The David Copperfield of Malaysian Law: Law today, gone tomorrow
Posted by Oscar the Grouch on March 1, 2009
Were we all not amazed when David Copperfield made the Statue of Liberty disappear? The jaws of the world dropped – literary – at such magical feat. How did he do it? Perhaps David Copperfield was actually gifted with powers of the supernatural. Perhaps he dabbled in the occult.
But then, what is that compared to the kuasa sakti of our Home Minister, Syed Hamid Albar. With the flicker of his magical Harry Potter pen, he made law disappear. On January 21, he signed a directive under the Internal Security Act by way of gazette, allowing the conditional use of the word “Allah” in Christian publications. The gazette came into effect on February 16. On March 1, Syed Hamid Albar said that he would issue a fresh gazette to rescind the earlier gazette – the reason being – there were “mistakes” made in the drafting of the Feb 16 gazette.
This issue is in relation to the usage by the Catholic Church of the word “Allah” in their publication – the Catholic Herald. A legal suit was filed in the Kuala Lumpur High Court to challenge the ban by the government. In a surprising turn of event, Syed Hamid Albar issued the gazette allowing the use of the word “Allah”, provided there is a disclaimer to the effect that the words “For Christians” were clearly printed on the publications. But of course, this decision is now reversed, by reason of mistake.
I do not wish to dwell on the usage of the word “Allah”; let that be something for our dear courts to decide. I do wish to point out, however, of several foolish and unwarranted implications arising from this blunder from Syed Hamid Albar.
Firstly, how can someone make a “mistake” in issuing a directive, which later was put on print as gazette? Once a gazette is issued, it becomes law of the land, albeit subsidiary and secondary to the principal Act, the Internal Securities Act 1960. I don’t know the actual workings of the issuing of a gazette – but I’ve been made to understand that the document would have to be drafted and proof-read by at least 2 people and a committee before it could be signed by the minister.
So, who screwed up? The person who took wrong notes during the meeting? The AG’s Chambers who drafted the wordings of the gazette? The committee who was supposed to vet the document? The Minister, who was obviously half-asleep when he sign it? Or perhaps, it was the government printers, who took it upon themselves to print something else than what was instructed upon them?
In any event, it doesn’t appear as if the revered concept of ministerial responsibility – practised in jurisdictions of Westminster parliamentary systems – would apply to Syed Hamid Albar. Dear minister, this is not main-main punya perkara; for God’s sake, you’re issuing a law that binds the citizens of Malaysia. Where can mistake-mistake punya? In Japan, hara-kiri would have been an honourable outlet of redemption. But I guess, in Malaysia, the thought of resigning would not, however fleetingly, cross the mind of Syed Hamid.
Which brings to mind the actual wording of the gazette, entitled “Internal Security (Prohibition on Use of Specific Words on Document and Publication) Order 2009”: –
“The printing, publication, sale, issue, circulation and possession of any document and publication relating to Christianity containing the words Allah, Kaabah, Baitullah and solat are prohibited unless on the front cover of the document and publication are written with the words “FOR CHRISTIANITY.”
I fail to see, from the wordings of the order, how a “mistake” can arise? The provisions appear crisp and clear. The whole episode appears more to be a decision-taken-in-reverse, rather than a technical mistake. This appears evident, considering that there were calls by certain bodies, notably the Malaysian Islamic Da’wah Foundation, urging the government to withdraw permission for the conditional use of the word “Allah” in Christian publications.
This is definitely not the type of governmental decision that we want to see – laws being made – and un-made – not for the good of the citizens, but at the influential behest of certain important individuals or organizations.
Another damning implication arising from Syed Hamid Albar’s action in issuing a fresh gazette to cancel the earlier one – is that it creates an unhealthy precedent affronting the rules of retrospective laws. Article 7 (1) of the Federal Constitution provides that no person shall be punished for an act or omission which was not punishable by law when it was done or made.
For example, if smoking is not an offence today, then a law cannot be made tomorrow to declare smoking an offence today – this is retrospective laws. This means, I cannot be convicted of smoking yesterday, last week or last month by a law that operates retrospectively.
But by issuing “cancellation” orders, Syed Hamid may be doing just that. On February 16, the law allows me to use the word “Allah”. Because of that – I start printing, publishing and circulating to people in my church. 2 weeks later, a new law come up to revoke the old law – to the effect that there was no such law in the first place. This means, technically, I have committed an offence and can be charged under the ISA.
By doing what Syed Hamid has done, a precedent has been set. Let’s take another example: – say now, a law is passed today to legalize the smoking of marijuana – and people start doing just that, smoking marijuana – 6 months later the Home Minister revokes the law and puts everyone in bars. Is that possible?
All said and done, Syed Hamid Albar is truly Malaysia’s resident magician – Law today, gone tomorrow.