A-G’s decision should be final, say experts

©The New Straits Times (Used by permission)

KUALA LUMPUR: Legal experts have made it clear that the decision by Attorney-General Tan Sri Abdul Gani Patail not to charge the Bible Society of Malaysia (BSM) over the seized Bibles issue should be final.

That was despite the fact that there is a case to be made against BSM under Selangor’s Non-Islamic Religions (Control of Propagation Among Muslims) Enactment 1988.

Senior lawyer Datuk N. Sivananthan told the New Straits Times yesterday that the A-G was exercising his discretion as provided for under the Federal Constitution, and that his decisions could not be challenged.

“The Federal Constitution clearly states that the A-G has absolute authority in deciding whether a legal proceeding should be initiated or discontinued. Nobody, including the court of law, can dispute his decisions.”

Under Article 145(3) of the Federal Constitution, the A-G has the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a syariah court, a native court or a court-martial.

Constitutional law activist Syahredzan Johan agreed with Sivananthan, saying no parties could object to the A-G’s decision not to press charges against BSM as the matter was not a syariah offence.

The issue began on Jan 2 when the Selangor Islamic Religious Department (Jais) raided BSM’s premises in Damansara, seizing more than 300 copies of Malay and Iban language Bibles, which had used the word “Allah” to refer to God.

However, the A-G had, on Wednesday, decided that there would be no prosecution against BSM and closed the case, pointing out that the 321 Bibles seized by the Selangor religious authority were not “controlled items” and it was not a security issue.

His decision was challenged three days later by the Selangor Islamic Affairs Council (Mais), which claimed that the A-G’s decision could cause confusion among Muslims and that the Selangor government had no authority to instruct Jais to return the Bibles to BSM.

Mais had said its decision to get a court order to decide on the fate of the seized Bibles was sanctioned by Sultan of Selangor Sultan Sharafuddin Idris Shah as head of the state’s Islamic affairs. It also believed that there was a case to be made against BSM under Enactment 1988.

Another legal expert, Nizam Bashir, said Mais was right in its view that it had a case against BSM under the enactment.

“Save and unless BSM challenges whichever provision of the enactment, in law, those sections are constitutional and Mais can rely on those sections in stating that they have a case against BSM.”

Nizam, however, opined that Section 9 of the enactment did not specifically mention the word “propagation”, and said using prohibited words per se was insufficient.

“Section 9 basically says it is an offence to use certain specified words (of Islamic origin) in anything related to a non-Islamic religion.

“However, in that section of the law, the words ‘to express or describe any fact, belief, idea, concept, act, activity, matter or thing of or pertaining to’ do not necessarily mean ‘for the purpose of propagation’.

“The enactment, specifically provisions that have ‘propagation’ missing as a requirement, does not meet the legislative hurdle set in place by Article 11(4) of the Federal Constitution.”

Article 11(4) allows state governments to form enactment to restrict the propagation of non-Islamic religions among Muslims.