The Court of Appeal dismissed the Archbishop’s application to strike out the Government’s Appeal against the High Court decision that allowed the Herald newspaper to use the word Allah.
The Government is now at liberty to proceed with the hearing of the merits of the Appeal on September 10, 2013 i.e. on whether the Herald can use the sacred word Allah. The Appeal stems from the decision of the High Court delivered on December 31, 2009.
The background facts of this case are worth noting and they are as follows:
- The Home Ministry prohibited the Herald from using the word Allah because the Home Minister was of the view the usage of the word Allah by the Herald would cause controversy.
- The Catholic Church challenged this prohibition vide an application for Judicial Review before the High Court which sought to reverse the decision of the Home Minister
- The Catholic Church was successful at the High Court. The Malaysian Government appealed to the Court of Appeal.
- Whilst the appeal to the Court of Appeal was still pending, in the year 2011, Prime Minister Najib announced a 10 point solution. This 10 point solution was expressed as a collective decision of the Cabinet.
- The Catholic Church then filed an application to strike out the Malaysian Government’s appeal on the basis that this 10 point solution had the effect of resolving the perceived controversy, if any, of the Herald using the word Allah. The upshot, the Catholic Church contends, was that the Government’s appeal is rendered academic. This application to strike out came up for hearing on 22.8.2013.
Hearing on 22.8.2013
The Honourable Judges at the Court of Appeal who presided over this appeal were Justice Abu Saman (chairman), Justice Dato Aziz and Justice Dato Rohana;
Counsel for the Catholic Church, Mr Porres Royen argued that the 10 point solution allows the word Allah to be used in the Bible. Since this word can be used in the Bible, it must by necessary extension be allowed to be used by the Herald. By calling the document the 10 point solution, it presupposes that there was a controversy. So this document then is a solution to the perceived controversy, if any, of the Herald using the word Allah.
Counsel for the 1st and 2nd appellate argued that the “10 point solution” goes on to state “.. other matters will be decided…” The usage of the word Allah by the Herald falls in this category of “other matters will be decided”, so when the “10 point solution” was drafted, there never was a solution to the matter which is before the Court of Appeal today i.e. usage of the word Allah by the Herald
Counsel for the 3rd appellate argued that in an appeal against an application for Judicial Review, the parties must confine themselves to the evidence/material available at the time the High Court Judge heard the application. The 10 point solution, cannot be taken into account because it is a document which only came into existence after that application for Judicial Review. Some authorities were cited.
Counsel for the 8th appellate argued that the 10 point solution only addressed the issue of the movement of the Bible. It did not address the contents of the Bible.
In reply, Counsel for the Catholic Church argued as follows;
- the 10 point solution uses the phrase “..and other Christian material..” so clearly the Herald falls within this category, and
- The authorities cited to support the view that parties must confine themselves to the evidence / material available at the time the High Court Judge heard the application must be confined to its own facts and is only applicable to the statues which those cases were dealing with.
Quite apart from the stand and the submissions made by the parties, the Chairman of the Court of appeal appeared troubled by the procedural mode adopted by the Catholic Church in moving the Court of Appeal to exercise its discretion to strike out the Appeal. The Chairman asked parties to address the Court on whether the Court could invoke its inherent jurisdiction to strike out the appeal. Counsel for the Catholic Church said it could. Counsel for the 1, 2, and 8th appellants said the court could not. However, Counsel for the 3rd appellate conceded that the Court could do so.
Another point which appeared to trouble the Court was whether the cabinet could collectively overrule the decision of the Home Minister.
The court took some time to deliberate and delivered its decision at 3.30pm. The Court of Appeal was of the view that the 10 point solution did not address all the issues in the present appeal. There were other “live” issues. The power to strike out, being a drastic power should be exercised sparingly. The Court proceeded to dismiss the Catholic Church’s application. Both parties agreed that there would be no order as to costs.