ARC News   •   November 08, 2017

The State Legislative Assembly (“SLA”) has the power to enact a law which was restrictive or has the potential to restrict freedom of speech and expression, in order to control religious publication which was contrary to Islam.[1]

The legislation is considered as a measure to prohibit the dissemination of any wrongful belief and teaching among Muslims, through publication of any book or document or any form of record containing anything which is contrary to Islamic law.

The SLA derived its power under article 74[2] and List II (State List) of the Ninth Schedule[3], which confer legislative powers to the SLA to enact law for offence against the precepts of Islam and precepts of Islam. Such restriction to the freedom of speech and expression should also be read in conjunctive with the restriction under article 11 (4) of the Federal Constitution[4].

The Federal Court[5] held as such on 28.9.2015 in the case of ZI Publications Sdn Bhd & Anor v Kerajaan Negeri Selangor; Kerajaan Malaysia & Anor (Intervener) (hereinafter referred to as “Federal Court Case”)

A fresh judicial review application was filed by the Appellants in the Federal Court case in order to challenge the constitutionality of the legislation to restrict freedom of speech and expression, in the sense of whether or not it was consistent with the various provisions of the Federal Constitution, which was not an issue in the Federal Court Case.

The High Court turned down the said judicial review application on the premise that the constitutionality of the impugned legislation on ground of competency of the SSLA to enact the impugned legislation had been decided in the Federal Court Case.[6]

The Court of Appeal in ZI Publications Sdn Bhd & Anor v Jabatan Agama Islam Selangor & Ors, disagreed with the High Court’s decision and directed for the application to be remitted to the High Court for the substantive hearing of the judicial review application.[7]

At the moment, the position in Federal Court Case still stands, pending the current judicial review application.

So make sure the book that you published or put on your bookshelf at your stores does not contain anything which is contrary to Islamic law, or else the Islamic religion authorities will hunt you down!

Mohammad Afif Daud is a Partner at Messrs. Afif Rahman & Chong.

Disclaimer: Every attempt to ensure the accuracy and reliability of the information provided in this publication has been made. This publication does not constitute legal advice and is not intended to be used as a substitute for specific legal advice or opinions. Please contact the authors for a specific technical or legal advice on the information provided and related topics.

[1]              ZI Publications Sdn Bhd & Anor v Kerajaan Negeri Selangor; Kerajaan Malaysia & Anor (Intervener), [2015] 8 CLJ 621, FC. Reaffirmed in ZI Publications Sdn Bhd & Anor v Jabatan Agama Islam Selangor & Ors [2017] MLJU 1010, CA.

[2]              Article 74 of the Federal Constitution. Subject matter of federal and State laws.

[3]              List II of Ninth Schedule of the Federal Constitution.

[4]              Article 11 (4) of the Federal Constitution – State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.

[5]              The decision of the Federal Court was delivered by Raus Sharif PCA, Zulkefli Ahmad Makinudin CJ (Malaya); Abdull Hamid Embong FCJ, Ahmad Maarop FCJ and Abu Samah Nordin FCJ.

[6]              ZI Publications Sdn Bhd & Anor v Jabatan Agama Islam Selangor & Ors [2017] 9 MLJ 184.

[7]              The decision of the Court of Appeal was delivered by Tengku Maimun Tuan Mat JCA, whom led the three-man Court of Appeal bench consisting Abdul Rahman Sebli JCA and Asmabi Mohamad JCA.