| Azrul Mohd Khalib works on HIV/AIDS, sex and human rights issues. He is becoming cynical and is in danger of losing his sense of humour and mind. He also runs and is battling an addiction to the "A Song of Ice and Fire" book series. Azrul can be contacted at azferul@gmail.com. |
SEPT 26 — When I first wrote about the Nik Raina/Borders Books case a year ago, it seemed to be easy enough of a case to understand even for a layperson to the law such as myself.
Borders Books store manager Nik Raina Nik Abdul Aziz had been charged with committing a crime, namely selling a book (Irshad Manji’s Allah, Liberty and Love) deemed contrary to Islamic Law under Section 13 of the Syariah Criminal Offences (Federal Territories) Act 1997. She faced the possibility of a RM3 000 fine, a maximum of two years’ jail or both.
However, there were at least two main problems with the charge: the book had not yet been banned at that point of time and it wasn’t the Federal Territory Islamic Department (JAWI)’s job anyway to enforce the work of the Home Ministry.
The book was only banned a week later. In other words, Nik Raina had been charged for selling a book that was perfectly legal. It was evident from the very onset that there was no case and that no offence had been committed.
The judgement of the judicial review by High Court Judge Datuk Zaleha Yusof last March made this official and stated what everyone except JAWI seemed to already know. Fundamentally, you cannot retroactively charge a person for a crime that was not yet deemed a crime at the time of the incident. A first year law student could easily come to the same conclusion. It was fairly obvious that this whole case was and is a total screw-up by JAWI.
Somehow, despite this basic common law fact and the High Court judgement which is now several months old, JAWI seems to be extremely reluctant to proceed to drop the charge against Nik Raina. The case has since experienced three postponements in the Syariah Court within a single month and the charge has yet to be withdrawn based on the judgement of the High Court. Perhaps it’s time for the Syariah prosecutors to go back to school.
Let us be clear. Proceeding to maintain a charge against Nik Raina would basically be an injustice to her and gives the Syariah courts and JAWI a stink and a bad name.
Judging from the behaviour of both parties of late, it seems that they really don’t give a damn or more importantly consider unimportant the fact that an injustice has been and continues to be inflicted onto Nik Raina.
The reasons given to her for the postponements were that the presiding Syariah judge had to attend a meeting in Penang (August 28), that there had been a mix-up in dates (September 3), and the esteemed judge was attending yet another meeting (September 13).
Meetings are obviously more important than someone being unjustly charged under the Syariah system. The case has since been postponed indefinitely with no end in sight for Nik Raina who has now endured this ordeal for more than 18 months.
One could fairly surmise a number of points as a result of this case:
• JAWI is not interested in ensuring that justice is done.
• What it is interested in is that it doesn’t matter whether an actual offence has been committed as long as it is proven that JAWI is right and wins.
• If this case is representative of the system in general, I must call into question the quality and standard of other cases prosecuted under Syariah laws.
Judge Datuk Zaleha Yusof in her grounds of judgement when deciding on the judicial review stated that there existed “existence of illegality, abuse of discretionary powers, irrationality, unreasonable exercise of power, unconstitutionally and that there exists procedural impropriety” on the part of the respondents, namely JAWI, the Home Minister and the Minister in the Prime Minister’s Department in charge of religious affairs.
In the same judgement, it was found that when JAWI discovered that they could neither prosecute Berjaya Books Sdn. Bhd (owner of the Malaysian franchise of Border Books) nor Borders’ General Manager of Operations and Merchandising (who is a non-Muslim), they intentionally went for the most convenient and vulnerable Muslim target, Nik Raina, who was subsequently arrested and charged for what was a non-offence at the time of the JAWI raid on the Borders outlet in Gardens MidValley.
This case illustrates quite clearly why there is a need for a stringent check and balance on the way Syariah laws are implemented in Malaysia. It also underlines the very real possibility of these laws being subject to abuse, miscarriage of justice and tyranny by those in power.
How many people have taken the easy way out and pleaded guilty to charges that may have been fraught with fallacies and in Nik Raina’s case, not even an offence to begin with? Nik Raina was fortunate to have a supportive employer, Berjaya Books, which stood up for its staff, provided the resources to fight the case, drew a line in the sand and refused to allow her to be victimised.
How many people would have simply pleaded guilty to the charge, paid the fine and quietly resigned? Most of us in Nik Raina’s position would have done exactly that. Less hassle but certainly not justice.
Syariah laws cannot and must not be abused and misused to inflict upon Muslims a form of religious tyranny familiar to those living in countries elsewhere around the world.
As Muslims in Malaysia, the reality is that our comfort lies in the fact that there is legal recourse as well as safeguards and protections provided under the Federal Constitution which apply to all regardless of whether a person is Muslim or non-Muslim.
I may be generalising here but there exists a frightening complacency within the Syariah system as practised in Malaysia whose guardians and enforcers do not feel itself accountable to anyone, other than perhaps God. Consider the fact that in several states now, legislation has been enacted which excludes fatwas from being subject to judicial or legal review, to be immune from being challenged or questioned.
Fatwas are, in essence, religious opinions formed by an unelected committee (whose members are mostly men) and the state Mufti. In short, these states have passed laws which place fatwas beyond the scrutiny of the law and above the Federal Constitution. When fatwas are gazetted, they then take the form of laws which are considered enforceable by the state religious authorities.
Rather than enduring learned and rationale discourse, listening to intellectual positions and considering both sides of an argument, Malaysian religious authorities have time and again resorted to the argument that “might makes right.” They tolerate no dissent, no argument and demand an unthinking, unblinking and blind obedience from those of the Islamic faith.
I pray that Nik Raina will get her day in Syariah Court. Justice delayed is indeed justice denied.
* This article pays tribute to Nik Raina’s quiet courage and strength as well as the commitment and resolve of Berjaya Books.
** This is the personal opinion of the columnist.
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