Decision of the Federal Court not definitive!

It is the view of rational, thinking and caring Malaysians that the Federal Court’s decision to deny leave for the Catholic Church to appeal to the Federal Court on Constitutional questions is not and cannot be definitive.

The Herald has been barred from using the term Allah - Photograph: Wikipedia

The Herald has been barred from using the term Allah – Photograph: Wikipedia

It was not the absolute decision of the Federal Court. The decision was merely by a majority of one with three other judges disagreeing with this decision. The dissenting views of these three judges are compelling and deserving of merit.

It is rather disappointing that in rejecting leave for appeal, the Federal Court had, in the perception of many, aborted the only sensible way to look further and deeper into the 28 questions of law raised by the lawyers of the Catholic Church. If these questions were allowed to be ventilated, perhaps the outcome could have been different and more sobering.

As was observed earlier, this is not a definitive decision. If the quorum of the court had been differently constituted, the decision of the court could have been fairer and more judicious. One wonders if the decision would have been different if the ethnic composition of the judges were more representative?

When the Court of Appeal ruled on 14 October 2013, disallowing the use of ‘Allah’ by The Herald, it was very unfortunate that this decision was handed down by three judges who were Muslims.

It created the unfortunate and inevitable perception that Muslim judges are incapable of being fair in matters of religion especially when it involves Islam. In this verdict of the Court of Appeal, it left an indelible impression that the court was not fair because it was not constituted to include non-Malay judges who could have contributed immensely to the understanding of the court as to what is integral to the Christian faith.

A mixed quorum involving a Christian would have allowed for better input and greater consultation which would have been valuable and useful rather than for the court to depend on the internet for information which might not be applicable to Malaysia. It is so, in this case.

The essential point in this application was totally overlooked by the four members of the Federal Court who sat in judgment in the appeal of the Catholic Church. What was sought by the Catholic Church was only a leave application. The Catholic Church was “merely seeking permission for the Federal Court to hear their submission on the merit and reason why the Court of Appeal had erred in their judgment”. This leave could and should have been allowed without upsetting the decision of the Court of Appeal.

On the other hand, the dissenting judges clearly understood and recognised the right of the Catholic Church to file an application for the Federal Court to hear and decide on the pertinent points of law and Constitutional issues that the Catholic Church had raised in their 28 points to rebut the decision of the Court of Appeal. They deserved and merited a fair hearing in the name of justice.

Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum was of the view that:

  • 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.
  • 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…..” He declared that ‘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 re-emphasised 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).”

Federal Court judge Datuk Zainun Ali took the position that the Catholic Church ought to be given leave to appeal over the ‘Allah” row and criticised the three lower court judges for exceeding their authority.

She further observed:

  • “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….”

Federal Court judge Tan Sri Jeffrey Tan Kok Hwa was of the opinion, “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 the constitutional questions should be answered by the Federal Court. “They are too grave to be answered by any other,” he added.

But the Federal Court in dismissing the appeal “decided that the Court of Appeal was right to rule that the use of the word Allah is not integral to Christianity. It also went along with the Court of Appeal that the use of the word could be a threat to national security…”

The former Mufti of Perlis, Mohd Asri Zainul Abidin, has effectively demolished the myth that the use of the word “Allah” would cause confusion and threaten national security. He put it bluntly. He pointed out that “only stupid Muslims cannot differentiate between Muslims’ Allah and Christians’ Allah”.

It has been contended that “to Bahasa speakers, the Arabic loan word, ‘Allah’ refers to God in English. The Allah or God in the Quran is clearly defined and there can be no confusion over it”.

Said one commentator: “By no stretch of imagination would any Muslim entertain the idea of the trinity. The word Allah may be the same for both Muslims and Bahasa-speaking Christians but, as pointed out by Asri, only the stupid cannot differentiate between the two.”

The outspoken Sarawak Minister in charge of state land development, Tan Sri Dr James Masing, was of the opinion that “the losers here are Malaysia, and its religious freedom.” Therefore, he said the Federal Court decision needed to be reviewed.

Sabah’s State Reform Party (Star) chief Datuk Dr Jeffrey Kitingan reacted to the Federal Court decision by stating, “It’s a sad day. The religious freedom enshrined in the constitution is now undermined.

“They (the judges) should be looking at the constitutional and legal arguments rather than political considerations.”

He said the Federal Court decision had also failed to defend the spirit of the Constitution.

And – to their credit – it is not the view of the majority of Muslims in this country that the word Allah would cause confusion among them when Christians use the word Allah. Their faith is extremely strong and their understanding of ‘Allah’ is very deep that they are NOT confused.

It is only the minority people out to exploit this issue for their political purposes who are attempting to cause chaos in this country by persistently pushing this issue for their advantage and to the detriment of this beloved nation.

In matters of religion and tradition, no government or court should dictate what is permissible and what is forbidden. It is beyond the purview of the government and the court.

We have lived as a nation in mutual respect, tolerance and co-operation without interfering in the affairs of religion concerning the other communities in the past. It was this abiding practice and observance that had preserved our unity and harmony and this must not be sacrificed for some political expediency. We can only do so at our own peril. Let us not allow this nation to be torn asunder because some hotheads are unable to appreciate the benefits of a united nation.

The only way ahead is to relook at the Federal Court’s decision. In all fairness, a review of the Federal Court’s decision should be allowed in the interest of justice and a return to sanity.

Let’s bring back the confidence that the judiciary enjoyed in the past.

P Ramakrishnan
Aliran executive committee member
30 June 2014

P Ramakrishnan

P Ramakrishan, the long-serving former president of Aliran, has been granted a respite and now happily serves as an Aliran executive committee member. He has carried the flag for human rights and democracy for Aliran since its inception in 1977, when the term ‘human rights’ was considered something of a dirty word.

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1 Response

  1. ARH says:

    A truly independent judiciary means the judges are totally FREE from the constraints of any external influence and interference.and exert their constitutional duty and authority without fear or favour. Only then can judges decide disputes with impartiality and according to justice and good conscience..

    If there is partiality in the administration of justice, if judges meekly succumb to external pressure, then there is no hope of justice for the ordinary citizens.

    In a fair and free trial judges normally question all the parties concerned because they don’t know the full extent of the facts and want to find out the
    truth. If judges digress from the normal practices and procedures and have already made up their mind before even the trial begins, they are presiding
    over a kangroo court. Is this how justice in courts works? What is the point of setting up a trial when rules and procedures are cast aside and the outcome is already decided?

    Trials mean finding out the truth to make a fair and acceptable decision.. An independent judiciary is the greatest bulkwark against injustice and the strongest safeguard of our liberty.

    Whatever it is, the decision made is not justice. It’s a game we don’t know why it’s been played. We believe that “constitutional.and legal argument”,
    not “political considerations”, that should be looked at, weighed and considered.

    “…a review of the Federal Court’s decision should be allowed in the interest of justice and a return of sanity”. Yes, this is what we want..
    ..

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