Religious Expression and Censorship
- Religious protectionism over Islam
- Printing Presses and Publications Act 1984 (PPPA)
- Objective or subjective test?
Religious protectionism over Islam
The Government of Malaysia tends to be overprotective of Islam, resulting in a heavy-handed suppression of views that do not accord with the mainstream interpretation of the religion. Powers meant to protect public order are often used to quell dissenting voices on Islam.
Printing Presses and Publications Act 1984 (PPPA)
The Minister of Home Affairs may prohibit the printing, importation, circulation, distribution or possession of any publication that is likely to alarm public opinion or be prejudicial to public order, morality, or security. According to section 7(1) of the PPPA, he may exercise this power at his absolute discretion. He has regularly invoked it to ban a host of books deemed “undesirable” to the Islamic religious authorities. They would issue reports to the Minister giving reasons why the books should be prohibited. For example, in the Islamic Renaissance Front (IRF), the Department of Islamic Development Malaysia (JAKIM) asserted that IRF’s books “contained confusing matters which may deviate from the teachings of Islam practised in Malaysia”. Thus, the publications were likely to prejudice public order and alarm public opinion. In banning IRF’s books, the Minister relied on JAKIM’s reports and recommendations from the Ministry of Home Affairs’ Publications and Quranic Texts Control Division. Similarly, the Selangor Islamic authority in ZI Publications opined that the impugned book “was a clear deviation and in direct contravention of the true Islamic precepts”. Religious agencies also convinced the Government to prohibit Christians from using the term “Allah” in their writings as it may confuse Muslims, possibly leading to public disorder (Titular Roman Catholic Archbishop of Kuala Lumpur).
The states’ Syariah laws criminalise the possession, publication or dissemination of books or documents containing anything “contrary to Islamic law”. Islamic enforcement agencies are empowered to control and prevent the spread of such publications. These powers have been sanctioned as constitutional (ZI Publications). However, they can be exercised only over persons professing the religion of Islam and not over corporations. A raid on a bookstore to seize copies of a book considered contrary to Islam was held to be illegal because the book had yet to be banned under the PPPA (Berjaya Books). The High Court said this:
 It must be noted that at the material time, the publication or book in question was not subject to any publications order by KDN. The publication order was issued only three weeks after the raid. This court must bear in mind the provision of art 7 of the Federal Constitution which provides that no person shall be punishable for an act or omission which was not punishable by law when it was done or made.
The learned judge reasoned that what amounted to being “contrary to Islamic law” is wide, and it had to be defined. Therefore, a ministerial prohibition under section 7(1) of the PPPA was required to indicate disapproval of the publication before the states’ agencies could act. Their protection of Islam thus pivots on the exercise of the Minister’s discretion to limit expression.
Objective or subjective test?
While the yardstick in section 7(1) of possible harm guides the Minister’s exercise of discretion, he rarely justifies his conduct by providing acceptable evidence of public security concerns. Instead, he merely makes bare averments regarding the number of police reports made against the publication and how, in his opinion, the material can sow hatred and confusion. It was once thought that the courts could not question the Minister’s decisions because his discretion is absolute. In Sepakat Efektif, the Court of Appeal explained the legal position and formulated the prevailing test as follows:
 … Here we are faced with an exercise of ministerial discretion under s. 7 of the PPPA, which affects a citizen’s freedom of expression under the Federal Constitution, in which challenge has been mounted not only on ground of procedural fairness and breach of natural justice – the so-called ground of “procedural impropriety”. The challenge has been based as well on the grounds of “illegality” and “irrationality”. Where an exercise of discretion has a constitutional dimension, it is incumbent on the court to examine that exercise more vigilantly, and not rely solely on the ipse dixit of the Minister. … The relevant test to be adopted has also been stressed: it is whether a reasonable minister similarly situated would have acted in the same manner? It means to say courts can test the exercise of subjective discretion against objective facts in order to determine whether the discretion has been fairly and justly exercised. In the context of the facts in these appeals, and testing the exercise of the Minister’s discretion on these facts, and bearing in mind the primacy that should be placed on fundamental rights, it seems evident that the recourse to “prejudicial to public order” has no plausible evidential basis.
Even as the courts are now to take a more proactive approach in scrutinising the Minister’s use of powers, there is little guidance as to how the likelihood of harm is to be measured. The Minister has been arbitrary in his decisions. He banned a book compilation of essays on Muslim women presented at an international seminar two years after the book was circulated. He cited public order prejudice as the reason. In quashing the prohibition, the courts held no evidence that the book threatened public order during the two years. The cited reason for the ban was unsubstantiated (SIS Forum). In the Islamic Renaissance Front (IRF) litigation, the Minister could not show proof supporting his satisfaction, and the court threw out the ban. The Court of Appeal questioned if the Minister had indeed considered the relevant material – as he said that he did – before he made the order. Most recently, the High Court declared that the confiscation of Christian compact discs was unlawful (Jill Ireland) after finding that the authorities had misconstrued an internal policy prohibiting the use of certain religious terms. There was also no evidence to support the purported public order threat. Here, the point is that the Government has abused its PPPA powers to insulate a religion.
Religion and speech intersect in more ways than one. Malaysia has yet to achieve the correct balance in restricting speech only where necessary and by proportionate means. The danger of leaving unfettered the Minister’s PPPA discretion to restrict expression is evident. Court cases and judicial intervention have tested the limits of such discretion. Unfortunately, it would take years before the courts can finally dispose of the cases. Damage to expression cannot be vindicated even if the bans are nullified subsequently. Legislative amendments and guidance are needed to restrict the Minister’s powers. Otherwise, the Government’s stranglehold on Islamic thought by censoring ideas will continue to inflict casualties in expression.
* The law stated is as of 19 June 2021