Speech by Parliamentary Opposition Leader, DAP Secretary-General and MP for Kota Melaka, Lim Kit Siang, in the Dewan Rakyat on Thursday, 9th December 1982 on the Penal Code and Criminal Procedure Code (Amendment) Bill 1982
Call on 2M Government to respect the Constitutional guarantee of freedom of religion, and to confine legislative proposal to deal with intra-religious problems in the Muslim community of kafir mengafir, two imam and praying separately in the same or different mosque to Muslims and not to extend extend them to non-Muslim religious without consultation and consent of non-Muslim religious groups and organizations.
At the 33rd UMNO General Assembly in September this year, the Prime Minister, Dr. Mahathir Mohamed, said that the Government would formulate a law to ensure that Islam, its teachings and values are not abused or wrongly preached. He said that the law would serve to protect the ‘sanctity of Islam’ as the official religion and would provide for legal action to be taken against those who carried out their activities prejudicial to Islam and Muslim unity in the country. The Prime Minister also said that the new legislation would be severe in dealing with deviant Islamic teachings.
The UMNO General Assembly also adopted a resolution urging the Government to formulate an Act that will uphold the sanctity of Islam, defend true Islamic values and prevent them from being abused.
The upshot of all this is the present Penal Code and Criminal Procedure Code (Amendment) Bill 1982, which government sources had been frank in admitting is meant to deal with the problems of kafir mengakir, two imam, praying separately in the same or different sques, and separate burial grounds.
These are intra-religious problems of the Muslim community which I, as a non-Muslim, do not intend to touch on. However, my attention has been drawn to a comment made by the President of Aliran, Dr. Chandra Muaffar, on the ‘Two Imam Issue’, made on July 30, 1982, which I think should be of great interest to all Malaysians: This is what Dr. Chandra Muaffar said:
“Masaalah dua imam pada hemat saya tidak dapat dipisahkan daripada pertikain politik antara UMNO dan PAS. Akhbar-akhbar kita yang sibuk membahaskan masaalah dua imam ini tidak berusaha membentangkan butir-butir latar belakang tentang persoalan ini. Sekiranya latar belakangnya diterangkan mungkin rakyat akan lebih sedar bahawa kedua-dua pihak dan bukan PAS semata-mata yang harus dipersalahkan.
“Tanpa mengkaji akar-umbi masaalah ini saya dapay mengatakan bahawa mengadakan dua imam dalam jemaah adalah salah disisi agama. Lagi pun ini akan menbawa perpechahan dikalangan penganut-penganut Islam dalam satu bidang dimana perbezaan-perbezaan amalan akan tetap merugikan umat- iaitu dalam bidang mengerjakan sembahyang. Harus ditegaskan disini bahawa perbezaan pendapat dalam soal-soal yang berkaitan dengan pendekatan pada nilai-nilai sejagat dibenarkan dalam Islam. Yang tidak dibenarkan ialah perbezaan amalan dalam ibadah seperti puasa, sembahyang dan sebagainya.
“Mungkin masaalah ini timbul akibat daripada tindakan golongan tertentu terhadap seteru-seteru politik mereka dan perkara-perkara yang tidak berkaitan langsung dengan sembahyang. Jika sesuatu pihak membeza-bezakan pengikut-pengikut parti lawan dalam pemberian bantuan pembangunan- sebagai contoh- sudah pasti mangsa diskriminasi itu akan bertindak balas dalam bidang yang lain pula dimana mereka boleh membuktikan kuasa mereka, umpamanya dalam soalan imam.”
STATE INTERFERENCE
What, however, has greatly alarmed and dismayed non-Muslim religious groups and organizations, whether Christian, Buddhist, Hindu or Sikh, is that in dealing with what are strictly intra-religious problems in the Muslim community, the Government has drafted legislative proposals which not only affect non-Muslim religious and adherents, but would have far-reaching implications and consequences on the fundamental right of freedom of religion as guaranteed in Article 11 of the Constitution. This is because the provision in the Amendment Bill would allow for State interference in the practice, profession and propagation of non Muslims religious.
This is why I am very sad that the Deputy Prime Minister and Minister of Home Affairs, Datuk Musa Hitam, had disregarded my cable to him on Monday, 6. 12. 1982, urging him to withdraw the Panel Code and Criminal Procedure Code (Amendment) Bill 1982 until the next Parliamentary meeting in March next year to allow the non-Muslim religious groups in the country, namely the Christians, the Buddhists, the Hindus and Sikhs adequate time to study and make representation on the Bill.
In my telegram to the Deputy Prime Minister, I had said:
“Non-Muslim religious groups and organizations, whether Christians, Buddhists, Hindus or Sikhs, greatly alarmed by Penal Code and Criminal Procedure Code ( Amendment) Bill 1982 because of the far-reaching consequences on the freedom of religion guaranteed by the Malaysian Malaysian Constitution.
“As presently proposed, the Penal Code and Criminal Procedure Code (Amendment) Bill 1982 is a serious encroachment on the freedom of religion as it would allow for untrammeled State interference in the practice, profession and propagation of non-Muslim religions in the country.
“Government should accept the principle that before any law is introduced and enacted affecting the practice, profession and propagation of non-Muslim religions, non-Muslim religious groups and organisations must be fully consulted and their agreement sought.
“Nothing would be lost, and everything to gain, by withdrawing the present Bill until next Parliamentary meeting in March 1983, to allow for full study and representation to be made by non-Muslim religions. This will also maintain good name of Malaysia world-wide as a country where there is no State coercion or interference with other religions.”
In fact, the representatives of various non-Muslim religious groups had expressed their opposition to the Panel Code and Criminal Procedure (Amendment) Bill as it would lead to the ‘drastic curtailment’ of the Constitutional right of freedom of worship. This should be a powerful reason for the postponement for the consideration of the present Bill.
A study of the Bill before the House shows that there are very cogent reasons for the alarm, dismay and consternation felt by non-Muslim religious organizations who are only becoming aware of the far-reaching implications of the Bill in the last few days.
Thus, in creating a new offence under the Penal Code and Criminal Procedure Code (Amendment) Bill 1982, punishable with a three-year jail sentence and in more serious circumstances with a five-year sentence, the government has encompassed not only the problems of kafir mengafir, two imam, separate prayers and burial grounds in the Muslim community, but also affect other religious groups with matters that have no bearing with any of these intra-religious Islamic problems in Malaysia, or with any matter connected with Islam at all.
Thus, the proposed new Sub-Section 298A (1) provides:
“Whoever by words, either spoken or written, or by sign, or by visible representations, or by any act, activity or conduct, or by organizing, promoting or arranging, or assisting in organizing, promoting or arranging, any activity, or otherwise in any other manner –
(a) cause, or attempts to cause or is likely to cause disharmony, disunity or feelings of enmity, hatred or ill-will; or
(b) prejudices, or attempts to prejudice, or is likely to prejudice, the maintenance of harmony or unity,
on grounds of religion, between persons or groups of persons professing the same or different religions, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.”
The new Sub-Section 298A (2) provides:
“Whoever commits an offence specified in subsection (1) in or in the proximity of any place of worship or any assembly engaged in the performance of religious worship or religious ceremony, shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both.”
Thus, not only acts that ‘causes or attempts to cause’ or ‘prejudice or attempts to prejudice’ are illegal, but even those acts which are ‘likely to cause disharmony’ or ‘likely to prejudice the maintenance of harmony or unity’ are offences punishable by law. These provisions allow for great scope for the misuse of powers of interpretation which could lead to serious undermining of the right of religious freedom as guaranteed by the Constitution, by State and Government interference in the practice, profession and propagation of non-Muslim religions.
PRESUMPTION
Thus, under the new sub-section 298A (2), there could be numerous situations in which individuals, while carrying out their normal duties and responsibilities, may be deemed to have committed offences under sub-section (1). I will give three examples.
- A religious teacher, priest, minister or official, in the performance of his duties, may in the course of delivering a speech or preaching a sermon to adherents of his own faith, refer to beliefs and/or practices of other religious for purposes of comparison or contrast. This may be construed as an act under sub-section 1 (a) or (b), particularly by a follower of another religion or government official who may be present, as many religious groups practice an ‘open door’ policy and anyone is free to attend their religious services in their places of worship.
- A similar situation may also occur in a dialogue session or form conducted either in a place of religious worship or a public place.
- The study of comparative religion forms part of the curriculum of some non-Muslim religious training institutions. The doctrines and practices of various religions are examined and discussed in such training courses, and this may be deemed to be an offence committed under sub-section (2) of the new section 298A of the Penal Code.
All these offences under the new sub-section 298A (2) are punishable with a five-year jail sentence.
What is most objectionable is that the new offences in Section 298A is that mere presumption creates a punishable and jailable offence.
No intent is needed. This is a complete departure from the existing Penal Code offences relating to religion where intention is an essential ingredient before an offence is committed, whether it be injuring, defiling or destroying a place of worship (Section 295), disturbing a religious assembly (Section 296) trespassing on burial grounds (Section 297) or the wounding of religious feelings of any person (Section 298).
KUAN YIN STATUE
Thus, in the proposed new sub-section 298A (1), which states that whoever by ‘signs’ or ‘visible representation’ causes disharmony or feelings of ill-will is committing an offence, what are these ‘signs’ or ‘visible representations’, and how is one to define ‘is likely to cause’?
I will give an example. In Penang, Buddhist devotees, in the practice of their right to worship a god or a deity of their choice, a right which is guaranteed in the Constitution as well as promulgated in the Rukunegara, which advocates as its first cardinal principle the belief in God, wanted to extol the glory of God in building a new statue of Kuan Yin in the Kek Lok Si Pagoda Temple in Ayer Itam, Penang. This project, undertaken on a site of an old pagoda was designed to cover an area of about two acres. According to the original plan, the project is meant for a statue of the Chinese Goddess of Mercy, Kuan Yin, on a lotus base at about 250 feet above sea level. According to the original plan, the height of the statue, measured from the lotus base, is to be 121’6’’. When completed on the basis of the original plan the top of the statue is expected to be 368.6 feet above the sea level. The whole project was originally estimated to cost $1.2 million.
However, the Kuan Yin statue project became the subject of criticism and attack by certain fanatical Muslim elements, who opposed the construction of the Kuan Yin statue in accordance with the original plan, on the ground that it would be an insult to the Muslims and the Malays. In fact, an official and respectable publication as the Dewan Masyarakat, which is the official publication of the Dewan Bahasa dan Pustaka, even carried an article attacking the proposed Kuan Yin Statue project.
In the event, the Penang State Government and the Kek Lok Si trustees submitted to the most uncalled for pressures from fanatical Muslim elements, and the Kuan Yin statue was shortened to 79’ above the lotus base. The pressure was effected through the Penang Municipal Council control over building plans.
If the new Section 298A was in force, there would be demand and great pressure from the fanatical Muslim elements that those who wanted to build a 368.6’ Kuan Yin Statue should be prosecuted under the Section and jailed, whether they are trustees or Buddhist devotees, on the ground that such activity ‘causes, or attempts to cause, or is likely to cause disharmony, disunity or feelings of ill-will as the proposed height of the Kuan Yin statue ‘insulted the feelings of the Muslims’ in the country.
MUSLIM OBJECTION
In actual fact, the people whose activity are calculated to ‘cause or attempt to cause or likely to cause disharmony, disunity or feeling of enmity, hatred and ill-will on grounds of religion’ are those who are intolerant of the right of freedom of worship in the country and want to interfere with the free practice, profession and propagation of non-Muslim religious faiths, as in the case of the construction of the Kuan Yin Statue in Kek Lok Si in Ayer Itam, Penang.
It is most disturbing that there are more and more instances of Muslim objection to the free worship of non-Muslim religious faiths. In Sabah for instance, some Muslims have objected to the constitution of churches, in particular the Sacred Heart Cathedral in Jalan Menteri in Kota Kinabalu. The ild Sacred Heart Church has been demolished and on its site a new Sacred Heart Cathedral is proposed to be built, modeled on the same architectural design as that of the St. Joseph’s Cathedral in Kuching, Sarawak. When completed, the Sacred Heart Cathedral would be the biggest and most modern Roman Catholic Cathedral in Sabah, which could accommodate a congregation of 1,379 at a time. Who then is guilty under the new Section 298A of the Penal Code of ‘Activity which Ucauses or attempts to cause or is likely to cause disharmony, disunity or feeling of illwill’– those who want to build the biggest Catholic Cathedral in Sabah in the glorification of God, or those who create opposition to such religious activity?
In Sandakan, there have also been opposition from some Muslim quarters to the building of a $2.5 million Buddhist temple on a four acre site in Kampung Tanah Merah, Sandakan, dedicated to the worship of Amitabha, Buddha and Kuan Yin. In Sarawak, the building of a $400,000 Sikh temple in Mosque road, Kuching by the Sarawak Sikh community had also come under attack.
Appart from opposition and objection to the building of non-Muslim places of worship on the grounds of their size, there are now more and more instance of objection to the very construction of non-Muslim places of worship itself. It is noteworthy that any threat to inter-religious harmony has never come from the non-Muslim religious groups, but have only come from fanatical Muslim elements. In Malaysia, we do not have fanatical Christians or fanatical Buddhists or fanatical Hindus or fanatical Sikhs out to destroy the places of worship of other religious faiths.
The History of Malaysia has shown that the non-Muslim religions have practiced their faith in absolute peace and harmony, and their religious beliefs and practices have never been a threat to any other religion or the public peace. In fact, it can even be said that the non-Muslim religious groups in the country have helped to cultivate a mutual protective interest in the religions of all the racial groups, which all these years had been the most powerful sourceof racial harmony in the country.
KHALWAT
This is again another powerful argument that in dealing with intra-religious problems within the Muslim community, the Government should not affect the other religious groups in providing a legal basis for the interference with the practice, profession and propagation of non-Muslim religious faiths.
I was aware that the new Section 298A of the Penal Code has also been drafted in order to punish the non-Muslim partner in a khalwat offence until I read a Bernama write-up on the amendment the other day. The Bernama report exulted that now both the Muslim and non-Muslim parties to a khalwat offence would be punishable, the non-Muslim under the Penal Code amendment.
A Muslim found guilty of khalwatis usually fined $200 or $250 under the Muslim enactments of the various States. I have caused a check of the penalties for khalwat, offences in the various states, which vary from State to State but they all range from the lightest penalty of $100 or one month’s jail in Kelantan to the heaviest penalty of $1,000 or six months’ jail, as is to be found in Johore. However, the non-Muslim partner charged under the Penal Code Section 298A for khalwat activity which ’causes or attempts to cause or is likely to cause disharmony, disunity on feelings of ill-will’ would be exposed to an offence which is punishable with three years’ jail, or fine, or both.
This is most objectionable and unjust where for the same act, different persons are charged under different laws where one of them imposes much heavier penalties. Or is the Muslim partner in a khalwat charge going to be charged under the Penal Code in the Criminal courts? I am sure that the Shariah Courts in the various States would vehemently oppose this as a serious erosion of the jurisdiction and powers of the Shariah Courts.
There is the further question of the rules of evidence to be followed in such charges whether it be khalwat or zina. Under the Muslim law, ‘four pairs of eyes’ are required before a zina charge could succeed. Is this going to be followed when a non-Muslim in the similar zina charge is brought to the criminal courts? This would be a revolutionary change of the rules of evidence in the secular courtesy or is the criminal charge under Section 298A of the Penal Code to await the outcome of the Shariah Court proceedings?
FREEDOM OF RELIGION
We are likely to have a situation where, because of the different courts where the Muslim and non-Muslim partners are charged whether for khalwat or zina, the non-Muslim under Section 298A under the rubric of causing disharmony or ill-will on grounds of religion, different outcomes may be reached, with the criminal court convicting the non-Muslim party while the Syariah court acquitting the Muslim party, or vice versa, the criminal court acquitting the non-Muslim party while the shariah court acquitting the Muslim party.
In either case, such situations could not enhance the confidence of the public, whether Muslim or non-Muslim, in the legal system in the country.
What is even more objectionable however is the indirect attempt to extend Islamic laws to non-Muslim. It is a cardinal principle of our Constitution that the fundamental right of freedom of religion includes the right not to be punished or penalized by the religious laws and practices of another faith.
Another threat to the freedom of religion stems from the new sub-section 298A (3), which reads:
Where any person alleges or imputes in any manner specified in subsection (1) –
(a) …..
(b)That anything lawfully done by any religious official appointed, or by any religious authority established, constituted or appointed, by or under any written law, in the exercise of any power, or in the discharge of any duty, or in the performance of any function, of a religious character, by virtue of being so appointed, established or constituted, is not acceptable to such person, or should not be accept by any other person or persons, or does not accord with or fulfil the requirements of that religion, or is otherwise wrong or improper, heshall be presumed to have contravened the provisions of Section 298A (1).
If this Bill is passed, an individual’s right to dissent or to express dissent in his own religious faith with regard to anything ‘lawfully’ done by a religious official or authority would be taken away from him, as he would be committing a criminal offence to dissent. Has the Government secured the consent and agreement of all the non-Muslim religious faiths and groups to allow the state to so blatantly interfere with non-Muslim religious activities? I am sure the non-Muslim religious faiths would be the first to disagree, for the right to dissent is often a matter of conscience as it is possible that what has been ‘lawfully’ done by individuals or religious authorities may be quite contrary to the spirit of that religion.
The Government seems to want to institute criminal proceedings for even dissent on purely religious grounds in their own religious.
Doctrinal dissent or differences or other intra-religious problems should be best dealt with by their own religious, without any State interference, which could only make things worsek and would give rise to suspicion of extra-religious interference.
Sub-section 3(b) of the new section, taken with sub-section (7) will in fact destroy the freedom of speech to discuss the various religions in the country. Sub-section (7) reads:
“It shall not be a defence to any charge under this sectionto assert that what the offender is charged with doing was done in any honest belief in, or in any honest interpretation of, any precept, tenet or teaching of any religion.”
MANAGEMENT OF RELIGIOUS AFFAIRS
The most dismaying effect and consequence of the new Section 298(A) in the Panel Code is that the non-Muslim religious groups and organizations would be deprived of the fundamental right to manage their own religious affairs as guaranteed in Article 11(3)(a) of the Malaysian Constitution which reads:
“Every religions group has the right – (a) To manage its own religious affairs.”
Up to now, the different religious groups have administered and managed their religious affairs in accordance with their own doctrines, canons, etc. under their own religious leaders. Some have a well-defined hierarchical system with appointed or elected officials or authorities functioning at various levels. Others are single autonomous units having formally appointed officials and priests who are responsible for performing specified duties. There are yet other groups which make no distinction among their members and anyone who is well versed in their religion and capable and willing and whom the group accepts, may perform such functions or duties (except for marriage which have to be performed by Registrars under the non-Muslim Marriage and Divorce Act 1976).
Should the proposed amendment become law, overnight all these managing bodies/authorities will be deprived of some of their powers and authority as none of them are, in the words of the Bill, “religious authority established, constituted or appointed by or under any written law”. To constitute them legally under written law can only mean that the Government will have to pass legislation or regulation in this sphere, which is clearly contrary to Article 11(3)(a) of the Malaysian Constitution on the freedom of the non-Muslim religious groups to manage their own religious affairs, as it tantamount to interference by the State in promulgating laws concerning the management of non-Muslim religions.
In fact, under sub-section 5, when the new Bill becomes law, all non-Muslim religious officials who are at present not appointed “by or under any written law” would be presumed to have contravened the provision of sub-section (1) and (2), with the penalties of three and five years’ Jail respectively. This is because none of these non-Muslim religious officials, by their own admission, are in fact appointed under any written law.
SELECT COMMITTEE
As the purpose of the 2M government is to uphold the sanctity of Islam, defend true Islamic values and Muslim unity in the country so as to be able to deal with the problems of kafir mengafir, two imam issme, separate prayers and burials, in the Muslim community, the government should confine its legislative efforts to the Muslims only, and not draft a Bill with such far-reaching consequences in allowing for State interference in the practice, profession and propagation of non-Muslim faiths.
The government should either confine the proposed new Section 298A in the Penal Code to Muslim wrongly preaching Islam, or suitable amendments should be made to the various laws governing the administration of Islam. As the non-Muslim religious groups had never posed a threat to public peace, order and security I would urge the Deputy Prime Minister to give this proposal serious consideration. If he cannot withdraw the Bill now, then I proposed that the Bill be referred to Select Committee so that all non-Muslim religious groups could make representations as up to now, the overwhelming majority of the non-Muslim religious groups and organizations would be adversely affected are quite in the dark about the implications of this Bill. The government’s agreement to refer the Bill to Select Committee would also be in keeping with the openly- avowed open and liberal attitude of the 2-M government.