MALAYSIA DISAPPOINTS: Only 5-member bench to review Allah ban tomorrow

A five-member Federal Court bench is expected to hear tomorrow the application of the Archbishop of the Catholic Church to review the ban on the use of the term 'Allah' in its Bahasa Malaysia weekly publication the Herald.

Solicitor for the archbishop, S Selvarajah, confirmed with Malaysiakini that they have not been asked to submit more copies of the court documents.

“The court only asked for five copies and not seven like the last time,” Selvarajah said in a text message.

This review application follows a narrow 4-3 majority decision by the Federal Court on June 23 last year, in not granting the Archbishop leave to appeal the Court of Appeal decision that the word 'Allah' is exclusive to Islam.

Chief Justice Arifin Zakaria in writing the Federal Court majority decision said the court could not interfere in the Home Ministry's decision to ban the word from use by Christians. He also ruled that portions of the Court of Appeal judgment referring to theological issues are considered obiter (passing comments)

Justice Arifin was supported by the Court of Appeal president Justice Md Raus Sharif, Chief Judge of Malaya, Zulkefli Ahmad Makinuddin and Federal Court judge Suriyadi Halim Omar.

The three disenting judgments were separately written by Chief Judge of Sabah and Sarawak Richard Malanjum and Federal Court judges Zainun Ali and Jeffrey Tan Kok Wha.

The archbishop filed the judicial review on the Home Ministry's banning of the use of Allah in the Bahasa Malaysia publication of the Herald in 2008, which caters to the Christian community in Sabah and Sarawak and the local community in the peninsula.

This was despite the publication being in existence since 1994 and having used Allah in the publication for many years. The ban came after a cabinet directive in 1986 disallowing the use of several words, such as Allah, kitab, and kiblat, by the non-Muslim community.

Kuala Lumput High Court judge Lau Bee Lan, had on the last day in 2009 ruled the ban by the Home Ministry as unconstitutional while the Court of Appeal three-member bench overturned the decision in 2013 and ruled the word as exclusive to Muslims .

Will non-Muslim judges hear the review?

Despite this, it would be interesting to see the composition of the five-member bench tomorrow, and whether non-Malay and non-Muslim judges would be in the panel to hear the application.

The seven judges who sat on the previous, multiracial panel will not be allowed to hear the review application.

This makes the most senior Federal Court judge Abdull Hamid Embong (left) likely to lead the five-member bench tomorrow.

If Justice Abdull Hamid does not head the bench, there are another six Federal Court judges who are Malay and Muslim likely to be on the bench. They are Justices Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali and Azahar Mohamed.

Besides this, Court of Appeal judges could be called up to be part of the bench and the non-Muslim judges in this court include Justice Linton Albert, who is the most senior among them.

The others are Lim Yee Lan, Mah Weng Kwai, David Wong Dak Wah, Varghese George Varghese, Vernon Ong Lam Kiat and Dr Prasad Sandosham Abraham.

The Catholic Church in its Aug 21, 2014, application to review the June 23 Federal Court decision listed three main grounds:

Certain legal issues which were central to the permission to appeal the application were not considered in the majority judgment. This includes the central question of the scope of Article 3 (Islam being the religion of the federation) and Article 11 (freedom of religion) as stipulated in the Federal Constitution and also the minister's decision to prohibit the use of the word 'Allah' in the Herald also took into account theological consideration, which were not supported;

The majority judgment also decided certain legal issues which were not argued nor raised before the Federal Court or the Court of Appeal and this included, for instance, the constitutional validity of Section 9 of the Anti-Propagation Enactment; and

The appeal by the Herald is one of the most important constitutional cases to have come before Malaysian courts, especially since it involves minority rights over the use of the word 'Allah'.

It is against this backdrop that the highly-charged review application, which is also likely to see six state Islamic councils, including Federal Territory, Selangor, Kedah, Malacca, Terengganu and Johor, standing in as interveners, as had been done in the earlier sessions in the Court of Appeal and the Federal Court.

In a related development, the editor of the Herald, Father Lawrence Andrew, said when commenting on tomorrow's case that he hoped the people will uphold human dignity by searching for greater truth.

"Any imagined fear goes against the fear of human kind and this injustice must be overcome, not with violence but with love and dialogue," Father Lawrence said in his message on the case

The decision by the courts on the issue has been widely criticised, not only locally but also in some Arab countries as well.

An American imam, Muhammad Musri, who is heads the Islamic Society of Central Florida, said Malaysia's ban on the use of the term 'Allah' by non-Muslims goes against Allah's teachings in the Quran.

United Arab Emirates newspaper The National was the first to comment the Court of Appeal decision that 'Allah' is not exclusive to Islam. - M'kini