Consulting religious councils in 'Allah' case

The matter before the High Court in Jill Ireland v Menteri Dalam Negeri [2021] was an application for judicial review by the applicant, Jill Ireland, principally against the home minister.

After the matter was remitted to the High Court by the Court of Appeal in 2015, the Federal Territories Islamic Religious Council (MAIWP) and Selangor Islamic Religious Council (Mais) filed their respective applications to intervene in August and September of that year.

At about the same time, there was pending in the Court of Appeal the case of Jerry WA Dusing and Anor v Majlis Agama Islam Wilayah Persekutuan & Ors arising from the decision in Application for Judicial Review No: R2-25-407- 2007 (the Sidang Injil Borneo case).

Sometime in 2016 by agreement of all parties, the hearing of the applications by MAIWP and Mais were adjourned to await the outcome of the appeal in the Sidang Injil Borneo case.

The Court of Appeal gave its decision on the Sidang Injil Borneo case in September 2016. Following the decision of the Court of Appeal, MAIWP withdrew its application to intervene and was given the permission by the High Court to appear as amicus curiae (friend of the court) for the substantive hearing of the judicial review.

Mais proceeded with its application. Hearing date was fixed in December 2016. The High Court dismissed Mais' application to intervene in March 2017 but invited Mais to appear as amicus curiae.

The ground of decision was not reported but justice Nor Bee must have relied on the decision of the Court of Appeal in the Sidang Injil Borneo case wherein MAIWP applied to intervene. In that case, the Court of Appeal ruled that for MAIWP to intervene, it must demonstrate a direct interest in the instant case as it is the threshold test for an intervener to demonstrate direct interest.

The appellate court, however, could not see how MAIWP would be affected by any order of the court other than a circuitous reasoning which would not satisfy the direct interest test. MAIWP had no rights over and owed no liabilities to the applicant in the instant case or non-Muslims.

Be that as it may, the appellate court acknowledged that MAIWP had a positive role to play within its statutory mandate to assist the court as amicus curiae. Consequently, while MAIWP was denied the right to intervene, it was allowed to appear as amicus curiae in the High Court.

According to the appellate court, where a party does not have a right to intervene but because of the importance of the questions involved in the proceedings, the court may allow the party to appear as amicus curiae.

So, in Jill Ireland’s application for judicial review, Mais must have not satisfied the threshold test of direct interest. The Islamic religious council, however, was allowed to as appear as amicus curiae.

That perhaps explains the so-called unilateral withdrawal of the appeal. Both MAIWP and Mais were not parties in the case, only amici curiae.

Even so, it is understandable for them to be disappointed if they were not consulted on the decision to withdraw the appeal. They were amici curiae at the invitation of the court to assist the court on questions of importance in the proceedings.

Shouldn’t they be consulted?

The Quran itself says: “And consult them in the matter.” (Ali Imran: 159)

It is Malaysia Madani to consult.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.