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