Islam can’t override basic right of citizens, says dissenting judge in Allah case

Chief Judge of Sabah and Sarawak, Tan Sri Richard Malanjum, says Islam as the religion of the Federation under Article 3 could not be more important than other provisions in the Constitution. – The Malaysian Insider file pic, July 7, 2014.

A dissenting judge in the Allah case said the position of Islam in the Federal Constitution should not be used to override the basic rights accorded to citizens.

Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum said Islam as the religion of the Federation under Article 3 could not be more important than other provisions in supreme law of the land.

"It is disquieting to note in this (Allah) case, that in determining the ranking of importance of the various Articles in the constitution, the Court of Appeal seems to have adopted the ‘first-com-first served basis’ approach," he said in his judgment made available to the media today.

Malanjum said if the numerical ranking of provisions argument was accepted, it could also lead to an interpretation that the judiciary was inferior to the legislature and the executive.

The Constitution first discusses the makeup of the legislature, the executive and finally the judiciary.

Under the Malaysian constitutional scheme, the legislature, executive and judiciary are equal, as the three branches act as check and balance to one another.

"Surely the drafters and the founding fathers of the Federation would not have anticipated such an approach. Further, the basic structure of the constitution is sacrosanct," he added.

Malanjum said the various documents, which formed the basic foundation of the Federation, must not be cast aside as mere historical artifacts.

On June 23, the Catholic Church's battle over the use of the word "Allah" in their weekly publication ended after the Federal Court dismissed its leave application to appeal the ban.

Four of the seven-member bench dismissed the church's application for appeal, citing that the Court of Appeal was right in its decision to ban the word.

Chief Justice Tun Arifin Zakaria, President of Court of Appeal Tan Sri Md Raus Sharif, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinuddin and Federal Court judge Tan Sri Suriyadi Halim Omar were in the majority to declare leave should not be granted.

Malanjum and Federal Court judges Datuk Zainun Ali and Tan Sri Jeffrey Tan Kok Hwa held that leave must be granted.

Under Section 96 of the Courts of Judicature Act 1964, an applicant must show the apex court that there were contentious constitutional issues raised or important legal questions which needed further argument that would be of public advantage.

The church had submitted 28 questions which centred around key constitutional and administrative law, as well as the power of the court to allow the home minister to ban the use of the word "Allah" in Herald.

On October 14 last year, Court of Appeal judge, Tan Sri Mohamad Apandi Ali, who chaired the bench, said 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.

Apandi had explained that the government did not violate the church’s constitutional rights, and that all other religions could be pracitised in peace and harmony with Islam.

Apandi said restrictions were imposed on non-Islamic religions to prevent the propagation of their faiths on Muslims in this country.

- TMI