The Supreme Court decision in Zi Publications Sdn Bhd & Anor v.

Kerajaan Negeri
Selangor [2015] 5 MLRA on the conflict between Freedom of speech and Islamic law in
the Constitution has been reinforced and put in perspective in the subsequent High Court
decisions on the issue. Explain.

Fundamental liberties are rights and freedoms that we possess as human beings. Part II of
the Federal Constitution mentions about the fundamental liberties. Since these rights and
freedoms are laid out in the Constitution, they are said to be ‘guaranteed’ and cannot be
taken away from us unless the Constitution itself allows it. One of the fundamental
liberties provided under our Constituition is freedom of speech and expression according
to Article 10(1)(a).

In the case of Zi Publications Sdn Bhd & Anor v. Kerajaan Negeri Selangor [2015]
5 MLRA, Justice Raus, in delivering the court's unanimous decision, dismissed a petition
brought by Zi Publications Sdn Bhd and its director, Mohd Ezra Mohd Zaid, to challenge
the validity of Section 16 of the Syariah Criminal Enactment 1995 under which Mohd
Ezra was charged in the Syariah Court for allegedly publishing a book entitled Allah,
Love and Liberty which was deemed to be against the Syariah law. The petitioner argued
that the section was void because it had the effect of restricting freedom of expression
which Article 10(1)(a) of the Federal Constitution guaranteed to every citizen.

This case clearly portrayed the conflict between freedom of speech and Islamic
law in the Constitution. The issue arose was whether the Selangor State Legislature
Assembly had the power to enact a law which was restrictive or had the potential to
restrict the freedom of expression?

It was an established principle of constitutional construction that none of the

provision of the FC could be read in isolation. The particular provision in question must
be brought into view with all the other provisions bearing upon that particular subject.
Harmonious approach in interpretation of the Constitution is always commendable in
order to reconcile all the related provision. Such principle was confirmed in the case of
Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd, in which the court held that a study of
two or more provisions of a Constitution together in order to arrive at the true meaning of
each of them is an established rule of constitutional construction. Hence, in solving the
conflict between freedom of speech and Islamic law in the Constitution, Article 10(1)(a)
must be read together with Article 3(1), Article 11(4)(5), Article 74(2) and Article 121 of
the Federal Constitution. In this context, Article 3(1) declares Islam as the religion of the
Federation. Article 11(4) states that state law could restrict the propagation of any
religious doctrine among the Muslims while Article 11(5) states that freedom of religion
does not authorize any act contrary to any law relating to public order, public health or
morality. Article 74(2) is the power conferred on the Legislature of a State to make laws
in respect to any matter enumerated in the State List, Ninth Schedule and Article 121(1)(a)
on the Syariah court.

If we read all these provisions harmoniously, there can be no doubt that Selangor
State Legislature Assembly was not enacting offences on printing or printing presses but
offences against the precepts of Islam because Section 16 of the Syariah Criminal
Enactment 1995 is only applicable for the Muslims. This power is conferred to Selangor
State Legislature Assembly, as Item 1 of the State List clearly allows the Legislature of a
State for “creation and punishment of offences by persons professing the religion of
Islam against precepts of that religion." In addition, Article 11(4)(5) also give the power
to State Legislature to enact law to prohibit the propagation of any religious doctrine
among the Muslims which might affect public order, public health or morality. Same
principle was applied in the case of Sulaiman Takrib v. Kerajaan Negeri Terengganu;
Kerajaan Malaysia (Intervener) & Other, as the court held that since the offences were
against the precept of Islam and there is no similar offence in Federal Law and the
impugned offence cover Muslims only and pertaining to Islam only, it clearly could not
be argued that they were “criminal law” as envisaged by the Federal Constitution. In the
instant case, it can be seen that the publication of the book Allah, Love and Liberty which
promotes ideology of which is contradict to the belief of Muslims in Malaysia, had or
will have a great tendency to disrupt public order, thus must be prohibited form
publishing.

If we look at the matter of freedom of speech and expression, it is clear that the
freedom of expression as enshrined in Article 10 of the Federal Constitution is not
absolute because Article 10(1) is subject to Article 10(2), which provides the Parliament
the power to enact law to impose on the rights conferred by Article 10(1)(a) when such
restrictions are necessary. A person cannot simply speak anything he want as his right of
freedom of speech is subject to Clause (2). If we refer to the case of Public Prosecutor v
Ooi Kee Saik and Ors, the court noted that the right to freedom of expression is not an
absolute right but must be within reason to maintain an effective balance. In the instant
case, as the book published have the tendency to disrupt public order, the right of
freedom of expression conferred should be restricted through enactment of law.

In conclusion, I agree with the decision made in the case of Zi Publications Sdn
Bhd & Anor v. Kerajaan Negeri Selangor in which the court dismissed the petition
brought by ZI Publications Sdn Bhd. Freedom of expression should not be used as a
reason to argue about the Islamic law provided in the Constitution. Since the freedom of
expression is not absolute, enactment of law by the State Legislature regarding the matter
of Islam is deemed to be necessary in order to prevent the abusing of such freedom that
may lead to disputes or chaos which disrupt the public order.