Apex court says no to church

PUTRAJAYA: The Court of Appeal had applied the correct test in its evaluation that the Home Minister had exercised his discretion reasonably with regard to the ban on the use of the word “Allah” in Herald, the Federal Court has ruled.

In a 4-3 majority decision, the apex court rejected the Catholic Church’s bid to get leave to challenge the Home Ministry’s ban on the use of the word.

Chief Justice Arifin Zakaria ruled that the questions of law posed by the publisher had failed to pass the threshold under Section 96(a) of the Courts of Judicature Act 1964 (CJA).

“Hence, it is not open for us to interfere with the finding of the Court of Appeal,” he said.

This was the first time a seven-member panel sat to determine application for leave.

On general questions relating to theological issues, Justice Arifin said it was clear from the facts that the minister’s decisions was not premised on theological consideration.

“Therefore, the views expressed by Court of Appeal judges on those issues are mere obiter (remark in passing). For that reason, these questions, in my view, do not pass the threshold under Section 96(a) of the CJA,” he said.

Justice Arifin said Court of Appeal president Justice Raus Sharif, Chief Judge of Malaya Justice Zulkefli Ahmad Makinudin and Federal Court judge Justice Suriyadi Halim Omar expressed their agreement with his draft judgment.

In his dissenting judgment, Chief Judge of Sabah and Sarawak Justice Richard Malanjum said leave should be granted in consideration of the degree of public importance of legal issues raised by the applicant and on the necessity of them to be finally resolved by the Federal Court.

“It goes to the root of whether the minister has the absolute discretion to make the impugned decision impervious of judicial review.

“If he had not exercised his power under an appropriate provision of the law, then the impugned decision and the decision of the Court of Appeal upholding it could be called into question,” Justice Malanjum said.

He said the decision, as upheld by the Court of Appeal had curtailed the rights of the Bahasa Malaysia-speaking Christians from Sabah and Sarawak, and was thus contrary to Article 11(1) and (3) of the Federal Constitution (freedom of religion).

“This 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,” he added.

In her dissenting judgment, Federal Court judge Justice Zainun Ali said leave should be granted for the court to determine which test was applied to see whether the minister’s order was open to scrutiny or if the the court was precluded from it.

“It is important because it involves crucial constitutional law questions which require ventilation. If no leave is granted, then the law on these important issues remain uncorrected and unclarified,” she said.

She said that the voice of reason should prevail and all parties must exercise restraint and uphold the tenets of their respective religious beliefs and exercise tolerance and peace.

In the third dissenting judgment, Federal Court judge Justice Jeffrey Tan Kok Wha said there should not be a rush to judgment of the issues and its merits, which had yet to be canvassed and argued.

“The constitutional questions should be answered by the Federal Court. They are too grave to be answered by any other,” he said.

In March, the panel reserved judgement on the application for leave after hearing submissions.

The Herald’s publisher – Titular Roman Catholic Archbishop of Kuala Lumpur Tan Sri Murphy Packiam (who is now KL Archbishop Emeritus) – had posted 28 administrative law, constitutional law and general questions to get leave from the apex court for deliberation.

The Court of Appeal had on Oct 14 last year ruled that the Catholic weekly, Herald, would not be allowed to use the word “Allah” to refer to the Christian God.

The minister and Government had appealed against the Dec 31, 2009, High Court decision quashing the minister’s ban order.

The church had sought, among others, a declaration that the decision by the Home Ministry on Jan 7, 2009, prohibiting the use of the word “Allah” in Herald was illegal and that the word “Allah” was not exclusive to the religion of Islam.

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CFM: Christians will continue using term 'Allah'
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