A five-member Federal Court bench today dismissed the application by the archbishop of the Roman Catholic Church to review an earlier decision of the court not to grant leave to appeal the ban on the use of the word ‘Allah’ in its weekly, Herald. Federal Court judge Abdull Hamid Embong ruled that no procedural unfairness occurred in the previous seven-member panels decision. The judge said the threshold for a review had not been met. Hence, we dismiss the review application, he said. Justice Abdull Hamid made no order as to costs. The other Federal Court judges hearing the review were justices Ahmad Maarop, Hasan Lah, Ramly Ali and Azahar Mohamed. According to the judge, there are four conditions for the court to grant a review of a previous Federal Court panels decision, as stipulated under Rule 137 of the Courts of Judicature Act. They are whether there was an element of bias, coram failure, fraud or procedural unfairness, in the decision by the previous bench. Justice Abdull Hamid said the rationale behind the conservative nature in granting a review follows that which had been established a century ago in English courts - to prevent cases from ‘continuing to come up’ for review. After consulting his fellow judges, he found no element of procedural unfairness as claimed by the appellants. The unanimous decision was made after a one-hour break. Earlier, the same panel dismissed the churchs application to have an enlarged bench of more than five judges. Procedural unfairness The churchs senior counsel Cyrus Das had complained there was procedural unfairness following the earlier majority decision made by the seven-member panel led by Chief Justice Arifin Zakaria, who also wrote the majority judgment. There are eight written judgments since the case emanated in 2009. Four decisions were against the prohibitions. These were the three dissenting judgments by the Federal Court and the High Court judgment in favour of the church. Four decisions favoured the prohibition (i.e. the three Court of Appeals judgements and Justice Arifins judgment). Cyrus submitted there were some decisions made by the courts without hearing the parties concerned and this violated the principle of natural justice. The issues raised referred to Section 9 of the Anti Propagation Enactment to Muslims, Articles 4(3) and 4(4) of the Federal Constitution, if the tests adopted were objective or subjective, and the theological questions brought up at the Court of Appeal which were considered as obiter. “Such issues did not crop up in the High Court but cropped up in the Court of Appeal and Federal Court.” Cyrus expressed that deciding a case on a ground not argued, or without giving parties an opportunity to ventilate it in court, is a violation of the principles of natural justice and the rule of law. On the Federal Constitution, Cyrus said the apex and Court of Appeal considered Article 3(1) regarding the religion of the federation and Article 11 (1) and 11(4) about freedom of religion. However, both courts ignored the meaning of Article 3(4) which his legal team felt was a constitutional question worth granting a review. Senior federal counsel Suzana Atan, appearing for the Home Ministry and government, said that nothing in the judgment indicated the judges did not follow proper procedures to cause injustice to the parties. Senior lawyer Sulaiman Abdullah, appearing for the Terengganu Islamic council who were one of the interveners, said judges were not obliged to provide answers to all questions and he warned that by allowing the review, it may open up old wounds and spark bitterness. “Let the matter die,” he stressed. End of the appeal process This decision effectively ends the Roman Catholic Churchs appeal against the ban on the use of the word ‘Allah’ by non-Muslims following a cabinet directive in 1986. The Catholic Church had filed the review application against the 4-3 judgment of the seven-member Federal Court panel that on June 23 last year, dismissed the churchs application for leave to proceed with its appeal. The church was seeking leave to appeal against the Court of Appeals decision, delivered on Oct 14, 2013, which allowed the governments appeal to overturn the 2009 High Courts decision that the Herald could use the word ‘Allah’ in its Bahasa Malaysia section. The High Court had ruled that the decision by the Home Ministry in banning the Catholic weekly from using ‘Allah’ was illegal. The church had named the the Home Ministry and government as respondents in the judicial review application which started in 2009. The decision today will not help alleviate the concern of the Christian community in using the word, especially by those from Sabah and Sarawak who have been using the word ‘Allah’ for God. There are other similar cases pending, including one by clerk Jill Ireland, who is challenging the seizure of religious CDs bearing the word ‘Allah’. Also Sidang Injil Borneo (SIB) has filed an action against the Home Ministry following the seizure of Christian religious books brought in from Indonesia.
Posted on: Wed, 21 Jan 2015 23:04:29 +0000
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