Source: The Sun Daily
BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
A FRIEND rang me over a strange request. She said a book she bought some time ago has since then been banned. Declared an “undesirable publication” by the home minister. Now it is a crime to possess any banned book.
What do I do with this book? – the evidence of the crime, she asked.
My reaction: burn it in your garden. But then this could expose her to a charge under the law that prohibits open burning.
She could set it alight on the stove. Oh no, she said, the house could incinerate as the flames devour its 247 pages; and the insurance company will repudiate the claim for this wilful arson.
How about throwing the book in the recycle bin? But what if some passer-by retrieves it? He or she could be charged for possession of a banned book. And my friend is traced as the disposer of the book. She could then be charged as an accomplice. Under our law an accomplice faces the same punishment as the perpetrator.
Hmm, perhaps the best recourse is to surrender it to the police. A good idea, at first blush. But what if the police question her (especially under their customary “investigation” remand) and find out that she had the book from after June 14 (when the ban order was made) until the date of the surrender of the book to the police? I don’t think I’ll advise her to risk that.
Perhaps ask a lawyer to challenge the order. After all it is published by a group of high powered former civil servants and legal luminaries calling themselves G25 (with its membership growing steadily). And it is a collection of essays titled Breaking the Silence: Voices of Moderation. A tag line says it is about Islam in a constitutional democracy. It has a foreword by former prime minister Tun Abdullah Ahmad Badawi who expressed confidence of it engendering an informed and rational dialogue on the ways Islam is used as a source of public law and policy in a multiracial and multi-religious Malaysia.
He even wished his “patriotic friends in G25 success in their noble cause in pursuit of a moderate and tolerant Islam with justice for all”. How could he have got it so wrong to promote an “undesirable” book?
I recall reading some chapters (mind you, before the ban – else I will be incriminating myself). They include articles by the likes of my erstwhile colleague Azmi Sharom on fundamental liberties, Zainah Anwar pursuing indefatigably her quest for justice and equality for women in Islam; and the prolific Chandra Muzaffar on principles of equality and justice in the Qurán.
Heaps more of leading scholars and prominent members of civil society writing pointedly to debunk intellectually the thinking by bigots and extremists. Whatever one might think of them, the lucidity of their prose leaves little room to misinterpret their intent for a moderate Islam.
Returning to my idea of the court challenge. There are two possible approaches. First, a judicial review of the minister’s ban made vide the Printing Presses and Publications (Control of Undesirable Publications) (No 12) Order 2017. This involves crossing two hurdles. One: get leave from the High Court to even raise the substantive issue. Incidentally, this was never a formidable obstacle. All we had to do a long time ago was to show that the matter was not frivolous. But the former attorney-general got his lawyers to oppose vigorously just about any grant of such leave.
Two: the High Court hears arguments on the validity of the order made.
Second, let them prosecute my friend (as if I had a choice!). I could then apply at the trial before the lower court for the constitutionality of the ban order to be referred to the Federal Court.
The lower court will refer the application to the High Court – for it to decide whether the matter is worthy enough to be sent to the Federal Court. And finally, the Federal Court will have to rule on its constitutionality. If it decides in my friend’s favour – great! But if it refuses, the matter will be sent back to the lower court for the prosecution to proceed. With an unpredictable outcome. Just writing about the process is tiring. Never mind the actual work involved in going through the multi-tiers of justice!
A forceful inspiration. I heard there is an I-cloud. Could she possibly send the book up there somewhere? Yes, then she will not be in possession. No hard evidence, no prosecution. But what if Apple helps trace it to her?
Maybe I will just advise that she makes her peace with the home minister!
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.