Appeals Court orders return of CD with "Allah" word to Sarawakian

Justice Tengku Maimun, who chaired a three-member panel, ordered the Home Ministry to return the CDs to Jill within one month's time from Tuesday.

The panel unanimously dismissed the appeal brought by the Home Ministry and the government.

Justice Tengku Maimun briefly read the judgment which was written by Justice Datuk Abang Iskandar Abang Hashim who presided on the panel with her (Justice Tengku Maimun) and Datuk Seri Zakaria Sam.

She said that the letter dated July 7, 2008 signed by Customs senior officer Suzanah Muin to confiscate Jill's CDs, was bad in law and was done ultra vires Section 9 of the Printing Presses and Publications Act 1984.

She said Suzanah was not the person who was envisaged by Parliament as the competent person who was empowered to make the confiscation order.

Justice Tengku Maimun, however, said the court partly allowed Jill's cross-appeal against the High Court's decision in not granting the declaratory reliefs sought by her.

She remitted the matter back to the High Court, to be heard by another judge on Jill's bid for declaration on her rights under Article 8 and 11 of the Federal Constitution on the freedom to practice one's religion and equality before the law.

Justice Tengku Maimun also fixed a mention date on July 2 for parties to appear before the High Court.

The 32-page judgement, which was later obtained by the media, stated that the court held Suzanah's letter did not state that she was directed by the then Home Affairs Minister Tan Sri Syed Hamid Albar to confiscate the CDs.

"We noted that there was nothing in the former minister's (Syed Hamid) affidavit that had stated that he was the person who had made the decision neither had he averred that Suzanah was merely communicating his decision," said Abang Iskandar in his judgment.

Justice Abang Iskandar said that the court agreed with the submissions by Jill's counsel that an officer was only empowered to make a temporary withholding order and could not step into the shoes of the minister to make a permanent withholding order.

Suzanah was ill-equipped to issue an order that was envisaged to be issued by a Minister under Section 9 of the Printing Presses and Publications Act, he said.

On Jill's cross-appeal, Justice Abang Iskandar, in his judgment said there were issues concerning deprivation of freedom of religion and right to equality or freedom from discrimination which were not dealt by the High Court.

He said those issues involved scrutiny of the affidavit evidence and thus it was prudent for the matter to be remitted back to the High Court for those issues to be considered before another judge.

"This approach, will also ensure that parties are not deprived of their constitutional right of appeal on findings of fact as well as findings of law by the High Court," he said.

In her judicial review application, Jill, 34, a Melanau, sought for a certiorari order to quash the Home Ministry's decision to confiscate the CDs as well as a mandamus order to compel the Home Ministry to return the CDs.

She also sought for a declaration that it was her constitutional right to import publications in her exercise of her right to practice the religion of her own and right to education guaranteed under Article 11 of the Federal Constitution.

She wanted the court to grant her a declaration that she was guaranteed equality before the law as enshrined under Article 8 of the Federal Constitution and was protected from discrimination on religion in the administration of the law.

On May 11, 2008, the CDs bearing titles such as 'Cara Hidup Dalam Kerajaan Allah', 'Hidup Benar Dalam Kerajaan Allah' and 'Ibadah Yang Benar Dalam Kerajaan Allah', were seized from Jill upon her arrival at the low-cost carrier terminal in Sepang.

Jill, who is from the Sarawak SIB church, subsequently filed a judicial review application on Aug 20, 2008 seeking for the return of the CDs as well as seeking declaratory reliefs.

On July 21, last year, the Kuala Lumpur High Court ordered the return of the CDs to Jill but it (the court) did not grant the declaratory relief sought by her.

Senior federal counsel Shamsul Bolhassan said he would seek instructions from the Attorney-General on whether to bring the matter up to the Federal Court and to file for a stay against the Court of Appeal's order.