COMMENT We, the Group of 25 (G25) eminent Malays, view with great concern the action by the chief syarie prosecutor of the Federal Territories Islamic Affairs Department (Jawi) in filing an appeal to the Syariah Court of Appeal in the case of Ketua Pendakwa Syarie vs Nik Rania Nik Abdul Aziz. We say this based on the following facts:
a) When Jawi, accompanied by media representatives, raided Borders Bookstore on May 23, 2012 and seized several books by Irshad Manji entitled ‘Allah, Kebebasan dan Cinta’ and ‘Allah, Liberty and Love’, these books were not the subject of any ban. There was nothing illegal about these books and Borders was never informed by any authorities that they could not be sold;
b) The books were only banned by the Home Ministry by way of a government gazette that was published three weeks later, on June 14, 2012. Therefore, prior to that date, it was impossible for any law abiding citizen of Malaysia to know that the religious authorities or the Home Ministry consider the books to be objectionable;
c) Borders made representations for Jawi’s enforcement actions to be discontinued, but these representations were ignored. Borders also filed a judicial review on June 18, 2012 and notified Jawi’s chief syarie prosecutor in the hope that Jawi would refrain from further action;
d) Instead, having realised that Jawi could not take action against Borders and the merchandising general manager who were non-Muslims, the Jawi chief syarie prosecutor chose to institute criminal proceedings against Nik Raina. On June 19, Nik Raina was charged under Section 13 of the Syariah Criminal Offences (Federal Territories) Act 1997 at the Federal Territories Syariah Court;
e) Thereafter, Nik Raina was subjected to a convoluted and protracted legal process as the manager of the Borders bookstore. Her only ‘offence’ was that she worked as a manager of a bookstore;
f) On March 22, 2013, the civil High Court granted the judicial review and declared that Jawi’s Actions including the syariah prosecution against Nik Raina to be illegal and void. Jawi, represented by the Attorney-General’s Chambers, appealed to the civil Court of Appeal against that decision;
g) On Dec 30, 2014, the civil Court of Appeal unanimously dismissed Jawi’s appeal and upheld the High Court’s judgment that Jawi’s enforcement actions against Borders and the prosecution against Nik Raina were wrongful, illegal and void;
h) Based on the Court of Appeal’s order dated Dec 30, 2014, the Jawi chief syarie prosecutor was required to withdraw the syariah criminal prosecution against Nik Raina;
i) On Feb 26, 2015, the syariah criminal prosecution came before the Syariah High Court presided by Syarie Judge Mohd Amran Mat Zain. It was reported in the press that the Jawi chief syarie prosecutor had left it to the Syarie Judge on the proper order to be made in view of the Order dated Dec 30, 2014 by the civil Court of Appeal;
Order of discharge not amounting to acquittal
j) In the circumstances, Syarie Judge Mohd Amran Mat Zain was reported by the press to have stated, “...he had considered the fact that the very accusation and the charge itself have been deemed suspect and doubtful. He considered that Jawi’s actions had been chastised and were found by both the High Court and the Court of Appeal to be not only illegal but unconstitutional and done in bad faith. He recognised and empathised with Nik Raina’s sufferings as a result of this case and spoke of how he considered that the circumstances of injustice could harm her...” Accordingly, the learned Syarie Judge made an order of discharge not amounting to acquittal.
The appeal by the Jawi chief syarie prosecutor to the Syariah Court of Appeal may well have the effect of bringing the syariah and civil courts into a collision course, and manifest a conflict of laws and conflict of jurisdiction issues. The action of the chief syarie prosecutor in disregarding the two court orders will put him at risk of committal proceeding being instituted against him.
We commend the owners of Borders Bookstore, namely the Berjaya Group, for their caring and compassionate attitude towards their employee, Nik Raina and for their material and moral support for her during this traumatic period in her life. We encourage them to explore all legal avenues to uphold her rights under the law.
The chief syarie prosecutor, the director-general of Jawi and all its officers involved in the prosecution of Nik Raina must be held accountable for their questionable action against her. These actions do not reflect the principles of justice, mercy, compassion and wasatiyyah in Islam.
In this regard, we urge our public authorities to abide by the rule of law and to uphold the supremacy of the federal constitution.
In the Hadith Qudsi reported by Muslim, Allah says, “O my servants! I have forbidden injustice to Myself and have forbidden that for you as well, then do not commit injustice to each other.”
It is difficult to reconcile such unreasonable and unjust conduct on the part of the Jawi chief syarie prosecutor with the command of Allah in the Holy Quran Surah Al Maidah (5:8) to be just and fair, “Oh ye who believe! Stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong or depart from justice. Be just; that is next to piety...”
In conclusion, we, the G25, implore the federal and state governments, their departments and agencies, Parliament and parliamentarians, the Attorney-General’s Chambers and all public authorities responsible for the administration of the country over which we Malaysians have entrusted upon them, to put in place the necessary legal safeguards to prevent miscarriages of justice and to uphold the principles of justice and equality as enjoined in the Holy Quran and enshrined in the federal constitution.
The Group of 25 eminent Malays consists of former top civil servants, judges, ambassadors and scholars.