(1.0) Introduction
The police are investigating a woman who had mocked the Islamic faith during a Comedy Club skit. It was based on a short viral TikTok video on social media. Federal police secretary Datuk Noorsiah Mohd Saaduddin recieved a police report and investigations would be executed by the Bukit Aman Classified Investigation Unit.
The offence occured when the woman wore a baju kurung and tudung at the Crackhouse Comedy Club in Taman Tun Dr Ismail. It was a 53 seconds video as she claimed herself to be a Malay-Muslim and memorised 15 chapters from the Quran.
She then stripped off her clothes and revealed her sexy mini dress underneath. She received cheers and laughter from the club's patrons. She was arrested and held at Brickfields Police HQ for further investigations. She was also banned, together with her boyfriend from attending the premises again.
The Federal Territories Islamic Religious Department also conducted investigations into the clip.
(2.0) Legal Analysis
(2.1) Mamat Daud Supreme Court Decision
In Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119, the petitioner was charged for an offence under section 298A of the Penal Code (PC) for committing acts which would prejudice unity among persons professing the Islamic religion as they acted as an unauthorised Bilal, Khatib and Imam at a Friday prayer in Kuala Terengganu, as he was not yet appointed under the Terengganu Administration of Islamic Law Enactment 1955.
Court held that section 298A of the PC was ultra vires the Constitution for pith and substance. It is a colourable legislation that pretends to be a legislation on public order, when in pith and substance is a law on the subject of religion, which only states have power.
However, court mentions that this provision is still valid in the Federal Territories of Kuala Lumpur and Labuan, to take effect from the date of order that is 13th October, 1987. Would this mean that this law does not apply to the other 13 States in Malaysia.
This leaves a huge question mark as this provision now stands between the Federal or State List matter. It is neither Federal or State Law, yet it still exists and applies in the Federal Territories. This is a legal question that has not been resolved until today.
In the dissenting, this law is not for Islamic matters, but for public safety. The true nature and character has to be viewed on a broader basis. Chapter XV of the PC was amended with the addition of sections 295 to 298.
The provision is not confined solely to the Islamic religion and is not an offence related to the tenets, precepts, practice and propagation or laws for the administration of Islam. The provision applies to all persons irrespective of their religion. This is consonant to article 11(5) of the Federal Constitution.
(2.2) Bak Kut Teh Incident
The Mamat Daud case was further affirmed in our modern timeline as in Tan Jye Yee & Anor v Public Prosecutor [2014] 6 MLJ 609, the accused was charged under section 298A of PC for posting a Facebook post of the appellants enjoying Bak Ku Teh with the Halal logo.
The Court of Appeal in that case should not be investigating the Supreme Court decision, but only apply stare decisis. The court also held that the dissenting judgement could not be accepted as the correct state of law over the majority judgement.
This does not mean that the provision is removed from the PC, but a confirmation of the Mamat Daud decision. It just dropped the charge because of Mamat Daud. The decision was bizarre, for not being dropped due to prosecution failing to prove prima facie nor beyond reasonable doubt.
However, in Tan Jye Yee case, we still have section 4(1)(c) of the Sedition Act whereby a case appeal was dismissed in Lee May Ling v Public Prosecutor [2019] 8 MLJ 396.
The facts were that the appellant were charged for posting a photograph on Facebook, showing two individuals with the words "selamat berbuka puasa with Bak Kut Teh" that contained the logo Halal. They were still convicted for an offence under the said provision and was sentenced to five months and 22 days imprisonment, starting from 27th May 2016 in the previous trial.
The publication had a seditious tendency to promote ill-will and hostility between the races or classes of the population of Malaysia. It is evident that it caused feelings of ill-will or hostility between different races or classes of population in Malaysia.
This is clear from the testimonies of prosecution witness who expressed their anger, frustration, hurt, regret on the action by Tan Hye Yee and the appellant. The court replaced their imprisonment on appeal though, with RM5000 instead as they were a first offender. Defaulting the fine, they would face six months imprisonment.
(2.3) Other laws
Other relevant provisions that despite the nullity of section 298A of the PC, we have section 233 of the Communications and Multimedia Act 1988 for the improper use of network facilities or network services.
One case to illustrate this was in Pendakwa Raya lwn Sarajun Hoda bin Abdul Hassan [2022] MLJU 1267, where on his Facebook page, Sarajun Hoda he argued that Islam should be removed as the official religion, close down Jakim, remove religion from government businesses and schools, stop policing morals;
Force Islamic schools to excel in Maths, Science subject and vocations. Ban all political parties based on race and religion. Make all ustaz go find real jobs and among other comments. They challenged the provision as against article 5, 8 and 10 of the Federal Constitution. It is too broad and vague.
However, court dismissed the application and ordered the criminal proceedings to continue.
In addition, there is also section 7 of the Syariah Criminal Offences (Federal Territories) Act 1997 (SCA) for a law of insulting or causing contempt against Islam. Anyone convicted of this offence can be fined not more than RM3000 or imprisoned for a term not exceeding two years or both if convicted.
Since section 298A is not applied to the States, each State has their own laws for regulating expressions towards Islam. For example in Selangor, Sajat (full article could be read here) was charged under section 10(a) of the Syariah Criminal Offences (Selangor) Enactment 1995, for also insulting or causing contempt against Islam.
Should section 298A of PC be completely removed, since there is already section 7 of SCA? However, it may be different, since the PC applies to everyone, while section 7 of SCA is only applied to Muslims. Given the Mamat Daud decision, section 7 of SCA has not conflicted with section 298A of PC, since again, section 298A is neither a Federal or State Law.
(3.0) Conclusion
To conclude, it is never tolerable to allow jokes or suggestive comments related to religion, race or the country's sovereignty. Malaysia is a multiracial society and we must respect each other regardless of our backgrounds. Hopefully, this would serve as a reminder to everyone that race and religion is a polemic and sensitive matter in this country and our Rakyat should further be educated and matured in these regards.
(4.0) References
Bernama. (July, 2022) Officials prove viral video of Muslim woman 'insulting Islam'. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2022/07/09/jawi-probing-viral-video-clip-of-muslim-woman-in-club-for-insulting-islam/
TheSunDaily (July, 2022) Police probing viral video of woman insulting Islam at comedy club. Retrieved from, https://www.thesundaily.my/home/police-probe-viral-video-of-woman-insulting-islam-at-comedy-club-XC9433770
FMT Reporters. (July, 2022) Woman in comedy club fiasco nabbed. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2022/07/10/woman-in-comedy-club-fiasco-nabbed/
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