Senior federal counsel Shamsul Bolhassan said the matter was not an issue to be raised and argued when the Court of Appeal remitted the case to the High Court in 2015.
Shamsul, who filed the memorandum of appeal to the Court of Appeal last month, sighted by FMT, said High Court judge Noor Bee Ariffin also erred in allowing for the declaration when Sarawakian Jill Ireland’s lawyers did not plead for such a relief in the judicial review application.
He said Noor Bee had cautioned herself during the trial that she would not take into account the views of theologians on the use of the word “Allah”.
“However, in coming to her findings, the trial judge, directly or indirectly, referred to the views of experts in a ruling that favoured Ireland,” he said.
Shamsul said Noor Bee fell into error in misconstruing the rules of interpretation that it was a government policy in 1986 to allow Christians to use the word in place of “God”.
“Her ruling is also against the Constitution and written laws as the court had no jurisdiction to review the 1986 government policy,” he said.
Case management has been fixed for Jan 17 to update the court’s deputy registrar on an attempt by parties to settle the issue out of court, failing which an appeal hearing is to be fixed.
On March 10, after 13 years and 12 adjournments, Noor Bee said a Dec 5, 1986 home ministry directive to prohibit the use of the words “Allah”, “Baituallah”, “Solat” and “Kaabah” by non-Muslims was illegal and unconstitutional.
The judge said the directive was wrongly issued as it went beyond the aim of the Printing Presses and Publications Act 1984.
“The law is only to check on undesirable publications. It is not a general law to check on public order, public health and morality,” she said.
She said Ireland had the constitutional right to use and import any publication for her religious education.
Ireland, a Melanau Christian, filed her judicial review in 2008 but her constitutional challenge was heard in 2017.
In 2008, customs officers at klia2 seized CDs titled “Cara Hidup Dalam Kerajaan Allah”, “Hidup Benar Dalam Kerajaan Allah” and “Ibadah Yang Benar Dalam Kerajaan Allah” from Ireland. The Sarawakian said she had brought the CDs into Malaysia for her personal use.
Initially, she filed the action to reclaim the CDs, seeking several declaratory reliefs as well.
In 2014, the High Court ordered the home ministry to return the CDs to her but did not address the constitutional points as it was bound by a Federal Court ruling.
Both the government and Ireland appealed to the Court of Appeal.
The following year, the Court of Appeal upheld the High Court ruling but ordered it to hear Ireland’s application for a declaration that her constitutional right to practise her religion was violated by the restriction or ban of the import of educational material.
A three-member bench chaired by Tengku Maimun Tuan Mat, however, did not decide if Ireland had the right to use the Arabic word for “God” in her religious practice.
Tengku Maimun also ordered Ireland’s constitutional rights under Articles 8 and 11 of the Federal Constitution to be decided by another judge in the High Court.
Article 8 is on equality of all persons before the law while Article 11 is on the freedom to practise one’s religion.