The 10-point solution which Putrajaya brokered in 2011 to allow Christians in East Malaysia to use the word "Allah" in their Bibles and religious practices has no legal force in the light of Monday's ruling by the Federal Court, lawyers say.
They said the 10-point solution now flies in the face of the legal principles established in the Court of Appeal ruling which upheld the Home Minister's decision to ban the word "Allah" in the Catholic weekly, Herald.
On Monday, the apex court denied the Catholic Church's application for leave to appeal against the Court of Appeal judgment which banned the word "Allah" in the weekly Herald.
The lawyers said the legal position was that Allah is exclusive to Muslims in Malaysia, a ruling which they warn would give ammunition for the Home Minister and state religious authorities to curtail non-Muslims' religious freedom. They also said that Putrajaya's immediate statement following the ruling, saying it only applied to the Herald and that Christians could still use the word in church, was an exercise in damage control.
Former Bar Council chairman Ragunath Kesavan said while on the surface, the ruling only applied to the Herald, the fact that religious rights of the minority was now subject to Islam was a cause for concern. The Court of Appeal had said Islam is the religion of the Federation but the phrase "other religions may be practised in peace and harmony" was intended to protect the sanctity of the religion.
It further said non-Muslims did not enjoy absolute freedom of religion because laws could be drawn up to stop propagation of other religious doctrines among Muslims. Ragunath said based on the Court of Appeal ruling, the minister could revoke or suspend publishing permits of non-Muslim publications in Malaysia if they continued to use the word.
"Will he (home minister) take action against a Christian publication in Sabah and Sarawak at this point of time?" he asked, adding that there was no necessity for the minister to prohibit the Herald to use "Allah" as the weekly was confined to church members.
"It has now become a source of discontentment among the religous groups and I am dissapointed that the Federal Court did not give leave to decide to what extent the word can be used in the Federation," he said.
He said Chief Judge of Sabah and Sarawak, Tan Sri Richard Malanjum, was spot on when he observed that the Federal Court's decision meant that the confusion over the Allah row remained unresolved.
Constitutional lawyer Fahri Azzat said the message from the court was that Allah was the exclusive monopoly of Muslims in this county. "This is my reading on the passive suppport given by the Federal Court in refusing leave to appeal by the church against the Court of Appeal decision last year," he added.
Fahri said Putrajaya's immediate statement allowing Christians to continue using the word in the church was a political statement without any legal standing. "I am amused that on this occasion, Putrajaya wasted no time to enlighten the public," he said.
Fahri said, in the scheme of separation of powers, the executive has to accept the legal pronouncement of the judiciary as they interpreted the law. He said religious authorities in Sabah and Sarawak may not prosecute Christians now for using the word but there was no guarantee it would not happen in the future.
"As a result of the current legal position, a sword of Damocles is hanging over their heads. The 10-point solution cannot be a shield to protect them as it is a worthless document," he said.
Civil rights lawyer Syahredzan Johan said the Federal Court ruling would only embolden state religious authorities, especially in the peninsula, to conduct raids and seize religious items of non-Muslims which contained patented Islamic words and expressions even on flimsy grounds of suspicion.
He cited the case of Selangor Islamic Religious Department (Jais) enforcement officials who early this year confiscated 321 Malay and Iban-language Bibles, but refused to return the holy books despite the Attorney-General's declaration that there was no case for prosecution.
"They did not care a hoot about (Prime Minister Datuk Seri) Najib's 10-point solution when the raid was conducted and then refused to respect the rule of law even after the A-G gave his legal opinion," Syahredzan said. He said Christians in Sabah and Sarawak would be in denial mode if they accepted at face value the assurance by Putrajaya.
"In future, the Home Minister and state religious authorities could enforce the full brunt of the law as interpreted by the court," he warned, adding that the entire episode showed that the state could restrict the religious freedom of non-Muslims.
"I hate to have a new legislation drawn up but under the present circumstances, there must be a federal law to protect the minority from interference by religious authorities," he added.
Syahredzan said no court would likely entertain issues relating to "Allah" as lower court judges would be bound by the Court of Appeal ruling. He cited the High Court's rejection last month of a bid by Christian denomination Sidang Injil Borneo (SIB) to get leave application for judicial review to challenge the seizure of its religious books in 2007, in which judge Datuk Zaleha Yusof said she was bound by the Court of Appeal ruling.
SIB (Sabah) wanted a declaration that its congregation, the majority of whom are Bahasa Malaysia-speaking natives, was entitled to own, possess, use and import materials including those which contain the word “Allah”. SIB (Sabah) president Reverend Datuk Jerry Dusing had instructed an appeal be filed in the Court of Appeal.