Last Updated: 7:14pm, Jun 23, 2014

PUTRAJAYA (June 23): The Federal Court today dismissed the Catholic Church's application for leave to appeal against the Court of Appeal's ruling that its weekly publication Herald is prohibited from using the word 'Allah'.

This means that the Catholic Church cannot appeal to the Federal Court to overturn the Court of Appeal decision on Oct 14 last year which allowed the government's appeal to ban the Herald from using the word  "Allah"  in its Bahasa Malaysia section.    

The seven-person panel was lead by Chief Justice Tun Ariffin Zakaria. There are four separate judgments over the matter. Four judges out of the seven agreed with Ariffin's judgment to dismiss the application.

The other six judges are Court of Appeal president Tan Sri Md Raus Sharif, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinuddin and Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, Federal Court judges Tan Sri Suriyadi Halim Omar, Datuk Zainun Ali, and Datuk Jeffrey Tan Kok Wha.

Malanjum, Zainun and Tan were the three with dissenting judgments.

"By majority of 4 - 3, the leave application is dismissed," said Ariffin.

The panel ruled that there would be no order as to cost and deposits will be refunded.

Ariffin says some of the 28 questions did not pass legal threshold for review

In brief, Ariffin in his judgement had said that some of the 28 questions of law raised by the applicants among others did not pass the legal threshold for a matter to be reviewed by the Federal Court.

Justices Raus Sharif, Zulkefli Ahmad and Suriyadi Halim agreed with this decision.

The 28 questions submitted before the panel was broken into three parts.

The first part concerned the administrative law questions which put forth 10 question revolving around among others, whether the Home Ministry's decision of what constituted national security - in this case the use of the word Allah in the publication - could be reviewed by another authority, in this case the courts.

On this matter, Ariffin ruled that there was no questions on the nature of conditions which can be imposed by the Home Minister. Rather, the matter before the panel was if his decision was subject to judicial review.

"It is not disputed that the nature of the conditions that may be imposed by the minister falls within his discretion.The issue before us is whether the imposition of such conditions in the exercise of his discretion under the Act is subject to judicial scrutiny or otherwise," he said.

He said that it is his finding that the Court of Appeal found that the minister had applied the correct test - an objective test - therefore it was not open for the Federal Court to "interfere with the findings" of the lower court. Hence, he ruled that it didn't pass the legal threshold for review.

An objective test is when the minister's grounds for satisfaction on a decision can be reviewed by the third party such as the court.

Ariffin ruled this despite the Court of Appeal judgement which specifically said that the minister had used both subjective (decision which cannot be reviewed) and objective tests. Ariffin said that it was the spirit of the Court of Appeal judgement which needed to be taken into account, not the adjectives used in the decision.

Ariffin also ruled that the minister's judgement to ban the word was never based on "theological consideration" and that any mention of that in the Court of Appeal judgement was merely an "obiter".

Father Lawrence says he is "greatly disappointed" but urged everyone to move on peacefully

Meanwhile, speaking to reporters outside the court room, Father Andrew Lawrence said that he was "greatly disappointed" as the majority of the bench did not look into the essence of the matter which concerned the rights of minority.

"The four judges who did not grant us the leave ... they spoke about things that didn't touch on matters that are of concern to the rights of the minority.

"The three dissenting voices spoke with clarity over the rights of minority and upheld the federal constitution with clarity. They also went through the process and found weakness of the Court of Appeal decision," he said.

Though disappointed, he did not appear dishearten by the judgment as he called upon everyone to move on from this episode and to live in peace.

"This is not a game of who wins and who looses. In reality, there is a God that is one. There is no 10 Gods, no 3 Gods but there is only one. One who created one world. We are all brothers in the end.

"We'll face the one God on Judgment (day). Let us live in peace and look pass this situation," he said.

Meanwhile, the applicants' chief council, senior lawyer Cyrus Das said the Court of Appeal judgment seem to suggest that the prohibition of the word 'Allah' applied beyond the use of the Herald.

"(Judgement seems to say) that the word cannot be used by non-Muslims in Sabah and Sarawak.

"Richard (Malanjum) pointed this out and that alone narrates a call for the review (of Court of Appeal decision)," he said.

He said that the Court of Appeal also has come up with a hybrid test of objective and subjective consideration and that the opportunity was lost by the Federal Court to scrutinise this.

"(Our clients) will reconsider their position as to what to do next," he said.

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