WHEN the Petaling Jaya City Council (MBPJ) sent two officers to inspect the Bible Society of Malaysia (BSM)’s premises in Damansara Kim, MBPJ deputy mayor Puasa Md Taib explained the visit by stating: “Given the controversy recently, we decided to be proactive and get full information regarding the building. It is our responsibility to know when the building approval was received, to check on its licence, etc.”
This justification was echoed by Pakatan Rakyat (PR) elected representatives, who said that the council was merely following standard operation procedures (SOPs) which had resulted in a misunderstanding.
Was the inspection of the BSM’s premises, right after it had been illegally raided by the Selangor Islamic Religious Department (Jais), justifiable? And what are the larger issues surrounding both the Jais raid and the city council’s action?
An apology and explanation for the visit were tendered on the same day of MBPJ’s site inspection. But was there really a need for the council to investigate in the first place?
Building plans are approved by the MBPJ Building Department. When a building is completed, an officer inspects the building. If the building was built according to specifications, a certificate of fitness or a certificate of completion and compliance is issued.
The building plans are then transferred to the MBPJ Valuation Department to enable the council to calculate the assessment charges and bill the building owner accordingly. These plans are then kept as a permanent record.
Meanwhile, the licensing department simply needs to cross reference its database to see if the business premise was properly licensed.
If we are to believe the deputy mayor about the information required by the council, there would actually have been no need to investigate the BSM’s premises. So was the council’s action harassment, as alleged by the BSM? Or has MBPJ indirectly admitted that it is really bad at record keeping — that it is incompetent?
Nevertheless, MBPJ did send officers to investigate the BSM and claimed that the exercise was in adherence with its SOP. This was subsequently verified by PR elected representatives. This has legal ramifications, as per Section 125 of the Local Government Act:
125. (1) No matter or thing done and no contract entered into by the Commissioner of the City of Kuala Lumpur or by the Mayor or President, Councillor, officer or employee of the local authority or by any person acting under the direction of a local authority shall, if the matter or thing was done or the contract was entered into bona fide for the purpose of carrying out the provisions of this Act or of any by-laws, rules, or regulations subject him personally to any action, liability, claim or demand whatsoever.
(2) Any expense incurred by the Commissioner of the City of Kuala Lumpur, Mayor or President, Councillor, officer or employee or person under subsection (1) shall be borne and paid out of the Local Authority Fund.
With the council’s inspection of the BSM classified as SOP, the officers are indemnified from being personally liable. And if the council is sued, it would be able to pay for legal fees and damages, if any, with ratepayers’ money.
The law is meant to protect the government and officers who serve under it from malicious lawsuits. But it is also apparent that the SOP can be easily abused to cover up any ill intent or incompetence on the government’s part. For example, wasn’t Jais’s illegal raid of the BSM premises and the arrest of its staff also part of its SOP? Indeed, the PR-led Selangor government has confirmed it as such.
Who’s in charge?
The real question is, who is in charge of governance at the state level? And is the Selangor government capable of offering solutions that can protect the constitutional rights of citizens and bodies within the state?
Following the 2 Jan 2014 Jais raid of the BSM, Selangor Menteri Besar Tan Sri Abdul Khalid Ibrahim has attempted to introduce a new SOP for Jais — in the future, the religious authority must obtain the state exco’s permission before it conducts raids.
Unfortunately, these instructions are not solutions and are akin to sweeping problems under the carpet. It remains a fact that the Selangor Non-Islamic Religions (Control of Propagation among Muslims) Enactment 1988, which Jais relied on to raid the BSM, could still be enforced if the state government wished to.
Additionally, there’s already rebellion from within the ranks of Jais, not to mention objections from the Selangor Islamic Religious Council. Jais enforcement officer Salehuddin Saidin has declared that the Selangor state exco cannot change the agency’s SOPs.
For certain, this is only an opinion. Department heads can introduce new procedures to carry out the law. And since department heads can get transferred or sacked for insubordination if the state exco so orders, the menteri besar’s directive to change the SOP surely cannot be ignored.
Yet, many senior government officers are also under the federal-level Public Services Department, which can similarly transfer or freeze their promotion. This means that a conflicting set of orders can be given by both the state and federal governments.
The result is what we’ve seen happen in the past: an MBPJ mayor being transferred or a state secretary being appointed without the state government’s consent, creating a tussle over jurisdiction and providing no solution.
Passing the buck
With these uncertainties over who’s really in charge, the public outrage from Muslims and non-Muslims alike over Jais’s actions, and the crossing of legal boundaries, it has become easier for both the Barisan Nasional (BN) and the PR to keep passing the buck to each other.
When it comes to the Jais raid, the PR Selangor government cannot simply cast blame on the BN. Why? Because it is well within the state government’s right and jurisdiction to either amend the Selangor Non-Islamic Religions (Control of Propagation Among Muslims) Enactment 1988, or declare and affirm that the law is valid.
Indeed, a proposal to amend the enactment has already been mooted by three DAP state assemblypersons. However, the PR leadership has taken the trio to task over their proposal.
Therein lies both a challenge and an opportunity for the Selangor government. It has the opportunity to take a clear position on what’s happening in the state, and to demonstrate who is in charge in Selangor. The challenge is whether it will take a clear position. If it doesn’t, it will only allow itself to be sabotaged, and to be seen as a weak, indecisive and ineffective government.
KW Mak believes the problem with most politicians is that they consider issues to be like a math equation: how many votes is an issue worth?
Sunna Sutta says
The autonomous powers of JAIS with respect to its moral and religious policing functions can be understood in terms of the special position of Islam, not only in the Federation but in every state. In matters of Islam, the position of the Malay Ruler is paramount. In the Islamic religious domain, the monarch in fact supersedes the elected state government. The JAI in each state acts as the representative of the state’s royal custodian of Islam. [N.B. The Yang di-Pertuan Agung is the paramount head of Islam in states and federal territories which do not have Malay Rulers].
What is most disturbing about JAIS’ raid on BSM is that its target was a non-Muslim organisation. Even in the context of the 1988 Enactment, JAIS clearly exceeded its jurisdiction. At least with the JAWI raid on Borders, there was a convenient Muslim scapegoat to arrest! As for the question of whether JAIS adhered to the existing SOP, apparently JAIS “forgot” to inform the State Exco and even if it had “remembered” to follow the expected protocols, it would not have mattered anyway and JAIS would have proceeded with the illegal raid.
The policing powers of an agency whose authority overrides that of state government is unprecedented in recent history and one has to go as far back in history as Nazi Germany to compare it with that of the Gestapo!
Apparently, JAIS now has allies at an even lower level of government – local government – which also have the same power to disregard state government SOP! These are indeed difficult days for minorities in Malaysia; a reign of terror seems to be emerging!
KW Mak says
@ Sunni Sutta
Administratively, any action that government officers take must be justifiable in court, and that means that if any wronged party takes the government to court, there would be paperwork to show that what the officers have done was not out of line. Such details are handled by the government of the day. You won’t find the Sultan doing all these nitty-gritty work and you won’t be suing the Sultan either if officers are enforcing the law. You sue the government.
Therefore, had the raids not been classified as SOPs, the officers would have been in serious trouble. And the ones who actually classified them SOPs were Pakatan Rakyat politicians.
So I will have to disagree that a ‘forgetful’ Jais shows that it was being autonomous. In fact, it was clarified by the politicians that Jais did not need to inform the State Exco and that everything was done according to SOP. So Jais’ actions, whether you agree with it or not, was ultimately sanctioned by the PR led Selangor government.
This case is also reminiscent of the DUMC dinner event where that was raided by Jais. Although there were calls for DUMC to be closed down (and it could be closed down if we really followed the National Land Code on this), the Selangor government chose to turn a blind eye on the matter. I wrote about it here: http://www.thenutgraph.com/can-mbpj-shut-down-dumc/
Sunna Sutta says
It was never my intention to defend the PR-led Selangor government. The pussy-footing action, or rather inaction of the state government is simply inexcusable. In the final analysis, you are indeed correct; JAIS did follow the established state SOP, whether with or without permission.
However, what riles me most is the fact that the 1988 enactment was the work of the then BN-led state government but Putrajaya has the audacity to turn the knife back at the state government. The latest Putrajaya announcement states that the Federal government stands by the 10 point solution and that the controversial seizure of the 300+ copies of the Malay and Iban language Bibles is a matter that should be solved by the PR-led state government and Idris Jala. The usual deafening silence from the PR-led Selangor government in response to BN’s public washing of hands makes the situation all the more exasperating.
The inexcusable inaction of Pakatan Rakyat is bound to have further repercussions. I foresee that hidden hands that are already at work will soon prompt Penang’s JAIPP to carry out copycat raids on Christian organisations and places of worship to enforce the ‘Allah’ ban in accordance with the state mufti’s fatwa of 2010 that is backed by the Syariah Criminal Offences Enactment (Penang) 1996. […]
What is the legal standing of JAIS? Is it to keep check on Malaysia’s Muslims? Whatever its raison d’etre it must defend its actions in the courts of the land. If it is to check Muslims then what is it doing raiding a non-muslim venue? The SS used to raid and destroy books it found not to its liking and they were not answerable to anyone. Is Malaysia going in that direction? I sincerely hope not.
KW Mak says
Jais is strictly a state government body and one that is meant only for Muslims. It cannot enforce its rules on Muslims living outside Selangor and has no jurisdiction over non-Muslims.
The confusion on the enforcement action was the presence of police officers in the initial raid. It is not unusual to have police officers accompanying a raid / investigation of another government enforcement agency, provided that the agency requesting it expects trouble.
What is clear from the news reports is that these officers acted without a warrant and could not have entered the premise or conduct any sort of inquiry or arrest anyone or charge anyone. They could only have done so if there was a warrant, and it would have to be a very specific investigation (*named person* being investigated for attempting to proselytise a Muslim).
The fact that the PR-led Selangor government has chosen to exonerate Jais’ actions against a non-Muslim organisation means that the PR-led government has chosen to ignore the Federal Constitution and the action is akin to the Jais raid on the Borders book store. They simply had no jurisdiction.
The PR government has hardly been the exemplar of good governance that they touted themselves to be where religious rights are concerned. This should give you an idea of where Malaysia is headed and perhaps answer the question you posed.
Sunna Sutta says
Just a small correction; the Borders raid at Mid Valley was conducted by JAWI. Apart from that, you are absolutely right. It is alarming that an increasing number of JAI are taking measures that exceed their jurisdiction, in the process of which the civil rights of non-Muslims are violated while state and federal authorities stand by impotently!
KW Mak says
I just want to post this FMT report here as a reminder / proof that the Selangor Exco did indeed have the power to order Jais around. The only sad thing here is that it took them forever to make this decision.
Selangor Islamic Religious Department (Jais) is expected to return the 320 confiscated Bibles in the Malay and Iban languages by Friday, said Selangor executive councillor for religious affairs Sallehen Mukhyi.
“The state exco decided that the confiscated Bibles are to be returned a week after the Chinese New Year. I will follow up on this,” he said.
Sunna Sutta says
Well, Friday came and went but JAIS did not return the confiscated Bibles. I agree with you that the Selangor State Exco wanted to show that they have the power to order JAIS around but it seems that JAIS is intent on demonstrating that they only take their orders from a “higher” power. Still, we have to wait until 21 February to be certain as the state exco’s statement may be taken to mean a week from the last day of the Chinese New Year period.
Until then this unhappy situation that appears to drag on indefinitely resembles a classic Mexican standoff involving three parties – the Islamic religious authorities (JAIS, MAIS and JAKIM), BN state and federal leaders, and the PR-led state government – with BSM haplessly caught in the middle. Because no party wishes to be the first one to make the wrong move, all three are reduced to pussy foot shuffling.
I strongly suspect that JAIS has learnt from the JAWI experience with Borders that civil law does not favour them. Hence, JAIS would probably wish to avoid having the case brought to the High Court at all costs but like JAWI does not want to be seen to lose face. Perhaps they will fall back to “home ground” advantage by getting a Syariah Court order to destroy the 320 Bibles!
KW Mak says
@ Sunna Sutta
If Jais comes out and claims that the entire visit was done as part of the Syariah Court system, then BSM can very well sue both Jais and the Selangor government for wrongful use of the law – remember, the Syariah Court does not have jurisdiction over non-Muslims.
On the other hand, if it were done under the civil law system, then BSM can only question the procedure, which is how the Borders case was fought and won.
No, I don’t think the Selangor government wants to go down that slippery road of applying Shariah laws on non-Muslims, and you will note that both Jais and the state government have kept very quiet about what laws were used to exercise to investigate.
Sunna Sutta says
So it appears there is a new player in the game and the ball is frozen in the AG’s court until he returns from abroad. (http://www.themalaysianinsider.com/malaysia/article/seized-bibles-to-be-returned-after-attorney-general-completes-probe)
The shadow puppet play getting more and more intriguing. The time frame for the AG’s decision moves tantalisingly close to the Kajang by-election. Cheers.
KW Mak says
FMT’s report shows that the Attorney General is involved in the investigation. That’s the civil law system right there.
The Selangor Islamic Religious Department (Jais) will return bibles seized from the Bible Society of Malaysia (BSM) once the Attorney General (AG) has cleared the case.
That is the problem when unfair and unjust laws are being implemented. We will be stuck in many such catch-22 situations. Just look at the time frame of this issue and one will conclude that there is really something very wrong with this ban. From the time the word was banned in the mid 1980’s to the first confiscation of some Christian materials in 2007, there was no such controversy being played out. That was a good 20 year period. From 2007, things began to fester.
The Sidang Injil Borneo (Borneo Evangelical Church) Sabah and a Sarawakian Christian, whose materials were confiscated, then brought cases against the government. Until today, the cases are still pending to be heard. That is about 6 long years. Does the Judiciary know that justice delayed is justice denied? The history of the cases can be read at: http://www.themalaymailonline.com/print/malaysia/despite-court-ruling-other-allah-legal-challenges-to-proceed
For the Herald case, the High Court judgment favoring the publication was given in end-2009 and at the request of the government, the Herald agreed in good faith to suspend the judgment until the appeal has been heard. And it has taken almost 4 years to hear the appeal last year and the judgment was, not surprisingly, reversed. Again justice denied for so long.
Then, we have a few thousand copies of the Alkitab being confiscated in 2009 and only released 2 years later in 2011 with the 10 point solution being formulated leading to the Sarawak State elections. The solution was supposed to be encompassing and to resolve all the issues for the whole of Malaysia.
The Home Minister has also confirmed that the COA judgment only applies to the Herald as reported at: http://my.news.yahoo.com/zahid-insists-allah-ban-only-herald-despite-other-102900081.html Now, why the recent confiscation of the Malay Bibles? I feel that the government and the authorities are just leading the Christians on, with no sincerity to resolve the issue. Enough said.
KW Mak says
Fairness is subjective. To some Christians, it feels unfair. To others, it feels like a big fuss over a word.
To some Muslims, it is fair. To others, it is the tyranny of the majority.
The problem remains because the platform in which this problem was introduced was a political one, but instead of using the same platform to resolve the issue, we are resorting to using the courts, opinion pieces and public gatherings.
The ones who really need to chime in and debate these issues are the ones in state assembly and parliament. But both sides are all too happy to throw the issue back at each other and would not allow the issue to be even uttered at the very platform that created the mess.
If we can’t treat the cause, how can we resolve all the symptoms you pointed out?
@ KW Mak
Sorry for the delayed response. Yes, agreed that fairness is subjective due to the bias of the individual and to a great extent, the lack of information and knowledge on the subject matter.
When all the facts of the issue are made available, we could then make an impartial opinion. And when we apply certain principles such as the golden rule, we should be able to judge more objectively. After all, justice is about lawfulness and fairness.
The main cause of the controversy is the ban itself which has stirred up so much ill-feelings and animosity. We cannot blame the Church for bringing the case to court, as agreeing to the ban of the word would be tantamount to agreeing to being persecuted for using not only that word but a string of other words as well.
It is easy for the government to justify rescinding the ban and reverting to the status quo by explaining to the Muslims the historical use of the word by mainly Bumiputra Christians and stating the views of international Muslim clerics and ulama.