This is my column for June, which didn't make it into the Sun. And I was, seriously, trying to be careful. Didn't mention baby-snatching or locking up effeminate men. Sigh.
The proper jurisdiction
By Sonia Randhawa
Almost 40 more books have been pulled from our shelves. As Malaysians, we are considered insufficiently mature to read them. They may be pornographic or, worse still, they may confuse us. All these books are banned under the Internal Security Ministry, signed off by the Internal Security Minister (better known as the Prime Minister).
Book banning, or restricting, is always an infringement of our fundamental rights. It is always an abrogation of Article 10 of the Constitution. But, so what? Many of us feel that there is a need to put limits on freedom of speech, as well as our other fundamental freedoms. And the Constitution recognises this. Article 10 is limited, there are matters that do not fall under its protection. The problem then becomes how do we interpret these limitations?
I recently met with the secretary for the Publications and Quranic Texts Control Division, a civil servant of the old school. Seemingly steeped in his responsibility, he acknowledges both his shortcomings and his attempts to overcome them, and best of all is willing to engage in frank dialogue with some of his sternest critics to improve. His sternest critics, of course, including me. After all, his job is to ban books. And other publications.
He and his staff argued that there is a need to prevent religious confusion, and that the proper place for it to be decided whether or not a book causes religious confusion is Jabatan Kemajuan Islam Malaysia, Jakim. There, religious scholars can sit and discuss the number of angels on a pinhead, or whether discussing the number of angels that can fit on a pinhead is liable to cause confusion.
Now, my first question was, so what if people are confused? Is confusion a matter of national security? Public order? It is hard to see how causing confusion, religious or otherwise, is a justification for censorship. It certainly isn't there under the Constitution.
And this is where I get disconcerted. Because every functionary, every civil servant, from the lowliest traffic policeman to the Yang DiPertuan Agong derives their power, position, prestige and even salary from the Constitution. If the Yang-Dipertuan Agong wishes to make laws, he can't. He does not have the authority to make legislation. Because it says so in our Constitution. The legitimacy of our offices, the legitimacy of our laws, all derive from the Constitution. The right of the Internal Security Ministry to ban books derives from the Constitution.
The Constitution, however, does not enforce the will of the majority. It was designed to be sturdier than that. Because a consistently marginalised minority is unlikely to support a state. So one of the first things written into the Constitution was protection of fundamental liberties, liberties which will ensure that minorities are not consistently marginalised, or persecuted. Regardless of subsequent laws. If they infringe the Constitution (such as Article 198A of the Penal Code), the courts can declare the offending article, or act, an infringement of the Constitution – and therefore not valid law.
So when books are banned, it is an abrogation of our fundamental liberties. But the Constitution says this is alright, under certain circumstances. Now, Jakim has responsibilities. It is responsible to the Ummah, the individual scholars are responsible to their own consciences. They are not, however, responsible for the decision to ban, or not ban, a book. They can make recommendations, of what is best for the Ummah.
This is not the same as what is best for Malaysia. The Internal Security Ministry is responsible for banning books. Unlike Jakim, it has to consider whether or not it has the right, under the Constitution, and in light of what is best for all Malaysians, to ban a book.
The secretary elaborated the appeals process that has been put in place, emphasised that it is impossible for his department to scrutinise all eight million publications that come into the country each year. All of which is valid and important. But his role is a hugely important one. He makes the recommendations to the Minister on whether or not a book, or publication, is dangerous enough to warrant abrogating our fundamental liberty of freedom of speech. It is a weighty decision. Because deciding the wrong way does two things.
First, it brings his own department (and thus the law) into disrepute. Banning (or restricting) children's books (which he plausibly denies having done), books on breastfeeding, or important academic texts, makes him, and his office, look silly. Not the best reputation for a Government department to have.
The second is worse. It indicates that the Internal Security Minister, who is currently also the Prime Minister, is showing a lack of respect to the Constitution. And the Constitution is the fount of all law, it is where the Prime Minister, the police officer, the tax collector, all derive their power. If those who derive their authority from the Constitution show it a lack of respect, it sets an exceedingly bad example, and sets us one step further down the path to lawlessness.
