Tuesday, January 20, 2015

‘Allah’ battle continues as Catholic Church returns to court with hope

BY V. ANBALAGAN, ASSISTANT NEWS EDITOR

Protesters outside the Palace of Justice during the previous hearing on the right to use the word Allah in the Catholic Church's publication, Herald. – The Malaysian Insider file pic, January 20, 2015.

Protesters outside the Palace of Justice during the previous hearing on the right to use the word Allah in the Catholic Church's publication, Herald. – The Malaysian Insider file pic, January 20, 2015.
The Catholic Church will walk the path that has led only a few to success when the battle to use the word Allah in its weekly newspaper, Herald, returns to the courtroom tomorrow.
So far, only a handful of applications have been allowed in a review of a Federal Court ruling.
Last June, the seven-member Federal Court panel chaired by Chief Justice Tun Arifin Zakaria, in a majority judgment, dismissed the Catholic Church's application for leave to appeal.
The church was seeking leave to appeal against the Court of Appeal's decision earlier which had allowed the government's application to overturn the 2009 High Court's decision that the Herald could use the word Allah.
Tomorrow, lead counsel for the church, Datuk Dr Cyrus Das, will argue that the Federal Court’s majority judgment last June was decided on issues which were not raised by parties before.
Key among them is the constitutionality of Section 9 of the Anti-Propagation Enactment which was passed to preserve the purity of Islam.
Article 11 (4) of the Federal Constitution states that the states, including the Federal Territories, could enact laws to control or restrict the propagation of any religious doctrines or beliefs among Muslims.
Ten states, including Selangor, have since 1988 passed enactments (Section 9) to stop non-Muslims from using between 18 and 25 words, one of which is “Allah”.
Chief Justice Tun Arifin Zakaria, who delivered the majority judgment, said the church in the High Court had challenged the validity of the enactment and judge Lau Bee Lan had upheld the point raised.

"The nett effect is that the impugned provision (Section 9) is invalid, null and void and unconstitutional as it exceeds the object of Article 11 (4)," he had said in the June 23 ruling which dismissed the application by the church to appeal against the Court of Appeal judgment.

Arifin said that Lau's ruling meant that state legislatures had no power to approve Section 9 of the enactment.
 
Arifin also then went on to say that the leave application must be dismissed because the church had used the wrong procedure in the High Court to challenge the validity of state enactments.

The Herald is banned from using the word Allah. – The Malaysian Insider file pic, January 20, 2015.The Herald is banned from using the word Allah. – The Malaysian Insider file pic, January 20, 2015.He said the correct procedure was provided under Article 4(3) of the Federal Constitution where proceedings must only begin with leave of a Federal Court judge.
According to court papers sighted by The Malaysian Insider, the church said this issue was never raised in the Court of Appeal or at the leave-to-appeal application stage in the Federal Court.
The church said Lau had never declared Section 9 to have violated Article 11 (4).
Lawyer Datuk Harpal Singh Grewal said in a review application, the applicant need only show there was injustice or abuse of court process.
He said the Federal Court had wide powers but a review was only allowed under exceptional circumstances.
"Over the years, countless applicants have appeared before the apex bench to review its own ruling but less than five have succeeded," he told The Malaysian Insider.
Harpal said the church could also point out that the difference between the majority and minority was so close that a review must be allowed and the leave be heard before a fresh panel.

"The three dissenting judges wrote their grounds on a public interest issue which I find was convincing," he said.
Arifin, Tan Sri Raus Shariff, Tan Sri Zulkefli Ahmad Makinuddin and Tan Sri Suriyadi Halim Omar formed the majority.
The dissenting judges were Tan Sri Richard Malanjum, Tan Sri Jeffrey Tan Kok Wha and Datuk Zainun Ali.
On October 14, 2013, the then Court of Appeal judge Tan Sri Mohamad Apandi Ali, who chaired the bench, had said the restrictions were imposed to prevent the propagation of non-Muslim faiths on Muslims in Malaysia.
He had also said that national security and public order could be threatened if the publisher of Herald was allowed to use the word Allah.
"It is our common finding that the name 'Allah' was not an integral part of the Christian faith and practice," he had said.
Lawyer Benjamin Dawson had said the church was`also complaining that legal issues like the position of Islam as the religion of the federation and freedom of religion which were central to the leave application were not considered by the majority judgment.
He said the church further contended that there was also the fact that the home minister’s decision to prohibit the use of the word Allah in the Herald had also taken into account a theological consideration.
Dawson said that the Herald’s case was one of the most important constitutional cases to have come before our courts, particularly where minority rights were concerned.
A five-man bench is scheduled to hear the review application. – January 20, 2015.
- See more at: http://www.themalaysianinsider.com/malaysia/article/allah-battle-continues-as-catholic-church-returns-to-court-with-hope#sthash.uZCXJlFd.dpuf

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