MAIS, JAIS should adhere to the AG’s decision and abide by the Federal Constitution

The Malaysian Bar supports the Attorney-General’s decision not to prosecute the Bible Society of Malaysia (BSM) over the more than 300 copies of the AlKitab (Bahasa Malaysia bible) and Bup Kudus (Iban bible) that contained the word Allah and that were seized by Jabatan Agama Islam Selangor (Jais) on 2 January 2014.

The Malaysian Bar views with much concern reports of the refusal by Majlis Agama Islam Selangor (Mais) and Jais to abide by the findings of the Attorney-General and to comply with his request that Jais take consequential and appropriate action in accordance with the law.

The AlKitab and Bup Kudus were confiscated by Jais pursuant to section 9(1)(a) of the Non-Islamic Religions (Control of Propagation Among Muslims) Enactment No 1 of 1988 of Selangor (“said Selangor Enactment”), which provides that a person commits an offence if he in any published writing uses any words listed in Part I of the Schedule “to express or describe any fact, belief, idea, concept, activity, method or thing of or pertaining to any non-Islamic religion”.  The word “Allah” is listed in Part I of the said Schedule.

The Attorney-General has stated that after due investigation, he has determined that the AlKitab and Bup Kudus are not publications in breach of section 9(1)(a) of the said Selangor Enactment, and has also taken into account the explanation by the Ministry of Home Affairs that the AlKitab and Bup Kudus do not involve issues of national security.

In such instance, Mais and Jais should abide by the determination and decision of the Attorney-General.

In the first place, it is alarming that the religious body or enforcement agency of one religion would purport to have jurisdiction or purview over other religions, non-Muslims and property belonging to non-Muslims.

This is not what is envisaged under the Federal Constitution.  The actions of Jais are purported to have been carried out pursuant to the said Selangor Enactment, in particular section 9(1)(a) thereof.

Secondly, 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.

The provisions of section 9(1)(a) are general in nature and ambit, and thus not confined to the purpose stated in the preamble of the said Selangor Enactment and within the limits prescribed in Article 11(4) of the Federal Constitution.

In order for section 9(1)(a) of the said Selangor Enactment to be valid, it must be construed and applied where the use of the prohibited words in a publication is shown or proved to be for the purpose of propagation of a non-Islamic religion to Muslims.

Any resort to section 9(1)(a) to prohibit the use simpliciter of the listed words without establishing propagation to Muslims would render such action to be ultra vires the purpose of the said Selangor Enactment and the Federal Constitution.

In the circumstances, the insistence by Mais that there are grounds to prosecute BSM, and that the Attorney-General has erred, is wholly misconceived and without legal basis.

Mais and Jais have no grounds to refuse to release and return the more than 300 copies of the AlKitab and Bup Kudus to BSM.

Further, the reported urging by Mais that the State Legal Advisor should apply for a court order pursuant to section 407A of the Criminal Procedure Code for the disposal of the seized AlKitab and Bup Kudus is not only incorrect, but insensitive.

The State Legal Advisor does not have locus (legal standing) to make any application under section 407A, as the Public Prosecutor is the proper party to make such application.

Furthermore, section 407 of the Criminal Procedure Code only applies if there is a pending trial, and section 407A when a criminal charge has been framed (as the section requires a certification by a Magistrate or Judge having the trial jurisdiction over the matter).

There is therefore no basis or foundation for any application under section 407 or section 407A. 

The Malaysian Bar calls upon Mais and Jais to adhere to the decision of the Attorney-General, conduct themselves within the purpose and ambit of the said Selangor Enactment, abide by the Federal Constitution, and immediately release the more than 300 copies of the AlKitab and Bup Kudus to BSM. – June 20, 2014.

* Christopher Leong is President of the Malaysian Bar.

- TMI