We, the Group of 25 (G25), are deeply saddened by the recent decision of the Federal Court to declare section 16 of the Shariah Criminal Offences (Selangor) Enactment 1995 as valid law.
We do not intend to be disrespectful to the Federal Court but we are of the firm conviction that section 16 of the said Enactment is ultra vires the federal constitution, in that, it is a restriction on the freedom of speech of the citizens by a state law.
Under Article 10 (2) of the federal constitution, only Parliament may restrict freedom of speech. The State legislature has no such power.
This constitutional principle has been upheld by the Supreme Court in the case of Nordin Salleh, and the Court of Appeal in Muhamad Juzaili.
Further, Item 21 of List I in the Ninth Schedule of the Federal Constitution prescribes that ‘Newspaper; publication; publishers, printing and printing presses’ are federal matters falling under the Federal List; meaning that they are matters that only Parliament (and not a State legislature) may legislate upon.
Indeed, we already have a federal law, namely, the Printing Presses and Publications Act 1984.
With respect to the Federal Court, we are of the view that the state of Selangor cannot enact offences on publication, printing and printing presses in the light of the fact that there is already a federal law governing such matters.
The Federal Court’s reliance on Articles 3, 11, 74 and 121 (1A) of the federal constitution to justify its decision is based, with respect, on a far-fetched and erroneous interpretation of these Articles of the Constitution.
Article 3 merely declares that Islam is the religion of the Federation (and that other religions may be practised in peace and harmony).
Article 11(1) merely provides that every person has the right to profess and practise his religion and (subject to clause (4)) to propagate it.
Article. 74(2) empowers state legislatures to legislate on matters pertaining to the Islamic faith, including creating and punishing persons professing the Islamic faith for offences against the precepts of Islam.
Article 121(1A) merely provides that the civil courts have no jurisdiction to deal with matters falling under the jurisdiction of the Syariah Courts.
The Federal Court, with respect, appears to have overlooked the decision of the Supreme Court in Che Omar Che Soh that the word ‘Islam’ in Article 3 should be given a restrictive meaning.
The Federal Court also appears to have failed to take into account Clause (4) of Article 3 which provides that nothing in Article 3 derogates from the other provisions of the Constitution. Our interpretation of Clause (4) is that Article 3 must be read subject to the other provisions of the Federal Constitution including the provisions pertaining to fundamental liberties.
In invoking Article 121(1A) of the Federal Constitution, the Federal Court also appears to gloss over the fact that what is being challenged before the Court is not the judicial competence of the Selangor Syariah court to try Mohd Ezra Zaid but rather something fundamental: the legislative competence of the Selangor State Assembly to enact the said section 16 in the light of the prescribed restrictions as stipulated by the provisions of the Federal Constitution.
We take the position that Article 74(2) does not give the State legislature an untrammelled right to legislate on matters pertaining to the Islamic faith.
The exercise of such legislative powers must, in the light of Article 74(3) and Art. 4(1) of the federal constitution, be consistent with the provisions of the Constitution including the provisions on fundamental liberties.
With respect to the federal court, we are deeply disappointed with its decision.
The Court is expected to perform its noble role as the protector of the federal constitution and of the citizens’ fundamental rights. We do not see that happening this instance.
We are deeply concerned over the decision of the Selangor religious authority to proceed with the prosecution of Mohd Ezra in the Syariah Court following the ruling of the Federal Court on the validity of section 16 of the Selangor Shariah Enactment.
What Mohd Ezra did was merely to translate and publish the Bahasa Malaysia version of the book 'Allah, Liberty and Love' written by the Canadian Muslim author Irshad Manji.
With respect to the Selangor religious authority, this prosecution is baffling because clearly the book is not at all about religious instruction but is only a book about what the author believes the essence of Islam: love, freedom and liberty.
The book is meant to be an intellectual discourse on Islam and social issues, and not meant to demean the Islamic religion in any way.
Therefore, to prosecute Mohd Ezra is not only absurd but to deny his constitutional right to freedom of speech.
The move to prosecute Mohd Ezra on the ground that the views expressed in the book are contrary to the precepts of Islam, is an act of intolerance, oppression and against the true spirit and teaching of Islam that preaches moderation and abhors extremism and prejudice.
Islam encourages learning and the acquiring of knowledge, intellectual discussions, and respect for differences in opinions.
Freedom of speech and expression is a universal value guaranteed by the Federal Constitution, the Universal Declaration of Human Rights, enshrined in the Constitutions of civilised nations, and upheld in the teachings of Islam.
This fundamental right must be protected and strengthened by the Courts and by the authorities (both at Federal and State level, including religious authorities) and respected by all citizens regardless of race, religion or creed.
We wish to remind the Selangor religious authority of what had been said in the Joint Press Statement of 25 February 2002 published in the Malay Mail under the headline ‘Different voices in Islam’ endorsed by 25 Malaysian NGOs and 28 distinguished Malaysian individuals.
We repeat here of what had been said therein.
The move to use the law to make differences of opinion in Islam a crime is a dangerous effort to monopolise the meaning and content of Islam, with far reaching consequences on all spheres of Malaysian public life.
All citizens, Muslims and those of other faiths, have a right to engage in a dialogue on issues of national importance that affect our lives, be it religion, economics, political, education, culture, or social issues.
We, therefore, respectfully urge the Selangor religious authority to withdraw the charge against Mohd Ezra.
G25 comprise a group of eminent Malays, who while recognising Malaysia is a predominantly Muslim, believes in upholding constitutional guarantees to freedom of expression and worship for all.