No Need to Comply When JAIS Abused its Limited Power to Harass non-Muslim Institutions

Much of the public discussion over the recent JAIS raid on Bible Society of Malaysia (BSM) has focused on who should be held responsible for an illegal raid. I shall briefly note that UMNO went on a road show to support JAIS after the seizure of the Bibles.  We cannot overlook the insincerity and failure of the Federal government to honor the 10 points. Selangor MB deserves criticism for not reprimanding JAIS and instructing it to redress its illegal raid (granted he faced political constraints and impossible circumstances after the Sultan’s decree). The issue has become a political football passed between AG, the Home Ministry and the Selangor government. Let blame be rightly apportioned to all these wrongful parties.

We should not miss the most important issue – JAIS has exceeded its powers defined by the Selangor Non-Islamic Religions (Control of Propagation among Muslims) Enactment 1988. For the purpose of this article I shall call it the Control of Propagation Enactment (CPE). If this abuse is left unchallenged, a precedent would have been set for more audacious raids by JAIS officials on non-Muslim institutions.

Some members of the public have argued that JAIS raid is legal as JAIS officials were only carrying out an investigation as empowered by the CPE. The relevant sections of the Enactment are:

Section 12. An authorized officer may investigate the commission of any offence under this Enactment and may arrest without warrant any person suspected of having committed any such offence.

Section 13.
(1) An authorized officer making an investigation under Section 12 may by order in writing require the attendance before himself of any person who appears to the officer to be acquainted with the circumstances of the case, and such person shall attend as so required.
(2) If any person subject to an order under subsection (1) fails to attend as required by the order, the authorized officer may report the failure to a Magistrate who may thereupon issue a warrant to secure the attendance of the person as required by the order.

One further legal provision relevant to the present controversy is the Selangor State Gazette 16 Nov 1999 notification of the appointment by the Ruler in Council of certain people to act as an authorized officer under the CPE which included the following:
1.  The Secretary of the Majlis Agama Islam Selangor;
2.  The Head of Enforcement of the Islamic Religious Department of Selangor;
3.  The Deputy Director of Research of the Islamic Religious Department of Selangor;
4.  The Syariah Legal Advisor of the Islamic Religious Department of Selangor;
5.  All District Religious Officers in the state of Selangor; and
6.  All police officers of the rank of inspector and above

Note that the investigation into alleged proselytization is not open to anyone, but is restricted to these senior officers, given the sensitive nature of such raids that could incur serious damage to inter-faith relations.

How is JAIS power defined and delimited in the Enactment?

First, the preamble of the Enactment spells out its purpose is to restrict and control of propagation amongst Muslims by non-Muslims. All the subsequent provisions, including Sections 10-14 must be read in accordance to the purpose of the Enactment.

Second, Section 12 provides for the investigation of an alleged offence (the context of the Enactment relates to propagation) whereas Sections 13 and 14 stipulate how that investigation may be carried out. It is granted that Section 12 provides for arrest without a warrant, but any arrest is restricted to the context of offences relating to propagation.

Third, there is no provision for search, seizure and raid in the Enactment. Even if JAIS argues that its ‘investigation’ requires raid, search and seizure as it is a criminal offence, the fact remains that no procedure is laid down in the Enactment. A strict reading of the Enactment would prescribe that the Criminal Procedure Code (CPC) be the operative law in relation to the exercise of powers on such matters of raid, search and seizure of documents. It is important to read the Enactment within the limits defined by the CPC; otherwise, one would end up ascribing unwarranted power to JAIS.

Fourth, regarding the gazette notification of 1999, the first four categories of authorized officers are all personal appointments. They are not appointments of the department from which these people come. They are not appointments for which powers can be delegated. The fifth and sixth categories refer to a class of persons rather than an individual. That is to say, any District religious officer or police officer who is of the rank inspector and above may be authorized to conduct such an investigation.

Importantly, if there is no such authorized officers at the search, seizure and raid, then the raid would be illegal (apparently the case of the raids on BSM and DUMC). Furthermore, one would presume that even should such an authorized official lead the raid, a search warrant would have been duly obtained. The power to investigate upon suspicion cannot be unfettered. A surprise raid may be justified if there is reasonable concern that some harm has to be prevented or that the ‘guilty’ party is actively getting rid of incriminating evidence, or that the court that could grant such a warrant is not in open during weekends or public holidays. As far as can be ascertained, there was no possibility of violence or harm. BSM book store has been operating in the present premises for years and the stock of Bibles are not about to disappear suddenly, and the raid was conducted on a working day. One can only conclude the raid is illegal.

It should also be emphasized that mere possession of the Bibles is no evidence for proselytization of Muslims. What more when these Bibles were in a Christian book store! Non-Muslims should take note that JAIS has to comply with all the above requirements so they may not simply submit to illegal intrusions or trespasses from any shariah officials in future.

Fifth, what happens should JAIS, presumably acting on Section 13 of the Enactment, requires a non-Muslim to report at JAIS premises to assist in their investigation? If JAIS does not forward the request in an official letter, that is to say, the request is only verbal, then non-Muslims need not respond to JAIS demand as Section 13 requires the request be conveyed in writing by an authorized officer. Presumably, the official letter would have spelled out whether one is called to be give evidence as a witness or whether one is going to be investigated as a suspect.

Even if JAIS sends an official letter, the non-Muslim is not obliged to appear at JAIS premises since JAIS has no legal jurisdiction over non-Muslims. The non-Muslim should insist that the investigation be carried out by an authorized officer, that is, a police officer of rank of inspector and above, and that the investigation be carried out in a police station.  As the Enactment that empowers these authorized officials is a civil law enactment and not a shariah law enactment, the proper platform to investigate alleged violation of a civil law is the police station. One may assume that JAIS would need to send BSM an official letter to require BSM officials to assist in their investigation and BSM officials have every right to refuse to go to JAIS premises and insist they meet only authorized officials (a police officer with rank of inspector and above) in a police station.
Conclusion
It is not surprising that JAIS would attempt to push their wide interpretation of the CPE to the limit. Given their aggressive actions, non-Muslims should know the Constitutional laws that protect their civil and religious liberties. In this regard, there is no substitute for right knowledge of the law. Furthermore, non-Muslims must firmly stand up for their rights even as JAIS will use every means possible to intimidate them into submission.Non-Muslims should remember that their Constitutional rights are not served to them on a silver platter. They may enjoy only as much rights as they are prepared to fight for. In this regard, church leaders, lawyers and other leaders of civil society have a duty to educate the public on their rights and set an example by firmly resisting any abuse of power by JAIS.

This article is also published at Themalaymailonline LINK