Jais raid, Selangor law unconstitutional, say lawyers and Malaysian Bar

Two copies of the Bible in Malay (left) and the Iban dialect are seen in this picture illustration taken in Kuala Lumpur January 2, 2014. — Reuters pic
Two copies of the Bible in Malay (left) and the Iban dialect are seen in this picture illustration taken in Kuala Lumpur January 2, 2014. — Reuters pic

GEORGE TOWN, Jan 3 — The raid by the Selangor Islamic Religious Department (Jais) on the premises of the Bible Society of Malaysia (BSM) purportedly done under a Selangor state enactment from 1988 is unconstitutional, according to a number of lawyers as well as an official comment from the Malaysian Bar.

Bar Council President Christopher Leong said today the particular sections of the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment No 1 of 1988 of Selangor that was cited to authorise the raid was too general in nature.

“It is immediately apparent that the provisions of sections 9(1) and (2) are general in nature and ambit, and are not confined to the purpose stated in the preamble of the said Selangor Enactment and to the limits proscribed in Article 11(4) of the Federal Constitution. 

“These provisions purport to make it an offence to merely use the listed words or phrases. They purport to be general blanket prohibitions and offences, irrespective of whether the words or phrases are used in the course, or for the purpose, of propagation of a non-Islamic religion to Muslims.

“In such circumstances, resort to sections 9(1) and (2) would be ultra vires the said Selangor Enactment itself, as they go beyond the purpose and ambit of the said Selangor enactment as set out in its preamble, and as self-evident in its title. The impugned provisions are also unconstitutional, inasmuch as they are unsupported by Article 11(4) of the Federal Constitution.

“Further, Article 11(3) of the Federal Constitution effectively provides for each religion to be self-regulatory. This is to facilitate inter-religious harmony. It is therefore unconstitutional for JAIS, an Islamic body or enforcement agency, to have jurisdiction, powers and ambit over other religions or persons professing other religions. This encroachment is in any event against the spirit of the Federal Constitution,” said Leong.

Most lawyers The Malay Mail Online spoke to today also agreed with the official views of the Malaysian Bar.

“The state law was enacted under Article 11 (4) of the Federal Constitution that says a state law may control or restrict the propagation of any religious beliefs on Muslims but the Selangor enactment is a blanket ban and does not even require any actual propagation so it is not constitutional,” said lawyer Syahredzan Johan.

He said the enactment must be “read down” so that it is in line with the constitution as it can only be constitutional if there is actual propagation of proselytision and not just a blanket ban on any use of words such as “Allah”.

“Without this, it would be unconstitutional interference contrary to Article 11 (1) of the constitution that provides that a person has the right to propagate his or her religion, subject to Article 11 (4),” he told the Malay Mail Online in an interview.

Human rights lawyer Andrew Khoo concurred with his views by stating that the enactment that has placed a blanket ban on the use of 35 Arabic words that include “Allah”, “Alhandulillah”, “Shariah” and “Insyaallah” amongst others have exceeded the scope and extent of the constitution.

“How can the law stop me from using words like “Allah” or even “Insyaallah” if I’m talking to a non-Muslim who speaks Malay? The constitution does not say we can’t use these words at all, it just states the state law may restrict propagation of other religions on Muslims,” Khoo said.

He explained if a non-Muslim were to use those words, even the controversial “Allah”, while talking to another non-Muslim, there would not be elements of propagation of other religions on Muslims.

“So, how can a law stop me from using these words while talking to another non-Muslim when there was no propagation of other religions on Muslims?” he said.

The chairman of the Bar Council Constitutional Law Committee Firdaus Husni also said the Selangor enactment has to be read within the confines of Article 11 (4) of the constitution.

“In fact, the Article was stated in the preamble to the enactment so Section 9 therefore cannot be an outright ban, it must first be established that there is propagation,” she said.

Firdaus said it can also be argued that Islamic enactments can only apply to Muslims and jurisdiction of the Shariah courts cannot be extended to non-Muslims as provided under the State list in the Ninth Schedule to the Federal Constitution.

“Following this argument, Section 9 may be unconstitutional,” she said.

She then noted that while Article 3 of the constitution which states that Islam is the religion of the Federation but other religions may be practised in peace and harmony, it cannot be used as a blanket approval for acts done for the purpose of protecting Islam.

“Having said that, the Federal Constitution also provides for matters concerning the Islamic law and personal and family law of persons professing Islam through State enacted Shariah law but the state Shariah enactments cannot be applied on non-Muslims,”

“In fact, the jurisdiction of the Shariah courts does not extend to non-Muslims so bans and seizure of property of non-Muslims or raids at premises of non-Muslims done under the state Shariah enactments can also be argued as unconstitutional,” she said.

Constitutional and Shariah lawyer Nizam Bashir said section 9 was not reasonable and unconstitutional as it was not within the confines of Article 11 (4) of the constitution.

“All we have is a bible with the word “Allah”, but is there any evidence of propagation to Muslims?” he asked.

Noting this, three Selangor lawmakers have make it their mission to propose amending the Selangor enactment at the next state assembly sitting.

Damansara Utama assemblyman Yeo Bee Yin, Bukit Gasing assemblyman Rajiv Rishyakaran and Kampung Tunku assemblyman Lau Weng San said they will propose the amendments to protect the non-Muslims rights as enshrined under the constitution.

“The enactment should not be used to restrict anyone from practising and professing their own religion in their preferred language,” they said in a statement.

The amendments will also ensure that Muslims will continue to be protected from proselytisation.

The Jais raid on BSM yesterday had come under fire by various quarters with Pakatan Rakyat leaders and the Christian Federation of Malaysia (CFM) criticising the move as a violation of non-Muslims’ constitutional right to freedom of religion.

Jais had seized over 300 copies of the Alkitab and Bup Kudus, the bible in the Malay language and Iban language respectively, while two BSM officials were arrested by the police and told to report to Jais next Friday.

CFM had dubbed the controversial enforcement action by Jais as abusive and discriminatory against Christians while stressing that Jais or any other Muslim religious bodies should not have authority over another religion or it renders Article 11 of the constitution meaningless.

“This unconscionable conduct on the part of Jais and the federal police is not just an authoritarian abuse of power and an act of harassment against Christians in Malaysia.

“It is also a blatant and aggressive attack on the moral and multi-cultural fabric of our society which values inter-communal harmony and utmost respect for the sanctity of each other’s religious beliefs and books,” the CFM said in a two-page statement today.

Temperatures have risen of late over the so-called “Allah” row that remains unresolved four years after it shocked the nation and led to the worst religious strife in the country’s history.

The ongoing legal dispute between the government and the Catholic Church over its right to print the word “Allah” in the Herald’s Bahasa Malaysia section is still pending before the Federal Court, which is set to hear arguments from both sides on February 24 before deciding on whether it will hear an appeal by the Catholic Church.

Christians make up about 10 per cent of the Malaysian population, or 2.6 million. Almost two-thirds of them are Bumiputera and are largely based in Sabah and Sarawak, where they routinely use Bahasa Malaysia and indigenous languages in their religious practices, including describing God as “Allah” in their prayers and holy book.

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