End of the road for the Herald's 'Allah' appeal

  • Nation
  • Wednesday, 21 Jan 2015

PUTRAJAYA: The Herald, the Catholic Church's weekly newsletter, has exhausted all legal avenues to use the word "Allah" to refer to God in its publication after the Federal Court denied its application for leave to appeal the Court's earlier decision on Wednesday.

A five-member Federal Court panel chaired by Justice Tan Sri Abdull Hamid Embong unanimously dismissed the Herald's review application after ruling that it had failed to meet the threshold requirement for review set out in Rule 137 of the Federal Court Rules 1995.

He said there was no occurrence of any procedural unfairness in the Federal Court's previous decision in refusing to grant leave to the Herald to appeal.

Abdull Hamid said settled case law stated that an applicant could not to review the decision of the Federal Court except in rare cirumstances, namely if there was occurrence of biasness, quorum failure, fraud or occurrence of procedural unfairness.

He said the rationale behind this strict approach established over a century ago in England, was that a decision should be final and should rest, otherwise there would be no end, Bernama reported.

The other panel judges were justices Tan Sri Ahmad Maarop, Tan Sri Hasan Lah, Datuk Ramly Ali and Datuk Azahar Mohamed.

Following this decision, the Herald's legal struggle to lift the prohibition on the use of the word, 'Allah' in its publication ends.

The Herald sought to review the Federal Court's decision on June 23, last year, which denied it leave to appeal against the Home Ministry's ban on using "Allah", the Arabic word for God, in its Bahasa Malaysia section.

The Federal Court, in a 4-3 majority decision, dismissed the application for leave to appeal.

The Herald had sought to obtain leave from the Federal Court on June 23, last year, to bring the matter up for appeal to that court, following a Court of Appeal decision overturning a High Court ruling that the publication could use the word, "Allah".

The Court of Appeal, had on Oct 14, 2013, allowed the Government's appeal to overturn the 2009 High Court decision which had declared that the Home Ministry's decision in prohibiting the Herald from using the word, "Allah" in its Bahasa Malaysia section, was illegal, null and void.

The three-member Court of Appeal, which was chaired by the then-Court of Appeal judge (now Federal Court) Tan Sri Mohamed Apandi Ali, had said the reason for the prohibition on the use of the word was to prevent any confusion among the various religions.

He (Justice Mohamed Apandi) had also said that national security and public order could be threatened if the publication was allowed to use the word "Allah".

Earlier in Wednesday's proceedings, the Herald's counsel, Datuk C. V. Das argued that procedural unfairness had occurred because the Federal Court had dismissed its application for leave to appeal on issues that were not argued before them.

He said this had caused injustice, adding that no person should be condemned without being heard.

"We were not heard. If we were heard, our application might have survived," he said, adding that the judges should bring to the attention of the parties in the matter to argue on issues that they think needed to be addressed," he said.

Das said the Federal Court in its majority judgement seemed to say that the High Court had declared unconstitutional, Section 9 of the Non-Islamic Religious (Control of Propagation Amongst Muslims) Enactment 1988 and the court (Federal Court) had said that the Court of Appeal was right in setting aside the High Court's order in declaring that section unconstitutional.

"No such thing happened. There was no order of the High Court and Court of Appeal pronouncing Section 9 as unconstitutional.

Senior Federal Counsel Suzana Atan, appearing for the government and home ministry submitted there was no special circumstances for the Court to allow the Herald's review application.

Lawyer Sulaiman Abdullah, representing the Terengganu Islamic Religious Council contended that the Federal Court judges were entitled to use their knowledge when addressing issues before them.

He said the Federal Court's majority judgement was based on issues which were raised at the High Court on the home ministry's decision in setting conditions on issuance of publication licence to the Herald.

"I say, let the matter die, justice has been done, the Archbishop had the opportunity to present his views. Any further ventilation will re-open old wounds and re-spark public unrest," he added.

The panel also heard submissions from counsel Mubashir Mansor for the Federal Territory Islamic Religious Council and counsel Mohamed Haniff Khatri Abdulla who acted for the Malaysian Chinese Muslim Association of Malaysia, Bernama reported.

Meanwhile, Father Lawrence Andrew, Herald editor said that the "door was closed" in their fight to use the word Allah in the publication, and was disappointed with the Court's decision.

"Definitely we are disappointed. Our counsel argued very well on procedural unfairness but the judgement ruled it's not a case," he told reporters outside the courtroom after the decision was read.

He said that Malaysia would have to work towards living in harmony and at the same time hoped that the rights of minorities would not be trampled on.