The Federal Court's dismissal of the Catholic church's appeal yesterday only serves to complicate matters over the rights of minorities in the country to freely practise their faith.
For one, the Court of Appeal's (CoA) decision last October that the Home Ministry was right to ban the word 'Allah' gives grounds to the State to dictate the way minorities should practice their faith, said constitutional lawyer Syahredzan Johan.
"If in future, there is a similar prohibition on publications, the CoA's decision can be relied on two issues," he said in a text message to fz.com.
"One, a community can be stopped from practising its faith in a certain way under the reasoning that it would cause confusion.
"The word 'Allah' is not integral to the Christian faith," he said.
He also said with the CoA's decision left uncontested, the rights of Muslims take precedent over the rights of other believers.
"The CoA held that the provision of Article 3(1) is to protect the sanctity of Islam and also to insulate against any threat," he said.
"The court found that the purpose and intention of the words 'peace and harmony' was to protect the sanctity of Islam as the religion of the country and to insulate it against any threat.
"As the CoA's decision was not disturbed, this becomes a binding precedent," he said.
However, human rights lawyer Andrew Khoo’s view differed from Syahredzan's.
He said Chief Justice Tun Ariffin Zakaria's judgement noted that the views expressed in the appellate court's decision pertaining to theology were obiter dicta (mentioned in passing) and should not be taken as a point of law.
"This means that all those people out there like Perkasa should not repeat that 'Allah' is not integral to the Christian faith," he said.
"This is because all discussions on theology were passing comments and have no bearing on the decision of the court," he said.
Federal Court's decision disappointing, problematic
Syahredzan argued that Ariffin's judgement that theological discussions in the CoA decision were passing comments was not a ruling as it was delivered at the leave stage.
"It is different if the pronouncement was made at the substantive hearing. But this is leave," he said.
"And we don't know which parts of the CoA decision is theological as the CJ described," he added.
However, both lawyers expressed disappointment over the Federal Court's decision and said there were important issues that needed to be ironed out.
Khoo said that issues such as this should not be decided by a majority ruling.
He said there were valid constitutional issues that should have been discussed further and granting leave to the Catholic church for the courts to hear its appeal would have allowed for that.
"(Justice Datuk) Zainun (Ali) felt that the CoA's decision was confusing," said Khoo.
"There were three judges on the panel who felt there were issues that needed to be discussed. Leave should have been granted to clarify the ambits and decision," he added.
On Oct 14, the Court of Appeal ruled in favour of the Home Ministry, arguing that the word ‘Allah’ was not integral to the Christian faith, does not violate any constitutional rights, and the home minister had considered all sufficient facts in discharging his duties in the interest of public order.
On March 5 this year, the Federal Court led by Chief Justice Tun Arifin Zakaria reserved judgment after hearing arguments for almost three hours on the church's application for leave to appeal against the Court of Appeal's ruling.
Lawyer Datuk Dr Cyrus Das, who appeared for the church, said the court should hear the merits of the case because the Court of Appeal had reversed the findings of a High Court on key constitutional and administrative law issues.
However, Senior Federal Counsel Suzana Atan had argued that the ban was imposed on grounds of national security and it was done in good faith.
Today, the Federal Court did not allow the Catholic church to appeal against the Oct 14 decision.
The seven-member panel was led by Ariffin.The other six judges were Court of Appeal president Tan Sri Md Raus Sharif, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinuddin and Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, and Federal Court judges Tan Sri Suriyadi Halim Omar, Datuk Zainun Ali and Datuk Jeffrey Tan Kok Wha.
Four judges out of the seven agreed with Ariffin's judgment to dismiss the application.
Malanjum, Zainun and Tan dissented
Decision has no bearing on seizure of bibles
Both lawyers also agreed that the Federal Court's decision today was separate to that involving the seizure of some 300 Malay and Iban-language bibles. Khoo said that the CoA's decision was only reserved to the Catholic weekly The Herald.
"The CoA's decision in October last year drew a clear distinction between a newspaper and a bible. Strictly speaking, it has no connection with the use of the word 'Allah' in the bible so it cannot be interpreted in any way as to give permission for a state religious authority to seize bibles.
"Any action under Section 9 (1) of the Selangor enactment will have to be properly addressed in its own case in court and when the Attorney General (AG) believes there is a case to proceed with," he added.
Khoo said that Malay rights groups such as Perkasa's insistence that the Selangor religious authorities' actions to hold on to the seized bibled were 'puzzling.'
"I find it difficult to understand why groups that call for the Federal Constitution to be respected do not respect the AG's decision not to prosecute the Bible Society of Malaysia (BSM) when that power is derived from the very same Federal Constitution," he added.
Syahredzan said as the AG has decided not to prosecute BSM, there is no longer a criminal investigation or prosecution on the matter.
"So there is no reason to keep the Al-Kitab and the Bup Kudis," he added.
"The reason why the bibles were seized and have not been returned was pending a decision by the AG on whether to prosecute (BSM) or not.
"So it is a separate issue from Herald," he added.
On Jan 2, a team of 20 Jais officials and police officers raided the BSM’s Selangor office, where over 300 copies of the Malay and Iban-language bibles containing the word ‘Allah’ were seized under the Selangor Non-Islamic Religions (Control of Propagation Among Muslims) Enactment 1988.
The contentious issue was put to rest momentarily after Attorney General Tan Sri Abdul Gani Patail decided that the case be closed.
“On the issue of the seized bibles, I expect Jais to do the necessary according to the law,” he had said.
Mais and Jais however decided to hold on to the bibles despite an order from Selangor Menteri Besar Tan Sri Abdul Khalid Ibrahim for the bibles to be returned to the BSM, sparking a debate on the jurisdictions of state religious bodies, the state government and federal legal authority over contentious religious issues.
Mais chairman Datuk Mohamad Adzib Mohd Isa had reportedly said the Selangor state executive council has no authority to direct state religious bodies to return items seized during an investigation.
He had said the council will adhere to the Criminal Procedure Code which stipulates that the disposal of items seizes during an investigation can be sought through the courts.
Read more: http://www.fz.com/content/lawyers-federal-courts-decision-use-allah-problematic#ixzz360JaNp00