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Tuesday, June 24, 2014

What the 3 dissenting judges said about ‘Allah’ appeal

PUTRAJAYA: The Federal Court yesterday dismissed the Catholic Church's leave application to appeal the "Allah" ban in the Herald. Four of the seven-member bench ruled that the Court of Appeal was right in banning the word. Three judges, however, ruled in the Church's favour. The Malaysian Insider captured the essence of these dissenting voices. Report by V. ANBALAGAN, ASSISTANT NEWS EDITOR.

Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum

There was a serious issue to be decided when the home minister banned the word "Allah" in the Herald.

While the Court of Appeal had ruled that it was the home minister's discretion to ban the word, Malanjum said this was an issue which only the Federal Court could decide.

He also pointed out that the Herald had been in circulation for 14 years before the ban was enforced by the home minister.

"There was also no evidence of prejudice to public order during that period and that the use of the word was also not prohibited in other publications like the Alkitab and the Sikh holy book.

"As such, the church has satisfied the requirements under Section 96 (a) and (b) of the Courts of Judicature Act to be granted leave to appeal.

"It deserves to be reemphasised that another factor that needs to be given serious consideration is the degree of public importance of legal issues raised by the applicant (the church).”

He said although the case only involved the Bahasa Malaysia section of the Herald, yet the Court of Appeal ruling seemed to sanction a sweeping, general prohibition against the use of the word "Allah" by non-Muslims in all forms, on all occasions.

"Most of the groups affected, such as the Sikh community, were not parties in this case."

Federal Court judge Datuk Zainun Ali

Zainun, who took the position that the Catholic Church ought to be given leave to appeal over the Allah row, criticised three lower court judges for exceeding their authority.

She said the Court of Appeal judges should have confined themselves strictly to legal issues since the correctness, or otherwise, of religious practices was beyond the competence of judges of fact and law.

"The answers which were met with rebuttal in the Court of Appeal are clearly non-justiciable because they are neither questions of law or facts capable of proof in a court of law by admissible evidence," she said.

Zainun said the judicial method was equipped to deal with only hard facts.

"A secular court such as ours is ill-equipped to determine the veracity, accuracy or even sincerity of subjective religious beliefs about doctrine and practices.

"Such disputes were certainly outside the recognised perimeters of judicial competence.

"More so, when the alleged historical 'facts' were based on affidavit evidence and the Internet which were unverified and, therefore, inadmissible.

"Plausibility should not be mistaken for veracity," she added.

Zainun said this was a fit and proper case for leave to be granted for public advantage and to put things in the proper perspective.

"The voice of reason should prevail and all parties must exercise restraint and uphold the tenets of their respective religious beliefs and exercise tolerance.

"It is imperative that the precious goodwill that all races and religious denominations possess be brought to the negotiating table and the matter resolved amicably.”

Federal Court judge Tan Sri Jeffrey Tan Kok Hwa

"This was a clear application where leave could not be refused as all the requirements had been met.

"There should not be a rush to judge the issues and their merits which in the instant case have yet to be canvassed and argued," Tan said.

Tan said the constitutional questions should be answered by the Federal Court.

"They are too grave to be answered by any other," he added.

Chief Justice Tun Arifin Zakaria, who led the seven-man bench, said the President of Court of Appeal Tan Sri Md Raus Sharif, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinuddin and Federal Court judge Tan Sri Suriyadi Halim Omar agreed that the leave should not be granted to the Catholic Church.

They dismissed the church's application for appeal, citing that the Court of Appeal was right in its decision to ban the word in the Catholic weekly, Herald.--The Malaysian Insider

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