Wednesday, January 21, 2015

Supremacy of the Federal Constitution

OPINION

PUBLISHED: JANUARY 21, 2015 07:41 AM
Azrul Mohd Khalib
Azrul Mohd Khalib is a social activist who works on HIV/AIDS, sexual reproductive health and human rights issues. He unashamedly considers himself a moderate and liberal person who loves reading great books and naughty stories, and running. He can be contacted at azrulmohdkhalib@gmail.com or on Twitter @azrulmohdkhalib

JANUARY 21 The indignant tone that recently came out of Jakim’s Director General Datuk Othman Mustapha, who denounced the questioning of religious authorities as being part of a liberalism movement, is representative of the larger problem we have with the government religious institutions in this country.
They feel that they are above criticism. That they can do no wrong and are infallible. That to criticise them is to question Islam.
Yet, the attitude and actions of the religious authorities over the past decade have shown all too clearly why the Shariah system in Malaysia is where it is in our Federal Constitution.
There is an actual risk of abuse and misuse of power. It is not abstract or theoretical. It is very real. Ask Nik Raina of Borders.
The Nik Raina-Borders case is one situation where all too human ego and pride got in the way of justice, fairness and righteousness. It demonstrates in very real terms why it is necessary for us to provide a check and balance on those who perceive and have anointed themselves as God's enforcers of law and judgement here on the temporal plane. Why we must hold them to the higher moral and virtuous standard which they lay claim to.
For more than two and a half years, the Jabatan Agama Islam Wilayah Persekutuan (Jawi) have wasted time and taxpayers’ money chasing the prosecution of Nik Raina Nik Abdul Aziz, an employee of the Borders bookstore.
It has also cost Nik Raina years of her life which have been under the shadow of an erroneous and unjust charge.
During the appeal hearing back in August last year, Justice Datuk Umi Kathom Abdul Majid had stated: “Remember the basic principle of law, that you cannot commit a crime before knowing it is against the law.”
This was not an issue of ignorance of the law but the authorities had yet to even declare illegal on May 23, 2012 that which Nik Raina was charged with: distributing or selling a banned book. The book in question was only effectively banned by the Home Ministry three weeks later.
The observations contained within the March 2013 High Court judgement stated that Jawi’s actions have been an infringement of Article 7 of the Federal Constitution which protects against making offences retrospective. A point which Jawi seems to not understand or refuses to comply with. They went ahead and appealed the outcome leading to similar admonishments and incredulous observations from the panel of Justices in the Court of Appeal. Justice Datuk Umi Kathom went as far as to remind Shariah enforcement officers that they can’t be syiok sendiri in enforcing laws.
Two Malay proverbs come to mind: menegak benang yang basah and bodoh sombong. Also, I am tempted to ask, “Apa lagi Jawi mau?”
However, there has been a bit of a silver lining in this story. From her family, friends and especially her employer. Berjaya (owned and managed by mostly non-Muslim management) has set an amazing and inspiring standard and example by standing up, speaking up and providing Nik Raina with moral, emotional and legal support throughout this entire ordeal. They have committed considerable time and resources to fighting back this injustice.
It would have been far more convenient to look the other way. But they have stressed time and again that they do this not only for Nik Raina but the fact that this case could have repercussions to the livelihoods of hundreds of Muslim employees under their care and responsibility.
Nik Raina has been lucky to have people who have stood by her side to fight it out. Others have not been as fortunate. For far too long, our religious authorities have relied on those being persecuted and prosecuted to admit guilt without contestation and defence, to quietly pay fines and do penance at rehabilitation camps (yes, these exist in our country).
Jawi’s consistent and persistent actions in this case demonstrate a clear lack of understanding of the basic legal principles of justice, fairness and equal treatment of all under the law. How can we then trust them to enforce our Shariah laws and respect the supremacy of the Federal Constitution? Are they to be able to act with impunity simply because they claim to do so on behalf of Islam?
We must be able to continue to speak out against injustice. We cannot and must not be silent at the threats of religious tyranny and actions which compromise the fundamental liberties and protections we have under the Constitution. If we are to act in the name of Islam, we must aspire to reach the high levels and standards of justice, ethics and compassion which are the hallmark of this great religion. Let us not sully it by acting or expecting any less.
Despite the almost two-year-old High Court order to Jawi to withdraw the charges against Nik Raina and the judgement of the Court of Appeal last month, she remains charged with an offence under Section 13(1) Syariah Criminal Offences (Federal Territories) Act 1997.
Will Jawi comply with fairness and compassion? Only God and Jawi knows, I suppose.
Note: This column is dedicated to Nik Raina, her family and the team from Berjaya Books who have stood by her side from Day One. Your fortitude, courage and plain guts act as inspiration for us all.
*This is the personal opinion of the columnist.
- See more at: http://www.themalaymailonline.com/opinion/azrul-mohd-khalib/article/supremacy-of-the-federal-constitution#sthash.Tn2RakMV.dpuf

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