By Zurairi AR
Malay Mail Online
October 9, 2014
PUTRAJAYA, Oct 9 — In a landmark case that will determine the extent of the freedom of expression in Malaysia, the country’s top court will weigh today the constitutionality of a state Shariah law to ban “religious” publications deemed against Islam.
Local publishing house ZI Publications Sdn Bhd and its director Ezra Zaid are challenging a Selangor state law that essentially criminalises any person who “prints, publishes, produces, records, or disseminates in any manner any book or document or any other form of record containing anything which is contrary to Islamic Law”, or “has in his possession any such book, document or other form of record for sale or for the purpose of otherwise disseminating it”.
If found guilty under Section 16(1) of the Syariah Criminal Offences (Selangor) Enactment 1995, the offender faces a fine not exceeding RM3,000 or two years’ prison, or both.
In addition, Section 16(2) of the same law empowers the state Shariah Court to order any book, document or other form of record to be “forfeited and destroyed”, even when nobody is convicted under Section 16(1).
State law versus federal law
“What is interesting here is that you have a state trying to restrict expression… Things like books and attire, those are things that only the Parliament is entitled to restrict,” the publisher’s lead counsel, Nizam Bashir, told Malay Mail Online ahead of today’s monumental hearing at the Federal Court.
“We don’t want a situation where the states says they also have the power to regulate them,” he added.
The court battle began nearly two years ago on May 29, 2012, when the publisher’s office was raided by officers from Selangor’s Islamic Religious Department (Jais), who confiscated 180 copies of “Allah, Kebebasan dan Cinta”, the Malay translation of a book titled “Allah, Freedom and Love” by Canadian author Irshad Manji, under Section 16 of the Selangor religious law.
The publisher contends that under the Federal Constitution, the Selangor state assembly does not have the power to enact Section 16 of the Syariah Criminal Offences (Selangor) Enactment 1995 as the scope is already covered by the Printing Presses and Publications Act (PPPA) 1984, a federal law made in Parliament.
The appellants also contend that the law contravenes Article 10 of the Constitution which guarantees the right of freedom of speech and expression to each citizen.
“One of the questions is whether the state assembly has the power to do so, given that it can only criminalise in relation to anything not in the federal list and not provided by federal law,” Nizam said.
Nizam and his colleague Malik Imtiaz Sarwar will be representing ZI Publications and Ezra who filed the challenge at the Federal Court here, pursuant to Section 4(4) of the Federal Constitution in April last year. They were given leave six months later.
While the publishing company and its director named the Selangor state government as the sole respondent in their suit, the Selangor Islamic Religious Council (Mais) and the Malaysian government have been granted rights to intervene.
ZI Publications and Ezra had previously sought for a review of Jais’ raid and seizure, in addition to Jais’ arrest and prosecution of Ezra, at the Kuala Lumpur High Court in October 2012, but failed to get a stay after the judge dismissed their application.
The High Court was reported to have cited Section 29 of the Government Proceedings Act 1956 as grounds for its inability to grant a stay against a state religious authority’s power to investigate and prosecute.
The publisher subsequently filed an appeal at the Court of Appeal, naming Jais, its director, its enforcement chief, Selangor Shariah prosecution chief, the Selangor state government, and the Malaysian government as the respondents.
However, the appellate court struck out the appeal when both ZI Publications and Ezra withdrew their suit, after they were granted leave to bring the case straight to the Federal Court.
Islamic religious authorities flex muscle
But today’s case is by no means the first time a legal challenge has been mounted against the country’s Islamic religious authorities.
In a similar case, a panel of judges at the Court of Appeal lambasted another Islamic authority in August this year for raiding a bookstore for a book that only got banned weeks later, with one judge labelling the action as self-indulgent.
In a high profile case, the Federal Territory Islamic Affairs Department (Jawi) prematurely raided a branch of Borders bookstore in May 2012, also for Irshad Manji’s “Allah, Liberty and Love” and its Malay translation, which was only banned by the Home Ministry three weeks later.
However, last month the Kuala Lumpur High Court overturned the Home Ministry’s ban, ruling the action unlawful.
The constitutional review of a state Shariah law today is the second so far this year, following a challenge by three transgendered women against Section 66 in Negri Sembilan’s Syariah Criminal Enactment 1992, which prohibits cross-gender attire.
Back in May, the transwomen contended in the Court of Appeal that the law used by the Negri Sembilan Islamic Religious Affairs Department’s (JHEAINS) violates constitutional articles governing freedom of expression and gender discrimination.
No verdict has yet been delivered for both the cases involving Jawi and JHEAINS.
For the life me, I have never understood how those who argue Article 121 (1a) was allowed to let off with their argument that it could work out practically..The fact of the matter is Islamic laws do not have principle of separation of power, state authorities because they derive their authority from Islamic text that do not separate much of anything..
It was going to be a matter of time, given that non-Muslims have little say on these laws, that not allowing the High Courts to have jurisdiction over Syariah would lead to these problems. Essentially having Article 121(1a) put the onus of separation of principles with politicians – how such a bad idea could have been allowed from the start much less for so long in this country?