Monday, July 07, 2014

Herald Case - All that the Federal Court did was not give permission to appeal. Appeal never heard yet.

The Federal Court chose not to hear the appeal - only not to grant leave(permission) to appeal. Hence, we are deprived a Federal Court ruling on the 'Allah' issue.

Now, if one is not happy with a decision of the Court of Appeal, we have have a right to appeal to the Federal Court. Before the Federal Court proceeds to hear an appeal, permission(or leave) must be obtained from the Federal Court.

During a leave application, the Federal Court is not really affirming or overturning the decision of the Court of Appeal. It just considers whether (1) it involves a question of general principle decided for the first time by the Federal Court; or (2) whether it is a question of importance upon which further argument and a decision of the Federal Court would be to public advantage; or (3) Whether the decision of the Court of Appeal being appealed relates to the effect of any provision of the Constitution including the validity of any written law relating to such a provision.

In my opinion, this was a case where leave should have been granted - and the Federal Court should have heard the appeal.

Why was leave not granted? 
Was it a 'political' decision rather than a judicial decision?  - if so, then  the Federal Court would have been wrong.

Looking at news reports and public comments, many seem to have the wrong belief that the Federal Court has 'approved' or agreed with the decision of the Court of Appeal. But, in fact, what happened is that the Federal Court avoided hearing the appeal proper - choosing rather to just not give permission to appeal. This case, whereby the Court of Appeal had in fact overturned the High Court judgment would have best been heard by the Federal Court.

Interestingly, the leave(permission) to appeal decision was also not a unanimous decision - 4 said no leave, and 3 said leave granted. 

Section 96  Conditions of appeal,Courts Of Judicature Act 1964
Subject to any rules regulating the proceedings of the Federal Court in respect of appeals from the Court of Appeal, an appeal shall lie from the Court of Appeal to the Federal Court with the leave of the Federal Court -

(a) from any judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction; involving a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage;or
(b) from any decision as to the effect of any provision of the Constitution including the validity of any written law relating to any such provision.
Section 97  Leave to appeal,Courts Of Judicature Act 1964

(1) An application under section 96 for leave to appeal to the Federal Court shall be made to the Federal Court within one month from the date on which the decision appealed against was given, or within such further time as may be allowed by the Court.

(2) Where the judgment appealed against requires the appellant to pay money or perform a duty, the Federal Court shall have power, when granting leave to appeal, either to direct that the judgment shall be carried into execution or that the execution thereof shall be suspended pending the appeal, as to the Court shall seem just; and in case the Court shall direct the judgment to be carried into execution, the person in whose favour it was given shall, before the execution thereof, enter into good and sufficient security to the satisfaction of that Court for the due performance of any order as the Federal Court may make in order to give effect thereto.

(3) Notwithstanding section 74, an application for leave to appeal to the Federal Court may be heard by a Judge of the Court, and any direction or order that could be given or made by the Court on such application may be given or made by such Judge.

(4) Any direction or order given or made under subsection (3) may, upon application by the aggrieved party made within ten days after the direction or order is given or made, be affirmed, varied or discharged by the Court.

Now, I have yet to see the judgments of the Federal Court, all 7 judgments - but from the media reports, it looks like the Federal Court may have overstepped its boundaries in the leave application, and commented on the merits of the case as well... 

Well, there is a problem in Malaysia in the form of State Laws - some of which have provisions that disallow non-Muslims from using certain words. A list of words that only Muslims can use have been generated in some of these enactments, and it is these enactments that may have infringed on the freedom of religion in Malaysia, and there is a need for certain sections in these State Enactments that need to be repealed or amended to bring it in line with the spirit of the Federal Constitution. The only bar in our Federal Constitution placed on other religions, in my opinion, is that they cannot actively try to convert Muslims in Malaysia to other religions.

But alas, politicians and political parties that need to act is either delaying what needs to be done, or trying to shift blame on others. State enactments, like any other law, only need simple majority to amend or even repeal. Why is the Pakatan Rakyat (PKR,PAS and DAP) not tabling these necessary amendments? They should already be doing so since their declared position is that words like Allah, etc is not for exclusive usage by Muslims - but can be used by others as well. Remember, it was this position that made many Malaysians vote for them at the last General Elections... 

Before this, some said that they were waiting for the Federal Court --- but really, it is the Legislature that makes laws - not the courts. Anyway, the Federal Court did not grant permission for the appeal to be filed and heard by the Federal Court - so this is no more a reason that can be used by States to delay making changes to the law....[Oh yes, but some are saying that making such amendments may be unwise, as it may affect the support by Muslims in the upcoming elections...and, in response, I would say that is an unacceptable argument - more so, when the position of some political parties were made clear before the last elections and people still voted for them...So, what really is the reason for not doing anything to resolve the confusions that exist...]

Then, they said this issue can only be solved by Najib and the Federal Government - but this is not true - the problematic enactments are State laws - not so much Federal Laws. 

What will the other reasons used? Alas, sometimes I too feel rather disappointed with the Pakatan Rakyat .... Remember the promise for Local Council Elections ....what has happened to this? What else? Is it all only about taking over political power from the BN - but about making any real changes for the good of the people... As time passes, it looks like this may be the case...Prove me wrong Pakatan Rakyat governed States, and also other States...and do the needful now...

12:36PM Jul 7, 2014

CJ: Allah ban not based on theological issues

The Home Ministry's ban on the usage of the term "Allah" was not based on theological aspects, said Chief Justice Arifin Zakaria.

Arifin, who wrote the majority judgment in the appeal by the Catholic Archbishop of Kuala Lumpur, ruled that theological issues brought up at the Court of Appeal were considered obiter (words of opinion entirely unnecessary for the decision of the case).

Although the CJ did not state which theological aspects were considered as such, but one of the major findings in the appellate court's judgment was the remark made by the judges that the term "Allah" was not an integral part to the Christian faith.

"From the facts, it is clear that the (home) minister's decision was never premised on theological consideration. Therefore, the views expressed by the learned judges of the Court of Appeal on those issues are mere obiter.

"For that reason, the questions (constitutional questions posed by lawyers for the archbishop) in Part C, in my view do not pass the threshold under Section 96 (a) of the Courts of Judicature Act," he wrote in his 38-page judgment, which was uploaded on the official Federal Court website.

When a judgment is considered obiter or passing comment, it is normally not binding on the courts.
This is pertinent as there are other challenges over the “Allah” issue following the seizure of compact discs as in the Jill Ireland case and also religious and education books in the Sidang Injil Borneo (SIB) and Rev Jerry Dusing's (left) cases by the Royal Customs Department.

In the SIB case, High Court Judge Zaleha Yusof refused to grant leave on the judicial review application, when she ruled that the court was bound by the Court of Appeal judgment that "Allah was not integral to the Christian faith".

The SIB case is presently on appeal at the Court of Appeal.

Court of Appeal judge, Justice Mohd Zawawi Mohd Salleh had in the unanimous judgment done research on the theological aspect and came up with the finding that "Allah is not integral for the Christian faith."

 The other judges at the Federal Court who agreed with Justice Arifin in the Herald judgment last month were Court of Appeal president Justice Md Raus Sharif, Chief Judge of Malaya Zulkefli Ahmad Makinuddin, and Federal Court judge Suriyadi Halim Omar.

However, there is no other majority written judgments accept that of Justice Arifin.

High Court judge wrong

In not granting leave to hear the appeal, Justice Arifin ruled that the 28 constitutional questions posed by lawyers representing the Archbishop do not pass the Section 96 (a) barrier of the Courts of Judicature Act.

This views, were however, not shared by dissenting judges namely Chief Judge of Sabah and Sarawak, Richard Malanjum and Federal Court judges Justices Zainun Ali and Jeffrey Tan Kok Wha.

The CJ emphasised that the judgment only relates to the usage of the word "Allah" in the Herald.

He said the High Court judge (Justice Lau Bee Lan) was wrong in considering the provisions in several state enactments which bar the usage of "Allah" in some states as unconstitutional.

The net effect of Justice Lau's decision, Justice Arifin said, renders the state laws being declared invalid, null and void and unconstitutional as it exceeds the object of Article 11 (4) of the Federal Constitution and the states legislature have no power to enact the ban.

"The issue is, could the High Court judge entertain such a challenge in light of specific procedure in clauses (3) and (4) of Article 4 of the Federal Constitution... For this, the respective states should be made a party for the state to be given an opportunity to defend the validity or constitutionality of the impugned provision.

"I hold the view that the High Court judge ought not to have entertained the challenge of the validity or constitutionality of the impugned provisions for two reasons, namely procedural non-compliance and for want of jurisdiction. The findings by the High court judge that the impugned provision is unconstitutional was rightly set-aside by the Court of Appeal," he said.

Justice Arifin also ruled that the Court of Appeal applied the correct subjective test in the case and hence its finding in the unanimous decision should not be disturbed. - Malaysiakini, 7/7/2014, CJ: Allah ban not based on theological issues

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