Jurisdictional confusion?

I am no lawyer, even though if I had a real choice I would have pursued law studies. Still, my interest in legal issues centre on good versus poor governance related to public space morality.

Last week, a High Court judge allowed Berjaya Books to challenge the Jawi raid on its Mid-Valley outlet and seizure of copies of the book ‘Allah, Liberty and Love’, which led to the prosecution of a bookstore manager on the basis of the Syariah Criminal Offences Act 1997. I believe this will be a good case to test the efficacy of the interpretive abuse of Article 121 (1A) provisions of the federal constitution from its original spirit.

Allow me to make my case. The Malaysian constitution is a secular one; this simply means it is silent on the particular and specific application of any belief system to provide the value domain for moral decisions in the jurisdiction of the Malaysian federation as a total entity.

Concurrently also the federal constitution explicitly and clearly provides the domain and jurisdiction, plus the place and pre-eminence of Islam related to the states of the federation as provided for Article 3 of the constitution.

All the peninsular states have a sultan who is accorded the status of the head of the Islamic religion and related state-level enactments which protect and preserve the Syariah principles related to personal and family faith as applied in real and practical life.

All other non-legal issues of faith are covered either by fatwa or simply by good and proper teaching. Nevertheless, these allowances do not privilege the incursion into personal human rights already protected and preserved by the federal constitution.

Therefore, once again, I ask my favourite question: How then can we say that we breathe green air in the Federal Territory of Kuala Lumpur, wherein this so-called offence is alluded to have been committed? Public space morality in Malaysia is always colourless and as I have argued many times before, it can only be coloured by the moral values common to all Malaysians; for example something like the Rukunegara.

Any bookstore can sell any book not banned by the Home Affairs Ministry. Never mind the fact that all these same books maybe available as e-books or iPhone applications or even on the Internet.

Therefore, under what authority can Jawi raid an entirely secular and commercial business operation just because they do not like the title of the book or deem it to be negative to the faith of some Muslims readers?

If that is not bad enough, they proceed to charge the one manager who happens to be a Muslim lady for the offence, but do they realise that she was only doing her job as a manager of the outfit? Is this then a good and proper application of the Syariah Laws as allowed and permitted by the federal constitution?

Potential misapplication and abuse

I therefore highlight the following issues and concerns as the potential misapplication and abuse of the state-enabled Syariah Laws, when deployed within the Federal Territory because it is under federal jurisdiction and within a secular and civil context of the federal law:

  • Were the drafters of the federal constitution ignorant when they put “Islamic faith matters” under the jurisdiction of the nine peninsular states of the federation, and this was not extended into the formation of Malaysia, especially for Sabah and Sarawak? Penang and Malacca were excluded even from the beginning.
  • Is not Syariah law meant to only be limited to personal and family law matters? Is this tendency and fashion to extend Islamic law jurisdiction a phenomenon of the rise of a fundamentalist Islamic in response and reaction to a modernising world? But, is legal enforcement the only way for tenets of faith?
  • What then is this concept of Islamic criminal law in Malaysia? How can this be applied in any state that is not technically an Islamic state and the religious authorities have absolute control on all matters of life and death? Where then do the criminal law enforcement agencies of the civil law system get their legitimate authority to undertake state enacted Islamic Law? That is the same reason I wrote that “Islamic caning enforcement” by prison authorities is illegal unless agreed to and approved by the civil courts system.
  • How then can a mundane thing like “book distribution” become a matter of Islamic criminal law and come under the jurisdiction of Jawi? Is Jawi assuming that particular manager not only read the book but also intends to propagate the book to other Muslim customers? Should not such Syariah laws only focus on personal and family practice of Islam for Muslims?
  • If the manager is being charged in her public role, then why is she not charged by federal criminal laws, instead of Syariah Laws? Are we now deeming that the public role actor, in every case, as a Muslim person? Or, it this selective prosecution to make a show and case of public space jurisdiction of Islamic law; which to me does not even exist?

Can some constitutional lawyer who understands all these issues and concerns please clarify the issues for the readers and my personal education?

KJ JOHN was in public service for 29 years. The views expressed here are his personal views and not those of any institution he is involved with. Write to him at kjjohn@ohmsi.net with any feedback or views.

Leave a Reply

Your email address will not be published. Required fields are marked *