Gross governmental failure over religious issues

by Tommy Thomas
Malaysiakini
Jan 10, 2014

COMMENT Last week’s raid by the Selangor Islamic Affairs Department (Jais), a government agency, on the office of the Bible Society of Malaysia (BSM) must be condemned in the strongest terms by all right thinking people.

Apart from being unconstitutional and in violation of the rule of law, it represents the worst kind of behaviour by government bureaucrats flexing their awesome powers over minorities. Occurring in a multi-ethnic, multi-religious society compounds the problem.

Twentieth century history across the globe is replete with examples where the safety of minorities is threatened by a majority abusing coercive state power; Nazi Germany being the most extreme.

Post-colonial developments since 1950 in Burma, British Guyana, Uganda, Fiji and Sri Lanka have illustrated the consequences of harsh treatment of minorities and the resultant irrevocable damage to the entire nation state when governments controlled by majorities abuse their power.

In other words, any historian will warn a plural society that it is a tinderbox insofar as ethnic and religious matters are concerned, and such issues must therefore be handled carefully, delicately and with sensitivity to minorities. One therefore cannot over-emphasise the responsibility of leaders to ensure fairness in such matters.

Since Jais has purported to rely on a law passed by the Legislative Assembly of Selangor, I shall consider whether that law authorises its actions.

The subject of Islam, and especially criminal enforcement of offences, is a complex matter under the Federal Constitution, with the Agong and the Malay rulers being the heads of Islam in their respective states, and legislative and executive power being shared by the federal government and the 13 state governments.

Fundamental liberties of all Malaysians (and indeed foreigners, however short-term their residence is in the country) are given entrenched protection in Part II of the Federal Constitution, the supreme law of the land.

BN, Pakatan to blame

Paramount among these liberties is an individual’s freedom of religion in Article 11(1) and the collective freedom of a religious group in Article 11(3). Additionally, the Jais raid should not have occurred because of the 10-point Solution reached by the federal government in April 2011.

Finally, the Selangor state government should not have permitted Jais, as its agency and subordinate to it, to carry out the raid. Hence, both the BN federal government and the Pakatan Rakyat state government are responsible for this state of affairs.

At the very least, the people of Malaysia are entitled to better political governance than that provided by both coalitions.

Perkasa, Utusan Malaysia and other extreme fringe groups propelling such drastic steps by the state agencies are insulting the intelligence and faith of millions of Muslims in Malaysia.

A student of history will point out how impressive is the faith of our Muslims despite the onslaught by successive foreign colonial powers from 1511 to 1957. The Portuguese, Dutch, British and Japanese occupiers of our land did not convert Muslims. That is the historical reality.

Having hundreds of Muslim friends and acquaintances for more than 50 years since primary school, I can personally vouch for their commitment and piety to Islam. None of them are shaken in their faith.

Muslims are secure and confident in their faith; they do not need the protection of the ultras. Hence, it is an absolute affront to Muslims to contend that Islam in Malaysia would be threatened because copies of the Bible in Malay containing the word ‘Allah’ would be used by some Christians in some churches.

This is especially so when not a single respectable Islamic scholar across the Islamic world outside Malaysia has supported the reasoning and conclusion of the recent Court of Appeal decision in The Herald case that the word ‘Allah’ wholly and exclusively belongs to Muslims.

They have all condemned the purported acquisition by a group of people of a word in a language that belongs to everyone and to no one.

The Selangor enactment

The Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment of 1988 is a law passed by the Legislative Assembly of Selangor to control and restrict the propagation of non-Islamic religious doctrines and beliefs among persons professing Islam.

If there is any doubt that the intention of the state assembly to enact this enactment, and the purpose of the enactment is to prevent proselytising Muslims to change their religion, such doubt will be removed when it is noted that express reference is made in the enactment to Article 11(4) of the Federal Constitution which states just that. It is critical to always keep in mind this limited purpose of the Selangor enactment.

Under the Selangor enactment, a person commits an offence if he persuades, influences or incites a Muslim to become a follower of a non-Islamic religion or forsakes Islam, punishable in Section 4, on conviction, with one year’s imprisonment.

A person commits an offence if he persuades, influences or incites a Muslim minor to receive instructions or take part in any act of worship of non-Islamic religions, punishable under Section 5, on conviction, with one year’s imprisonment.

A person commits an offence if he approaches or arranges for a Muslim to subject the latter to any speech on any matter concerning a non-Islamic religion, punishable under Section 6, on conviction with six months’ imprisonment.

Sections 7 and 8 create offences dealing with the sending or delivering of publications of any non-Islamic religions to Muslims or distributing in a public place any such material to Muslims.

It would be plain and clear that all the offences created in Sections 4 and 8 of the Selangor enactment have the object of prohibiting the conversion of Muslims to other religions.

Whether they can be the subject of criminal prosecution of non-Muslims is unclear from a reading of Article 74 and Item 1 of the State List in the Ninth Schedule of the Federal Constitution.

One assumes that Jais relied upon Section 9(1) of the Selangor enactment to seize the 300 copies of the Bible because they contain the word ‘Allah’. But Section 9(1) is plainly and clearly not enacted for the purposes of prohibiting the proselytising of Muslims because it goes far beyond that objective.

A person commits an offence under Section 9(1) if, in any publication or speech, he uses any of the words in Part I of the Schedule to the Selangor enactment to express or describe any fact or thing of any non-Islamic religion. Among the words listed in Part I is ‘Allah’.

Section 9(1) is not restricted to using the 25 prohibited words to convert Muslims, which is the whole purpose of the Selangor enactment. It is drafted in much wider terms, and covers an indeterminate and open-ended category of potential offenders.

The vital question that follows is: can the officers of the Bible Society, who are non-Muslim, be subject to criminal prosecution under Section 9(1)?

In my opinion, it would be unconstitutional for Jais to purport to extend the criminal jurisdiction of Section 9(1) over non-Muslims in circumstances where the Bible is being used solely for Christian worship among Christians, with absolutely no evidence of any attempt to convert Muslims to the Christian faith.

As the president of the Bar Council stated in his Jan 3 press statement: “It is alarming that the religious body or enforcement agency of one religion would purport to have jurisdiction or purview over other religions.”

This fact is so elementary, and yet so profound. It has been totally disregarded by Jais.

Najib’s letter to bishop

The impounding of the Bible in the Malay language in East and West Malaysia in early 2011 triggered religious concerns in plural Malaysia, prompting the federal government to discuss resolution mechanisms with Christian leaders.

The result was the 10-point Solution set out in the letter dated April 11, 2011, from Prime Minister Najib Abdul Razak to Bishop Ng Moon Hing, the chairperson of the Christian Federation of Malaysia.

The prime minister was at pains to point out that the 10-point Solution was “a collective decision by the cabinet”. Although this letter has been in the public domain for some time, and was relied upon by the Catholic Church during the hearing of the recent appeal of The Herald case before the Court of Appeal, it deserves to be reproduced so that every Malaysian can read it for himself or herself.

The Malay Bible referred to in that letter had been impounded by government agencies in Kuching and Port Klang because they contained the word ‘Allah’. Hence, the 10-point Solution was the product of complex negotiations to resolve the overriding problem of the use of the word ‘Allah’ in the Malay Bible. That was the factual basis of the letter.

Indeed, the prime minister’s letter cannot be interpreted in any other manner. Points 1 and 2 are of crucial significance because the government announces its policy of permitting the importation into and the printing in Malaysia of the Bible in Bahasa Malaysia/Indonesia.

Point 6 recognises the impossibility of having separate rules for East and West Malaysia; accordingly people travelling to and from either side of the South China Sea are free to bring along their Malay Bible. Point 8 contemplates the release of the impounded copies of the Bible: 30,000 in Kuching and 5,100 in Port Klang.

It would be reasonable for anyone to assume that once the 10-point Solution had been announced in April 2011, the problem of the use of the word ‘Allah’ in the Malay Bible would have been resolved once and for all. That is certainly the only interpretation one can reasonably give to the letter, read in its entirety against the background of the tension then prevailing in the country, and which it was intended to resolve.

Hence it would be reasonable to ask: why was this problem not resolved three years ago? The only reasonable response is that there is no political will to resolve this issue.

Indeed, there is short-term political gain to be made by fermenting the problem because it serves as the ideal distraction from the real ills facing Malaysians, particularly, rising costs of living caused by price hikes of nearly every basic item without any increase in salaries, wages or incomes.

Malaysians in the thousands must urge the Najib government, which issued the April 2011 letter, to comply with it immediately. It is as plain and simple as that.

Decisive past leaders like Tunku Abdul Rahman, Dr Ismail Abdul Rahman, Hussein Onn, and indeed Najib’s late father Abdul Razak Hussein, would have done just that. So, Najib, please act as the prime minister by acting at once on your own letter.

MB should issue apology

From the legal perspective, one should remind Jais, as a statutory authority, that it is subject to the law, as this eloquent statement from Chief Justice Raja Azlan Shah (as His Royal Highness the Sultan of Perak then was) in the Sri Lempah case in [1979] 1 MLJ 148 indicates:

“Unfettered discretion is a contradiction in terms… Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene.

“The courts are the only defence of the liberty of the subject against departmental aggression. In these days, when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law…”.
(my emphasis)

It is significant that Point 7 in the prime minister’s letter contemplates disciplinary action being taken against civil servants who do not comply with the directives requiring proper implementation of the cabinet decision in that letter. Accordingly, all the Jais officers who participated in the raid must be subject to such disciplinary proceedings.

From a political perspective, it is very disappointing that the Pakatan state government of Selangor allowed Jais to act in this arrogant and high-handed manner. It is absolutely unacceptable for proper political governance for the menteri besar and his executive council to wash their hands off this affair.

The menteri besar, as the duly elected head of government of Selangor, is responsible for the actions of all his state agencies. If these steps were taken without his knowledge, it would be shocking because it would mean that Jais is a rogue elephant – a state within a state.

If he knew about these actions before they were undertaken, he should resign. The voters of Selangor gave him a second mandate just eight months ago. But it was certainly not on the basis that he would allow a state agency to behave this way.

At the very least, a full public apology by the menteri besar is warranted, and a public undertaking that such conduct will never be repeated under his watch.

TOMMY THOMAS is a senior advocate and solicitor specialising in constitutional law.