A leap into antiquity

The Federal Court has missed an opportunity to clarify and correct some disturbing rulings. 

Shad Saleem Faruqi, The Star

OLIVER Wendell Holmes Jr., the famous American judge and jurist, once remarked to a lawyer appearing before him: “This is a court of law, young man, not a court of justice”. This appears to be the message of the Federal Court on Monday when it refused leave to the Archbishop of Kuala Lumpur on the Herald(Kalimah Allah) issue.

Some of us were hoping fervently that our apex court would seize this opportunity to clarify the ambit of the Court of Appeal’s broadly worded decision and correct some regressive and gravely disturbing rulings of the Court of Appeal on issues of constitutional and administrative law.

It must be acknowledged that an appeal to the Federal Court is not a legal right.

There is a filter stage at which discretion can be exercised on well-known but highly flexible grounds laid down in statute and in the Terengganu Forest Products case.

Despite some very cogent and compelling grounds (10 administrative law questions, 13 constitutional issues and five general questions), four out of seven Justices refused leave to appeal.

Three Justices, Chief Judge of Sabah and Sarawak Richard Malanjum and Federal Court judges Zainun Ali and Jeffrey Tan dissented and they must be congratulated for their courage.

In the words of former American Chief Justice Hughes a dissent is “an appeal to the brooding spirit of the law, to the intelligence of a future day.” Given the nature of the issues, that future day will not be far.

I humbly believe that the majority was not justified in refusing to trudge through the foothills of the debate in a full appeal hearing. Like smouldering volcanoes, the many contentious issues in the Court of Appeal decision will continue to mar our legal landscape. These issues cannot just be wished away.

Decision’s scope: Justice Malanjum, CJSS, noted that the Court of Appeal case involved the Catholic online, Bahasa Malaysia (BM) publication Herald. Yet, the decision seems to sanction a sweeping, general prohibition against the word Allah by all non-Muslims in all forms, on all occasions.

Is it now the law that the term Allah is prohibited in BM Church services, in BM versions of the Bible (which the Home Ministry has no objection to) and in all non-Islamic dialogue?

Are the Sikhs and Bahai also prohibited from using the holy word which they have used for centuries? If the stricture applies only to Christians, not to others, is that a violation of Article 8’s ban on religious discrimination?

Does the prohibition cover only West Malaysia or does it storm up the shores of Sabah and Sarawak and invade every river and estuary in our East Malaysian states? What about the 1.6 million Christian natives there, many of whom use only Bahasa Malaysia for interaction and worship and have for centuries used the word Allah for God?

With the Court of Appeal decision confirmed, are the Selangor Islamic Affairs Department (JAIS) and Selangor Islamic Affairs Council (MAIS) now legally authorised to raid churches, gurdwaras, book shops, printing presses and libraries to seize the holy publications of other faiths, arrest the publishers and owners for questioning and ask courts to destroy the publications?

Absolute discretion: When the constitutionally permissible justification of public order and national security is relied on to restrict human rights, is the executive required to back its decision with cogent evidence and employ rational, objective criteria? Or can the decision be based on purely subjective discretion?

Malaysian public law was progressing nicely in this area and several scintillating superior court decisions asserted judicial power to review executive discretion on its substantive merits. Among them are John Berthelsen, Hong Leong, Mohd Ezam Mohd Nor, Darma Suria, Sri Lempah, Association of Banks, Rama Chandran, Sisters in Islam and Datuk Justin Jinggut.

Regrettably the Court of Appeal in this case took a giant leap into antiquity to give the Minister virtually unfettered discretion on matters of security and public order. There are some things in the judgment that are so “yesterday” like “judicial review is not concerned with the merits of a decision but with the manner the decision was made”. This is a 1982 United Kingdom view and is unsupportable today. Likewise, leaning on the much-criticised 1969 Karam Singh decision is not impressive.

Public order: What amounts to a “threat to public order and national security”? The Court of Appeal seems to leave that to the Minister. As Malanjum points out, there must be a “clear and present danger” and American jurisprudence offers illuminating guidance.

Anti-propagation laws: Such laws are permitted under Article 11(4) but only if they seek to regulate acts of propagation to Muslims. The ten existing State laws impose a total ban on use of prohibited words. These laws go too far and the Federal Court could have looked at this constitutional issue.

Article 3(1): Does Article 3(1) on Islam as the religion of the federation override all other Articles of the Constitution? The Court of Appeal seemed to have overlooked Article 3(4) which says plainly: “Nothing in this Article derogates from any other provision of this Constitution”.

Sensitivities: In some circumstances, but not always, courts may be justified in taking note of the “sensitivities of the community”. However, they must be fair and all-encompassing.

Regrettably, there are some unintended but one-sided statements in the Court of Appeal judgment that ignore that Sabah and Sarawak citizens are also part of the Malaysian community. They too have sensitivities and a sense of their rights. Generally, however, it is not the function of the court to pander to prejudice and irrational belief, no matter how widespread. The court must instead uphold its duty to preserve and protect the Constitution.

Judicial decisions must be independent of the political winds that are blowing and must not take on the colouration of whatever may be popular at the moment. Now and then, judges must tell people what they do not like to hear.

Most of us are deeply disappointed at the Federal Court decision to stay away from this painful and intractable dispute. Like underground peat fires, the situation is dangerous.

What can be done? Similar cases like the Herald case will take too long to wind up in the Federal Court. In the meantime, can the Yang di-Pertuan Agong, acting on advice, refer some carefully drafted questions on the constitutional implications of the Herald case to a full Federal Court for its advisory opinion?

> Shad Faruqi, Emeritus Professor of Law at UiTM, is a passionate student and teacher of the law who aspires to make difficult things look simple and simple things look rich. Through this column, he seeks to inspire change for the better as every political, social and economic issue ultimately has constitutional law implications. He can be reached at [email protected]. The views expressed here are entirely his own.