The Nut Graph‘s intrepid journalist Zedeck Siew reports that on 16th February 2009, our illustrious Home Minister by virtue of the Internal Security (Prohibition On Use of Specific Words on Document and Publication) Order 2009 [PU(A) 62/2009] has decreed as follows:-
The printing, publication, sale, issue, circulation and possession of any document and publication relating to Christianity containing the words “Allah”, “Kaabah”, “Baitullah” and “Solat” are prohibited unless on the front cover of the document and publication are written with the words “For Christianity” (“Untuk Agama Kristian”).
He has also decreed that “the words “For Christianity”… shall be written clearly in font type Arial of size 16 in bold.” Fans of the “Georgia” font would probably say this is cause enough for this particular decree to be treated with contempt.
Zedeck did me the honour of asking my views, and then actually reported it. So I thought I’d expand a little bit on why I think this Order is probably unconstitutional.
The prohibition is purportedly done under the powers of the Home Minister under section 22 (1) (c) of the Internal Security Act 1960 (“ISA”) to prohibit any publication which “is calculated or likely to lead to a breach of the peace, or to promote feelings of hostility between different races or classes of the population”.
It is unclear what grounds the Home Minister had for concluding that publications containing these 4 words, if read by non-Christians, would cause a breach of the peace. I think Malaysians have grown up, and the only people likely to cause a breach of the peace are our politicians.
Be that as it may, it would appear that this prohibition is unconstitutional.
Article 11(1) of the Federal Constitution gives every person the right to profess, practice and propagate his or her religion. Article 11(5) allows these rights can be restricted by general laws relating to public order, health and morality.
The right to propagate religion, however, is also subject to a possible additional restriction. Article 11(4) allows the relevant legislative bodies (e.g. Parliament for the Federal Territories, and the respective State Assemblies of the various States) to legislate restrictions (not prohibitions) on the propagation of religion and such restrictions only amongst persons professing the religion of Islam.
Note that propagation per se is not restricted, but it is up to each State legislative assembly to decide whether to restrict that propagation, and only among persons professing Islam.
The Internal Security Act is not a law made under Article 11(4), and as such it would seem that it cannot be used to restrict the propagation of religion.
The Supreme Court’s decision in 1989 in Joshua Jamaluddin’s case lends credence to this contention. There, a Malay convert to Christianity was detained without trial under the ISA solely because he was converting other Malays to Christianity. His dentention was held invalid by the Supreme Court. Hashim Yeop Sani, CJ (Malaya) said this:-
The sum total of the grounds for the detention was therefore the supposed involvement of the respondent in a plan or programme for the dissemination of Christianity among Malays. It is to be observed that the grounds do not however state that any actions have been done by the respondent except participation in meetings and seminars and that the fourth allegation alleged that the respondent converted into Christianity six Malays.
We do not think that mere participation in meetings and seminars can make a person a threat to the security of the country. As regards the alleged conversion of six Malays, even if it was true, it cannot in our opinion by itself be regarded as a threat to the security of the country.
Although the ISA and other such “emergency” legislation are allowed by the Constitution to supersede certain fundamental liberties, religion is not one of them (see Articles 149 and 150 of the Federal Constitution).
In other words, even the ISA, draconian as it is, cannot trump provisions guaranteeing freedom of religion in our Constitution.
Thus, the Home Minister cannot restrict the right of Christians to propagate their religion to other non-Muslims at all. And, without enabling legislation made under Article 11(4) of the Federal Constitution, he can’t fetter the propagation of religion amongst Muslims by Christians.
But ultimately, why does this government keep insisting on forcing ideas upon us, and treating Malaysians like little children. We’ve grown up, and it is high time our politicans did as well.
POSTSCRIPT: On 1st March 2009, various reports confirm that the Home Minister says the gazetting of this Order was a mistake, and that Christians cannot use the word “Allah” at all in relation their religion pending the outcome of the litigation regarding this between the Catholic Church and the Home Ministry.