kheru2006 (kheru2006) wrote,
kheru2006
kheru2006

ILKAP National Law Conference 2014: "Law and Social Order: Current Challenges In Malaysia" Part IV

Allow me to highlight the salient points of the Federal Court decision in

The Herald case. The Minister of Home Affairs' prohibition of the publication using the word "Allah" in the Bahasa Melayu text of the

"Herald" was premised on national security, public order and public safety as the subject matter raised issues of religious sensitivities in this country. This prohibition was done in accordance with sections 6 and 12 of the Printing Presses and Publications Act 1984 and Condition 6, Form B, First Schedule of the Printing Presses and Publications (Licences and Permits) Rules 1984.

"National security" - that was the issue the Government was concerned with. It had nothing to do with freedom of religion. It was only concerned with national security.

Thus the Court of Appeal decision is confined to the publication of the Bahasa Melayu text of the Herald and not the Al-Kitab, which are two publications of entirely different characters. The Al-Kitab is the Malay version of the Bible and meant for Christians and for use in churches whereas The Herald is a newspaper which is also accessible online and can be read by Muslims as well as non-Muslims.

So actually the crux of the issue in the whole Kalimah "Allah" debate is whether it could be used to propagate Christianity to Muslims. It is not an issue of freedom of religion for Christians themselves.

The Court also reemphasized that the Executive is also the best party to decide on matters relating to national security and public order. Nor is the Minister obliged to wait for threat or violence to occur before making his decision. It suffices if there exists a potential for such threat to national security and public order. The Court further noted that the said prohibition in that case did not prevent the Christian community from practicing their religion and there was therefore no breach of the freedom of religion under Article 11 of the Federal Constitution.

The issue of the seizure of the Bibles from the Bible Society of Malaysia by Jabatan Agama Islam Selangor (JAIS) in January 2014 also appears to be finally resolved by the Selangor Menteri Besar's recent announcement that they will be returned. But this was not before the Attorney General's Chambers or rather the Attorney General was subjected to pressure and criticism on the Attorney General's decision not to prosecute the case and its' directive for the Bibles to be released by the agency that had seized them. It is welcomed that sooner or later everybody will come to see the light.

In that case, Chambers 11 June 2014 Media Statement explained that the Bibles concerned were not publications within the meaning of section 9(1)(a) of the said Enactment. This was based on the facts and evidence submitted, and taking into account the relevant provisions of the Enakmen Ugama Bukan Islam (Kawalan Pengembangan Di Kalangan Orang Islam) 1988.

In any case, as Chambers also pointed out in its statement, BSM was neither the author, publisher or printer of the books concerned to come within the scope of section 9 of the Enactment. BSM had merely imported the books which were published and printed in Indonesia with the intention to distribute them to Christians in Sabah and Sarawak only.

It is also noted that the Bibles which were seized at the KLIA recently, which arose out of a misunderstanding, have already been released to the importer concerned.

Seditious and injurious comments

In relation to seditious and injurious comments, first and foremost, it must be appreciated that we all have different perceptions of things. In other words, what is in reality may not be the way we see it. A lot depends on our backgrounds, upbringing, culture, religion and other factors. Furthermore, social precepts evolve with time and things which were considered treason or seditious in the 1900s are today considered acceptable practice. For example, Mat Salleh of Sabah was considered a pirate in the 18th century by the British but today he is considered a hero. Another example is questioning how the government carries out its policies. Today this is considered part of the democratic process.

But those who resort to debating issues in the public fora, including the social media, should also be aware of the need to exercise their freedom of speech and expression responsibly in case they overstep established boundaries and end up committing offences. As His Lordship Raja Azlan Shah J (as he then was) stated in PP v Ooi Kee Saik [1971] 2 MLJ 108, quoting the following passage from A.K. Gopalan v State of Madras AIR [1950] SC 27 with approval:

"There cannot be anything as absolute or uncontrolled liberty wholly free from restraint; for that would lead to anarchy and disorder ...".

In other words, there must be a limit to everything. Nothing is wholly free or without restraint.

In this regard, a distinction must be drawn between campaigns which are conducted in a civil manner, which invite mature discussion and debate on issues of concern as opposed to campaigns which affect national sovereignty, national security and public order. The latter category would necessarily encompass the attacks against each other's religions, race and culture, the institution of the constitutional Rulers and the Yang di-Pertuan Agong, as well as calls for the secession of Sabah and Sarawak from the Federation of Malaysia.

The point that must be recognized is that no government can stop its people from discussing matters which affect their constitutional and legal rights. That goes to the accountability and transparency of any elected government in any country in the world.

It must also be recognized that measures should be taken to respect the ideals established by the Federal Constitution - in letter and in spirit, whether it is concerning religion, citizenship of non-Malays, the special rights of Malay/ Bumiputra and the Orang Asal or the special position and privileges of the Rulers or the rights conferred on Sabah and Sarawak. All these rights must be respected and implemented unless and until the Federal Constitution is amended by a vote or referendum of the people. This is because all these are elements of the "social contract" and constitute the basic pillars of the Federal Constitution and Malaysia.

Ibrahim Ali's case

It should be recognized that statements such as those made by Ibrahim Ali and actions such as those of the church group that precipitated that statement do not contribute to the enhancement of social order and national unity.

In the Ibrahim Ali case, the Attorney General's Chambers has explained the facts in the Chambers Media Statement dated 27 October 2014. The police report that was made on 21 January 2013 against Dato' Ibrahim

Ali alleged that he had called on Muslims to seize and burn copies of the

"Al-Kitab" which contained the word "Allah" or other Arabic words, and also contained writing in Jawi during a press conference after the Perkasa Convention in UITM Penang. This supposed instigation was reproduced in the portal Free Malaysia Today dated 19 January 2013. To understand whether this statement was seditious or not, we must look at the full statement he made as well as the context in which it was made.

As has also been explained, Dato' Ibrahim Ali made his statement in reaction to a mass media report about a police report that had been lodged about the distribution of copies of these Bibles to students, including Muslim students, in front of SMK Jelutong on 17 January 2013. Both police reports and the allegations made were investigated by the Royal Malaysia Police. Decisions were then made, based on the evidence submitted. In the case of the persons who were distributing the Bibles, they were NOT prosecuted because there was no proof that they intended to give those Bibles only to Muslim students. Based on the facts, they really did not know the boys concerned were Muslims. Therefore it was decided not to prosecute them. But no one has questioned this non-prosecution although clearly the Bibles were distributed by these persons outside the school. Everyone accepted that the elements of section 298A of the Penal Code and section 5 of the Syariah Criminal Offences (Penang) Enactment 1996 were not fulfilled.

Moving on to the non-prosecution of Dato' Ibrahim Ali's actions, perhaps our clarification in the Media Statement should have been clearer than clear.

The AGC agrees with the comments made by certain parties that an offence under section 4 of the Sedition Act 1948 is not dependent on intention. The action of making a statement with a seditious tendency (as that term is defined in the Act) is enough. We are well aware of decisions such as that in Public Prosecutor v Ooi Kee Saik & Ors [1971] 2 MLJ 108 where His Lordship Raja Azlan Shah J stressed this very point.

The oft cited dicta of His Lordship Raja Azlan Shah J states that, "what the prosecution have to prove and all that the prosecution have to prove is that the words complained of ... were spoken by (the) accused ...

Once that is proved the accused will be conclusively presumed to have intended the natural consequences of his verbal acts and it is therefore sufficient if his words have a tendency to produce any of the consequences stated in section 3(1) of the Act. ..."

However it is also equally well established by case authorities that the alleged actus reus (action) element must be examined in its full context. In Ooi Kee Saik, His Lordship Raja Azlan Shah J highlighted that "The dividing line between lawful criticism of Government and sedition is this - if upon reading the impugned speech as a whole the court finds that it was intended to be a criticism of Government policy or administration with a view to obtain its change or reform, the speech is safe. But if the court comes to the conclusion that the speech used naturally, clearly and indubitably, has the tendency of stirring up hatred, contempt or disaffection against the Government, then it is caught within the ban of paragraph (a) of section 3(1) of the Act. ..."

Applying this legal reasoning to section 3(1) of the Sedition Act 1948, an offence would only be committed if the conclusion of the reasonable man is that the words or language that was used naturally, clearly and indubitably, has the tendency to promote feelings of ill will and hostility between different races or classes of the population of Malaysia.

However, if upon reading the impugned speech as a whole it is clear that it was intended to be an appeal to stop the propagation of a religious doctrine or belief among persons professing the religion of Islam as provided under Article 11(4) of the Federal Constitution, and not merely a call to burn Bibles, can the Attorney General come to any conclusion other than that the speech would be considered "safe" and non-seditious in nature?

Ladies and gentlemen,

That is the effect if we do not read the authorities in full. At the end of the day, even if it is said that it is for the court to decide, the Attorney General still has to decide whether to charge a person. This must be done based on the evidence after a complete investigation. If we go merely on what is being demanded in the media, nine tenths of Malaysians would be charged first and we then leave it to the court to decide. The first to be charged would be the politicians. Should people be charged merely on the basis that police reports have been made? That is not what the Federal Constitution intended in Article 145 in relation to the Attorney General's prosecutorial discretion.

In Ibrahim Ali's case, a careful examination of his statement will show that he had very carefully qualified himself in several ways. Firstly, he expressly clarified that his intention was not to create religious strife by stating "Ini bukan sentimen ataupun nak menimbulkan kekecohon agama tetapi ini mempertahankan kesucian agama Islam yang telah jelas dalam undang-undang". With these words, how is it to be proved that his words "naturally, clearly and indubitably, have the tendency to promote feelings of ill will and hostility"?

Secondly, he clarified that the offending item was not the Bible generally but only this particular edition of the Bible because it was "dalam versi bahasa melayu ada kalimah Allah, ada tulisan ayat-ayat jawi" and "tulisan jawi yang boleh mengelirukan". He never said to burn all Bibles. If he had said that, he would have been charged for sedition.

Thirdly, he clarified at the outset that his statement was directed specifically at the group that had distributed these particular Bibles to the students, which included Malay students.

It should also be clarified that when the AGC referred to the failure to satisfy the "intention" element, the AGC was referring specifically to the offence under section 504 of the Penal Code and not section 4 of the Sedition Act 1948.

Ladies and gentlemen,

That is the difference of Ibrahim Ali's case. If the case came before a court, all these factors would also need to be considered by the judges too. We cannot run away from that fact.

In relation to the suggestion by certain quarters that Dato' Ibrahim Ali should be charged under section 505 of the Penal Code, this necessarily refers to paragraphs (b) and (c) of section 505 which states:

"Whoever makes, publishes or circulates any statement, rumour or report -

(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against public tranquility;

(c) with intent to incite or which is likely to incite any class or community of persons to commit any offence against any other class or community of persons,".

But section 505 also provides the following exception:

"Exception - It does not amount to an offence within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it without any such intent as aforesaid.".

Based on this, would it be wrong to threaten to take action against criminals? The answer is clearly "No". If the people were distributing

Bibles deliberately to Muslims, then their actions would be criminal. Therefore how could Ibrahim Ali be considered to have a committed a crime in that context? It should also be realized that with the "intent" requirement under section 505, it would be more difficult to prove a case under section 505 than under the Sedition Act 1948.

Based on the facts of the case and for the reasons explained earlier, the intention element would not be satisfied for an offence under either section 505(b) or section 505(c). Further, if there were reasonable grounds for believing that there was an attempt to propagate a religious doctrine or belief among persons professing the religion of Islam contrary to Article 11(4) of the Federal Constitution, the actions would fall within the exception as well.

Challenges from corruption

At the 47th anniversary celebrations of the Malaysian Anti-Corruption Commission on 1 October 2014, His Royal Highness Sultan Nazrin Muizzuddin Shah of Perak provided a stark reminder of the insidious threat that corruption poses to democracy, social order and national harmony. As Tunku Abdu Aziz stated in his recent article, corruption erodes public trust in government; it impoverishes the nation; it retards economic progress and social development; it creates inefficiencies and distorts the decision-making processes. It kills the very soul of the nation and its values and value systems. It leaves in its wake millions of victims.

The Carnegie Endowment for International Peace report "Corruption - The Unrecognized Threat to International Security" (June 2014) highlighted that systemic corruption has a large bearing on international security.

Systemic corruption, whether in the public or private sectors, evokes indignation in populations, making it a factor in social unrest and insurgency. This includes the string of popular uprisings that have toppled governments from Tunisia to Kyrgyzstan and escalated the crisis in Ukraine. This has led to the current international concern of foreign fighters flocking to Syria and Iraq supposedly to help overthrow the incumbent corrupt regimes. It has also inspired the rise of the Islamic State agenda in the Middle East.

At issue is not garden-variety corruption but public-sector criminality and crony capitalist networks where the country harbours endemic corruption that pervades the political system, or when the critical levers of government action are captured - resulting in a veritable repurposing of the State to the material benefit of a few elite networks.

In terms of security threats, the Carnegie report concludes that such high-level organized corruption underestimates the agency of ordinary people - their perceptions of corruption and the increasing tendency of populations to lash out violently against governing systems they can no longer tolerate. Further according to the Carnegie report, every country that harbors an extremist insurgency today suffers from kleptocratic governance. The motivational literature of those extremist movements is littered with references to corruption. As mobile and electronic communications give citizens more access to information and to each other, levels of outrage - and mobilization - are likely to keep rising.

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