A five-man bench led by Tan Sri Abdull Hamid Embong unanimously held that here had been no procedural unfairness in the Federal Court’s earlier decision not to grant leave.
He added that the threshold for the review had not been met. The court did not give any order on costs.
A seven-member panel of federal court judges on June 23, 2014, dismissed the church’s application for leave to appeal the Court of Appeal’s decision to ban Herald from using the Arabic word for “God” in its Bahasa content.
Chief Justice Tun Arifin Zakaria was among the four on the panel who dismissed the church’s application, in a 4-3 “skin of our teeth” judgment, as the church’s lawyers have called it, that saw three other judges dissenting.
The other judges in the majority decision 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 Hwa and Datuk Zainun Ali.
Besides Hamid, other judges sitting today were Tan Sri Ahmad Maarop, Tan Sri Hasan Lah, Datuk Ramly Ali and Datuk Azahar Mohamed.
In 2009, the High Court had declared that the decision by the home minister to ban the 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, had filed a judicial review application, naming the minister and the government as respondents.
High Court judge Lau Bee Lan had declared it unconstitutional to ban non-Muslims from using the word “Allah” provided it was not used to propagate their religion among Muslims.
On October 14, 2013, the then Court of Appeal judge, Tan Sri Mohamad Apandi Ali, who allowed the government’s appeal against the High Court decision, had said that 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 the Herald was allowed to use the word “Allah”.
Apandi held that the government had not violated 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 the 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.
The word “Allah” is widely used by the Christians in Sabah and Sarawak and the church has argued that the ban of its use in the Herald is a violation of freedom of religion and expression.
Earlier, the church’s lawyers appealed to the court for an enlarged bench to hear their review application because of the public importance of the case and because reviews were usually heard by a larger bench.
But, Hamid said the power to set up the panel belonged to the chief justice and was not for the court to decide.
He added that since the earlier federal bench had issued four majority judgements against the church, the five-man bench today was in effect a larger bench.
Counsel Datuk Dr Cyrus Das also told the Federal Court that it had a duty to decide on important questions raised in the review application, such as questions on Article 3 on Islam, and Article 11 on the freedom of religion.
“If the apex court is not prepared to take on these questions, where do we go?”
The federal constitution enshrines Islam as the religion of the federation while giving adherents of other faiths the freedom to practice their religions as long as it does not involve proselytization of Muslims.
Key among the issues is the constitutionality of state enactments that prohibit the use of between 18 and 25 Arabic words, one of which is “Allah”. Article 11(4) of the Federal Constitution gives the states, including the Federal Territories, power to enact such restrictions.
Ten states, including Selangor, have since 1988 passed the enactments.
Malaysia’s battle over the use of the word “Allah” has attracted international attention, as well as ridicule, including from Islamic scholars abroad who hold that “Allah” is a generic name for God and is open to use by both Muslims and non-Muslims, as use of the word predates Islam. – The Malaysian Insider, January 21, 2015.