Friday, September 30, 2016

Maiwp cannot intervene in review bid over use of word 'Allah'

Hafiz Yatim     Published     Updated

The Federal Territory Islamic Council (Maiwp) is not allowed to intervene in Sidang Injil Borneo's (SIB) judicial review application to seek declaratory relief over the 'Allah' issue.

However, the Court of Appeal ruled that Maiwp can be an amicus curiae (friend of the court) in the matter.

Justice Hamid Sultan Abu Backer said the attorney-general, as the guardian of public interest, is already there to represent the Home Ministry, and as such there is no need for other agencies to be present.

“In Malaysia, as well as many jurisdictions in the Commonwealth, the AG is also the guardian of public right and interest, in accordance with the rights of the AG under the English common law in pursuant to Section 3(1) of the Civil Law Act 1956.

“The AG is duly represented and vigilant, sufficient in our view to protect the public right and interest within the watchful eyes of the courts, with judges who have taken a constitutional oath to preserve, protect and defend the constitution,” he said.

Justice Hamid who led the three-member bench said for this reason, it is allowing SIB's appeal.

“As the law stands, the threshold test for intervener is for the applicant to demonstrate direct interest. In the instant case, we do not see how Maiwp will be affected by any order of the court other than a circuitous reasoning which will not satisfy the direct interest test. Maiwp has no rights over and owes no liabilities to the appellants or non-Muslims.

“However, we recognise Maiwp has a positive role within the mandate of the Maiwp Act 1993 to assist the court as amicus curiae. In consequence, the order for intervention is set aside with liberty for Maiwp to appear as amicus curiae in the High Court,” said the judge in an unanimous decision.

The other two judges are Justice Zamani A Rahim and Justice Zaleha Yusof

In February, the High Court in Kuala Lumpur allowed Maiwp to be an intervener in the suit.

Seeking declaratory relief

SIB and its president Rev Jerry Dusing, the appellants of this application, had named the Home Ministry and the Malaysian government as respondents, following the seizure of books bearing the word 'Allah' at the low-cost carrier terminal in Sepang in 2007.

The books were returned in 2008, just before the general election resulting in Dusing to drop the mandamus order to compel the authorities to return the book, but maintained the 18 declaratory prayers sought.
They include the rights to use the word 'Allah' in the Bahasa Malaysia and Bahasa Indonesia translations of the bible, as well as in all religious publications and materials in this country.
They are also seeking for the government's decision on May 19, 1986 - that the words "Allah, Kaabah, Baitullah and Solat" are phrases exclusive to Islam and cannot be used by other religion - be declared null and void and contrary to Articles 3, 8, 11, 12, 74, 76 and 80 of the Federal Constitution.
SIB was granted leave (permission) for the judicial review to be heard on its full merits on Oct 1, 2014.

Lawyer Mohd Haniff Khatri Abdulla represented Maiwp, while SIB was led by Lim Heng Seng.

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