Tuesday, July 1, 2014

Federal Court’s decision not definitive

July 1, 2014

In matters of religion, no government or court should dictate what is permissible and what is forbidden.
By P Ramakrishnan
Mahkamah PutrajayaIt 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.
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 Oct 14, 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.
Pertinent points
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.
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…”
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.
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 is an Aliran executive committee member.
~ Free Malaysia Today

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