PUTRAJAYA: The Catholic Church’s legal fight over the right to use the word ‘Allah’ to refer to God in its weekly Herald ended yesterday after the Federal Court here denied its application for leave to appeal.
Chief Justice Tun Arifin Zakaria chairing a seven-member panel delivered a 4-3 majority decision against the church.
In his judgment, he said the 28 questions on administrative law, constitutional law and general questions framed by the church failed to meet the threshold requirements under Section 96 of the Courts of Judicature Act 1964 to be given leave to appeal.
He said the Court of Appeal had correctly applied the objective test with regard to the minister’s discretion to ban the use of the word ‘Allah’ in the Herald.
Hence, he said it was not open for the Federal Court to interfere with the findings of the Court of Appeal.
Justice Arifin held that the High Court judge ought not to have entertained the church’s challenge on the validity or constitutionality of various state enactments which seek to control and restrict the propagation of non-Islamic religious doctrines and belief amongst Muslims.
He also said the constitutional questions posed by the church concerning their rights guaranteed under Article 3, 8, 10, 11 and 12 of the Federal Constitution could not be considered in isolation without taking into consideration the state enactments.
On the theological issues, Justice Arifin said it was clear that the Home Minister’s decision to ban Herald from using the word ‘Allah’ was never premised on theological consideration. Therefore, the views expressed by the judges of the Court of Appeal on the theological issues were mere obiter.
The church was seeking leave to appeal against a Court of Appeal ruling which had upheld the Home Ministry’s decision to ban Herald from using the word ‘Allah’ in its Bahasa Malaysia section.
It is not automatic for civil appeals to be heard at the highest court in the country. Under the Courts of Judicature Act 1964, an applicant in civil cases must first obtain leave from the Federal Court in order to bring their appeal to the Federal Court which is the Apex Court.
Justice Arifin’s judgment was read and agreed by Court of Appeal President Tan Sri Md Raus Sharif, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin and Federal Court Judge Tan Sri Suriyadi Halim Omar.
Following this decision, the Oct 14, 2013 Court of Appeal decision prohibiting the Herald from using the word stands as correct in fact and law and the church cannot file any appeals anymore.
However, Rule 137 of the Federal Court Rules 1995 allows the church to seek a review at the Federal Court against today’s decision.
Although the Federal Court has the jurisdiction to review its own decision to prevent injustice and abuse of court process, generally it will only be exercised in very exceptional circumstances.
Meanwhile, the dissenting opinions came from Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum and Federal Court judges Datuk Zainun Ali and Tan Sri Jeffrey Tan Kok Wha.
Justice Malanjum in his judgment, said the church had satisfied the requirements under Section 96(a) and (b) of the Courts of Judicature Act to be granted leave to appeal.
“It deserves to be re emphasised that in addition to those requirements, one factor must also be given serious consideration, namely, the degree of public importance of those legal issues raised by the applicant (the church) and on the necessity of them to be finally resolved by the Federal Court.
He said there was a serious issue with regard to the Home Minister’s exercise of his discretion to ban the word ‘Allah’ in the Herald since there was an undisputed fact that the Herald had been in circulation for 14 years before the imposition of the ban.
Justice Malanjum also said that there was no evidence shown of prejudice to public order during that period and that the use of the word ‘Allah’ was also not prohibited in other publications such as the Al Kitab and the Sikh Holy Book.
“The case only involved the Bahasa Malaysia section of the Herald. Yet the decision of the Court of Appeal seems to sanction a sweeping, general prohibition against the use of the word ‘Allah’ by all non-Muslims in all forms on all occasions. Most of the groups affected such as the Sikh community were not parties in this case,” said Justice Malanjum.
Justice Zainun said the High Court judge and the Court of Appeal judges should have confined themselves strictly to the legal issues raised, since the issue concerning the truth or otherwise of the disputed tenets of religious beliefs and faiths, the correctness or otherwise of religious practices and inward beliefs and allegiances were all beyond the competence of judges of fact and law.
“More so when the alleged historical or other facts were based on affidavit evidence and the internet which were unverified, uncorroborated and therefore inadmissible.
“All parties must exercise restraint and uphold the tenets of their respective religious beliefs and exercise tolerance and peace and stay calm and exist in harmony with each other in our beloved country,” said Justice Zainun.
She said it was imperative that the precious goodwill that all races and religious denominations possess be brought to the negotiating table and the matter resolved amicably.
Meanwhile Justice Tan, in his judgment, said the task of the Federal Court with regard to the church’s application for leave to appeal was only to find if the prerequisites of sub-section (a) and (b) of Section 96 of the Courts of Judicature Act had been met.
“At the stage of application for leave, there should not be a rush to judgment of the issues and its merits, which, in the instant case, have yet to be canvassed and argued,” he said.
He said there were clearly decisions by the lower courts on the effect of the provisions of the Federal Constitution and the sole prerequisite of Section 9(b) had been satisfied.
“The constitutional questions should be answered by the Federal Court. They are too grave to be answered by any other,” he said adding that leave to appeal should be granted to the church.
On Dec 31, 2009, the High Court declared that the decision by the Home Ministry in banning the Herald from using the word Allah was illegal, null and void.
The Court of Appeal had set aside the High Court’s decision.
The Roman Catholic church led by Kuala Lumpur Archdiocese Archbishop Emeritus Murphy Pakiam filed a judicial review application in 2009 naming the Home Ministry and the government as respondents, seeking, among others, a declaration that the ministry’s decision to prohibit the use of the word Allah in the Herald publication was illegal.
Meanwhile, one of the counsel representing the church, Benjamin Dawson said the church would consider whether to seek for a review of yesterday’s decision. — Bernama