Church fails to get 9-man bench to hear ‘Allah’ review

by V. Anbalagan
The Malaysian Insider
11 January 2015

The chief justice of Malaysia has turned down a request by the Catholic Church to convene a minimum nine-man panel to deliberate its review application against the ban on the word Allah when the case comes up on January 21.

The church was instead informed that only a five-man bench would be constituted to hear the matter.

The decision by Tun Arifin Zakaria was conveyed to the Catholic Church by the special officer to the chief justice, Dr Alwi Abdul Wahab, in a letter dated December 31.

The letter which was sighted by The Malaysian Insider, said that the request for a full bench could not be entertained. There were no reasons given on why the request was dismissed.

On December 23, a lawyer for the church had sent a letter to Arifin, urging for at least nine Muslim and non-Muslim judges to hear its arguments on fundamental constitutional provisions relating to religion.

The letter, which was also sighted by The Malaysian Insider, had said the church wanted a quorum that reflected the multi-cultural and multi-religious diversity of Malaysian society, given the nature of the issues raised.

“This is because fundamental constitutional provisions relating to state religion, freedom of minority religion, freedom of expression, which have far-reaching consequences for Malaysians of all races and religions, will be raised,” the letter had said.

In February last year, lawyers for the church had asked for, and given, an unprecedented seven-man bench to hear their leave application which was dismissed in June the same year.

The review application is aimed at setting aside the ruling by the apex court’s seven-man bench that upheld the Home Ministry’s ban on the use of the word “Allah” in the Catholic weekly, Herald, and establish a new panel to re-hear the leave application.

Four of the Federal Court judges, who formed the majority, had refused the leave-to-appeal application while three others took the position that leave should be granted.

“It is pertinent to note that each dissenting judge had written his or her own grounds allowing the application for leave,” the letter had said.

The Catholic Church is fighting for the right to use the word Allah in its publication, Herald. – The Malaysian Insider file pic, January 11, 2015.The Catholic Church is fighting for the right to use the word Allah in its publication, Herald. – The Malaysian Insider file pic, January 11, 2015.It had added that the church, therefore, believed that it was appropriate for at least a nine-man bench to be formed to hear the review.

The letter cited a precedent in India where a 13-man Supreme Court bench sat in 1973 to deliberate on an important constitutional issue in the case of Kesavananda Barati v the Government of Kerala.

The church also drew Arifin’s attention to the October 2013 Court of Appeal ruling, which continues to raise serious public concern where parties had used portions of the judgment to seize holy books of Christians even though the majority ruling in the leave application had declared that those portions were mere remarks made in passing.

A copy of the letter was sent to the Attorney-General’s Chambers and Messrs Zainul Rijal Talha and Amir, the legal firm that is representing one of the respondents.

On June 23 last year, Arifin was among the majority apex court judges who dismissed the church’s application for leave to appeal.

Others were Tan Sri Raus Shariff, Tan Sri Zulkefli Ahmad Makinuddin and Tan Sri Suriyadi Halim Omar.

The dissenting judges were Tan Sri Richard Malanjum, Tan Sri Jeffrey Tan Kok Wha and Datuk Zainun Ali.

All the seven judges as well as Tan Sri Apandi Ali, who was in the Court of Appeal panel that heard the church’s case, but who is now a Federal Court judge, cannot hear the review application.

A five-man bench to hear the review application could still come from the remaining six Federal Court judges but nothing in law prevents Arifin to also scout for members in the Court of Appeal.

The church is seeking to reverse the findings of the Court of Appeal decision, which had allowed the home minister’s appeal to overturn the 2009 High Court’s decision that the Herald could use the word “Allah”.

The High Court had declared that the decision by the minister to ban Herald from using the word “Allah” was illegal, null and void.

The church, led by the then Kuala Lumpur Archdiocese Archbishop Emeritus Tan Sri Murphy Pakiam had filed a judicial review application in 2009, naming the minister and the government as respondents.

Lawyer Benjamin Dawson, a member of the church’s legal team, had said the review was based on three broad grounds.

The first was that there were certain legal issues central to the leave application but were not considered by the Federal Court, such as the scope of Articles 3 and 11 of the Federal Constitution.

Article 3 states that Islam is the official religion of the federation while Article 11 touches on freedom to practise one’s religion.

The church further contended that the minister’s decision to prohibit the use of the word “Allah” in the Herald had also taken into account a theological consideration.

Dawson had said that the second ground was that the apex court’s majority judgment decided on certain legal issues, which were neither argued nor raised by the parties before the Federal Court or the Court of Appeal, such as the constitutional validity of Section 9 of the Anti-Propagation Enactment.

The third ground is that the Herald’s case is one of the most important constitutional cases to come before the apex court, especially where minority rights are concerned.

He added that there existed a public-interest factor to support the review application. – January 11, 2015.