BY V. ANBALAGAN, ASSISTANT NEWS
EDITOR
Published: 7 July 2014

Chief Judge of Sabah and Sarawak, Tan Sri Richard
Malanjum, says Islam as the religion of the Federation under Article 3 could
not be more important than other provisions in the Constitution. – The
Malaysian Insider file pic, July 7, 2014.
A dissenting judge in the Allah case
said the position of Islam in the Federal Constitution should not be used to override
the basic rights accorded to citizens.
Chief Judge of Sabah and Sarawak
Tan Sri Richard Malanjum said Islam as the religion of the Federation under
Article 3 could not be more important than other provisions in supreme law of
the land.
"It is disquieting to note in
this (Allah) case, that in determining the ranking of importance of the various
Articles in the constitution, the Court of Appeal seems to have adopted the
‘first-com-first served basis’ approach," he said in his judgment made
available to the media today.
Malanjum said if the numerical
ranking of provisions argument was accepted, it could also lead to an
interpretation that the judiciary was inferior to the legislature and the
executive.
The Constitution first discusses
the makeup of the legislature, the executive and finally the judiciary.
Under the Malaysian constitutional
scheme, the legislature, executive and judiciary are equal, as the three
branches act as check and balance to one another.
"Surely the drafters and the
founding fathers of the Federation would not have anticipated such an approach.
Further, the basic structure of the constitution is sacrosanct," he added.
Malanjum said the various
documents, which formed the basic foundation of the Federation, must not be
cast aside as mere historical artifacts.
On June 23, the Catholic Church's
battle over the use of the word "Allah" in their weekly publication
ended after the Federal Court dismissed its leave application to appeal the
ban.
Four of the seven-member bench
dismissed the church's application for appeal, citing that the Court of Appeal
was right in its decision to ban the word.
Chief Justice Tun Arifin Zakaria,
President of Court of Appeal Tan Sri Md Raus Sharif, Chief Judge of Malaya Tan
Sri Zulkefli Ahmad Makinuddin and Federal Court judge Tan Sri Suriyadi Halim
Omar were in the majority to declare leave should not be granted.
Malanjum and Federal Court judges
Datuk Zainun Ali and Tan Sri Jeffrey Tan Kok Hwa held that leave must be
granted.
Under Section 96 of the Courts of
Judicature Act 1964, an applicant must show the apex court that there were
contentious constitutional issues raised or important legal questions which
needed further argument that would be of public advantage.
The church had submitted 28
questions which centred around key constitutional and administrative law, as
well as the power of the court to allow the home minister to ban the use of the
word "Allah" in Herald.
On October 14 last year, Court of
Appeal judge, Tan Sri Mohamad Apandi Ali, who chaired the bench, said the
prohibition was to prevent any confusion among the various religions.
He had also said that national
security and public order could be threatened if the publisher of Herald was
allowed to use the word.
Apandi had explained that the
government did not violate the church’s constitutional rights, and that all
other religions could be pracitised in peace and harmony with Islam.
Apandi said restrictions were
imposed on non-Islamic religions to prevent the propagation of their faiths on
Muslims in this country. – July 7, 2014.
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