Bible Raid – Betwixt and Between Federal and State By Andrew Khoo
Malaysiakini 19 Jan 2014 LINK
Quite early on in the aftermath of the raid on the premises of the Bible Society of Malaysia on Jan 2 by officers from the Jabatan Agama Islam Selangor, accompanied by members of the police, politicians from the government and also federal ministers, had begun suggesting that instead of criticising the federal government, blame for the raid should be directed at the Selangor state government, since issues relating to the religion of Islam are a state matter under the federal constitution.
That view was very clearly encapsulated by the Minister in the Prime Minister’s Department in charge of Law, Nancy Shukri (right), in remarks she was reported to have made after the opening of the legal year ceremony of the High Court of Sabah and Sarawak in Kuching on Friday.
With respect to the honourable minister, the situation is not quite as simple as she is reported to have made it out to be.
Article 10(1)(a) of the federal constitution states that “every citizen has the right to freedom of speech and expression.”
Article 10(2) states that “Parliament may by law impose – (a) on the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.”
For the present purposes, the key words in Article 10(2) of the federal constitution are “Parliament” and “restrictions”. It is only Parliament that can pass laws to impose “restrictions” on a citizen’s freedom of speech and expression.
Not a state legislative assembly, not their royal highnesses, the Malay rulers. Only Parliament. And only “restrictions”, not outright prohibitions.
Further, paragraph 4 of the federal list under the ninth schedule to the federal constitution clearly places “civil and criminal law and procedure and the administration of justice” within the jurisdiction of the federal government.
Paragraph 21 of the federal list places “newspaper, publications, publishers, printing and printing presses” also within the jurisdiction of the federal government.
It is therefore the duty and responsibility of the federal government to ensure that state legislation does not encroach into areas which are clearly within the purview of Parliament and/or the federal government.
In the case of the 10-point solution, which is a policy statement of the federal government in relation to the freedom of the Christian community in Malaysia to express the name of God in one’s own language in print, and to distribute such publication, it is the duty and responsibility of the federal government to ensure that state law in Semenanjung Malaysia, Sabah and Sarawak does not restrict such freedom of expression.
Any such restriction would be ultra vires the federal constitution. Therefore, the federal government cannot wash its hands Pontius Pilate-like and say that it has nothing to do with this issue.
But what then do we make of Article 11(4) of the federal constitution, which states that “state law and in respect of the Federal Territories of Kuala Lumpur, Putrajaya and Labuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.”
This is a clear provision of the federal constitution, and cannot be ignored. However a harmonious reading of Articles 10 and 11 of the federal constitution would entail a careful and delicate understanding of the interplay of the provisions of these two equal articles of the federal constitution, whilst again bearing in mind that Article 11(4) uses the words “control” and “restrict” but does not contain the word “prohibit”.
It remains to be seen whether any existing “control” or “restriction” will have gone too far and constitute an outright prohibition, which would then be a violation of the federal constitution.
The best way to appreciate this interplay is to analyse one of the state enactments that purports to apply Article 11(4) of the federal constitution.
Since the raid on the premises of the Bible Society of Malaysia was carried out in the state of Selangor pursuant to powers allegedly contained in the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988, it would be useful to analyse the wording of this enactment.
The preamble to this enactment cites Article 11(4) of the federal constitution, thus outlining at the outset that the provisions of this enactment have been made pursuant to the provisions of Article 11(4) of the federal constitution. They must therefore be consistent with the provisions of Article 11(4) of the federal constitution.
Section 9 of the enactment is entitled “Offence relating to the use of certain words and expressions of Islamic origin” and reads as follows:
“(1) A person commits an offence if he -
(a) in any published writing; or
(b) in any public speech or statement; or
(c) in any speech or statement addressed to any gathering of persons; or
(d) in any speech or statement which is published or broadcast and which at the time of its making he knew or ought reasonably to have known would be published of broadcast, uses any of the words listed in Part I of the schedule, or any of its derivatives or variations, to express or describe any fact, belief, idea, concept, act, activity, matter, or thing of or pertaining to any non-Islamic religion.
(2) A person who is not a Muslim commits an offence if he, in the circumstances laid down in subsection (1), uses any of the expressions listed in Part II of the schedule, except by way of quotation or reference.
(3) A person who commits an offence under subsections (1) or (2) shall, on conviction, be liable to a fine not exceeding one thousand ringgit.
(4) The ruler in council may, by order published in the Gazette, amend the Schedule.”
Several observations need to be made in respect of the enactment. For there to be an offence under Section 9 of the enactment, one of the four circumstances (a) to (d) laid down in Section 9(1) must exist.
In the raid on the Bible Society of Malaysia premises, did any one of these four circumstances exist?
Did anyone at the Bible Society of Malaysia write any published writing, write any speech or statement, give any speech or statement to a gathering of persons, or publish or broadcast any speech or statement using any of the words listed in Part I of the schedule to the enactment?
Or did anyone at the Bible Society of Malaysia use any of the expressions listed in Part II of the schedule in any one of the four circumstances (a) to (d) laid down in Section 9(1) of the enactment? If not, no offence would appear to have been committed.
But even if someone did, it would be pertinent to ask the question, who was the audience?
Bearing in mind the provisions of Article 11(4) of the federal constitution, the use of the words listed in Part I of the schedule to the enactment or the use of any of the expressions listed in Part II of the schedule to the enactment cannot be unlawful unless the context is “the propagation of any religious doctrine or belief among persons professing the religion of Islam”.
If the enactment seeks to make it an offence to use the words listed in Part I of the schedule to the enactment or the use of any of the expressions listed in Part II of the schedule to the enactment outside of the context of “the propagation of any religious doctrine or belief among persons professing the religion of Islam”, then that would be ultra vires the federal constitution.
Context is all-important
In this case, the context is all-important.
Using certain words and phrases in the context of a church service where all those attending the service would be expected to be Christians, or at least non-Muslims, would take it out of the context in which there would be a commission of the offence under Section 9 of the enactment when read within the context of Article 11(4) of the federal constitution.
Again, this is something that the federal government should be in communication with the various state governments about – explaining the proper context of Article 11(4) of the federal constitution.
It cannot be the case that this is simply left to the respective state governments to decide, since the interpretation of federal law is also within the jurisdiction of the federal government under paragraph 4(e)(i) of the ninth schedule to the federal constitution.
Something has also been made of the fact that the Malay rulers, as head of the religion of Islam in their respective states, may have issued decrees or edicts on the use of certain terminology deemed the exclusive use of the religion of Islam.
The Malay rulers have always been accepted as the head of the religion of Islam in their respective states, and this was confirmed even when the British as colonial powers took over control of the Malay states beginning in Perak in 1874.
Article 181(1) of the federal constitution certainly affirms that “the sovereignty, prerogative, powers and jurisdiction of the Rulers and the prerogatives, powers and jurisdiction of the Ruling Chiefs of Negri Sembilan within their respective territories as hitherto had and enjoyed shall remain unaffected.”
However it should be noted that such “sovereignty, prerogative, powers and jurisdiction” are, in the opening words of Article 181(1) of the federal constitution, “Subject to the provisions of this constitution.”
The Yang DiPertuan Agong, and the Malay rulers, function as constitutional monarchs and are also subject to the provisions of the federal constitution.
Thus, the fundamental liberties of a citizen, such as freedom of speech and expression, have to be respected.
ANDREW KHOO is co-chairperson of the Human Rights Committee of the Bar Council Malaysia. He writes here in his personal capacity.