[1990] LRC (Const) 380

 

Malaysia

 

 

Minister for Home Affairs and Another v Jamaluddin bin Othman

 

 

 

Supreme Court (Kuala Lumpur)

Abdul Hamid LP, Hashim Yeop Sani CJ (Malaya) and Ajaib Singh SCJ

30 January, 24 February 1989

 

 

Constitutional law — Fundamental rights — Freedom of religion — Detention of person engaged in disseminating Christianity among Malaya — Allegations of participation in meetings and conversion of Malays to Christianity — Grant of application for habeas corpus — Whether detainee’s acts a threat to country’s security — Whether detention order valid — Federal Constitution, art 11 — Internal Security Act 1960, s 8(1).

 

The Minister for Home Affairs ordered the respondent’s detention to prevent him acting in a manner prejudicial to the security of Malaysia, pursuant to s 8(1) of the Internal Security Act 1960. The essence of the ground for the detention was the allegations that the respondent was involved in a plan or programme to disseminate Christianity among Malays, that he took part in meetings and seminars for that purpose and that he had converted six Malays to Christianity. On the respondent’s application for habeas corpus the trial judge held that restricting a person’s freedom from professing and practising his religion was inconsistent with art 11 of the Federal Constitution, and therefore the Minister’s order for detention was invalid. He ordered the respondent’s release and the Minister appealed to the Supreme Court.

 

HELD — Appeal dismissed.

The freedom to profess and practise one’s religion, as guaranteed by art 11 of the Federal Constitution, had to be given effect to but was itself subject to the general laws of the country, as expressly provided in cl (5) of the article. Accordingly it did not amount to a licence to commit unlawful acts or acts tending to prejudice or threaten the security of the country. However, the respondent’s alleged actions, read in their proper context, did not fall within the scope of the Internal Security Act 1960 and did not go beyond what could normally be regarded as professing and practising one’s religion, so that there was no basis for his detention (see pp 381-382, 383, post).

 

Cases referred to in judgment

Inspector General of Police v Tan Sri Raja Khahd bin Raja Harun [1988] 1 MLJ 182

SC Kaipal Singh v Minister for Home Affairs [1989] LR,C (Const) 648, [198813 MU 29

Mamat Bin Daud and Others v Government of Malaysia [1988] LRC (Const) 46, [1988] 1 MU 119, SC

 

Legislation referred to in judgment

Federal Constitution, arts 11 and 149

Internal Security Act 1960, ss 8(1) and 1l(2)(b)

 

Appeal

The appellants appealed against the decision of the trial judge that the Minister for Home Affairs did not have power to deprive the respondent of his right to profess and practise  [*381]  his religion so that his detention under s 8(1) of the Internal Security Act 1960 on the grounds, inter alia, that his involvement in a programme to propagate Christianity among Malaya was prejudicial to the security of Malaysia was invalid, The facts are set out in the judgment of the court delivered by Haihim Yeop Sani CJ.

 

M Raus bin Sharsf, Deputy Public Prosecutor for the appellants.  

L M Choon and P Koh for the respondent.  

R Tikamdas for the Bar Council of Malaysia, on a watching brief.

 

24 February 1989. The following judgment of the court was delivered.

 

HASHIM YEOP SANI CJ (Malaya). The respondent was detained pursuant to an order made under s 8(1) of the Internal Security Act 1960. According to the affidavit of the Minister for Home Affairs he was satisfied that the detention of the respondent was necessary with the view to preventing him from acting in a manner prejudicial to the security of Malaysia. This conclusion was apparently arrived at after receiving reports and information relating to the ‘conduct and activities’ of the respondent. This is expressed in para 3 of the affidavit of the Minister for Home Affairs, dated 16 September 1988. The grounds for the detention of the respondent were contained in a statement made under s 11(1) (b) of the Act which was served on the respondent. It is already settled law in this country that whilst the grounds of detention as stated in the detention order are open to challenge if alleged to be not within the scope of the legislation, the allegation of fact are not subject to review. This principle was reiterated in Karpal Singh v Minister for Home Affairs [1989] LRC (Const) 648, [1988] 3 MLJ 29. Thus the only question for us to determine here is whether the grounds are within the scope of the Act. The trial judge relied solely on art 11 of the Federal Constitution on the freedom of religion as the basis for his ruling that the detention of the respondent was unlawful. The crucial part of his judgment appears at p 108 of the appeal record where he said, when he referred to s 8 of the Act:

 

‘Although under s 8(1) of the Internal Security Act the minister may detain a person with a view to preventing that person from “acting in any manner” prejudicial to the security of Malaysia, I am of the view the minister has no power to deprive a person of his right to profess and practise his religion which is guaranteed under art 11 of the Constitution. If the minister acts to restrict the freedom of a person from professing and practising his religion, his act will be inconsistent with the provision of art 11 and therefore any order of detention would not be valid.’

 

Without hesitation we say that we agree wholeheartedly with the sentiment expressed by the learned judge. However, to get our perspective right we feel obliged to add a rider to what the learned judge said. His Lordship’s ruling must be read subject to the following. The freedom to profess and practise one’s religion should not be turned into a licence to commit unlawful acts or acts tending to prejudice or threaten the security of the country. The freedom to profess and practise one’s religion is itself subject to the general laws of the country as expressly provided in cl (S) of art 11 of the Constitution, which states that:  [*382]

 

11(5) This article does not authorize any act contrary to any general law relating to public order, public health or morality.’

 

This is also alluded to in Mamat bin Daud and Others v Government of Malaysia [1988] LRC (Const) 46, [1988] 1 MLJ 199. Thus the protection conferred by art 11 of the Constitution cannot be a complete umbrella for all actions.

 

Coming back to the present case the grounds for detention are reproduced from p 21 of the appeal record as follows:

 

‘Alasan-Alasan Untuk Perintab Tahanan

Bahawa kamu, Jamaluddin bin Othman alias Yehsua Jamaluddin, sejak tahun 1985 hingga ditangkap pada 27 Oktober 1987, telah melibatkan did dalam satu rancangan untuk menyebarkan agama Kristian di kalangan orang-orang Melayu. Kegiatan kamu itu boleh mendorong kepada timbulnya suasana ketengangan dan permusuhan di antara masyarakat Islam dengan masyarakat Kristian di negara mi dan boleh memudharatkan keselamatan negara.’

 

The important words in that statement are ‘telah meibatkan did dalam satu rancangan untuk menyebarkan agama Kristian di kalangan orang-orang Melayu’. Or in English ‘was involved in a plan or programme to propagate Christianity amongst Malays’.

 

The ground becomes clearer when we look at the allegations of fact contained in the statement. The first allegation concerned participation in a group (in November 1985) at the First Baptist Church, Jalan Pantai, Petaling Jaya called the ‘Philip Cheong’s group’ said to be formed for the purpose of spreading Christianity among Malays. The second, third and fifth allegations concerned participation (in 1986) in a ‘khemah kerja’ (work camp) and participation in a ‘seminar on Islamic consultation’ (in Singapore). The fourth allegation alleged that the respondent converted to Christianity six Malays.

 

The sum total of the grounds for the detention was therefore the supposed involvement of the respondent in a plan or programme for the dissemination of Christianity among Malays. It is to be observed that the grounds do not, however, state that any actions have been done by the respondent except participation in meetings and seminars and that the fourth allegation alleged that the respondent converted to Christianity six Malays.

 

We do not thing [sic, probably should read ‘think’] that mere participation in meetings and seminars can make a person a threat to the security of the country. As regards the alleged conversion of six Malays, even if it was true, it cannot in our opinion by itself be regarded as a threat to the security of the country.

 

As stated by this court in Inspector General of Police v Tan Sri Raja Khalid bin Raja Harun [1988] 1 MLJ 182 the Act was enacted under art 149 of the Federal Constitution and it is a piece of legislation essentially to prevent and combat subversion and actions prejudicial to public order and national security.

 

In Tan Sri Raja Khalid the authority had stated that they had reason to believe that the substantial losses suffered by a bank (with deposits from members of the armed forces) caused by the manner in which loans were approved through the acts of the detainee/applicant could evoke feelings of anger, agitation, dissatisfaction and resentment amongst members of the armed forces which in turn could lead them to resorting to violent actions and thereby affecting the security of the country. The trial judge there thought it to be incredible that losses sustained by a public bank where the depositors also included members of the public at large could result in any organised violence by the soldiers. This court was of the view that it would naive to preclude the judge from making his own evaluation and assessment from an obvious statement of fact.

 

In the present case we are of the view that the grounds for the detention in this case, read in the proper context, are insufficient to fall within the scope of the Act. The guarantee provided by art 11 of the Constitution, ie the freedom to profess and practise one’s religion, must be given effect unless the actions of a person go well beyond what can normally be regarded as professing and practising one’s religion. The appeal is accordingly dismissed.

 

 

Solicitors:

Lee, Perara & Tan for the respondent.