‘Allah not integral to Christian faith’ remark, a mere observation, says chief judge

A comment by the Court of Appeal last October that "Allah" was not an integral part of the Christian faith in support of the Home Minister's decision to impose a ban on the word in the Catholic weekly, Herald, was a mere passing remark, Chief Justice Tun Arifin Zakaria (pic) said in his written judgment when rejecting the Catholic Church's leave application.

He said from the facts of the case, the minister's decision (to ban the word in Herald) was never premised on theological consideration.

"Therefore, the views expressed by the Court of Appeal judges on those issues are mere obiter (by the way remark)," said Arifin who delivered the majority judgment that brought an end to the church's battle on the right to use the word.

The court in a 4-3 majority decision dismissed the leave to appeal application on June 23 but the written grounds were made available to the media today.

Court of Appeal president Tan Sri Md Raus Sharif, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinuddin and Federal court judge Tan Sri Suriyadi Halim Omar concurred with Arifin.

Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, and Federal Court judges Datuk Zainun Ali and Tan Sri Jeffrey Tan Kok Hwa held that leave must be granted to the church.

Arifin said leave should not be granted as the Court of Appeal had applied the correct test to determine that the minister used his discretion to impose the ban.

He said one of the three Court of Appeal judges had also looked whether the minister was reasonable in imposing the prohibition.

"Since the Court of Appeal had applied the correct test, it is not open for us to interfere," he added.

He said another reason for rejecting leave was that the church had used the wrong procedure in the High Court to challenge the validity of state enactments that sought to control and restrict the propogation of non-Islamic religions' doctrines among Muslims.

He said the correct procedure was provided under Article 4(3) of the Federal Constitution where  proceedings must only begin with leave of a Federal Court judge.

However, one of the lawyers S. Selvarajah, who appeared for the church, said it never asked the High Court to strike down any state enactment as unconstitutional in the judicial review.

Arifin said High Court judge Datuk Lau Bee Lan upheld the challenge in holding that state enactments went against Article 11 on freedom of religion.

One of the restrictions in state enactments was to prohibit non-Muslims from using the word Allah.

Lau in her judgment delivered on December 31, 2010 said Article 11 only allowed non-Muslims to profess and practice their religion but it was alright for them to use the word Allah to propagate their faith among their communities.

On October 14 last year, Court of Appeal judge, Tan Sri Mohamad Apandi Ali, who chaired the bench, said the reason for the prohibition was to prevent any confusion among the various religions.

He had also said that national security and public order could be threatened if the publisher of Herald was allowed to use the word Allah.

Apandi had explained that the government did not violate the church’s constitutional rights.

"It is our common finding that the name Allah was not an integral part of the Christian faith and practice," he had said.

He had also said that the minister had sufficient material before him to ban Herald from using the word.

"Thus, there is no plausible reason for the High Court to interfere with the minister's decision," Apandi had said.

- TMI