Speaking the unspeakable
Section 7 allows the state to convict any (Muslim) person who "orally or in writing or by visible representation or in any other manner insults or brings into contempt the religion of Islam, or derides, apes or ridicules the practices or ceremonies relating to the religion of Islam or degrades or brings into contempt any law relating to the religion of Islam for the time being in force in the Federal Territories." A conviction entails a fine of RM3,000 or a two-year imprisonment or both a fine and imprisonment.
Section 8 of the same Act punishes a Muslim if by his or her "words or acts, derides, insults, ridicules or brings into contempt the verses of Al-Quran or Hadith". If found guilty, the offender faces a RM5,000 fine or imprisonment of three years or both.
Are Muslims in this fair land to be known for their quaint practices such as the inability to raise questions even to a law relating to the religion of Islam ? This could mean anything from raising concerns on the differences of polygamy provisions in the 13 state enactments to remarks on the inelegant drafting of Section 7 itself. Why, law reform could be interpreted by obscurantists as an insult to the religion .
Death penalty
Traditional juristic opinion views blasphemy or the denial of the truth (in its widest definition), as analogous to apostasy which according to traditional views, warrants death as a penalty under Hudud laws.
There is a contemporary controversy as to the import of the hadith which traditional views ascribe as supporting death as a penalty. The suggestion of this idea per se would unwittingly expose a commentator to the risk of a Section 7 or Section 8 prosecution. It begs the question, whether these laws in fact censor speech in the name of insulting the religion? The sections as they appear do not cite any exception.
A law is doomed to fail as law if it is drafted in obscurity such that no person or a trained lawyer can understand what the law commands or forbids. (L Fuller, The morality of law. 1969)
The Federal Constitution at the moment sets the limits of criminal jurisdiction of state courts. This can be changed via a constitutional amendment or arguably an act of Parliament short of a referendum. It is thus very necessary to keep track of parliamentary sentiments on bulldozing laws in the Dewan Rakyat. The Dewan Negara has lost its teeth in several constitutional amendments.
In 1988, the Syariah Courts (Criminal Jurisdiction) Act, 1965, a law passed by Parliament which controls the powers of state Syariah courts, allowed an increase in the penalties to be meted out by state Syariah courts.
Whether or not the Hudud penalties would apply in the near future is linked to our national narrative on Islam as religion of the federation. These issues will continue to be publicly debated as part of our concerns on the nature of the Malaysian constitutional democracy.
At the moment we are too content with the insult to Islam laws. The difference between this and the Hudud blasphemy/apostasy, would appear to be in relation to the prescribed sanctions.
Common law blasphemy
Our civil-criminal law system in the Penal Code does not incorporate the common law offence of blasphemy or blasphemous libel. Our Penal Code is a fair copy of the Indian Penal Code of 1860. The Penal Code offences are wider than the common law (and wider than the state Syariah laws), in that they protect the religious feelings of any person or class of persons.
At the dawn of its history in England, offenders found guilty of common law blasphemy were burnt at the stake. The death penalty was abolished in 1689.
The basis of common law blasphemy is in Christianity. Blasphemy at common law requires an element of vilification, ridicule or irreverence as would likely to exasperate the feelings of others and so lead to a breach of peace. This modern formulation decided in 1917 forms the current standard. (Bowman v Secular Society)
The UK Criminal Law Revision Committee's Working Paper of 1981 recommended the abolition of this offence. While the British Parliament had not yet considered this recommendation, the views of the Committee influenced the Divisional Court in the Salman Rushdie controversy in 1990 v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury) not to extend the offence to include other religions by judicial fiat.
There was an attempt to include the offence of incitement to religious hatred in the UK Anti- Terrorism Crime and Security Act over Christmas last year. This proposal was thrown out as posing a threat to speech and robust theological discussion of any religion.
Heresy
The offence of heresy was abolished in the UK in the 19th century. Brits have a right to heresy. This means the freedom to explain why one does not agree with another's belief, the right to defend a belief that contradicts another's deeply held faith. It also means the right to explore a faith beyond the boundaries of dogma and tradition.
In contradistinction, blasphemy contains elements of taunting, ridicule and mockery of another's belief with the effect of causing distress and anger.
Historians note that blasphemy originated as an instrument of oppression by rulers. The language of blasphemy is used to demonise enemies of the state and polarise society against heretics and 'unbelievers'. The language of blasphemy was used by the Christian Church in a particular historical context, to separate Jews, Muslims, heretics, witches and anyone else it wanted to persecute. Criticism of the Church was seen as an attack on the very structure of society.
There is a case against retaining laws of blasphemy in many Christian countries today. Blasphemy is no longer associated as a crime of disbelief. Where the offence is still retained, prosecutions are extremely rare.
Agnostics and atheists who do not accept blasphemy nevertheless accept that language that blasphemes is just not part of acceptable social behaviour. There is a degree of self-censorship.
Christianity has become more 'internalised' and Christians have allowed some accommodation of 'heresy' and 'blasphemy' as part of its continuous dialogue in the search of the truth. For example a collection of essays written by Christian academics entitled, The Myth of God Incarnate (J. Hick (ed.) 1977), denied the physical reality of Jesus Christ's resurrection. These issues are part of the Christian 'internal dialogue' post the Enlightenment.
Dimensions of free speech
From a point of analysis, it has been suggested that there are three dimensions to free speech with regards to religion. One-dimensional freedom involves taking care to say nothing that would criticise religious convictions. Two-dimensional freedom permits criticism and discussion providing that criticism is serious, earnest, respectful, circumspect and inoffensive.
Three-dimensional freedom leaves people free "to address the deep questions of religion and philosophy in the best way they can in the modern world, that may mean the whole kaleidoscope of literary technique-fantasy, irony, poetry, word-play and the speculative juggling of ideas." (J. Waldron, Too Important for Tact, Times Literary Supp. 1989)
There was an incident in UK where the Home Secretary refused to prosecute three men dressing as priests accompanying their victorious soccer team and carrying placards reading 'They shall reign forever', 'Hallowed be their names' and 'Adore them for they are glorious.'
As Malaysians in a multicultural state, we are barely on the threshold of a growing intellectual debate on religion and democracy. The criminalising of free speech in the shape of 'insult to Islam' may not be constructive. Education may be the more sensible approach to take as compared to the criminalising of speech.
The 'insult to Islam' laws should not be used to punish differences of opinion and dissent. The law in any case should not seek to nullify variant and contemporary opinions and debate or discussion of all Malaysians carried out in good faith. Censorship in this instance runs contrary to the spirit of consultation and consensus enjoined by the religion.
