Monday, July 7, 2014

'Voice of reason must prevail in Allah case'

2:50PM Jul 7, 2014
The conflicting views over the use of the term 'Allah' should be resolved amicably at the negotiation table, said Federal Court judge, Justice Zainun Ali.

Zainun, one of three judges who wrote dissenting judgments in the highly-charged case in the Roman Catholic Archbishop of Kuala Lumpur's appeal last month, also called for sanity and tolerance to prevail.

"Finally I really and sincerely take the position that in this case, the voice of reason should prevail and all parties must exercise restraint and uphold the tenets of their respective religious beliefs and display tolerance and graciousness to each other.

"All parties should stay calm and exist in peace and harmony in our beloved country. It is imperative that the goodwill that all races and religious denominations posses be brought to the negotiation table and the matter be resolved amicably," she wrote near the end of her 60-page judgment.

Zainun, who along with Chief Judge of Sabah and Sarawak Justice Richard Malanjum, and another Federal Court judge Justice Jeffrey Tan Kok Wha had allowed permission to hear the Roman Catholic archbishop's appeal, was the solitary Muslim judge who allowed to hear the 28 questions posed.

Lawyers for the Archbishop had posed 28 questions that cover three areas namely administrative law, constitutional and general questions.

Justice Richard, along with Justice Zainun and Justice Tan, who wrote separate judgments, found merits in allowing the hearing of the appeal by the archbishop.

The prolonging ‘Allah’ issue that had been unresolved since 2007 had seen other legal challenges mounted, including the Sidang Injil Borneo and Jill Ireland cases.

The situation worsened further in January this year with the Selangor Islamic Affairs Department’s (Jais) seizure of 321  Malay and Iban language Bibles from the Malaysian Bible Society which has yet to be resolved until today.

‘Judges are not omniscient’

Justice Zainun also cited the late Sultan Raja Azlan Shah’s judgment on the need to control executive power when the former Lord President wrote, “Every legal power has legal limits for otherwise, there is dictatorship” as in this case the home minister had imposed the ban on the Herald.

She also criticised the appellate court’s judgment, on taking alleged historical or other facts taken from affidavit evidence and the Internet (research), which were not verified and corroborated.

“Judges should not overreach themselves for we are not omniscient. As had been said, plausibility should not be mistaken for veracity,” she wrote in the judgment.

Some of the pointers in Justice Richard 66-page dissenting judgment:
  • The Herald had been in circulation for 14 years before the ban was imposed in 2009 disallowingit using ‘Allah’ in the Bahasa Malaysia publication, and this shows there is no prejudice to public order (national security) issues.
  • The use of the word ‘Allah’ was not prohibited in other publications such as Al-Kitab (Bible) and the Sikh holy book.
  • Church deserves to be granted leave as there are legal issues raised which the Federal Court should resolve.
  • Home minister must offer evidence to convince the courts that security considerations were indeed in play (to warrant the ban).
  • He quoted Raja Azlan’s quote that courts must keep abreast with change - “Winds of change must be heeded in the corridors of the courts if we in the law are to keep abreast of the times’;
  • There is a need for the Federal Court to clarify which direction our administrative law should pursue.
  • Matters of freedom of religion should be all-encompassing and not be compartmentalised.
  • The Court of Appeal decision seems to be a sweeping general prohibition against the use of the word ‘Allah’ by all non-Muslims in all forms on all occasion. Most of the groups affected such as the Sikh community were not parties in this case.
  • The correct test that should be employed is the subjective test.
Justice Tan in his six-page judgment wrote that the constitutional questions should be answered by the Federal Court.

“They are too grave to be answered by any other,” he said in agreeing with Justice Richard and Justice Zainun in granting leave.

In this case, the Kuala Lumpur High Court had declared the ban on the use of the word as unconstitutional and illegal. This decision was unanimously overturned by the Court of Appeal.

~ Malaysiakini

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