Publisher fails Federal Court battle to nullify Selangor Shariah law in book seizure case

By Ida Lim
ZI Publications Sdn Bhd director Ezra Zaid, Datuk Zaid Ibrahim and lawyer Pavendeep Singh are seen at the Federal Court, Putrajaya, September 28, 2015. — Picture by Saw Siow Feng

PUTRAJAYA, Sept 28 — The Federal Court dismissed today a publisher’s legal challenge against a Selangor state law that religious authorities had used to seize a book they deemed to be un-Islamic.

The country’s apex court ruled in a unanimous decision that the Selangor legislative assembly had acted within its powers when making the Shariah law that criminalises the publishing of publications deemed un-Islamic and upheld the state law as constitutional.

“For the above reasons, we hold that the impugned provision as enacted by Selangor state assembly is valid and not ultra vires the federal constitution. The application is dismissed,” President of the Court of Appeal Tan Sri Md Raus Sharif said when reading out the judgment.

The panel today also included Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinuddin; and Federal Court judges Tan Sri Abdul Hamid Embong, Tan Sri Ahmad Maarop, and Tan Sri Hasan Lah.

In reading out the grounds of a 16-page judgment, Md Raus addressed two questions that formed the crux of the argument: firstly whether the Selangor state assembly had the powers to enact a restrictive law or a law with potential to restrict freedom of expression; and whether or not the state could enact a law that goes against Article 10 of the Federal Constitution that protects the freedom of expression.

The Federal Court said Article 10 does not guarantee absolute freedom of speech and ruled that it must be read together with a list of other constitutional provisions, namely Articles 3(1), 11, 74(2) and 121.

The judge also took Islam as the religion of the federation into account in their decision and said among other things, that Article 74(2) gives state assemblies the power to make laws on matters falling under the state government’s jurisdiction in the Constitution’s Ninth Schedule, including laws to punish Muslims relating to the precepts of Islam.

Having also noted Article 11(4) which allows state laws to restrict the spread of religious doctrine among Muslims, the judge said the Selangor state assembly had acted within its legislative powers as it was enacting offences against the precepts of Islam, as opposed to offences on printing.

The judge concluded that the Selangor state assembly had not gone beyond its powers to enact laws on a matter that falls within the federal government’s jurisdiction, as it had only enacted on a matter within the state government’s jurisdiction under the Federal Constitution by banning the spread of wrongful belief among Muslims through publications against Islamic law and its precepts.

“What is contrary to Islamic law is without doubt against the precepts of Islam. Thus, the Selangor state legislative assembly was acting within its legislative power in enacting the impugned section,” the judgment said, having noted the Selangor assembly’s “clear” purpose to control religious publications that are against Islam.

ZI Publications Sdn Bhd and its director Ezra Zaid had challenged Section 16 of the Shariah Criminal Offences (Selangor) Enactment 1995, with Section 16 (1) making it a crime for Muslims to publish, distribute or possess publications against Islamic law.

If found guilty under Section 16(1), Ezra faces a fine not exceeding RM3,000 or two years’ prison, or both.

In addition, Section 16(2) of the same law empowers the state Shariah Court to order any book, document or other form of record to be “forfeited and destroyed”, even when nobody is convicted under Section 16(1).

The suit was initiated after Selangor’s Islamic Religious Department (Jais) officers seized 180 copies of “Allah, Kebebasan dan Cinta” from the publisher’s office on May 29, 2012, by using Section 16 of the Selangor enactment.

The book is a Malay translation of Canadian author Irshad Manji’s book titled “Allah, Freedom and Love”.

In April 2013, ZI Publications and Ezra filed the legal challenge at the Federal Court here to get the courts to declare Section 16 as an invalid law.

The publisher had contended that matters of publication falls under the Federal List according to the Constitution’s Ninth Schedule, and is already covered by the Printing Presses and Publications Act (PPPA) 1984, a federal law made in Parliament.

They further argued that the law contravenes Article 10 of the Federal Constitution that guarantees citizens the right of freedom of speech and expression.

The Selangor state government was named as the sole respondent in the lawsuit, but the Selangor Islamic Religious Council (Mais) and the Malaysian government were allowed to intervene or to be a party to the court case.