Allah judgment: Judges are not infallible - Ravinder Singh

Tan Sri Syed Hamid Albar, who was home minister in 2009, and who was responsible for ordering the ban on the use of the word Allah, is thumping his chest claiming that he was right and has been proven so by the Court of Appeal decision.

He needs to be reminded that judges and courts are not infallible. We need not look far for evidence of this. In the case of Adorna Properties Sdn Bhd v Boonsom Boonyanit 2000 ("Adorna Properties") Justice Tun Eusoff Chin had ruled that the transfer of the land, though done using forged documents, was valid in law. This was a judgment by the highest court of the country, i.e. the Federal Court.

So the judgment was final as there was no more avenue for appeal. There was much hue and cry over this, but the persons responsible for the fraudulent transfer of the land worth many millions, were thumping their chests acclaiming the judgment, just like Syed Hamid Albar is doing.

The lawyers for the fraudsters were equally excited for winning the case. A decade later, a five-member bench of the Federal Court "unanimously" ruled that the previous Federal Court had misconstrued the provisions of section 340(3) of the National Land Code, 1965 ("NLC") in its decision of Adorna Properties Sdn Bhd v Boonsom Boonyanit 2000 ("Adorna Properties") because the principle of deferred and not immediate indefeasibility applies to the NLC.

Delivering the main judgment of the apex court, Chief Judge of Malaya, Tan Sri Arifin Zakaria said the Court has to depart from Tun Eusoff Chin's four-page judgment in Adorna Properties as it is erroneous. Tan Sri Arifin also held that the decision of Court of Appeal Judge Datuk NH Chan in OCBC Bank (M) Bhd v Pendaftar Hakmilik, Negeri Johor Darul Takzim 1999 in so far as holding the OCBC Bank's charge as invalid is wrong as the learned judge has misapplied the principle of deferred indefeasibility in the case.

In delivering his supporting judgment, Chief Justice Tun Zaki Azmi described the error committed in Adorna Properties as "obvious and blatant".

He added that it is a well-known fact that some unscrupulous people have taken advantage of this error by falsely transferring titles to themselves.

So, even the highest court could make an "obvious and blatant" error. And this has happened not only in Malaysia. It has happened even in the highest court in the UK. I wonder whether courts are even competent to decide on issues such as the use of the word Allah by non-Muslims.

Isn't there a Supreme Council of the Muslim religion in Mecca to which such issues could be referred for a decision? Courts, when hearing cases such as of medical negligence, want to hear the evidence of expert witnesses. Before that, they will enquire into the expert witness's knowledge and experience in the relevant medical field before admitting him as an expert witness.

Was such an enquiry made to determine the knowledge and experience of the witnesses who claimed that Allah is reserved for the exclusive use of the Muslims, or of the Muslims in Malaysia, or of the Muslims in West Malaysia? Could any of the experts in Malaysia be more experts than those in the seat of the religion, i.e. Mecca? 

Was any evidence put forward of the numbers of Muslims or Christians who had become confused as a result of the Christians using the word Allah? Did the three judges not have a personal interest in the issue as they are themselves practitioners of Islam and citizens of Malaysia? Did they have the fear (even a very little of it) that if they did not deliver a judgment favouring Jakim, they themselves might be seen as being anti-Muslims and anti-Islam? So what is the worth of the judgment?