Monday, July 7, 2014

CJ: Allah ban not based on theological issues

12:36PM Jul 7, 2014By Hafiz Yatim
The Home Ministry's ban on the usage of the term "Allah" was not based on theological aspects, said Chief Justice Arifin Zakaria.

Arifin, who wrote the majority judgment in the appeal by the Catholic Archbishop of Kuala Lumpur, ruled that theological issues brought up at the Court of Appeal were considered obiter (words of opinion entirely unnecessary for the decision of the case).

Although the CJ did not state which theological aspects were considered as such, but one of the major findings in the appellate court's judgment was the remark made by the judges that the term "Allah" was not an integral part to the Christian faith.

"From the facts, it is clear that the (home) minister's decision was never premised on theological consideration. Therefore, the views expressed by the learned judges of the Court of Appeal on those issues are mere obiter.

"For that reason, the questions (constitutional questions posed by lawyers for the archbishop) in Part C, in my view do not pass the threshold under Section 96 (a) of the Courts of Judicature Act," he wrote in his 38-page judgment, which was uploaded on the official Federal Court website.

When a judgment is considered obiter or passing comment, it is normally not binding on the courts.
This is pertinent as there are other challenges over the “Allah” issue following the seizure of compact discs as in the Jill Ireland case and also religious and education books in the Sidang Injil Borneo (SIB) and Rev Jerry Dusing's (left) cases by the Royal Customs Department.

In the SIB case, High Court Judge Zaleha Yusof refused to grant leave on the judicial review application, when she ruled that the court was bound by the Court of Appeal judgment that "Allah was not integral to the Christian faith".

The SIB case is presently on appeal at the Court of Appeal.

Court of Appeal judge, Justice Mohd Zawawi Mohd Salleh had in the unanimous judgment done research on the theological aspect and came up with the finding that "Allah is not integral for the Christian faith."

 The other judges at the Federal Court who agreed with Justice Arifin in the Herald judgment last month were Court of Appeal president Justice Md Raus Sharif, Chief Judge of Malaya Zulkefli Ahmad Makinuddin, and Federal Court judge Suriyadi Halim Omar.

However, there is no other majority written judgments accept that of Justice Arifin.

High Court judge wrong

In not granting leave to hear the appeal, Justice Arifin ruled that the 28 constitutional questions posed by lawyers representing the Archbishop do not pass the Section 96 (a) barrier of the Courts of Judicature Act.

This views, were however, not shared by dissenting judges namely Chief Judge of Sabah and Sarawak, Richard Malanjum and Federal Court judges Justices Zainun Ali and Jeffrey Tan Kok Wha.

The CJ emphasised that the judgment only relates to the usage of the word "Allah" in theHerald.

He said the High Court judge (Justice Lau Bee Lan) was wrong in considering the provisions in several state enactments which bar the usage of "Allah" in some states as unconstitutional.

The net effect of Justice Lau's decision, Justice Arifin said, renders the state laws being declared invalid, null and void and unconstitutional as it exceeds the object of Article 11 (4) of the Federal Constitution and the states legislature have no power to enact the ban.

"The issue is, could the High Court judge entertain such a challenge in light of specific procedure in clauses (3) and (4) of Article 4 of the Federal Constitution... For this, the respective states should be made a party for the state to be given an opportunity to defend the validity or constitutionality of the impugned provision.

"I hold the view that the High Court judge ought not to have entertained the challenge of the validity or constitutionality of the impugned provisions for two reasons, namely procedural non-compliance and for want of jurisdiction. The findings by the High court judge that the impugned provision is unconstitutional was rightly set-aside by the Court of Appeal," he said.

Justice Arifin also ruled that the Court of Appeal applied the correct subjective test in the case and hence its finding in the unanimous decision should not be disturbed.
~ Malaysiakini

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