Archbishop Tan Sri Murphy Pakiam failed in his bid to strike out an appeal by Putrajaya to reverse a High Court ruling that allowed Herald, a weekly publication by the Archdioces of Kuala Lumpur, to use the word "Allah".
Court of Appeal judge Datuk Wira Abu Samah Nordin, who led a three-man bench, said the issue (the use of the word "Allah") was still alive and not academic.
"The controversy is not resolved," he said in a unanimous decision.
Abu Samah said the striking out application by the church was a drastic action to deny the government and the home minister the chance to have the appeal heard.
Abu Samah said the 10-point solution by the Cabinet in 2011 had no reference to the Allah issue.
"The government in coming out with the solution was fully conscious that their appeal on the Allah issue was pending," he said, adding that the church also did not make an application to include the 10-point solution as additional evidence to support their case.
Some 200 protesters from Malay-right group Perkasa and other organisations rallied outside the courthouse and shouted "Takbir, Allahu-Akhbar" after the ruling. They had gathered outside the court house since early in the morning.
In an immediate response to the ruling, S. Selvaraja, a member of the legal team for the church, said they would be ready for the appeal, which is scheduled for September 10.
Herald editor Father Lawrence Andrew said he respected the outcome although he was disappointed.
He pointed out that the 10-point solution allowed for the use of Allah in the Bahasa Malaysia version of the Bible, called Al-Kitab, but the newspaper could not use the word.
"So it is another form of restriction," he added.
Andrew, however, said all was not over yet and called on Christians to pray for blessings.
Earlier during proceedings, lawyer Porres Royen, who appeared for the church, said the Cabinet decision on the 10-point solution had implied that the Christian community could use the word "Allah".
"The effect is that the word can be used in Bahasa Malaysia, Bahasa Indonesia and native languages of Sabahans and Sarawakians," he said.
Prime Minister Datuk Seri Najib Razak had written a letter to the Christian Federation of Malaysia, the umbrella body of the religion about the Cabinet stand.
He said as such, the decision of the executive, who is a member of the Cabinet, superceded the stand of the home minister.
Based on the current position of the government and the minister, Royen said it was no longer necessary for the Court of Appeal to deliberate on the appeal.
Senior Federal Counsel Suzana Atan, however, said the appeal was not academic as there were still issues to be deliberated.
"This application as rebutted by the minister (Datuk Seri Hishamuddin Hussein) in his affidavit is frivolous and ought to be dismissed," she said.
She said the home minister had exercised his discretion under the Printing Presses and Publication Act 1984 to prohibit Herald from using the word Allah in the Bahasa Malaysia section of the periodical.
Hishammuddin in his affidavit had said the Cabinet, in deciding on the 10-point solution, did not make a decision on the use of the word Allah.
"When we made the announcement, the government was aware that there was an appeal pending against the Herald," he said in his affidavit.
Lawyer Mubashir Mansor, who appeared for the Terengganu Islamic Religious Council said the proceedings in the High Court were based on the home minister's decision made in January 7, 2009.
"It is a review on an administrative ruling whether the minister was reasonable to ban the use of the word Allah in the Herald," he said.
He said the appeal must be based on facts which existed at that time and not on a Cabinet stand in 2011.
Among other things, the prime minister said in the 10-point solution that Christians were free to bring in and use Bahasa Malaysia-language Bibles.
These Bibles contained the word "Allah" and had previously been seized by the authorities, sparking outrage among Christians in Sabah and Sarawak, who worship in Bahasa Malaysia and had used the word "Allah" for centuries.
The position taken by the Catholic Church is that given that the 10-point solution allows the import of books where the word "Allah" is used, it is illogical for the government to challenge its use in the Herald.
The controversy began when Hishamuddin's predecessor, Datuk Syed Hamid Albar, signed an order prohibiting the Herald from using the word "Allah" in its publication.
This led to a suit by Pakiam in March 2009 in which he named the home ministry and the government as respondents.
Among other things, the church sought a declaration that Syed Hamid's decision was illegal and that the word "Allah" was not exclusive to Islam.
On December 31, 2009, judge Lau Bee Lan allowed the church's judicial review application and lifted the home minister's ban, declaring that the minister's ban was illegal, null and void.
The Herald is published in four languages, and has been using the word "Allah" as a translation for God in its Bahasa Malaysia-language section, catering to East Malaysians in the peninsula, since September 1995, but the government argued that "Allah" should be used exclusively by Muslims.
Though the Catholic Church brought the suit against the government, other Christians and even the Sikh community have made it clear that the word "Allah" should not be exclusively for Muslims, pointing out its long usage in Malaysia and other countries. - August 22, 2013.