One of the objections over the raid on BSM by JAIS was that JAIS only has jurisdiction (or legal powers) over Muslims and does not have jurisdiction over non-Muslims. So what was an Islamic enforcement body doing acting against non-Muslims?
The Constitution of Malaysia allows the states to pass laws to create Islamic legal systems and to provide for their administration. Like all the other states, Selangor has passed a host of Islamic enactments to govern Muslims in areas like personal faith, marriage, divorce, custody of children, inheritance and administration of estates. The Islamic statutes also created various bodies to enforce the Islamic system and its laws. JAIS is one such body. Thus, it is true that JAIS has jurisdiction and powers on Muslims under the Islamic enactments of Selangor that apply only to Muslims in Selangor.
However, Article 11(4) of the Constitution allows states to pass laws to control and restrict the propagation of non-Muslim religions to Muslims. In 1988, the state of Selangor passed the Non-Muslim Religions (Control of Propagation Amongst Muslims) Enactment 1988. This Enactment is a civil law and it applies to non-Muslims.
Various acts of propagating non-Muslim religions to a Muslim constitute offences under Sections 4 to 8 of the Enactment like influencing a Muslim to change his faith, inviting a Muslim to hear a sermon, sending non-Islamic religious materials to a Muslim and distributing non-Islamic religious literature to Muslims in public.
Of particular interest is Section 9 which make it an offence for any person in a published writing or speech or statement to use certain words listed in the Schedule to refer to any thing pertaining to a non-Muslim religion. In the schedule are over 30 words, the first of which is the word “Allah.”
Interestingly, the police have no automatic powers to enforce the Enactment. Only public officers appointed in writing by the Ruler of the state are authorised to act in respect of any offences committed under the Enactment. Such authorised officers have powers to investigate and arrest without warrant (Section 12). An authorised officer is also empowered to record statements and if a person summoned refuses to attend to have his statement recorded, the authorised officer may apply to a Magistrate for a warrant of arrest to secure the attendance of that person (Section 13).
In 1999, the Selangor state government gazetted the appointment of various Islamic officials as authorised officers under the 1988 Enactment. They included the Head of Enforcement of JAIS, the Deputy Director of Research of JAIS and the Syariah Legal Advisor of JAIS.
Thus, the legal framework for JAIS to act against non-Muslims was put in place starting in 1988 and completed in 1999. During that time, we were living under the delusion that as long as we are non-Muslims, JAIS cannot touch us. The truism is that no one who is given powers can long resist the temptation to use it. Thus, on January 2, 2014 these powers given to JAIS to act against non-Muslims were used for the first time. It certainly won’t be the last!
How can this power be removed from JAIS so that they stick to policing Muslims only? Two ways: one, change the law, or, two, change the gazette notification that conferred the power on JAIS. Very simple. Who is to do that? Answer: Those in control of the State Legislative Assembly of Selangor and those who advise and act through the State Ruler.