‘Judges must confine themselves to legal issues, not religion’

Sean Augustin and Rajina Dhillon, The Rakyat Post

Malaysian courts are ill equipped to determine the veracity or even sincerity of religious beliefs, doctrines and practices, a High Court judge said.

In her written judgment on the leave to appeal the ban on the  use of “Allah” by The Herald, Datuk Zainun Ali said that the judges who presided in the matter should have confined themselves strictly to the legal issues raised.

Zainun was among the three judges who dissented. The remaining two were Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum and Federal Court judge Tan Sri Jeffery Tan.

The Federal Court had earlier today dismissed the Catholic Church’s application for the Arabic term to be used in its weekly publication. The ruling was delivered by Chief Justice Tun Arifin Zakaria who led a seven-man bench.

Zainun argued that disputed tenets of religious beliefs, faith and religious practices were “beyond the competence of judges of fact and law”.

She went on to point out that the alleged historical facts were based on affidavit evidence and the Internet, which were unverified, uncorroborated and thus inadmissible.

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

Zainun also said that in this matter, the voice of reason should prevail and all parties must exercise restraint and uphold the tenets of their respective religious beliefs and exercise tolerance.

It was imperative, she added, that the goodwill of all races and religious denominations be brought to the negotiating table and resolved amicably.

Tan, on the other hand, granted the leave to appeal on condition that The Herald had the constitutional right to use “Allah”.

According to him, Section 96 (b) of the Federal Constitution had only one prerequisite: “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”.

“It is plain and obvious that the sole prerequisite of Section 96 (b) has been satisfied,” he argued.

Meanwhile, Arifin dismissed the appeal on the grounds that the Home Ministry’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 orbiter,” according to him.

Arifin also revealed that a total of 28 leave questions were posed by the Catholic Church,  divided into three parts, namely administrative law questions, constitutional law questions and general questions.