Herald-Allah case goes to judicial review

 

The High Court granted leave today to the publisher of The Herald to file for a review of the government’s decision to prohibit the Catholic weekly from using the word “Allah” in its Bahasa Malaysia segment.

Justice Lau Bee Lan ruled that The Herald has grounds for a hearing, and dismissed the submissions by the federal counsel on why the publisher cannot apply for a review as being “merely procedural and technical, with no basis”.

She also held that Order 53 of the Rules of the High Court allows The Herald to apply for this declaration together with a request for an order to quash the decision of the Home Ministry prohibiting them from using the word “Allah” in its publication. The weekly, which is sold to parishioners, is also seeking a declaration that it can use the word “Allah” in its Bahasa Malaysia segment.

Today’s decision was on an application filed on March 19 after the Internal Security Ministry (now Home Ministry) renewed the weekly’s publication permit for this year but imposed the prohibition.

An order from the ministry sent on Feb 12, 2008, to the Titular Roman Catholic Archbishop of Kuala Lumpur as the publisher of the Herald Catholic Weekly stated that “the publication permit is subject to publication guidelines which prohibit the use of the word Allah in its Bahasa Malaysia segment.

Herald’s lawyer Derek Fernandez said it is now “all systems go” and they will be filing documents in the next two weeks.

“We are ready to begin the substantive hearings. We hope for a hearing within the next six months,” said Fernandez. “The leave is just like a filter to keep out cases that are frivolous or vexatious, that are just a waste of the court’s time. Evidently, this case has merits.

In the April 23 hearing, federal counsel Suzana Atan had argued that The Herald’s leave application should be denied because the declaration it sought was a declaration of its private rights, and therefore should not be subject to judicial review.

She also argued that The Herald’s claim that the use of the word “Allah” is part of religious freedoms guaranteed under Article 11 of the Federal Constitution, as well as the claim that the word is an integral part of the Christian religion is a matter of fact which has to be supported by expert testimony and cannot be heard in a judicial review.

The Herald’s leading counsel Pores Royan refuted her arguments, pointing out that the points raised by the government are irrelevant at this stage of the hearing; and that the ministry had limited the word “Allah” to a particular faith, and therefore a declaration could be sought through judicial review because the restriction was not by a private individual, but by the Minister and the government.

Royan had also questioned the source of the Minister’s powers to determine that a particular faith community (Catholics) should be prohibited from using a particular word in its faith language, and whether the use of such words could be restricted to a particular religious community.

The Herald had earlier contended that the use of the word Allah, an Arabic word which is not exclusive to Muslims, had been generally used by Arabic Christians since time immemorial, for as well as by East Malaysians, to mean ‘God’.

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