Wednesday 24 Apr 2024
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PUTRAJAYA: The chief justice of Malaysia has turned down a request by the Catholic Church to convene a minimum nine-man panel to deliberate its review application against the ban on the word Allah when the case comes up on Jan 21. The church was informed that only a five-man bench would be constituted to hear the matter.

The decision by Tun Arifin Zakaria was conveyed to the Catholic Church by the special officer to the chief justice Dr Alwi Abdul Wahab in a letter dated Dec 31.

The letter, which was sighted by The Malaysian Insider, said the request for a full bench could not be entertained. No reasons were given on why the request was dismissed.

On Dec 23, a lawyer for the church had sent a letter to Arifin urging that at least nine Muslim and non-Muslim judges hear its arguments on fundamental constitutional provisions relating to religion.

The letter, which was also sighted by The Malaysian Insider, had said the church wanted a quorum that reflects the multi-cultural and multi-religious diversity of Malaysian society, given the nature of the issues raised.

“This is because fundamental constitutional provisions relating to state religion, freedom of minority religion, freedom of expression, which have far-reaching consequences for Malaysians of all races and religions, will be raised,” the letter had said.

In February last year, lawyers for the church asked for, and were given, an unprecedented seven-man bench to hear their leave application which was dismissed in June the same year.

The review application is aimed at setting aside the ruling by the apex court’s seven-man bench that upheld the Home Ministry’s ban on the use of the word “Allah” in the Catholic weekly, Herald, and establish a new panel to re-hear the leave application.

Four of the Federal Court judges, who formed the majority, had refused the leave-to-appeal application while three others took the position that leave should be granted.

“It is pertinent to note that each dissenting judge had written his or her own grounds allowing the application for leave,” the letter had said.

It said that the church, therefore, believed that it was appropriate for at least a nine-man bench to be formed to hear the review.

The letter cited a precedent in India where a 13-man Supreme Court bench sat in 1973 to deliberate on an important constitutional issue in the case of Kesavananda Barati v the Government of Kerala.

The church also drew Arifin’s attention to the October 2013 Court of Appeal ruling, which continues to raise serious public concern where parties had used portions of the judgment to seize holy books of Christians even though the majority ruling in the leave application had declared that those portions were mere remarks made in passing.

A copy of the letter was sent to the Attorney-General’s Chambers and Messrs Zainul Rijal Talha and Amir, the legal firm that is representing one of the respondents.

On June 23 last year, Arifin was among the majority apex court judges who dismissed the church’s application for leave to appeal. Others were Tan Sri Raus Shariff, Tan Sri Zulkefli Ahmad Makinuddin and Tan Sri Suriyadi Halim Omar.

The dissenting judges were Tan Sri Richard Malanjum, Tan Sri Jeffrey Tan Kok Wha and Datuk Zainun Ali.

All the seven judges as well as Tan Sri Apandi Ali, who was in the Court of Appeal panel that heard the church’s case, but who is now a Federal Court judge, cannot hear the review application.

A five-man bench to hear the review application could still come from the remaining six Federal Court judges but nothing in law prevents Arifin to also scout for members in the Court of Appeal.

The church is seeking to reverse the findings of the Court of Appeal decision, which had allowed the home minister’s appeal to overturn the 2009 High Court decision that the Herald could use the word “Allah”.

The High Court had declared that the decision by the minister to ban Herald from using the word “Allah” was illegal, null and void.

The church, led by the then Kuala Lumpur Archdiocese Archbishop Emeritus Tan Sri Murphy Pakiam,filed a judicial review application in 2009, naming the minister and the government as respondents. — The Malaysian Insider

 

This article first appeared in The Edge Financial Daily, on January 12, 2015.

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