Home minister has discretion to ban words prejudicial to national security - AG

The gist of the Court of Appeal's decision in "The Herald" case is that the Home Minister has the discretion to ban words which are prejudicial or likely to be prejudicial where national security and public order are concerned, said Attorney General Tan Sri Abdul Gani Patail. In a statement today, Abdul Gani said that as long as the discretion was exercised legally, reasonably, rationally and proportionally, the court will not interfere with the Minister's discretion in these matters. "The Attorney General's Chambers advises the public to respect and abide by the Court of Appeal's decision and to refrain from making any statement which may lead to contempt of court," he said. Abdul Gani's statement was in response to the October 14 judgment allowing the Home Minister and Government of Malaysia's appeal against the Kuala Lumpur High Court decision of December 31 2009. The High Court had allowed the application for a judicial review by the Titular Roman Catholic Archbishop of Kuala Lumpur (Titular) against the Minister's decision of January 7 2009 prohibiting the Titular from using the word Allah in the Bahasa Melayu text of the Herald. Abdul Gani emphasised that the Court of Appeal's decision was only confined to the publication of the Bahasa Melayu text of the Herald. According to Abdul Gani, in paragraph 30 of his judgement, Justice Datuk Abdul Aziz Abdul Rahim held that the Al-Kitab and the Herald were two entirely different publications. "The Al-Kitab is the Malay version of the Bible meant for Christians and used in churches, whereas the Herald is an online newspaper accessible to Muslim and non-Muslim readers," he said. "His Lordship went on to state that therefore the Minister's permission for the printing and publication of the Al-Kitab in which the word Allah appears cannot be treated in the same manner with reference to the Herald," said Abdul Gani. The Attorney General said the Court of Appeal unanimously held that the constitutional protection afforded to the practise of one's religion was confined to practices which formed an essential and integral part of the religion. "The court held that the use of the word "Allah" in the Malay version of the Herald to refer to God is not an essential or integral part of the religion of Christianity and therefore does not attract the constitutional guarantee under Article 11 of the Federal Constitution," he clarified. Abdul Gani pointed out that the Court of Appeal had allowed the appeal on the grounds that the Minister had not acted in excess of his statutory powers of function under the Printing Presses and Publications Act 1984. "In paragraph 42 of his judgement, His Lordship Mohamed Apandi Ali held that on the facts and circumstances of the case, the use of the word Allah in the Malay version of the Herald had without doubt the potential to disrupt the even tempo of life in the Malaysian community," he said. He added that furthermore, in paragraphs 39 and 40, Justice Abdul Aziz held that the Minister's consideration on national security and public order was not merely limited to the actual disruption of public order or tranquility. He noted that in this case, events which unfolded after the High Court decision showed that the Minister was justified in his concern over the Herald's use of the word Allah as an interpretation of the word God or concept of God could cause religious sensitivity and had the potential to disrupt public order and safety. Abdul Gani also said paragraph 27 of His Lordship Mohamed Apandi Ali's written judgement stated that the decision was made within the function and statutory powers of the Minister and well within the Printing Presses and Publications Act 1984. "His Lordship Abdul Aziz in paragraph 11 of his judgement stated that having given his utmost consideration to the law applicable to the exercise of discretion as well as the reasons given, the Minister's decision was reasonable and did not contravene the principles of illegality, procedural impropriety, proportionality and irrationality," he concluded.