by Joshua Wu Kai-Ming | May 7, 2025 | Law
The civil courts have consistently recognised that the superior civil courts (namely the High Court, the Court of Appeal, and the Federal Court) are creatures of statute.
On the High Court being a creature of statute, the Federal Court in Gan Boon Aun v Public Prosecutor [2016] 4 MLJ 265 held the following:
“It is our considered view that the High Court, being a creature of statute, has no power to enlarge its jurisdiction under ss 30(2) and 84(1) of the CJA.”[1] (Emphasis mine)
As for the Court of Appeal being a creature of statute, this was acknowledged by the Federal Court in Dr Koay Cheng Boon v Majlis Perubatan Malaysia [2012] 3 MLJ 173:
“Being a creature of statute, the Court of Appeal has no power to enlarge its jurisdiction.”[2] (Emphasis mine)
The Federal Courts have accepted that even they are creatures of statute.
In Auto Dunia Sdn Bhd v Wong Sai Fatt & Ors [1995] 2 MLJ 549, Edgar Joseph Jr FCJ was of the following view:
“It is an elementary proposition that this court is a creature of statute and that equally a right of appeal is also a creature of statute, so that unless an aggrieved party can bring himself within the terms of a statutory provision enabling him to appeal, no appeal lies.”[3] (Emphasis mine)
Similarly, the Federal Court in Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputera (M) Bhd [2002] 1 MLJ 385 held as follows:
“The view expressed by his Lordship is but a mere reflection of the intention of Parliament. The Federal Court is a creature of statute. So is the right of appeal. This means that unless an aggrieved party can bring himself within the parameters of s 96(a) of the CJA, no appeal lies.”[4] (Emphasis mine)
In Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101, the Federal Court clarified that “statutes” included the Federal Constitution:
“The point to note here is that both courts, civil and shariah, are creatures of statutes. Both owe their existence to statutes, the Federal Constitution, the Acts of Parliament and the State Enactments. Both get their jurisdictions from statutes ie Constitution, federal law or state law, as the case may be.”[5] (Emphasis ours)
The very existence and constitution of the superior civil courts are established by virtue of Part IX of the Federal Constitution.[6]
Notably, certain aspects of the jurisdictions of the Court of Appeal and the Federal Court are explicitly provided for in the Federal Constitution.[7]
Notwithstanding that, the Federal Constitution provides that the following are “as may be conferred by or under federal law” or “as may be provided by federal law”:
(a) The jurisdiction and powers of the High Court;[8]
(b) The other (read: additional/further) jurisdiction(s) of the Court of Appeal;[9] and
(c) The other (read: additional/further) jurisdiction(s) of the Federal Court.[10]
The Courts of Judicature Act 1964, an ordinary statute, is one such federal law.
(more…)
by Joshua Wu Kai-Ming | Jul 8, 2014 | Law, Politics
Former Perkasa deputy president Datuk Zulkifli Noordin (henceforth DZN) labelled those who commented against the recent Federal Court ruling on the Allah issue as “rude and insolent” and questioned whether these people wanted another May 13-like riots.
Apparently when the High Court rules in favour of the Catholic church, it is alright to question the decision, and thus appeal to a higher court
In response to the decision of the High Court allowing the Herald to use “Allah” in its publication, DZN stated “I can’t understand how any Muslim can support this judgment”.
When it comes to the Federal Court’s refusal to grant The Herald leave for appeal, it is NOT alright to question the decision (eventhough the Catholic church can legally file for a judicial review)
DZN urged the religious extremists to respect the court decision, the Federal Constitution and the sensitivity of other religions including Islam and Christianity
Respect the sensitivity of other religions? That is rich coming from the guy who gave a religious sermon belittling Hinduism in March 2013!
Anyone smell the hypocrisy here? Basically the principle applied is ‘anything not in my favour is questionable while anything in my favour should not be questioned’
In all his wisdom (or lack of it), DZN labelled those who opposed his principle as “rude,” “insolent” and even went to the extent of questioning whether those people wanted a 13th May 2.0
He is annoyed by the speck of sawdust in his brother’s eye but is oblivious to the plank in his own eye!
DZN went on to say that the religious extremists challenged the Muslim community by threating to continue using the word Allah in churches and in their worship
Apparently DZN was not aware (at the time of blogging) that Putrajaya issued a statement clarifying that the Federal Court’s ruling on the Allah issue applied only to the Catholic weekly, Herald.
The statement added that Malaysian Christians can still use the word Allah in church and that the government remains committed to the 10-point solution
Whoops, looks like DZN jumped the gun when he blamed the “religious extremists.” So who is next in line to be blamed? The government for coming up with the 10-point solution? The courts for not making this decision binding upon all future use of “Allah” by non-muslims?
Although Selangor has the 1988 Non-Islamic Religions (Control of Propagation Among Muslims) Enactment banning the use of the word “Allah” by non-muslims, it is important to note that Sabah & Sarawak does not have such an enactment, hence the use of the word “Allah” by Christians there is perfectly fine and cannot be construed to be provocation as it is not illegal
*Read it also at The Malay Mail Online
by Joshua Wu Kai-Ming | Jun 25, 2014 | Law, Politics, Religion
The 23rd of June 2014 will go down as one of the darkest days in Malaysia’s history. On that very day, the Federal Court (Malaysia’s apex court) decided not to grant the Catholic church leave for appeal on the use of the word “Allah” for its weekly newsletter publication called ‘The Herald’
The whole saga began in 2007 when the Home Ministry of Malaysia decided to issue a ban prohibiting The Herald from using the word “Allah” in its newsletter. The Herald had been peacefully doing so since 1995
The Catholic church was in a state of shock as the weekly publication was meant for internal circulation, thus dispelling any fears that it would be used to propagate to Muslims
The High Court in 2009 ruled in favor of the Catholic church and quashed the prohibition. Subsequently the government appealed and the Court of Appeal reversed the decision of the High Court
The Catholic church exercised their legal right to further pursue the matter up the hierarchy of courts but was turned down by the Federal Court. 4 out of the 7-man bench decided against allowing the leave for appeal
The leave for appeal is basically a permission to appeal a previous judgement/ruling. Without the leave for appeal, one is stuck with the decision of the earlier court
So what is the aftermath of the decision? It can’t all be that bad because Putrajaya has assured that the decision is only applicable to The Herald and would have no effect whatsoever on Christians that practice their faith in the national language
Putrajaya’s assurance counts for nothing as even their 10 point solution is not legally binding whereas the Court of Appeal’s decision is binding precedent and has to be followed by courts of equal and lower status
The Federal Court’s refusal to grant The Herald leave for appeal means that the Court of Appeal’s decision is good law. The obiter dicta (persuasive precedent) is that the word “Allah” is not an integral part of the Christian faith
Obiter dicta can crystallize into ratio decidendi (binding precedent). For example, if a court in a future case (e.g. the 321 Bibles seized by JAIS) decides to use that “mere observation” made by the Court of Appeal as the basis for its decision, the mere observation becomes a binding precedent.
Tell me again how that legal principle will only be bound to The Herald? From then onwards, whenever a case appears before the courts regarding the use of “Allah” in any Christian publication, all lower courts will be bound by the decision of the court which based its decision on the Court of Appeal’s obiter dicta
This has major ramifications on the rights of Christians to practice and profess their religion as per Article 11 of the Federal Constitution. Christians that practice their faith in Bahasa Malaysia will be unable to read the Bible in the language they have used all this while
That is only the beginning of the aftermath. Before we know it, the holy book of the Sikhs will also be seized and prohibited because of the use of the word “Allah”
What is most saddening is that the highest court of the land (i.e. the Federal Court) which has the ability to remedy this wrong refused to get involved. May we never forget this dark moment!
*Read it also at The Malay Mail Online
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