Federal Court must hear Allah appeal as there are too many critical issues at stake, say lawyers

The Federal Court is expected to deliver its decision on the Catholic Church's application for leave to hear its appeal on the use of the word Allah in the Herald. Several Muslim groups have been adamant that the word should not be used by the church. – The Malaysian Insider file pic, June 22, 2014.

It could be all over for Malaysia's Catholic Church on Monday in its fight for the right to use the word Allah but lawyers believe that the Federal Court should grant leave to hear the church's appeal as there were many other critical issues which needed clarification from the apex court.

The Federal Court bench will deliver its verdict on whether the church's application for leave to appeal ought to be given, some 15 weeks after the judges heard arguments from opposing parties on the use of the word Allah in the Catholic weekly, Herald.

Never has the Federal Court assembled a seven-man bench, which included four top judges who held administrative posts in the judiciary, to rule on a leave application.

If the church is refused leave, the Court of Appeal decision will stand as correct in fact and law.

Last October, the Court of Appeal had ruled that the Home Minister was right in prohibiting the use of the word Allah in the Herald.

However, lawyers familiar with leave applications in the apex court said this was a fit and proper case for the bench to further hear the appeal as it touched on fundamental rights of citizens.

Lawyer Edmund Bon said Section 96 of the Courts of Judicature Act 1964 which governed the criteria to appeal said leave should be granted once constitutional issues were raised.

"The legal fraternity is looking forward to the wisdom and guidance of judges in the Federal Court to interpret contentious provisions in the Federal Constitution," he said.

Another lawyer Abdul Shukor Ahmad said the appeal should be heard, more so when Prime Minister Datuk Seri Najib Razak had recently said that the parties in dispute should allow the court to decide on sensitive issues.

"We hope the Federal Court will seize the opportunity to even revisit whether Malaysia is a secular or Islamic state," he said.

Shukor, who also lectures in constitutional and administrative law, said this was a current raging issue as there were some who had questioned the 1988 Supreme Court ruling when a five-man bench led by the then Lord President Tun Salleh Abas had declared that Malaysia was a secular state.

The court had also said that the framers of the constitution had intended that Islam was the religion of the federation and was also confined to rituals and ceremonial purposes.

Shukor said the Federal Court was now expected to throw light on whether other religions and practices were subservient to Islamic law.

"More so when state enactments prohibit non-Muslims from using the word Allah to propogate their religions among their communities," he said in reference to the 321 Bibles in Malay and Iban languages which were seized by Selangor religous authorities as they contained the word Allah.

Shukor said the court also should explain the extent to which Putrajaya and the states could regulate religious freedom of non-Muslims as Article 11 stated that laws could be enacted to control the propagation of any religion among Muslims.

"All in all, we are looking forward to the Federal Court to enlighten the public on these issues which have generated intense debate in the past few months," he added.

Former Bar Council president Ragunath Kesavan said the dispute between the church and Putrajaya went beyond whether the word Allah could be published in the Herald.

He said Putrajaya in 2011 had endorsed a plan to allow Christians nationwide to use the Alkitab in their religious practice under the 10-point solution but lawyers claimed it had no legal basis.

"Can the word then be used only by Malaysians residing in Sabah and Sarawak when all states in the peninsula banned non-Muslims from using it?

"How are we going to come to terms when we have one Federal Constitution, one Malaysia but limiting only a section of Malaysians living in different territory to use the word?" he asked.

Ragunath said Selangor and Johor state anthems would also have to be revised for non-Muslims because it contained the word Allah.

He said many are waiting in anticipation for the Federal Court to clarify whether non-Muslims could use the word to propagate their religion among themselves as Article 11 allowed every person the right to profess and practise his religion.

The church had submitted 28 questions on the constitution, administrative law as well as the power of the court to allow the home minister to ban the use of the theological word.

On March 5, the bench led by Chief Justice Tun Arifin Zakaria reserved judgment after hearing arguments for almost three hours.

Sitting with Arifin were Court of Appeal President Tan Sri Raus Sharif, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinuddin, and Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum.

The others were Federal Court judges Tan Sri Suriyadi Halim Omar, Datuk Zainun Ali and Tan Sri Jeffrey Tan Kok Hwa.

Lawyer Datuk Dr Cyrus Das, who appeared for the church, said the apex court should hear the merits of the case because the Court of Appeal had reversed the findings of a High Court on key constitutional and administrative law issues.

Senior Federal Counsel Suzana Atan said the minister had imposed the ban on grounds of national security and it was done in good faith.

Seven religious councils and the Malaysian Chinese Muslim Association are together with Putrajaya in opposing the church's leave application.

THE TUSSLE THUS FAR

The Allah row between Putrajaya and the Catholic Church came about following a 1986 ministerial order which banned the use of the word in all non-Muslim publications.

Catholic weekly, Herald, which began publication in 1994, was admonished and issued several showcause letters for failure to comply with the ministerial directive.

However, in early 2009, the publisher of Herald, went to the court to challenge the home minister's order to prohibit the use of the word.

The then Archbishop of Kuala Lumpur, Tan Sri Murphy Pakiam, who also acted as the publisher, said he was entitled to use the word Allah which was not exclusive to Islam.

On December 31, 2009, the High Court in Kuala Lumpur which ruled in favour of the church, said even though Islam is the religion of the country, this did not empower the government to prohibit the use of the word.

The ruling emphasised that use of "Allah" by Christians was protected by the constitution as long as it was not used to proselytise Muslims.

Putrajaya obtained a stay order to prevent the Herald from using the word pending its appeal in the Court of Appeal.

Soon after the High Court ruling, however, there were several arson attempts on churches and an incident in which vandals tossed a pig’s head into the compound of a mosque.

Pakiam last year applied to the Court of Appeal to strike out Putrajaya's appeal on the grounds that the government had allowed the use of the word in the Malay Bible, the AlKitab, under a 10-point solution signed with Sabah and Sarawak.

Judge Abu Samah Nordin who dismissed the striking out application said it was an attempt to deny the government and the home minister the chance to have the appeal heard.

Abu Samah had said that the 10-point solution by the Cabinet in 2011 had no reference to the Allah issue.

On October 14 last year, Court of Appeal judge, Tan Sri Mohamad Apandi Ali, who chaired the bench, said the reason for the prohibition was to prevent any confusion among the various religions.

He had also said that national security and public order could be threatened if the publisher of the Herald was allowed to use the word Allah.

Apandi had explained that the government did not violate the church’s constitutional rights.

"It is our common finding that the name Allah was not an integral part of the Christian faith and practice," he had said.

He had also said that the minister had sufficient material before him to ban Herald from using the word.

"Thus, there is no plausible reason for the High Court to interfere with the minister's decision," Apandi had said.

Senior Federal Counsel Suzana Atan had told the court that the minister had the absolute discretion under the Printing Presses and Publications Act 1984 to impose conditions when approving permits for publications.

Lawyer Porres Royen, who represented the church, said the public order argument by Putrajaya was an afterthought.

- TMI