the court is said to be seized with power
to grant the declaration sought, was canvassed by the Federal Court. Balia
Yusof FCJ made the following observation at pp. 447 (CLJ); pp. 182-184
(MLJ) that “the power to grant a declaration has been stated by Raja Azlan
Shah Ag LP (as His Lordship then was) ‘to be exercised with a proper sense
E of responsibility and after a full realisation that judicial pronouncement ought
not to be issued unless there are circumstances that properly call for their
making’ (see: Dato’ Menteri Othman Baginda & Anor v. Dato’ Ombi Syed Alwi
Syed Idrus [1984] 1 CLJ 28; [1984] 1 CLJ (Rep) 98; [1981] 1 MLJ 29)”.
[181] It is apparent that the applicant has enjoyed the freedom to import the
F AlKitab and other religion materials before the issuance of the impugned
Directive. There is no evidence before this court of any restriction.
[182] In Hassan bin Marsom, supra, the Federal Court held that “The law
wills that in every case where a man is wronged he must have a remedy.
More so when his constitutional rights have been infringed ...”.
G
[183] Likewise, the applicant has been wronged by the respondents acting
in excess of their jurisdiction and her constitutional rights have been
infringed, a matter that will be discussed next. There is no reason for me to
deny the applicant of the declaration that the impugned Directive is
H unconstitutional.
[184] The amended para. (c) and para. (d) are taken together.
[185] In the amended para. (c), the applicant sought a declaration that
pursuant to arts. 11, 3, 8 and 12 of the FC, it is her constitutional rights to
import the eight CDs in the exercise of her right to practice her religion and
I
her right to education.
282 Current Law Journal [2021] 4 CLJ

[186] In para. (d), the applicant sought a declaration that pursuant to art. 8, A
she is guaranteed equality of all persons before the law and is protected from
discrimination against citizen, on the grounds of religion in the administration
of the law ie, Act 301 and Act 235.
[187] It is not the applicant’s contention that s. 9 of Act 301 is in
contravention of art. 8 of the FC and is therefore unconstitutional. The B
contention is that it is the application of s. 9(1) of Act 301 which purportedly
empowers the Minister to issue and enforce the impugned Directive, that is
said to be unconstitutional. It is further contended that s. 9(1) of Act 301 does
not authorise the Minister to intervene in religious freedom at all because it
is not a general law affecting public order. C

[188] On the issue of discrimination, the applicant said that she was
discriminated on the ground of religion in the administration of Act 301. The
claim for the discrimination arose from the exercise of powers under s. 9(1)
of Act 301 based on the prohibition imposed by the impugned Directive.
D
[189] In gist, learned SFC’s submission in opposing the declaratory reliefs
sought are as follows. There cannot be any violation of religious freedom
because the right to freedom of religion is not absolute as it is still subject
to general law relating to public order pursuant to art. 11(5) of the FC. It is
here that Act 301 comes into play. Act 301 is a Federal law provided for by
E
art. 11(5) that relates to public order.
[190] It was further submitted that Act 301 gives the power to the Minister
to exercise his discretion when it comes to any publication which he feels
is prejudicial to public order and which he did exercise in this case, by
complying with the impugned Directive which was issued by the F
Government and which still stands until now.
[191] There is no issue of any discrimination in violation of art. 8 of the FC
as s. 9(1) of Act 301 applies to all publications and everyone is still subject
to the law. Under Act 301, regardless of whether you are a Muslim or a
Christian, if the Minister feels that the publication will prejudice public G
order, the ban will be imposed. Learned SFC cited the case of ZI Publications
Sdn Bhd & Anor v. Kerajaan Negeri Selangor; Kerajaan Malaysia & Anor
(Intervener) [2015] 8 CLJ 621 and Mohd Faizal Musa v. Menteri Keselamatan
Dalam Negeri [2018] 9 CLJ 496 which involved Muslims and their books
were banned, in support of his argument that the applicant and her H
community are not discriminated on the ground of religion under Act 301.
[192] I have considered the facts and argument in totality. My analysis is as
follows.
[193] Article 3 of the FC provides in cl. (1) that Islam is the religion of the
I
Federation but other religions may be practiced in peace and harmony in any
part of the Federation. It also provides in cl. (4) that nothing in this article
derogates from any other provision of the FC.
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 283

A [194] Article 3(1) does not override art. 11(1). Eminent author Prof Dr Shad
Saleem Faruqi in his book Document of Destiny: The Constitution of the
Federation of Malaya (Star Publications (Malaysia) Berhad, 2008) at p. 346
mentioned that this means constitutional rights in arts. 10, 11 and 12 are not
extinguished despite the adoption of Islam as the religion of the Federation.
B [195] In the most recent pronouncement on art. 11 of the FC in Ketua
Pegawai Penguatkuasa Agama & Ors v. Maqsood Ahmad & Ors And Another
Appeal [2020] 10 CLJ 748, the Court of Appeal made the following
observation:
[86] This right to freedom of religion is sacrosanct, and distinct from other
C
fundamental liberties for several reasons. For one, Article 11(1) unlike say
Articles 9 and 10, applies to every ‘person’ as opposed to every ‘citizen’.
Further, Article 11 does not have a “derogation clause” (using the term
loosely) similar to those contained in the phrase “save in accordance with
law” common to Articles 5 and 13. Even Article 8(1) is subject to limits
based on the reasonable classification test first propounded by the Federal
D
Court in Mohamed Sidin v. Public Prosecutor [1966] 1 LNS 107; [1967] 1 MLJ
106 read together with the express permissible exceptions enumerated in
that Article permitting discrimination in certain situations.
[87] Indeed, even in international human rights law, the freedom of
religion is generally considered a non-derogable right. Just to emphasise
E our point, the Human Rights Committee observed in respect of Article 18
of the International Covenant on Civil and Political Rights (ICCPR) in
General Comment No.22 as follows, at paragraph 1:
The right to freedom of thought, conscience and religion (which
includes the freedom to hold beliefs) in article 18.1 is far-reaching
F and profound; it encompasses freedom of thought on all matters,
personal conviction and the commitment to religion or belief,
whether manifested individually or in community with others. The
Committee draws the attention of States parties to the fact that
the freedom of thought and the freedom of conscience are
protected equally with the freedom of religion and belief. The
G fundamental character of these freedoms is also reflected in the fact that this
provision cannot be derogated from, even in time of public emergency, as
stated in article 4.2 of the Covenant.
(emphasis added)
[88] The same applies in Malaysia. So sacrosanct is the right that even
H Article 150 (6A) of the Federal Constitution prohibits Parliament from
making laws which seek to curtail the freedom of religion even during
times of emergency. The said Article reads:

I
284 Current Law Journal [2021] 4 CLJ

Clause (5) shall not extend the powers of Parliament with respect A
to any matter of Islamic law or the custom of the Malays, or with
respect to any matter of native law or customs in the State of
Sabah or Sarawak; nor shall Clause (6) validate any provision
inconsistent with the provisions of this Constitution relating to
any such matter or relating to religion, citizenship, or language.
B
[89] The only restrictions the Federal Constitution authorises in respect
of the freedom of religion is in Article 11(4) and 11(5) ...
[196] Thus, there was no such power to restrict religious freedom provided
in art. 11 of the FC other than the restrictions set out in cls. (4) and (5).
Clause (4) provides that State Legislatures may through State laws control or C
restrict the propagation of any doctrine or belief to persons professing Islam.
Clause (5) provides that the religious rights conferred by art. 11 do not
authorise any act contrary to any general law relating to public order, public
health or morality. In this regard, there must be a general law that regulates
public order, public health or morality.
D
[197] I am unable to agree with learned SFC that Act 301 is one of the laws
that is envisaged by art. 11(5) of the FC for reasons which have been alluded
to earlier and I do not intend to repeat them.
[198] Freedom of religion is not subject to arts. 149 and 150 powers. This
means religious freedom is absolutely protected even in times of threats to E
public order. Prof Dr Shad Saleem Faruqi said in Document of Destiny, at
pp. 331-332 the following:
Limits on Article 149 powers: A preventive detention order cannot be
issued on the ground that a convert out of Islam is involved in a
programme for propagation of Christianity amongst Malays: Minister v. F
Jamaluddin bin Othman.
This is because the Internal Security Act is derived from Article 149.
Under Article 149 Parliament is authorised to violate Article 5 (personal
liberty), Article 9 (freedom of movement), Article 10 (freedom of speech,
assembly and association) and Article 13 (right to property). Freedom of G
religion in Article 11 is not subject to the special powers under Article 149.
The Jamaluddin Othman decision is a stirring affirmation of the limits of
Article 149 powers and the sanctity of religious freedom.
Limits of Article 150 powers: Even in times of emergency when
Parliament’s powers are greatly enhanced, Article 150 (6A) provides that
H
freedom of religion cannot be restricted by an emergency law under
Article 150.
[199] In Minister For Home Affairs, Malaysia & Anor v. Jamaluddin Othman
[1989] 1 CLJ 1044; [1989] 1 CLJ (Rep) 105; [1989] 1 MLJ 418, the Supreme
Court held that the detention of a person without trial is permitted under the I
Internal Security Act 1960 but the detention will however be
unconstitutional when used against persons practicing their religion. The
 Jill Ireland Lawrence Bill v. Menteri Bagi
[2021] 4 CLJ Kementerian Dalam Negeri Malaysia & Anor 285

A facts as appeared in the headnote show the following. The respondent was
detained pursuant to an order made under s. 8(1) of the Internal Security Act
1960. According to affidavit of the Minister of Home Affairs, he was satisfied
that the detention of the respondent was necessary with a view to preventing
him from acting in a manner prejudicial to the security of Malaysia. The
B ground for detention stated that the respondent was involved in a plan or
programme to propagate Christianity among the Malays and it was also
alleged that the activities of the respondent could give rise to tension and
enmity between the Muslim community and the Christian community in
Malaysia and could affect national security. On an application by the
respondent for habeas corpus, the trial judge took the view that the Minister
C
has no power to deprive a person of his right to profess and practise his
religion which is guaranteed under art. 11 of the FC and therefore if the
Minister acts to restrict the freedom of a person from professing and
practicing his religion, his act will be inconsistent with the provision of art
11 of the FC and therefore any order of detention would not be valid. He
D
therefore ordered the release of the respondent. The Minister appealed. The
Supreme Court dismissed the appeal and held at pp. 106 & 107 (CLJ);
pp. 419 & 420 (MLJ):
Without hesitation we say that we agree wholeheartedly with the
sentiment expressed by the learned judge. However, to get our perspective
E right we feel obliged to add a rider to what the learned judge said. His
Lordship’s ruling must be read subject to the following. The freedom to
profess and practice one’s religion should not be turned into a licence to
commit unlawful acts or acts tending to prejudice or threaten the security
of the country. The freedom to profess and practice one’s religion is itself
subject to the general laws of the court as expressly provided in cl (5) of
F
art 11 of the Federal Constitution ...
In the present case we are of the view that the grounds for the detention
in this case read in the proper context are insufficient to fall within the
scope of the Act. The guarantee provided by art 11 of the Constitution,
i.e. the freedom to profess and practice one’s religion, must be given effect
G unless the actions of a person go well beyond what can normally be
regarded as professing and practicing one’s religion.
[200] The sole basis for the confiscation by using the power under s. 9(1) of
Act 301 was the reliance on the prohibition imposed by the impugned
Directive. As the Minister had unlawfully issued the impugned Directive
H under Act 301, which has been found to be a nullity, the Minister had
unlawfully exercised the power s. 9(1) of Act 301 to enforce the impugned
Directive.
[201] In light of the judgment in Jamaluddin bin Othman, supra, in my view,
the act of the respondents’ officer to prohibit the importation of the eight CDs
I
on the ground of the impugned Directive would be inconsistent with the
provision of art. 11 of the FC and would not be valid unless the applicant’s
action was shown to go well beyond what can normally be regarded as
professing and practising her religion.
286 Current Law Journal [2021] 4 CLJ

[202] There was no dispute that the eight CDs were for her personal A
religious edification. There was no evidence whatsoever to indicate that her
importation of the eight CDs went well beyond what can normally be
regarded as professing and practising her religion. Right to profess and
practise one’s religion should include right to the religious materials. In Jones
v. Opelika [1941] 316 US 584, it was held that the right to profess and practise B
one’s religion encompasses the right to have access to religious materials.
[203] It is my judgment that the prohibition in the impugned Directive
offends the provision of art. 11(1) of the Federal Constitution. Thus, the
applicant is entitled to the declaration sought in the amended para. (c).
C
[204] It is also my finding that the applicant is entitled to the declaration
sought in para. (d). The discrimination by the first respondent was apparent
from the outset. The Cabinet’s policy decision that had allowed the use of
the four words subject to the specific conditions, was converted into an
absolute prohibition for reasons best known to the Minister. Learned SFC’s
submission that the intention of the impugned Directive was to avoid conflict D
between the Christian and Muslim community and the confusion among the
Muslims, taking into account the Muslim population in West Malaysia, and
not meant to target the applicant because Christians in Sabah and Sarawak
are not restricted to use the word “Allah”, is of no consequence. The
confiscation of her eight CDs would not have taken place if that was the E
intention of the impugned Directive.
[205] I am unable to agree with learned SFC that the declaration sought by
the applicant is hypothetical or premature as she has yet to be deprived of
any such importation. She has been deprived before and there is no assurance
that it may not happen again. The declaratory order will eliminate anxiety F
of the applicant having to live under a cloud of fear and uncertainty (see
Datuk Syed Kechik Syed Mohamed v. Government of Malaysia & Anor [1978] 1
LNS 44; [1979] 2 MLJ 101).
Conclusion
G
[206] Based on the foregoing, I grant the applicant the declarations sought
in prayers (c) and (d) and (d) (B). I made no order on the consequential order
for reasons which I have set out earlier in this judgment.
[207] In line with the standard judicial practice in cases concerning public
interest cases, I made no order as to cost. H