Federal Court Judge Zainun Ali criticised the Court of Appeal’s judgment, which banned Christian publication the Herald from using the word “Allah”, for venturing into the realm of theology.

She also took issue with the Court of Appeal’s use of Internet material in a bid to justify its decision to uphold the Home Ministry’s ban against the Herald from using the word ‘Allah’ to refer to God.

Zainun said the Court of Appeal’s rebuttal was “non-justiciable” as they were not questions of law nor were they questions of fact or factual issues capable of proof in the court of law.

She said this in her dissenting judgment which saw the Federal Court today refusing leave for an appeal against the Court of Appeal’s decision.

Zainun is one of three dissenting judges on the seven-judge panel which decided on the application of leave by the Titular Roman Catholic Archbishop of Kuala Lumpur.

She said some issues of theology, religious and ecclesiastical concerns were beyond the reach of the courts and the Court of Appeal judges should have just stuck to law.

“A secular court such as ours, is ill-equipped to determine the veracity, accuracy or even sincerity of subjective religious beliefs about doctrine and practices.

“Such disputes are certainly outside the recognised perimeters of judicial competence,” said Zainun in her nine-page summary judgment that was released to the press this evening.

However, she noted this does not mean the court cannot decide on cases such as commerce, civil rights, industrial or employment rights with a religious element, as it depended on the facts of each case.

Judges quoted foreign news reports

She also singled out the Court of Appeal’s use of Internet material in justifying its decision.

“More so when the alleged historical or other ‘facts’ are based on affidavit evidence on the internet which are unverified, uncorroborated and therefore inadmissible.

“As had been said, plausibility should not be mistaken for veracity,” she said.

The Court of Appeal last year overturned a 2009 High Court decision which had declared the Home Ministry’s ban as unconstitutional.

In the 2013 three-men judgment led by then Court of Appeal Judge Apandi Ali, it had quoted an online Fox News story where Protestants Christians in the Netherlands had opposed the use of word ‘Allah’ to refer to God.

It also quoted another news.com.au story on the same matter. After that, it went on to cite islam.org on Christian use of the word “Allah”.

Zainun also addressed two issues of technicality concerning the Court of Appeal’s judgment, one on whether it had applied the correct test in its judicial review of the High Court’s decision – an objective or a subjective test – and whether it met the threshold to qualify for leave.

She said the norm in today’s judicial review was to apply an objective test but the Court of Appeal had claimed to apply a method which was “subjectively objective”.

“The terms ‘subjectively objective’ is paradoxical. These are two different concepts which negative (sic) one another.

“I am afraid the mere labeling of the test as being ‘subjectively objective’ will not help their cause in turning the test they applied from a subjective to an objective one,” she said.

‘Best for Federal Court to decide’

Furthermore, Zainun said leave should be granted because to clear the air over the inconsistent decisions by the Court of Appeal, the Federal Court and the High Court and allow the Federal Court to clarify and the existing state of law.

In concluding her judgment, Zainun urged for the voice of reason to prevail and asked that all quarters exercise restraint.

The two other dissenting judges are Chief Judge of Sabah and Sarawak Richard Malanjum (left) and Federal Court Judge Tan Kok Wha.

Tan in his five-page summary judgment zoomed in on a single point, concluding the Allah matter concerns constitutional issues which was best decided by the Federal Court and therefore was in favour of leave to be granted.

“They (constitutional issues) are too grave to be answered by any other,” he said.

Malanjum is the only dissenting judge who had a complete judgment today but court officials declined to release them to the press pending the judge’s approval and signature.

However, the conclusion of his judgment shown to the press saw Malanjum echoing Tan’s opinion that this was an issue of the constitution which was best decided by the Federal Court.

In his judgment, Malanjum said there was no evidence that the use of the word “Allah’ by the Herald was prejudicial to public order as they are not prohibited in the Al-Kitab (Malay language Bible) and Sikh Holy Book.

“The case only involved the Bahasa Malaysia section of the Herald. Yet the decision of the Court of Appeal seems to sanction a sweeping, general prohibition against the use of the word “Allah” by all non-Muslims in all forms on all occasions.

“Most of the groups affected such as the Sikh community were not parties in this case,” he was quoted as saying in Bernama.

The Federal Court panel which decided on the matter today was led by Chief Justice Arifin Zakaria.

He led a majority decision against granting leave and was backed by Court of Appeal President Md Raus Sharif, Chief Judge of Malaya Zulkefli Ahmad Makinuddin and Federal Court judge Suriyadi Halim Omar.

The four released their decision collectively in a nine-page summary judgment this evening.