Abide by the Federal Constitution; Focus on achieving harmony and unity — Bar Council Malaysia

Christopher Leong
President
Malaysian Bar
The Malay Mail Online
January 3, 2014

Jan 3 — The Malaysian Bar is concerned by reports that Jabatan Agama Islam Selangor (“JAIS”, the Selangor Islamic Religious Department) had on 2 January 2014 conducted a raid on the office of the Bible Society of Malaysia (“BSM”), confiscated more than 300 copies of the Alkitab (Bahasa Malaysia bible) and Bup Kudus (Iban bible), and arrested the President and the Office Manager of BSM. It is also reported that the President and the Office Manager have been required to present themselves to JAIS officers on 10 January 2014.

It is alarming that the religious body or enforcement agency of one religion would purport to have jurisdiction or purview over other religions. This is not what is envisaged under the Federal Constitution. The actions of JAIS are purported to have been carried out pursuant to the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment No 1 of 1988 of Selangor (“said Selangor Enactment”), in particular sections 9 to 13 thereof.

The said Selangor Enactment is stated in its preamble to have been enacted pursuant to Article 11(4) of the Federal Constitution, which provides that State law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. The purpose of the said Selangor Enactment is therefore an enactment against the propagation of other religions to Muslims or the proselytisation of Muslims.

However, section 9(1) of the said Selangor Enactment provides that a person commits an offence if he in any published writing, or public or broadcast speech or statement uses any of the words listed in Part I of the Schedule “pertaining to any non-Islamic religion”. Similarly, section 9(2) provides that a person who is not a Muslim commits an offence if he uses any of the expressions listed in Part II of the Schedule. Part I lists 25 Arabic words and Part II lists 10 Arabic phrases.

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.

Thus, any authorisation pursuant to section 10 of the said Selangor Enactment, or any notification or gazette purporting to vest JAIS with such jurisdiction or powers, would be repugnant to the Federal Constitution.

Accordingly, the raid, seizure and arrest by JAIS were unconstitutional and illegal. At a time when we should be exerting our energies and resources towards national reconciliation and harmony, the actions by JAIS are unnecessarily provocative and unwise.

We urge all Malaysians to act rationally and calmly, and continue to focus on achieving harmony and unity.