‘Allah’ decision limited to Herald? Lawyers disagree

©Malay Mail (Used by permission)
by BOO SU-LYN

KUALA LUMPUR, June 24 — Legal experts are now divided over the ramifications of the Federal Court’s refusal to hear the Catholic Church’s appeal against a government ban on the word “Allah” in its Herald weekly.

One believes that the Court of Appeal’s ruling last year, which now stands, would affect a similar court case — Jill Ireland Lawrence Bill’s lawsuit over the seizure of her compact discs containing the word “Allah” — but others insist the appellate court’s decision was confined to the Herald.

“Why should it apply? This is specific to the Herald publication,” constitutional lawyer Edmund Bon told the Malay Mail Online yesterday.

Civil liberties lawyer Syahredzan Johan, however, said the Court of Appeal’s ruling in the Herald’s case is now the “law of the land” that will be binding in similar cases.

“If you can apply some of these points that the Court of Appeal came to, then it would mean that it does have an effect on the Jill Ireland case. And other cases too.

“The Court of Appeal (decision) will be cited as an authority,” the lawyer told the Malay Mail Online.

Syahredzan said that the appellate court’s decision to uphold the Home Ministry’s ban on the Herald preventing it from describing God with the Arabic word “Allah” consisted of three points.

He noted that the Court of Appeal has ruled that use of the word “Allah” was not integral to the Christian faith and that one’s fundamental right to practise and profess a religion could now be curtailed on the basis that it may cause confusion and disrupt public order.

The lawyer also noted that the court had interpreted Article 3(1) of the Federal Constitution as saying that though other religions can be practised in peace and harmony, Islam, as the religion of the federation, must be insulated from threats.

Malaysian Bar vice-president Steven Thiru similarly said that the Federal Court has missed the opportunity to rule on important constitutional questions affecting minority rights.

Already, a fallout from the appellate court’s decision can be seen.

Last month, the High Court struck out the Sabah Sidang Injil Borneo (SIB) church’s 2007 lawsuit against the Home Ministry for confiscating three boxes of Malay-language Christian publications containing the word “Allah”.

The court then ruled that it was bound by the appellate court’s decision that the use of the word “Allah” was not an integral part of the Christian practice and faith.

Annou Xavier, who is representing Sarawakian Christian Jill Ireland, maintained that the Court of Appeal ruling should not apply in his client’s case as the facts were different.

“Jill Ireland’s case is only about the right of an individual to bring in materials for her own use and study,” Xavier told the Malay Mail Online.

“It doesn’t involve the Printing Presses and Publications Act (PPPA) and it’s not for a community; it’s for her alone. It comes under the right of education,” the lawyer added.

Jill Ireland, a Melanau Christian, filed her suit in 2008 to quash the Home Ministry’s seizure of her CDs and to seek a declaration that she has the right to own, use and import materials containing the word “Allah”.

The High Court is set to review the ministry’s decision next Monday.

The silver lining for Christians, as Sabah SIB president Rev Datuk Jerry Dusing pointed out, was Chief Justice Tun Arifin Zakaria saying that the Court of Appeal’s theological views on “Allah” were considered “obiter”, the Latin legal term that refers to a judge’s opinion that is not essential to the decision and hence, not legally binding as a precedent.

“This was the point used by the High Court to deny our application. Hence, SIB Sabah still has grounds to appeal on theological issues,” Dusing told the Malay Mail Online.

Putrajaya yesterday also sought to allay concerns over the effects of the Federal Court’s decision, insisting that it did not impinge on Christians’ right to use “Allah” in churches.

Yesterday, a seven-member bench at the country’s highest court decided by a 4-to-3 majority to deny the Catholic Church the right to appeal a lower court decision preventing it from using the word “Allah”.

The decision brought to an end the case that began in the High Court in 2009 and which culminated in attacks on houses of worship across the country after the Catholic Church won a brief victory on December 31 that same year.