Federal Court denies The Herald's appeal on 'Allah' ban

PUTRAJAYA: The Federal Court today denied the Catholic Church leave to appeal against the government’s ban on the use of the word “Allah” to refer to God in the Bahasa Malaysia section of its weekly Herald.
The seven-member panel, led by Chief Justice Tun Arifin Zakaria, delivered a 4-3 decision against the church, which had launched the fight in court for the right to use the word “Allah” on grounds that it had been used for centuries to refer to “God” outside of Islam.
On Dec 31, 2009, the High Court had declared the decision by the Home Ministry in banning Herald from using the word “Allah” was illegal, null and void, but the Court of Appeal later set aside the High Court decision.
The Federal Court decision today means the Court of Appeal’s upholding of the ban stands, and there can be no more appeals by the church.
The four judges who decided against the church were Arifin, Court of Appeal president Tan Sri Md Raus Sharif, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin and Federal Court judge Tan Sri Suriyadi Halim Omar, while Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum and Federal Court judges Datuk Zainun Ali and Tan Sri Jeffrey Tan Kok Wha decided in favour of the church.
In handing down judgment, Justice Arifin said the Court of Appeal had applied the correct test, which was the objective test, and was thus right in overturning the High Court’s decision.
Arifin said in the High Court, the judge had found that the ban infringed on the rights of the church in Article 3, 10 and 11 of the Federal Constitution.
“The court has the power to declare any law as invalid, following actions by the government or an individual. The Federal Court, however, has the jurisdiction to determine whether a law is invalid or not, and this power is exclusive to it,” he said, adding that the court must ensure that the challenge mounted is not frivolous or vexatious.
“My finding is that the court cannot consider the application. On the theological view, I view it as an arbiter as the minister’s decision is not based on this. Hence the application is dismissed,” he said.
Malanjum, however, held that there was no issue of public order and security involved.
“This is an opportunity for the court to decide on the power of the executive. In matters of national security, the minister must offer evidence that security is indeed affected,” he said.
Meanwhile, Zainun said there was ambiguity in the Appeal Court’s judgment.
“This follows the Court of Appeal Judge Mohd Zawawi Salleh’s judgment that “Allah” is not integral in the Christian faith,” she said, adding that to determine the reasonableness of a public decision made to allow the ban, the question arises whether the court must be satisfied with the minister’s decision.
“Fundamental rights have been continuously violated and hence, it should be under scrutiny,” she added.
Later, outside the court, the Herald’s editor Father Lawrence Andrew expressed disappointment over the final verdict of the federal court.
“The three dissenting judgments, in our view, are the correct position of the law. We believe there are flaws in the other four judgments which we will look at closely and decide on the next course of action,” he said.
“Those four judges who did not grant us leave ... they didn’t touch on the fundamental basic rights of minorities. We would need time to deliberate and decide what to do next. This is not a game of who wins or loses, but a reality of only one God,” he added.
Catholic Archbishop Emeritus of Kuala Lumpur Tan Sri Murphy Pakiam declined comment.
The legal battle began in 2009 when Pakiam, filed a judicial review application for the Roman Catholic Church, naming the Home Ministry and the government as respondents, for the word “Allah” to be allowed in the Herald.