Justice must not only be done but must be seen to be done. The enforcement of law must have the appearance of impartiality and integrity. Enforcers of a law must inspire confidence that their enforcement of the law will be fair, just and humane.
I have already given a list of the actions which are considered to be offences and their punishments under the Non-Muslim Religions (Control of Propagation Amongst Muslims) Enactment 1988 of Selangor. Now we look at the enforcement of this law.
Unlike ordinary civil law, the power to investigate offences and to arrest suspected offenders under the Selangor Enactment is not automatically to the Police. Instead, these powers of enforcement are given to an “authorised officer.” An authorised officer must be specially appointed by the Enactment.
Section 10 of the Enactment gives the power to appoint an authorised person to the Ruler in Council. In simple terms, it means that the Sultan of Selangor meeting with and acting on the advice of the State Legislative Council appoints a “public officer,” that is, civil servants of the State or Federation, to be an authorised person.
On 16 November 1999, the appointment of authorised persons to enforce the Selangor Enactment was published in the Government Gazette. They are:
- Secretary of the Majlis Agama Islam Selangor (MAIS) or the Islamic Council of Selangor
- Head of Enforcement of the Jabatan Agama Islam Selangor (JAIS) or the Islamic Religious Department of Selangor
- Deputy Director of Research of JAIS
- Syariah Legal Adviser of JAIS
- All District Religious Officers in the State of Selangor
- All police officers of the rank of inspector and above
Of the 6 categories of authorised persons, only one is a civil authority, namely, police inspectors. The first four are high ranking officers of the Islamic hierarchy in the state. The fifth category include mid-level Islamic personnel in the state.
The raid on the Bible Society of Malaysia on 2 January 2014 was not carried out by the police. It was carried out by the head of enforcement of JAIS and his subordinates. There were 2 police constables standing outside BSM premises but they never took part in the raid. They were onlookers. It was a JAIS officer who carried out the arrest. No police was involved. In any event, the 2 policemen standing on the road outside were constables and not above the rank of inspector and so could not be authorised persons under the act.
There is something objectionable and inherently unjust in appointing Islamic religious officers of the state to enforce this Enactment against non-Muslims. Religious officers are inherently biased towards their religion and rightly so. They are the appointed protectors and defenders of their religion. Thus, in an event of an offence that is considered to be an infraction of the dignity of their religion, it is impossible for them to be objective. Thus, any investigation and arrest by them is invariably tainted with bias.
In the enforcement of civil laws, a police officer does not investigate a crime when he is related to the victim. A judge does not hear a case when he is related to the parties or is involved somehow in the facts of the case. This is a basic proposition of law. We call this conflict of interest.
Anyway, let’s go on with our discussion. Section 11 of the Selangor Enactment says that all offences are seizable offences. This means that a person suspected of committing this offence can be arrested. In a non-seizable offence, for example, running the red lights, the offender cannot be arrested but a summons must be issued to him to compel him to attend court.
Section 12 says that an authorised officer may investigate the commission of any offence under the Eanactment and may arrest without warrant any person suspected of committing such offence. It is presumed that the raid of BSM, the seizure of the bibles and arrest of BSM officers were carried out under this section.
Section 13 gives power to an authorised officer to require in writing any person to attend before him in connection with the case. If a person so ordered (that is, the witness) to attend fails to attend, a warrant of arrest may be obtained from a Magistrate to compel the witness to attend. Section 14 says that the authorised officer may examine orally the witness on the facts and circumstances of the case and the witness is bound to answer all questions truthfully. The only exception is that the witness may refuse to answer any question which would expose him to a criminal charge or penalty. The statement of the witness must be recorded and signed by the witness subject to the witness making any corrections he may wish.
There were people who advised me not to go to JAIS office to have my statement recorded. Such persons were well-intentioned but were ill-advised in the law. The lawmakers in Selangor put the law in place in 1988 and then set up the enforcement machinery in 1999. They knew what they were doing and they made sure that they got all the bases covered. They had set a net so that when they cast it, the fish would not escape.