Religious raids: Can they or can’t they?

ON 23 May 2012, Federal Territory Islamic Religious Department (Jawi) officials raided two Borders outlets in Kuala Lumpur, confiscating copies of Irshad Manji’s book Allah, Kebebasan & Cinta (Allah, Liberty & Love) which was only later banned by the Home Ministry. Six days later, Selangor Islamic Religious Department (Jais) officials raided Manji’s publisher ZI Publications and arrested company director Ezra Mohd Zaid for allegedly publishing material that contravened syariah law. Borders’s employees were also summoned to Jawi headquarters for questioning and a Muslim manager from the bookstore chain may also be charged for selling the book.

Malaysians are used to having the Home Ministry and police conduct raids to confiscate books banned under the Printing Presses and Publications Act. This time though, the raids were conducted by Islamic authorities under syariah enactments. ZI Publications has stated it is considering legal action against Jawi for seizing its books without a court order.

What is the legality of these actions? And what are its implications on freedom of expression in Malaysia? The Nut Graph asks Bar Council human rights committee co-chairperson Andrew Khoo Chin Hock.

TNG: Under what laws are the Islamic authorities conducting these raids? Do these laws give them the power to raid corporations and confiscate books?

Section 16(1) of the Syariah Criminal Offences (Selangor) Enactment 1995 states that anyone who prints, publishes or disseminates any book or document containing anything contrary to Islamic law shall be guilty of an offence. Anyone found guilty may be fined up to RM3,000 or imprisoned for up to two years or both. The offence also includes anyone having possession of any such document for the purpose of selling or disseminating it.

The enactment goes on to state that the Syariah court may order the destruction of any such book or document, even if no one has been convicted of any offence in relation to the document. There are similar provisions in the Syariah Criminal Offences (Federal Territories) Act 1997.

These enactments, however, only apply to Muslims.

So do the enactments empower Jawi and Jais to raid companies such as Borders and ZI Publications which are corporations? Can they enter any establishment as long as there are Muslims in it?

The scope of Jawi and Jais’s authority is not altogether clear. In order to prove the charge, there needs to be evidence. How is this evidence to be obtained if the authorities cannot go into a shop and seize the evidence? But in order to do so, there would have to be a warrant, issued by the Syariah court.

The question is, can a warrant of the Syariah court be exercised against a company that runs a bookshop, in this case Borders, since the company is not a Muslim? The issue of jurisdiction may arise here. Regardless of the issue of having a warrant, the authorities would be acting under the authority of the state enactment. And so, the question is, does the state enactment’s authority extend to non-Muslims or to companies? This is a critical question when we live in a  multi-racial, multi-religious society.

Where does the constitutional right to freedom of expression stand in these religious raids? If some Muslims find a book offensive, does that mean it can be banned by the government and confiscated by Islamic authorities?

Freedom of expression is protected under Article 10(1)(a) of the Federal Constitution. However this freedom is not absolute.  Article 10(2)(a) allows Parliament to impose restrictions in the following circumstances:

a)    in the interests of the Federation’s security;

b)    friendly relations with other countries;

c)    for public order or morality;

d)    to protect the privileges of Parliament and state legislative assemblies; and

e)    to provide against contempt of court, defamation or incitement to any offence.

The constitution also gives states the authority to make laws in relation to the “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List.”

What if a publication is deemed “contrary to Islamic law” under state law, but does not fall within one of the exceptions in Article 10(2)(a) of the constitution?

The stipulation for a publication to be “contrary to Islamic law” falls within separate legislation, provided for under a different part of the constitution. Because such an offence comes under state law, the question is whether state law can override the constitution.

We could perhaps draw some inference from Article 5 of the constitution, on the right to life and liberty. Article 5(4) requires any person arrested to be brought before a magistrate within 24 hours. A proviso to this article deals with instances where a person is charged for offences triable in a syariah court. This proviso clarifies that in a syariah court, a person must still be produced within 24 hours, but before a syariah judge, instead of a magistrate.

This means that whatever procedure adopted by the syariah court cannot detract from the fundamental liberties under Article 5.

If fundamental liberties are to mean anything, then all laws relating to freedom of expression, even those enacted by state governments, ought to be made subject to Article 10. Moreover, Article 10(2)(a) states that only a law passed by Parliament can derogate from the fundamental liberty, not one passed by a state legislative assembly.

Jais also arrested Ezra Zaid, the director of ZI Publications, under Syariah laws. From a human rights and freedom of expression perspective, what are the implications of these recent raids, especially for Muslims?

Well, as can be seen, if an offence has been committed, it can only have been committed by a person. It cannot have been committed by a company because a company is not a Muslim.

But this case poses several interesting questions. From a religious perspective, what exactly is the content in Irshad Manji’s book that is contrary to Islamic law? Is the Syariah enactment only meant to apply to a religious publication? And if so, is Manji’s book such a publication?

If a practising Muslim has a personal view about his or her religion, and shares that view by putting it in a book, or tweeting it or blogging about it, or disseminating it in some way, is that person committing an offence? From what can be gathered about the book’s contents, Manji is not encouraging people to leave their faith or change their religion. She is merely encouraging people to think more deeply about their faith, and what it speaks or means to them in their daily lives.

In your view, should this book have been banned by the Home Ministry?

The Malaysian public is not so unwise or uneducated that it needs to be protected to this degree. This is a book, written by one person, in which she states her own personal view. Does her personal view constitute a threat to the security of the federation or any part thereof? Will it disrupt public order?

Any other thoughts?

The authorities will not want to see this as civil human rights vs religious precepts. But this is clearly a situation where we have to ask which takes precedence – fundamental liberties under Part II of the Federal Constitution, or a state’s right to regulate the profession and practice of Islam under Part VI.

The civil courts would be the correct place for this question to be answered. The civil courts however have been very reluctant to assert Part II of the Constitution when it comes to questions relating to Islam.  For example, in February 2012, the Federal Court declined to answer five constitutional questions posed to it in relation to the religious status of a man and his now adult children. Instead, it classified the case as a simple determination of whether the man and his children were Muslims or not and remitted the case to the High Court to determine to which religion they belong. In all likelihood, the High Court will refer this question to the Syariah Court for determination. Or, it will dismiss the case, saying that this is for the Syariah Court to determine and outside the scope of the civil courts pursuant to Article 121(1A) of the Federal Constitution.

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Editor’s note: ZI Publications is the publisher of The Nut Graph’s books, Found in Malaysia and Found in Malaysia Volume 2 which is available in all good bookstores. ZI Publications also published The Nut Graph’s Understanding the Dewan Rakyat.