States have no right to curtail freedom of expression, apex court told

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PUTRAJAYA: The Selangor legislative Assembly has no power to enact laws which restrict the freedom of expression, the Federal Court heard yesterday.

Lawyer Malik Imtiaz Sarwar, who represents ZI Publications Sdn Bhd and its director Mohd Ezra Mohd Zaid in a petition challenging the constitutionality of a Selangor religious enactment which restricts freedom of expression, submitted that Article 10 of the Federal Constitution provides that it is only the Parliament that could make laws to impose such restrictions in Malaysia.

“The states, including the Selangor government, had ceded their sovereignty to the federal government and the constitution following the Federation of Malaya Agreement in 1948,” he said.

Malik Imtiaz said the intention of the drafters of the constitution in respect to Article 10 could be discerned in the Reid Commission Report 1957.

ZI Publications and Mohd Ezra, the son of former law minister Datuk Zaid Ibrahim, are seeking a declaration from the Federal Court that Section 16 of the Syariah Criminal Enactment 1995 is invalid.

Mohd Ezra was charged last year for an offence under the section for his involvement in the publication of the book Allah, Love and Liberty,  written by Irshad Manji. The Selangor Islamic authorities have taken the position that the book is contrary to Islamic canon law or Hukum Syara.

Under Section 16 of the enactment, any person who prints, publishes, produces, records, disseminates or possesses any book or document for sale which is contrary to the Islamic law is said to have committed an offence punishable by a fine not exceeding RM3,000 or a maximum two years’ jail or both, upon conviction.

In their petition, ZI Publications and Mohd Ezra named the Selangor government as respondent. The court had previously allowed the federal government and Selangor Islamic Religious Council as respondents.

Malik Imtiaz, assisted by Nizam Bashir, said the states could not enact laws that touched on fundamental liberties and this included freedom of expression. He said since the offence of printing a prohibited publication was dealt with by the Printing Presses and Publication Act, the Selangor enactment was null and void.

Selangor assistant legal adviser Ahmad Fuad Othman said the assembly had the power to enact Syariah laws to protect the sanctity of Islam and ban religious publications that are detrimental to the religion.

Federal counsel Suzana Atan told the court that under the present scheme of the constitution, the Selangor legislative assembly’s approval of the enactment was valid as states were allowed to make laws.

A five-man bench chaired by Tan Sri Raus Sharif reserved judgment. — The Malaysian Insider

This article first appeared in The Edge Financial Daily, on October 10, 2014.