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28 questions on laws by Catholic church fail to meet threshold requirement — Federal Court

Posted on July 8, 2014, Tuesday

KUALA LUMPUR: The Federal Court here held that the 28 questions on administrative law, constitutional law and general questions framed by the Catholic Church failed to meet the threshold requirements under Section 96 of the Courts of Judicature Act 1964 to be given leave to appeal.

“A total of 28 leave questions were posed by the applicant which were divided into three parts under the headings of administrative law questions, constitutional law questions and general questions.

“For leave to be granted, the burden lies on the applicant to satisfy this Court that the questions posed pass the threshold set out in Section 96 of the Courts of Judicature Act 1964 (CJA),” said Chief Justice Tun Arifin Zakaria who chaired a seven-member panel that delivered a 4-3 majority decision against the church on June 23.

The written judgment was uploaded on the official Federal Court website yesterday.

“The power of the Minister to grant a permit to print and publish a newspaper in Malaysia is contained in Section 6 of the Printing Presses and Publications Act 1984, while Section 12 of the same Act gives the Minister the discretion to impose any condition on the permit as he deems fit.

“In the exercise of the said discretion, the Minister in the present case prohibited the use of the word ‘Allah’ in the Herald.

“It is not disputed that the nature of the conditions that may be imposed by the Minister falls within his discretion.

“The issue before us is whether the imposition of such conditions in the exercise of his discretion under the Act is subject to judicial scrutiny or otherwise,” he said.

In considering the issue of whether the Court of Appeal had applied the correct test or not, Ariffin said he considered the whole body of the judgments of the Judges of the Court of Appeal and not just by looking at the terms used in the judgments.

“After all, it is the substance of the judgments rather than the terms alluded to that should be used as the yardstick,” he said.

Justice Arifin also said 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 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 June 23, in a 4-3 majority decision, a seven-member panel of the Federal Court dismissed the church’s leave to appeal to lift the government’s ban on the use of the word ‘Allah’ to refer to God in its weekly Herald’s Bahasa Malaysia section.

Justice Arifin’s judgment was 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.

Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum in his dissenting judgment held that the Catholic Church deserved to be given leave to appeal as there is necessity legal issues raised by the church to be finally resolved by the Federal Court.

In his 69-page written judgment Justice Malanjum held that 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-emphasized 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,” said Justice Malanjum.

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.

The other two of the dissenting opinions came from Federal Court judges Datuk Zainun Ali and Tan Sri Jeffrey Tan Kok Wha. — Bernama

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