Kuala Lumpur Archbishop Files For Leave To Federal Court In Herald Allah Case

The Archbishop of Kuala Lumpur has filed his application for leave to refer 26 questions of law to the Federal Court. The Application was filed on 11 November 2013 through his solicitors Fernandez & Selvarajah.

The Application is filed against the decision of the Court of Appeal made on 14th October 2013 that allowed the Government’s appeal prohibiting the Herald, the Catholic weekly newspaper from using the word ‘Allah’ in its Malay language edition.

The 26 questions raises inter alia Administrative, Constitutional and Human Rights issues. The questions are set out as follows:

1. Where the decision of a Minister is challenged on grounds of illegality or irrationality and/or Wednesbury unreasonableness, whether it would be incumbent on the Minister to place before the Court the facts and the grounds on which he had acted?
2. Whether the decision of a Minister is reviewable where such decision is based on ground of alleged national security? Is the mere assertion by the Minister of a threat to public order, or the likelihood of it, sufficient to preclude inquiry by the Court?
3. Whether in judicial review proceedings a Court is precluded from enquiring into the grounds upon which a public decision maker based his decision?
4. Where the decision of the Minister affects or concerns fundamental rights, whether the Court is obliged to engage in a heightened or close scrutiny of the vires and reasonableness of the decision?
5. Whether the characterisation of the Minister’s discretion as an absolute discretion precludes judicial review of the decision?
6. Whether the decision by the Minister to prohibit the use of the word ‘Allah’ is inherently illogical and irrational in circumstances where the ban is restricted to a single publication of the restricted group while its other publications may legitimately carry the word?
7. Whether the use of a religious publication by a religious group within its private place of worship and for instruction amongst its members can rationally come within the ambit of a ministerial order relating to public order or national security?
8. Can the Executive/State which has permitted the use of the word ‘Allah’ in the Al Kitab prohibit its use in the Bahasa Malaysia section of the Herald – a weekly newspaper of the Catholic Church (‘the Herald’), and whether the decision is inherently irrational?
9. Whether it is legitimate or reasonable to conclude that the use of the word ‘Allah’ in the Herald which carries a restriction ‘for Christians only’ and ‘for circulation in church’ can cause confusion amongst those in the Muslim community?
10. Whether the claims of confusion of certain persons of a religious group could itself constitute threat to public order and national security?
11. Whether Article 3(1) of the Federal Constitution is merely declaratory and could not by itself impose any qualitative restriction upon the fundamental liberties guaranteed by Articles 10, 11(1), 11(3) and 12 of the Federal Constitution?
12. Whether it is proper to construe Article 3(1) in a manner that does not take into account the historical constitutional preparatory documents, inter alia the Report of the Federation of Malaya Constitutional Commission 1957 (the Reid Commission Report) the Constitutional Proposals for the Federation of Malaya [Legislative Council Paper No. 41 of 1957] (the 1957 White Paper) and the Report of the Commission of Enquiry, North Borneo and Sarawak, 1962 (the Cobbold Commission Report)  that the declaration in Article 3(1) is the religion of the Federation is not to affect freedom of religion and the position of Malaya as a secular state?
13. Whether it is appropriate to read Article 3(1) to the exclusion of Article 3(4) which carries the guarantee of non-derogation from the other provisions of the Constitution?
14. Alternatively, whether Article 3(1) could conceivably be read as derogating from the fundamental rights guaranteed by Part II of the Federal Constitution or as having precedence over the fundamental rights in Part II for the reason stated by the Court of Appeal that it is found in Part I that precedes Part II?
15. Whether on a true reading of Article 3(1) the words ‘other religions may be practised in peace and harmony’ functions as a guarantee to the non-Muslim religions and as a protection of their rights?
16. Whether it was ever intended by the Reid Commission Report or the White Paper or on a proper reading of the Federal Constitution that Articles 10, 11(1), 11(3) and 12 of the Federal Constitution are to be read as subject to Article 3(1) of the Federal Constitution?
17. Whether the right of a religious group to manage its own affairs in Article 11(3) of the Federal Constitution, including to decide the choice of words used in its religious books, materials or publications can be restricted by the State/Executive, on the ground that some persons of another religious group may be confused.
18. Whether the avoidance of confusion of a particular religious group amounts to a public order issue to deny another religious group its constitutional rights under Articles 8, 10, 11(1), 11(3) and 12 of the Federal Constitution?
19. Whether it is correct to say that the word ‘God’ which has been translated ‘Allah’ in the Al Kitab (the Bahasa Malaysia/Indonesia translation of the Bible) and used in worship and liturgy for generations by the Bahasa Malaysia and indigenous Christian community in Malaysia is not an essential or integral part of the faith and practice of such Christian community?
20. Whether the prohibition of the use of the word ‘Allah’ by one religious group in a restricted and arbitrary way on freedom of speech meets the test of reasonableness and proportionality envisaged by Article 10 of the Federal Constitution?
21. Whether the dissatisfaction of certain persons within a religious group which is expressed in threats or threatened incidents of violence can be sufficient ground to deny the fundamental liberties in Part II of the Federal Constitution?
22. Whether it is appropriate for a court of law whose remit is the judicial function of determining legal questions to embark on a suo moto research and make pronouncements or determination of theological questions or engage in discussion of comparative religions?
23. Whether it is legitimate for the Court of Appeal to use the platform of ‘taking judicial notice’ to enter into the non-legal thicket of theological questions or the tenets of comparative religions?
24. Whether the Court is entitled suo moto to embark upon a search for supportive or evidential material which does not form part of the appeal record to arrive at its decision?
25. Whether the Court can rely on information gathered from internet research without first having determined the authoritative value of the source of that information or rely on internet research as evidence to determine what constitute the essential and integral part of the faith and practice of the Christians?
26. Whether the use of research independently carried out by a Judge and used as material on which the judgment was based without it first been offered for comment to the parties to the proceedings is in breach of the principles of natural justice?

The Archbishop has stated in his Application that the questions raised are matters of grave public importance and of which the determination by Federal Court would be of public benefit.

The Federal Court in its usual process will set a date for case management of the matter with all parties in chambers before a date is fixed for hearing of the Application in the Federal Court.