BY V. ANBALAGAN, ASSISTANT NEWS EDITOR
MARCH 04, 2014
The Federal Court will hear whether the church's application for leave to appeal ought to be given, five months after the Court of Appeal had ruled that the home minister was right in prohibiting the use of the word in the Herald.
If leave is not granted, the decision of the Court of Appeal on October 14 will stand as correct in fact and law. There can be no appeals by the church after this.
As Christians prepare to enter the holy season of Lent on Wednesday, their right to freedom of worship will be put to the test in three cases over the use of the word Allah which will be heard in Malaysian courts this week. All eyes, however, will be on the Herald issue.
Archbishop Emeritus Tan Sri Murphy Pakiam has called on Catholics to enter into the holy season of Lent with intense prayer tomorrow.
"Let us especially pray on Ash Wednesday that the Federal Court will grant the Catholic church the leave to appeal," he said.
He added that Lent was a sacred moment in the Catholic Church as it is a time Catholics remember profoundly the suffering and death of Jesus.
As such, Pakiam requested for the Catholic community to offer all prayer, penance and fasting on Wednesday for the Herald case.
Benjamin Dawson, one of the counsel in the church's legal team, said Section 96 of the Courts of Judicature Act 1964 had to be satisfied in order for the Federal court to hear the appeal.
That provision states that an applicant (the church) must pose questions of importance upon which further argument and decision of the apex court would be of public advantage.
A second part of the section states that legal questions could be posed if any decision affects the constitutional rights of citizens and validity of any other written law.
"We have framed questions to satisfy the requirements of both parts of Section 96," said Dawson, who had worked tirelessly with others in the team in conducting extensive research on the subject matter.
The lawyer, who has appeared in the conversion case of Lina Joy about 10 years ago, said going by the intensity of public debate since last year, the Federal Court should grant leave to the church to hear the appeal.
Dawson said the questions posed basically boiled down to whether the fundamental liberties like freedom of speech, religion and religious education of non-Muslims were subject to the position of Islam as the religion of the federation.
"Our questions will also touch on whether a minister or any written law could regulate the religious affairs of non-Muslims," he said.
Dawson said the apex court judges may not accept all the questions framed but the legal team hoped key questions would be allowed.
On November 12, the church submitted 26 questions on the constitution, administrative law as well as the power of the court to allow the home minister to ban the use of a theological word.
Two more questions were filed last week.
Putrajaya, the Home Minister, the Malaysian Chinese Muslim Association and six state religious councils are objecting to the church's application to obtain leave.
So far, the association and three councils had said in their affidavits that the minister had reminded the church repeatedly between 1986 and 2009 that the use of "Allah" in place of "God" in the Herald's Bahasa Malaysia section would create animosity among Malaysians.
They said the Court of Appeal's decision was based on facts, while the church had failed to provide credible evidence on its use of the word.
The councils of Malacca, Kedah and Johor have also said that the apex court should not waste its time to allow leave and answer the questions posed by the church.
Dawson said the Attorney General's Chambers, which is representing Putrajaya and the minister, has yet to submit its reasons for objecting to the leave application.
"Putrajaya should just concede to the leave application and give the Federal Court the opportunity to hear arguments on the basic rights of the people," he said, adding that even the AG's Chambers could submit legal questions if the church agreed.
Bon said the court could also draft questions to cover any legal ambiguities on the Allah issue.
"The apex court should allow as many questions as possible and then proceed to hear the appeal since this would be another landmark judgment for future reference," he said.
The leave application could likely be heard by a seven-man bench as a court senior assistant registrar had written to the church asking for two additional sets of documents.
Lawyer S. Selvarajah said he could only infer of an englarged panel hearing the application because in the past, he had only filed six sets of documents when dealing with Federal Court matters. Five copies are for the panel of judges in the apex court and one for the registrar's record.
Selvarajah said the court official had requested for eight sets of documents to be supplied on matters relating to the church.
On October 14, a three-member bench led by Datuk Seri Mohamed Apandi Ali allowed Putrajaya's appeal that the minister was right to ban the publisher of the Herald from using the word Allah.
This was in line with a 1986 directive by the Home Ministry that prohibited non-Muslim publications from using four words: Allah, Kaabah, Solat and Baitullah.
Apandi in his judgment said the reason for the prohibition was to protect the sanctity of Islam and prevent any confusion among Muslims.
He also ruled that if the word was allowed to be used by Christians, it could threaten national security and public order.
Furthermore, the court said the prohibition was reasonable on the grounds that the word Allah was not an integral part of the Christian faith and practice.
The decision sparked an outcry among Christians and other non-Muslims both in the peninsula, and Sabah and Sarawak.
In 2009, the church had filed a judicial review in the High Court to challenge the home minister's order to prohibit the use of the word in the publication.
High Court judge Datuk Lau Bee Lan quashed the minister's order, ruling the ban violated the constitutional right of the publisher.
Meanwhile, Sidang Injil Borneo's (SIB) challenge against the home minister and the government over the right to use the word Allah in Christian publications is fixed for leave hearing at the Jalan Duta court today.
The application for leave for judicial review was filed in December 2007, where SIB and its president Datuk Jerry Dusing are challenging the seizure of religious books brought in by SIB from Indonesia.
Although government lawyers are expected to argue that since the books have been released, the application by SIB has become academic, SIB's position is that the questions of law are still very much alive.
This is because among the declarations sought by SIB is that its congregation has the constitutional right to use the word Allah in all their religious publications and materials.
SIB is also seeking a declaration that its congregation, a majority of whom are Bahasa Malaysia-speaking natives, is entitled to own, possess, use and import materials notwithstanding the use of the word Allah in those publications.
On Thursday, the case of a Sarawakian clerk, who is challenging the Home Ministry's decision to confiscate eight compact discs on Christians teachings containing the word Allah on its cover, is up for final case management.
Jill Ireland Lawrence Bill obtained leave for the judicial review on May 4, 2009, but hearing dates for the judicial review proper has yet to be fixed. – March 4, 2014.
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