A literalist interpretation of the law

Brave New World (The Star)
14 October 2015

Recent judgments have an impact on basic freedoms such as that of expression.

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RECENTLY I’ve been faced with a rather hurtful question. How can I teach my students the law?
This may seem like a weird question. After all I work in a law faculty. My students are there to study the law. What else am I to teach, then?
But there is a sting in the question. There is an implication to this seemingly simple query.

The question really should be: “how can I teach my students the law when the law seems to disregard such fundamental principles as constitutionalism and the rule of law”?
Looking at recent developments, it comes as no surprise that this question arises.
In a space of a fortnight the Federal and Appeal Courts of this country have taken retrograde steps pushing back any small advances we may have made in the realm of the right to assemble, the right to life and the right to expression.
They have done this by con­tradicting earlier decisions, by using technicalities and by interpreting the Constitution in a li­tera­list manner which leaves the door wide open for tremendous abuse of our human rights.
There are too many cases to be discussed in the space that I have, so I would like to only focus on the Ezra Zaid (pic) case.
Ezra was charged under Selangor Syariah legislation because his company had published a Malay translation of Irshad Manji’s book Allah, Liberty and Love.
The Selangor Enactment on Syariah Offences makes it a crime to publish or even have in one’s possession any book which they deem as being against “Islamic Law”.
This book was deemed such and so Ezra was charged.
He brought the case to the civil court and argued that the Selangor enactment was unconstitutional.
His argument was very simple. The Constitution is explicit in sta­ting that only Parliament could make laws restricting our freedom of expression.
This law was clearly a restriction on the said freedom and it was not made by Parliament, it was made by the Selangor state legislature. One would have thought this was an open-and-shut case.
Unfortunately, the Federal Court did not view it that way.
I have not had access to the judgment but according to reports they held that the Selangor Enactment was not about expression as such, and more about the punishing acts that go against the “precepts of Islam” which the states are Constitutionally allowed to make law on.
This literal interpretation of the Constitution is flawed in several ways. Firstly, any laws made in this country must be in line with the Constitution as a whole.
For example, the state can make land laws. What if one day they make a law where they can simply confiscate people’s property. Surely this law would be invalid, because the Constitution actually protects our rights to property.
Following this, any laws made for Syariah purposes are also subject to the protections provided for in the Constitution. Just because the purpose of the law is to protect “the precepts of Islam”, whatever that may be, it still cannot be in contradiction of our fundamental liberties.
Secondly, one must examine the effects of the law. The law in question affects the freedom of expression of Muslims.
It does not matter one bit what the purpose of the Selangor law is, its effect is felt on the freedom of expression and as such it cannot be deemed lawful because only Parliament can make laws with such effects.
What this judgment means is that Muslims in this country can kiss their rights goodbye.
All the state legislators have to do is make Syariah laws and say it is for the purposes of upholding the “precepts of Islam” and they can take away our freedom of expression, assembly, association, religion, property, education, freedom from slavery and even life.
Do I sound alarmist? Perhaps, but with the highest Civil Court of this land, staffed by learned men and women who have sworn to uphold the Constitution, having seemingly washed their hands of the responsibility of protecting all Malaysians from oppression, I don’t think I am being too far off the mark.
Which brings me back to that question I’ve been asked recently; “how can I teach my students the law?”
My answer is simple. I will continue to teach them what the law is but more importantly I will teach them what the law should be.
They need to know what the law ought to be in order to be able to participate in our continuing ef­forts to fix it. For let there be no doubt, the law is broken.