How Federal Court Knocked Out Herald


I have now seen a Press Summary of the majority decision of the Federal Court in the case of Titular Roman Catholic Bishop of Kuala Lumpur v. Menteri Dalam Negeri & Others (aka the Allah Case). With this, we can perform a better analysis of the judgment and understand its far-reaching effects.

It is not normal practice for the Federal Court to issue Press Summaries of the judges’ decision. Probably, the public importance of the case necessitated this interesting practice. The Press Summary for the majority decision ended with this rider: “This summary is merely to assist in understanding the Court’s judgment. The full judgment of the Court is the only authoritative document.” Presumably, the full judgment when released will not differ from the Press Summary but will expand on it.

I am only analysing the majority decision as it is the one that applies. The majority decision was announced or written by Chief Justice Arifin Zakaria (‘’CJ”). His judgment was concurred with by President of the Court of Appeal Raus Sharif, Chief Judge of Malaya Zulkefli Ahmad Makinudin and Federal Judge Suriyadi Halim Othman.

I have explained previously that an appeal to the Federal Court is not automatic. There are 2 stages: first, the losing party must get leave (or permission to appeal). Certain criteria must exist. Among them, the appeal involves new questions of law of public importance or involves interpretation of the Constitution. Secondly, once leave is granted, the Federal Court then hears the substantive appeal and decides whether the Court of Appeal had made a correct decision.

The lawyers for the Roman Catholic Church (“RC”) submitted 28 questions that should be answered by the Federal Court. The CJ grouped them into 3 groups: administrative law questions, constitutional law questions and general questions. The ruling of the Court of Appeal that the use of the word Allah was not an integral part of the Christian faith fell under the 3rd group.

Let’s see how the CJ dealt with the constitutional law questions first. The RC lawyers had argued that the state laws that banned the use of the word Allah had contravened Article 11 of the Constitution and consequently were null and void. Thus, the reliance by the Home Minister on these provisions to deny the Herald the use of this word was likewise unconstitutional. The High Court accepted this argument and ruled the relevant provision in the state law as unconstitutional. The Court of Appeal disagreed and ruled that the ban in the state laws were constitutional.

The CJ chose to sidestep this issue and declared this as a non-issue. As a non-issue, it could not be decided by the Federal Court and thus the entire group of constitutional law questions were thrown out. How did the CJ do this?

The CJ ruled that the prescribed procedure had not been followed. He said that Articles  4(3) and 4(4) of the Constitution provides that in order to challenge the validity of a state law, the RC must ask for a declaration and before doing so, must get leave from a Judge of the Federal Court. The state whose law is being challenged must be made a party to the lawsuit and be given the opprtunity to defend its law. He further said that under Article 128 only the Federal Court can hear such a case.

The RC had not done that. Instead, the RC applied for judicial review in the High Court.  The state was not made a party, only the Home Minister. The CJ said that this “collateral attack” on the state law could not permitted. Thus, the CJ said that the RC’s challenge of the state laws ought not even to have been heard by the High Court Judge for 2 reasons: “procedural  non-compliance and for want of jurisdiction.”

In other words, the CJ’s reasoning is that the constitutionality of the state laws that banned the use of the word Allah was never in issue in the High Court and Court of Appeal. Both courts had entertained an issue which should not have been brought before them or be considered by them. As, the constitutional law issues were non-issues (in the sense that by reason of procedural  non-compliance and for want of jurisdiction these issues were not properly brought before the courts and thus did not exist), they could not be issues or questions for the Federal Court to decide. Thus, the Federal Court cannot grant leave to hear these issues.

I will come back to the effect of such a decision. The CJ was then only left with the administrative law questions. Everything about this centred around the test used by the Court of Appeal. The RC lawyers argued that decided cases made it clear that a judge must apply an “objective” test to determine whether the Minister had made a correct decision. They argued that the Court of Appeal judges used the subjective test. Let’s not confuse ourselves with what objective or subjective means. The CJ said that, in spite of what the Judges actually said, he was of the view that the appeal judges had used the correct test, that is, the objective test. He also went on to say that even if he did not agree with the findings of the Court of Appeal, it was not open to him to grant leave. In other words, it was not a question whether Court of Appeal had made a right or wrong decision but whether the issue they had to decide involve questions of law that had never been decided before.

With the demolition of the constitutional questions, the only question left was whether the Minister was justified in making the decision that he did. If the ban in the state law went unassaulted, it was open to the Minister to rely on it as the basis of his decision.

Coming to the general questions, these were the ones that irked the Christian community as they felt that the Court of Appeal judges had no business making a ruling of a theological nature on the Christian faith. The CJ said that these remarks by Apandi Ali JCA were obiter dictum.

Now what is obiter dictum? It is another Latin expression cherished by lawyers. In a court case, there are certain issues which have to be decided by the court in order to decide a case. The decision of a court relating to issues of a case are the ratio decidendi ( literally, the reason for a decision) of the case. Findings or remarks on other issues which are not germane or crucial to the deciding of a case are obiter dictum (literally, peripheral views). For example, Mr A sues an employment agency for sending them an incompetent typist. The judge’s finding that the typist could not type is the ratio decidendi. His remarks that she was pretty and made the rest of the staff feel happy is obiter dictum.

The CJ said that Apandi Ali’s remarks were obiter dictum because “the Minister’s decision was never premised on theological considerations.” Thus, it was a matter which Apandi Ali need not comment on but if he did, it did not matter.

Although, it was left unsaid, the CJ could have gone further to say that Apandi Ali’s remarks related to issues that were not properly brought before the court (that is, the constitutional law questions). The only issue left was the correctness of the Minister’s decision.  Any of the appeal judges’ comments outside of that would not germane to the case and would be only obiter dictum.

Now, let’s consider the effect of the majority decision of the Federal Court. By side-stepping the issue, the Federal Court basically said that they were not making any ruling or expressing any view on the question whether the ban on the use of the word Allah in the state laws are constitutional or not. By saying that procedure had not been followed and therefore the state laws were not under challenge at all, the CJ is in effect nullifying both the High Court and Court of Appeal’s rulings that relate to the issue of the constitutionality of the ban of the use of the word Allah in the state laws. Therefore, the issue is still up in the air awaiting a definitive decision.

It is open to the RC to file a case in the Federal Court, first to apply for leave, and, if obtained, to go on to ask for a declaration that the state laws are unconstitutional when it banned the use of certain words. In such a case, the RC has to cite as defendants all the states whose laws are being challenged. Thus, the Federal Court decision has not shut the door on the rights of Christians. Instead, it has re-opened the doors.

How does the Federal Court decision affect 2 pending cases, the SIB case dismissed by the High Court and on appeal to the Court of Appeal; and, the Jill Ireland case, presently awaiting decision by the High Court?

The answer is that these 2 cases will suffer the same fate as they are exactly the same in terms of procedure as the Allah Case. These are cases of judicial review and brought against the Home Minister only. It means that these cases have also followed the wrong procedure by failing to comply with Articles 4(3), 4(4) and 128 of the Constitution. If the High Court Judge follows the Federal Court majority decision, she cannot consider the question of the validity of the ban on the use of the word Allah in the state laws. She can only consider the question whether the Minister made his decision properly and in accordance with law.