Showing posts with label Federal Court on Allah Case. Show all posts
Showing posts with label Federal Court on Allah Case. Show all posts

Tuesday, July 15, 2014

Courts do not have the final say on the Allah issue, says academic

By JENNIFER GOMEZ
Published: 14 July 2014
The courts do not have the final word in the Allah case, this contest will go beyond the Federal Court, a law lecturer from the Australian National University said today.
Speaking in an academic seminar titled "The Name of God on Trial: Narratives of Law, Religion and State in Malaysia", Joshua Neoh said that given this scenario, dissenting judgments were important because it appeals to the people and builds a counter-current of opinion.
"All decisions could be revisited and challenged judicially, the losing side in a judicial battle can always live to fight another day. That is the very nature of Constitutional interpretation," he said in Petaling Jaya today.
Neoh said that Malaysia's Federal Constitution contained an arsenal of weapons for both sides of the ideological divide, be it for proponents of a pro-Islamic state or secular state.
He added there was a silver lining in the Allah case, given that the challenge was happening within the framework of the Constitution.
"The contest is happening in the courts, this ideological battle is a constitutional battle and is an achievement of sorts for constitutionalism in Malaysia," he said.
Neoh, who stressed that he was speaking from a purely academic and legal interpretation, said that in the Court of Appeal judgment, Datuk Seri Mohamad Apandi Ali had switched from legal analysis to theological exposition, when he said that due recognition must be given to the names of respective Gods in respective holy books such as Yahweh, the God of the Holy Bible, Allah the god of of the Holy Quran and Vishnu, the god of the Holy Vedas.
"Justice Apandi deemed it appropriate and within his area of judicial competence to go around categorising and naming gods, including the gods of religions other than of his own," he said.
Neoh added that Datuk Abdul Aziz Abdul Rahim, another judge on the three-man Court of Appeal bench, went a step further and said that Allah refers to "oneness" and cannot be a concept of Trinity of the Father, Son and Holy Ghost.
"Clearly he has not gone to a good Catholic school, because if he went to a good La Salle school, he would have learnt that the Trinity refers to oneness in as much as Allah refers to oneness," Neoh said.
He further added that there was the recurrent theme of confusion, adding "we already know how Allah can confuse Muslims".
"It is an argument we have heard over and over again but Justice Zawawi Salleh went further and said that if Allah is used by Christians, the confusion was not limited to Muslims, but Christians would also be confused.
"This ‘potential for confusion’ is akin to the following scenario: if I call my father Papa, and you call your father Papa, there is a risk that you will be confused that my Papa is your Papa, and your Papa is my Papa, or that we have the same Papa," Neoh added.
He added that the Islamic theology presented by these three Court of Appeal judges was not classical or even orthodox Islamic theology.
He also said that the ban on the word Allah did not exist anywhere but in Malaysia.
Neoh added that there was also the question on the scope of the judgment, where the Court of Appeal couched its judgment as if there was a blanket ban when the case was about the use of the word in the Bahasa Malaysia section within the Catholic weekly, Herald.
"It is a judicial hybrid of Malaysian constitutional politics and Islam," he said.
He added, however, that even when the judges were rewriting the constitution through reinterpretation, they had at least tried to couch what they were doing in terms of constitutional law.
Neoh pointed out that the Malaysian post-colonial constitutional settlement was precarious – not only because the constitution is an incompletely theorised agreement, but because it presented two conflicting visions on issues of law, religion and state.
The effect of this, he added, was that there were two constitutions embedded in the one constitutional text which engages in double speak.
"This bifurcation in the constitutional text makes the post-colonial constitutional settlement a precarious arrangement because its meaning is internally incoherent and inherently unstable.
"While it may not have the benefit of stability, ironically, it may have the benefit of longevity," he said.
He added that this was the reason that enabled proponents of both sides of the ideological divide to find their voices and visions in the same constitutional context.
"They could both draw on the same document for support and could construct their own narratives and counter-narratives from the available constitutional materials," he added.
Neoh went on to explain that this was the reason why the contestation on the use of the word Allah will continue beyond the Federal Court, adding that it was a symptom of a larger contest about the meaning of the Constitution.
"It is  a contest about the origin of our state and the future of Malaysia. The court does not have the final word, the courts never have the final word in any Constitutional matter," he said. – July 14, 2014.
Source: http://www.themalaysianinsider.com/malaysia/article/courts-do-not-have-the-final-say-on-the-allah-issue-says-academic

Saturday, June 28, 2014

Lift the ban on ‘Allah’, Sarawak Church leader urges Putrajaya

Published: 28 June 2014
The fact that three out of a seven-man Federal Court bench gave dissenting judgments on the recent "Allah" case is an indication there are cogent grounds for the decision to be reviewed by another panel of the apex court, said a Christian leader from Sarawak.
Archbishop John Ha of the Roman Catholic Archdiocese of Kuching also said given Putrajaya's immediate statement to assure Christians that the ban was limited to the Catholic weekly, Herald, and that the 10-point solution still stood, shows that the Federal government had the power to lift the ban on the use of the word Allah in the Bahasa Malaysia section of Herald.
Expressing his disappointment and concern over the Federal Court's decision not to grant leave to the Catholic church in the Herald case, Ha said he took consolation that the decision was not unanimous.
He pointed out that there was also a lot of dissatisfaction over the Court of Appeal judgment that overturned the earlier High Court judgment which effectively lifted the ban by the Home Minister on Herald from using the word Allah.
Ha added that the dissatisfaction arose from what was perceived as "flaws" in the reasons given by the Court of Appeal.
Ha said, granting leave for the case to be heard by the Federal Court would have provided a golden opportunity for issues of constitutional rights and protection for freedom of religion to be articulated by the highest court in the country.
He said that Catholic lawyers had pointed out that the leave would have provided the opportunity to interpret Article 11 (1) and (3) of the Federal Constitution with respect to the rights of non-Muslim communities in Malaysia to practise their religion.
"In my personal view, bearing in mind the degree of public importance of legal issues raised, granting leave to enable such critical issues to be expounded fully would have been an opportune occasion to contribute to a greater public confidence, or if not, at least to reduce the loss of it, in our judicial system.
"It is lamentable that the opportunity has been lost," the Archbishop wrote on the archdiocese website.
He said the 10-point solution is the way forward for the country and for it to work, the ban on the use of the word Allah in Herald, must be lifted.
Ha added that the legal implication of the Court of Appeal decision was that the ban on the use of Allah was nationwide, adding that the Federal Court, in denying the leave application, meant that the Court of Appeal judgment was intact.
Ha said that this created a confusing situation – on one hand the nationwide ban was still effective – on the other, the assurance by Putrajaya that it was only confined to Herald.
"The ban is a ministerial order or executive decision and the Federal government has the competence to rescind it.
"I pray and appeal to the Federal government to do that so that the 10-point solution can be implemented without hindrance and our nation can move on," he wrote.
Ha also commented on the "bold seizure" of 321 Bahasa Malaysia and Iban-language Bibles from the Bible Society of Malaysia by the Selangor Islamic Religious Department (Jais) and the refusal by the Selangor Islamic Religious Council (Mais) to return them.
He said that the Federal Court decision may encourage and embolden "high-handed" and "disrespectful" actions by a Muslim body on a non-Muslim organisation.
"My fear is that the refusal of leave may spiral into a wider sphere than just the Herald and may spill over to the ban of the use of the term 'Allah' by non-Muslims at large, despite the government’s assurance.
"Would the government and its machinery be able, or daring enough to contain this likely spiral, should it happen?” he questioned.
Ha also wrote that Malaysia was intended to be a democratic nation and a secular state but over time, there has been a deviation from the original intention of the founding fathers.
He added that while Islam was given special position, other Malaysians could practise their faith in peace and harmony as guaranteed in the Federal Constitution.
Ha, however, said this constitutional safeguard is being politicised and the courts appeared to be reluctant to enforce them, especially in situations where public pressure is exerted by certain groups that do not respect the safeguards for minorities.
"Any ban on the use of the word Allah by Christians in any manner is an infringement on the practice of Christianity.
"I cannot help wonder whether eventually the Constitution will be broken to give way to some fundamentalist quarters who seek to enforce an Islamic way of life for the whole nation," Ha wrote.
The Archbishop urged Christians not to "panic" in the current situation, adding that for God, there is "never a cul-de-sac".
"He will open a path for us and for the whole nation to move on. For sure, we need to continue to do our part to get the issue resolved and pray for God to open a path for us," he said. – June 28, 2014.
Source: http://www.themalaysianinsider.com/malaysia/article/lift-the-ban-on-allah-sarawak-catholic-leader-urges-putrajaya

Tuesday, June 24, 2014

天主教先锋报“阿拉”字眼 - 東馬大法官:符合司法條件,理應發出上訴准令

2014-06-24 09:50

(布城23日訊)東馬大法官丹斯里里察馬拉尊說,申請人已經達到1964年法庭司法法令96條文要求,理應發出上訴準令,而天主教會所提出的論據應獲得進一步討論的機會,包括這些法律對公共重要性的程度,以及需要在聯邦法院解決的必要性。
  • 聚集在司法宮外的土權成員在獲悉聯邦法院的判決後歡呼。(圖:星洲日報)
他在書面判詞中同意天主教會所提出的28道問題中,一些出現重疊,但這類技術性問題可在全面審訊時獲得解決。
他說,雖然上訴庭推翻高庭裁決,但3名法官之間也出現不同意見,特別是申請人在憲法保障下的權益,這點值得進一步釐清。
他指出,雖然部長援引出版法令所賦予他的權限下達“阿拉”字眼禁令,但同時間馬來文文版和錫克文版聖經仍使用有關字眼。
至於部長指可能危及國家安全,他認為公共秩序和國家安全不能同等,部長的說詞不能天馬行空而要有具體的根據。
“此案僅涉及馬來文版的《先鋒報》,但上訴庭的裁決似乎涵蓋所有人,包括禁止所有非穆斯林使用阿拉字眼。”
他表示,如此一來,更多宗教團體將受到影響,其權益也沒獲得保障,如仍使用這個字眼的錫克教徒,而相關宗教團體並沒有參與此案。
陳國華:申請符門檻要求
《先鋒報》應獲批准令
聯邦法院法官丹斯里陳國華表示,此案非常清楚和直接,即不管在高庭或上訴庭階段,所爭論的重點皆為內政部長是否有權禁止《先鋒報》使用“阿拉”字眼,而天主教會的申請,已符合1964年法庭司法法令96條文所闡明的上訴門檻要求,因此他認為應批准上訴准令。
1964年法庭司法法令96(a)及(b)條文一般為上訴准令申請所須參考的條文,它規定申請者所提出的法律問題,須是重要的課題及聯邦法院裁決涉及公眾利益,而有關裁決會影響聯邦憲法條款。
陳國華在書面判詞中指出,高庭及上訴庭針對此案雖有不同裁決,但聯邦法院應回答和憲法有關的問題,而在准令階段,不應急忙爭論案情和法律問題,相反日後還有空間可討論,因此現階段可批准上訴准令。
再潤:讓課題獲一步討論
聯邦法院法官拿督再潤強調不同宗教信仰者應克制、堅定各自的宗教信仰教條,以及保持冷靜與和平地與其他人和諧地生活在大家所愛的國家裡。
她在書面判詞中認為,現階段應批准上訴準令給天主教會,以便該課題獲得進一步討論,及以友好的方式解決。
再潤是3名持不同意見的法官中,唯一一位穆斯林及女法官。
她說,此案是一個很好的機會仔細研究法庭是否無司法權檢討內政部長所發出的禁令,即援引1984年印刷及出版法令賦予的部長權限,禁止教會使用“阿拉”字眼。
她強調,那些涉及公共秩序或公共安全的案件,即使行政單位或部長已作出決定,仍可獲得公開討論及檢視,而此案更是牽涉到需要公開討論的憲法議題。
如果駁回上訴准令申請,那些重要的法律課題仍將模糊不清或沒獲得糾正機會。
吁勿再挑“阿拉”字眼課題
土權盼爭議平息
土著權威組織主席拿督依布拉欣阿里說,隨著聯邦法院拒絕發出上訴准令給《先鋒報》後,他希望有關“阿拉”字眼的爭議能畫上休止符。
他說,希望在聯邦法院作出裁決後,沒有人再挑起“阿拉”字眼的課題。
“我們的立場很堅決,他們可以以其他語文編寫聖經及傳教,但卻不可以編寫馬來文版聖經傳教,更加不可以在伊斯蘭的框架外使用阿拉這個神聖的字眼。”
他強調,他們並不是要反天主教,只是維護“阿拉”
字眼是一名穆斯林的信念,任何穆斯林都應該挺身而出捍衛“阿拉”這一字眼,確保只有穆斯林能夠使用這個字眼。
他希望隨著這項爭議平息後,天主教與伊斯蘭能夠重新像過去一般互相尊重及和平相處。
土權約200名成員在清晨5時30分左右就陸續到聯邦法院外等候判決,在上午10時左右,他們得知聯邦法院的裁決後高聲歡呼,一些婦女甚至喜極而泣。他們在10時30分左右陸續散去。
抨林冠英支持“阿拉”字眼
另外,依布拉欣也批評檳城首長林冠英在去年聖誕節期間呼吁中央政府允許在馬來文版聖經使用“阿拉”字眼去稱呼上帝的聲明,並挑戰民聯州政府如若要支持馬來文版本聖經,請關閉他們所在州屬的多源流學校。
“如果他們真的這麼重視國語,我挑戰他們關閉所有母語學校,並讓所有學生到國民學校上課。”
另一方面,依布拉欣也揶揄伊斯蘭黨雖然在“阿拉”字眼課題上與土權抱持同一立場,但卻因擔心流失選票而沒有派任何代表到司法宮,並自誇土權比起伊斯蘭黨更加虔誠。
【本篇內容已在2014-06-24更新。】
来源:http://news.sinchew.com.my/topic/node/441050?tid=482

Monday, June 23, 2014

Christians to continue using Allah in services and Bibles, says Christian Federation of Malaysia

Christian paper loses battle to use ‘Allah’

BY JOSEPH SIPALAN 
June 23, 2014 UPDATED: June 23, 2014 10:57 am

PUTRAJAYA, June 23 — Malaysia’s highest court ruled today that the Catholic newspaper The Herald has no grounds to appeal a lower court’s decision preventing it from using the word “Allah” to refer to God.

The landmark decision on a divisive issue that has fuelled intense debate and heightened religious tensions in the country, brings to an end the Catholic Church’s challenge in the Malaysian court system.
A seven-member bench at the Federal Court decided by a narrow 4-to-3 majority to deny the Catholic paper the right of appeal.
“The Court of Appeal was right to set aside the High Court Ruling,” Chief Justice Tun Arifin Zakaria told a packed courtroom this morning, upholding the lower court’s decision last year which overturned a high court ruling from 2009 allowing the paper to use the word as a constitutional right.
The legal dispute has been in the courts for the last six years after the Home Ministry banned the publication of the word “Allah” in the Herald’s Bahasa Malaysia section in 2007.
One dissenting judge, the Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum told the courtroom that the home minister’s decision in 2007 disallowing the Catholic paper from using the word ‘Allah’ may have been flawed.
“The minister’s power is not entirely subjective. He must give evidence to support the claim of a threat to public order,” he said.
Last year, the Court of Appeal had ruled that “Allah” was not integral to the Christian faith and could confuse Muslims as well as threaten national security and public order.
The Catholic Church had argued that Christians in Sabah and Sarawak had been using the word for centuries.
The Catholic Church took the case to the Federal Court seeking the right to appeal the decision, culminating in today’s rejection.
They argued that the lower court hadn’t used the right test to reach its decision.
The bid to appeal the appellate court’s October ruling was opposed by nine respondents, namely the Home Ministry, the government, the Malaysian Chinese Muslim Association and the Islamic councils of six states.
Muslims make up roughly 60 per cent of Malaysia’s population and Christians around 10 per cent.
Source: http://www.themalaymailonline.com/malaysia/article/christian-paper-loses-battle-to-use-allah

Thursday, March 6, 2014

《先鋒報》“阿拉"案上訴準令申請,擇日裁決

2014-03-05 16:59

(布城5日訊)聯邦法院七司今日開庭審理羅馬天主教會周報《先鋒報》(Herald)被禁使用“阿拉”(Allah)字眼裁決而提出的上訴準令申請後,宣佈擇日期裁決是否同意發出準令。
  • 司法宮外場面一度混亂,集會者湧到聯邦法院入口處欲入庭聽審;因人數眾多,在受到阻止後,有人向維持秩序的警員拋擲水瓶。(圖:星洲日報)
聯邦法院七司於今早9時30分開庭審理天主教會提出的上訴準令申請;逾千名穆斯林一早就聚集在司法宮外,並高喊“阿拉”,他們逐步邁向司法宮入口處欲進入聯邦法院聽審,有者更向維持秩序的警員拋擲水瓶,場面一度混亂。
這起案件的判決具有關鍵性的作用,若聯邦法院拒絕發出準令,天主教會將喪失最後一個上訴的管道,從此不能在《先鋒報》使用“阿拉”字眼來稱呼上帝。
這起備受國內外矚目的案件也非常罕見的由七司會審,由聯邦法院首席大法官敦阿里芬親自率領另六司,即上訴庭主席丹斯里勞勿斯、馬來亞大法官丹斯里朱基菲里、東馬大法官丹斯里理查馬拉尊、聯邦法院法官丹斯里蘇里雅迪、拿督再弄和拿督陳國華審理。
天主教會律師:國際關注
代表申請人天主教會的律師拿督西勒斯達斯在陳詞時指出,上訴庭較早前有關《先鋒報》不能及無權使用“阿拉”字眼的裁決已引發各造爭議和混淆,甚至開始產生或衍生許多的“不確定性”及憂慮。
“上訴庭的裁決也引起了國際的關注,許多國際穆斯林學者都對上訴庭的裁決提出了質疑。”
他強調,這也是為何聯邦法院,也是大馬至高無上的法庭需審核上訴庭的裁決,包括決定其原則及範圍正確性的主要原因之一。
政府律師:內政部依法行事
代表內政部和大馬政府的高級聯邦律師蘇查娜阿旦則指出,內政部長是為了維護公共秩序和國家安全,才發出禁止天主教會周報使用“阿拉”字眼的指令,當中不具任何惡意的成份。
她指出,天主教會周報所提出的準令申請並不符合1964年法庭司法法令第96條文的門檻要求,單憑這點,準令申請就不應受理。
她說,法院不應發出準令,因為上訴庭已作出裁決,而內政部長只是依據1984年印刷及出版法令行事,當中不涉及任何違法或不合理的因素。
法院保留判詞
聯邦法院七司聆聽各造代表律師的口頭陳詞後表示,法院將保留判詞,並擇日作出裁決。
(星洲日報)
来源:http://news.sinchew.com.my/node/352425?tid=1

Wednesday, March 5, 2014

Federal Court on Allah Case - Court reserves judgment on church’s leave application

BY V. ANBALAGAN, ASSISTANT NEWS EDITOR
MARCH 05, 2014
LATEST UPDATE: MARCH 05, 2014 02:25 PM
Muslim protestors gather in front of the Court of Appeal during a demonstration against a Malaysian Catholic newspaper using the word 'Allah' in Putrajaya, outside Kuala Lumpur today. – The Malaysian Insider pic by Najjua Zulkefli, March 5, 2014.Muslim protestors gather in front of the Court of Appeal during a demonstration against a Malaysian Catholic newspaper using the word 'Allah' in Putrajaya, outside Kuala Lumpur today. – The Malaysian Insider pic by Najjua Zulkefli, March 5, 2014.The Federal Court has reserved judgment on the Catholic Church's leave application to appeal against the ruling by the Court of Appeal which affirmed that the home minister was right to ban the use of the word "Allah" in a weekly publication.
Chief Justice Tun Arifin Zakaria adjourned ruling after hearing the parties to the leave application.
A court official said the Federal Court registry would notify parties when the judges were ready to deliver their verdict.
An unprecedented seven-man bench was convened to hear the church's leave application.
Sitting with Arifin were Tan Sri Raus Sharif, Tan Sri Zulkefli Ahmad Makinuddin, Tan Sri Richard Malanjum, Tan Sri Suriyadi Halim Omar, Datuk Zainun Ali and Datuk Jeffrey Tan Kok Hwa.
Leave applications and appeals are normally heard by a five-member bench.
Only on two occasions in the past had a seven-member panel been convened to hear drug trafficking cases involving important legal principles.
The church had submitted 26 questions on the constitution, administrative law as well as the power of the court to allow the home minister to ban the use of a theological word.
These questions were part of the application filed by lawyers for the church, seeking leave to appear before the Federal Court to challenge the Court of Appeal's ruling on the "Allah" issue.
Lawyer Datuk Dr Cryrus Das, who appeared for the church, said the apex court should hear the merits of the case because the Court of Appeal had reversed the findings of a High Court on key constitutional and administrative law issues.
"The Court of Appeal ruling had further created ambiguities on the 'Allah' issue which has now affected 1.6 million Bumiputera Christians in Sabah and Sarawak," he added.
Catholic Archbishop Emeritus Tan Sri Murphy Pakiam (second from right) outside the court after the Federal Court reserved judgment on the church's leave application. – The Malaysian Insider pic by Najjua Zulkefli, March 5, 2014.Catholic Archbishop Emeritus Tan Sri Murphy Pakiam (second from right) outside the court after the Federal Court reserved judgment on the church's leave application. – The Malaysian Insider pic by Najjua Zulkefli, March 5, 2014.He said ministers had made conflicting and contradictory statements following the appellate court's ruling.
"Further, the decision has also affected minority rights of others like the Sikhs and Bahai who use the word 'Allah'," Das said, adding that the international community was also closely following this matter.
He said it was unclear where the minister had obtained the authority to impose the ban on the word.
"One of the Court of Appeal judges stated that the minister has absolute discretion but the court was entitled to review his decision," he said.
Das said Islam was the religion of the federation but fundamental rights in the constitution could not take a back seat.
He also said the apex court had to decide to what extent judges could rely on the Internet to do research in making judicial findings.
Das said the publisher of the Herald had been using the word in the newspaper since 1995 and there was no threat to national security until the minister imposed a ban in 2009.
Another counsel for the church, Fabian Dawson, said Christians in this part of the region had been using the word "Allah" in their religious practices since 1894.
Senior Federal Counsel Suzana Atan said the minister had imposed the ban on grounds of national security and it was not done in bad faith.
"We take the position that leave must be denied as the Court of Appeal had made the decision as the minister had followed the provision in the Printing, Presses and Publications Act," she said.
Datuk Sulaiman Abdullah, who appeared for the Terengganu Religious Council, said it was not for the court to determine issues relating to public order.
"The minister was concerned about the public repercussions if the word was allowed to be used in the Herald," he said, adding that the executive could not gamble the security of the nation.
Lawyer Mubashir Mansor, representing the Kuala Lumpur and Selangor religious councils, said "Allah" was not an integral part of Christianity.
"The original Bible was in Hebrew and Greece. The Bahasa Malaysia text was only a translation; it could have been wrong in the use of the word 'Allah'," he said.
He said "Allah" was an Arabic word imported into Christianity.
On October 14, a three-member bench led by Datuk Seri Mohamed Apandi Ali – which allowed Putrajaya's appeal to ban the Herald from using the word "Allah" – said there was a 1986 directive by the Home Ministry that prohibited non-Muslim publications from using four words: "Allah", "Kaabah", "Solat" and "Baitullah".
Apandi, in his judgment, said the reason for the prohibition was to protect the sanctity of Islam and prevent any confusion among Muslims.
He also ruled that if the word was allowed to be used by Christians, it could threaten national security and public order.
Furthermore, the court said the prohibition was reasonable on grounds that the word "Allah" was not an integral part of the Christian faith and practice.
The decision sparked an outcry among Christians and other non-Muslims in both the peninsula and Sabah and Sarawak.
Church groups and MCA had also sent lawyers to hold a watching brief of the proceedings today.
Gan Peng Siew, a former MCA vice president, represented the party while Syahredzan Johan appeared for the Malaysian Bar Council.
Other organisations represented were the Commonwealth Law Association; Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism; World Council of Churches; Christian Federation of Malaysia; Council of Churches Malaysia; Sidang Injil Borneo
(peninsula); Sidang Injil Borneo (Sabah); Sidang Injil Borneo (Sarawak); Association of Churches of Sarawak; and Sabah Council of Churches.
Seven religious councils and the Malaysian Chinese Muslim Association are together with Putrajaya in opposing the church's leave application. – March 5, 2014.
Source: http://www.themalaysianinsider.com/malaysia/article/court-reserves-judgment-on-churchs-leave-application