Was justice done to the Herald?

Mohamed Hanipa Maidin
Malaysiakini
July 2, 2014

COMMENT Personally I was upset with the decision by the Federal Court refusing leave for the Herald to appeal against the decision of the Court of Appeal. As a lawyer I found the decision was weird. As a Muslim I am of the view justice was not done to the Herald.

We all know that the issue raised by the Herald in the Federal Court was very, very important. Needless to say that being the final arbiter of any legal controversy the Federal Court should have held that the Herald ought to be given the leave to appeal.

Yes, an appeal to the Federal Court is not automatic, meaning that the Herald needed to obtain leave to appeal. Nevertheless, the practice has been that the apex court would normally grant the leave when the issue at hand involves novel and crucial legal or constitutional question and the same also attracts public interest.

No doubt the issue raised by the Herald had met all the legal prerequisites for leave to be duly given. It had raised a very important constitutional issue namely the correct interpretation of Article 11 of the federal constitution in particular Article 11 (4). Via the appeal, the Herald sought to be enlightened by the apex court the proper meaning and perimeters of freedom of religion enshrined in Article 11 of our highest law of the land.

Being the final arbiter and intepreter of the federal constitution, the decision of our Federal court would serve as a very useful guidance to the whole nation, in particular the legal fraternity.

The fact that seven Federal Court judges were assigned to hear the leave application spoke volumes of the significance of the Herald’s appeal. As far as I remember this was the first time in our judicial history a leave application was heard by seven judges. The huge number of judges in itself indicated that the issue was of paramount importance, yet ironically the leave was simply denied.

By refusing leave we have to reluctantly accept the decision of the Court of Appeal on Allah’s name being the law of the land. As it stands now the court of appeal has set a weird precedent that Allah is belong exclusively to Muslims despite the fact that Islam holds a different view.

Actual meaning of freedom of religion?

In spite of Allah’s name has been used by many non-Muslims throughout the world, the Malaysian court proudly held that in Malaysia the freedom of religion excludes the non-Muslims from using this sacred word. Was this the actual meaning of freedom of religion envisaged by Islam or our forefathers who drafted the constitution?

With the greatest respect to the Federal Court and the Court of Appeal, I am of the view that the judgement of the learned High Court judge was more legally sound and constitutionally correct.

She was right in holding that the Herald’s constitutional right to freedom of religion pursuant to Article 11 had been infringed the moment the home minister made a decision imposing an unreasonable and unconstitutional condition that the name of Allah could not be contained in the Herald’s publication. As far as I am concerned, the judgment of Justice Lau Bee Lan, despite being a non-Muslim, was legally correct and Islamically sound.

As we all know that the freedom of religion in Article 11 of the federal constitution has been curtailed to the non-Muslims in that they are prohibited from propagating their religious doctrine to the Muslims. The curtailment is found in Article 11 (4) of the constitution. I believe the element of public order triggered this provision.

Unfortunately such a restriction in Article 11 (4) has now been further eroded by a novel interpretation of our constitution by the Court of Appeal when the Herald was not allowed to use the name of Allah in its publication despite such a publication being only circulated to the Christian adherents.

The Herald never offended its constitutional right yet the Federal Court, being the final gatekeeper of our citizen’s constitutional right has, with due respect, unduly abdicated its solemn duty to protect the right of David against the mighty Goliath.

To our Muslim brethren, let us be reminded by this wise advice given by our distinguished ulama namely the late Ibnu al Qayyim Al Jauziyyah when he said, “Islam is all about justice, mercy and wisdom… any thing which transgresses the principle of justice or mercy or wisdom has nothing to do with Islam.”

MOHAMED HANIPA MAIDIN is the MP for Sepang. He is a lawyer by profession and a PAS central committee member.