I see the case of ZI Publications Sdn Bhd and Another v Kerajaan Negeri Selangor as like looking at a case of ‘Article 10(1) of the Federal Constitution v Article 3(1) of the Federal Constitution’ or ‘Freedom of speech v Religion of the Federation.’
(Please read MMO Did Not Apologise For Boo Su Lyn’s Seditious Article).
A Muslim named Mohd Ezra bin Mohd Zaid was charged before the Syariah Court of Selangor for publishing a book which is contrary to Islamic law.
The petitioners, ZI Publications Sdn Bhd (first petitioner) and Mohd Ezra bin Mohd Zaid (second petitioner) were seeking for a declaration that section 16 of the Syariah Criminal Offences (Selangor) Enactment 1995 is invalid.
Ezra fought that according to the Federal Constitution, the Selangor State Legislative Assembly has no power to legislate a law that “has the effect of restricting and/or has the potential to restrict freedom of expression” as stated in Article 10.
The book, “Allah, Kebebasan, Dan Cinta”, a Malay translation of, “Allah, Liberty, and Love” is written by Irshad Manji, a person who does not understand Islam, and her interpretations of Islam and the Islamic law is contrary to the teaching of Islam.
The Federal court ruled in a unanimous decision that the section 16 of the Syariah Criminal Offences (Selangor) is valid and not ultra vires the Federal Constitution.
In his judgment, President of the Court of Appeal Tan Sri Md Raus Sharif said:
“Thus, in the present case, we are of the view that Article 10 of the Federal Constitution must be read in particular with Articles 3(1), 11, 74(2) and 121. Article 3(1) declares Islam as the religion of the Federation. Article 11 guarantees every person’s right to profess and practise his religion and to propagate it. With regard to propagation, there is a limitation imposed by Article 11(4) which reads:-
“(4) 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.””
So, it is very clear that Article 10 must be read harmoniously with Article 3(1) of the Federal Constitution since Article 3 is placed in Part I, while Article 10 was placed in Part II of the Federal Constitution.
Logically, the Articles that are placed in Part I should be of more importance than the ones in Part II.
In his conclusion Tan Sri Md Raus Sharif said:
Federal Constitution allows the Legislature of a State to legislate and enact offences against the precepts of Islam. Taking the Federal Constitution as a whole, it is clear that it was the intention of the framers of our Constitution to allow Muslims in this country to be also governed by Islamic personal law.
The question is, why must a Muslim publishes a book containing deviant teachings and took a state government to court for protecting other Muslims from the deviant teaching (from the book) as conferred by the Article 11(4) of the Federal Constitution?
Article 3(1): Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
Article 74(2): Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.
Article 121(1a): The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.
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