Herald case: Court questions procedure propriety

PUTRAJAYA: The Court of Appeal here yesterday questioned the propriety of the procedure adopted by the High Court in 2009, to simultaneously hear the Roman Catholic Church’s judicial review application over the usage of the word ‘Allah’, and the Islamic religious councils’ intervener applications.

A three-member panel led by Justice Datuk Seri Abu Samah Nordin ordered lawyers for the church, Islamic religious councils, Malaysian Chinese Muslim Association and senior federal counsel representing the government and Home Ministry to submit on that issue on May 23.

The panel, also comprising Justices Datuk Balia Yusof and Datuk Rohana Yusuf, directed them to file their submissions on that issue, on or before May 16.

Balia said parties in the case should address on the procedure propriety issue as that would affect the legality of the High Court decision, in allowing the church’s judicial review.

He said, if there was an irregularity in the procedure adopted by High Court judge Lau Bee Lan, the case could be remitted back to the High Court for a retrial.

Lawyer Porres Royan, representing the church, had told the panel that the High Court judge went on to hear both applications simultaneously, following a direction by former chief justice Tun Zaki Azmi for speedy disposal of court cases.

Lau had, on Aug 3, 2009 allowed the applications of the Islamic religious councils and the association to intervene in the judicial review.

However, two months later, she set aside her earlier decision.

She had set aside her own decision based on the Federal Court ruling in the case of Majlis Agama Islam Selangor vs Bong Boon Chuen & 150 others which states that the High Court had no jurisdiction to allow intervention in judicial review proceedings under Order 15 Rule 6(2)(b) of the Rules of the High Court 1980.

The Islamic religious councils and the association then filed the application afresh, using another provision — Order 53 ( 8) of the Rules of the High Court.

In Dec 2009, Lau heard simultaneously the applications brought by the Islamic religious councils and the association to intervene in the church’s judicial review and the judicial review, and subsequently, simultaneously pronounced her verdict for both applications.

She had dismissed the religious councils and the association’s applications to be interveners in the case but allowed the church’s judicial review and lifted the Home Minister’s ban against the Catholic Church publishing the word, ‘Allah’, to refer to the Christian God in its weekly paper, Herald.

The Islamic religious councils and the association were allowed to participate at the judicial review hearing although there was no court order allowing them to intervene.

The panel was scheduled today to hear appeals of the Islamic religious councils of Terengganu, Selangor, Kedah, Malacca, Wilayah Persekutan and Johor and the association against the High Court’s decision to disallow them to intervene in the judicial review.

Lawyer Mubashir Mansor, representing the Terengganu Islamic Religious Council, said the council wanted to intervene in the government’s appeal against Lau’s decision in allowing the church’s judicial review.

The government’s appeal is scheduled for case management on May 30.

In her ruling on Dec 31, 2009, Lau declared the decision by the Home Minister prohibiting Herald publications from using the word ‘Allah’ in its Bahasa Malaysia publication which was specially to cater to the people in Sabah and Sarawak, was illegal, null and void.

The suit was filed by the Catholic Church led by Archbishop Murphy Pakiam on Feb 16, 2010, naming the Home Ministry and the government as respondents in the judicial review application.

They sought, among others, a declaration that the decision by the Home Ministry on Jan 7, 2009, prohibiting the use of the word, ‘Allah’, in the Herald — the Catholic Weekly publication — was illegal and that the word, ‘Allah’, was not exclusive to the religion of Islam.

The weekly, published in four languages, has been using the word ‘Allah’ as a translation for God in its Malay-language section, but the government argued that ‘Allah’ should be used exclusively by Muslims. The government was represented by senior federal counsel Arik Sanusi Yeop Johari. — Bernama