The Selangor Islamic Religious Council (Mais) and Selangor Islamic Religious Department (Jais) should respect Tan Sri Abdul Gani Patail’s decision not to prosecute the Bible Society of Malaysia as he relied on the discretionary powers vested in him, say legal experts. – The Malaysian Insider file pic, June 21, 2014.Islamic religious authorities and Muslim civil society in Selangor should either accept the attorney-general's decision not to prosecute the Bible Society of Malaysia (BSM) or challenge it in court, lawyers said, but it was ill-advised to mock him with open defiance.
They said the Selangor Islamic Religious Council (Mais) and Selangor Islamic Religious Department (Jais) should respect Tan Sri Abdul Gani Patail’s decision as he relied on the discretionary powers vested in him.
However, Mais and Jais could appeal to him to reconsider his decision not to prosecute BSM.
Alternatively, Mais, Jais or any Muslim non-governmental organisation could file for judicial review in a High Court to challenge Gani's decision, the lawyers said.
The lawyers said BSM, too, could use the legal channel to compel Jais to return the 321 Bibles in Malay and Iban which were seized from its premises in Damansara Jaya on January 2.
Lawyer Abdul Shukor Ahmad said under the Federal Constitution, the A-G could exercise his discretion whether to institute, conduct or discontinue any case for an offence other than proceedings before a Shariah court.
"Since BSM is a non-Muslim entity, it is the A-G who has the prerogative whether to charge it. Mais and Jais has to respect his decision," he said, referring to the criticism levelled at Gani over his decision last week to declare the case closed and his order Jais to facilitate the return of the holy books.
Jais enforcement officers who conducted the raid believed BSM had committed an offence under the Non-Islamic Religions (Control and Propagation among Muslims) Enactment 1988.
Shukor said if Mais and Jais wished to appeal to Gani to reconsider his decision on BSM, “they must overwhelmingly convince Gani that they have a prima facie case," he added.
However, two days later, Mais called on the authorities to act against BSM, saying that it did not agree with Gani's decision to close the case, and claimed his decision would cause confusion among Muslims.
However, two days later, Mais called on the authorities to act against BSM, saying that it did not agree with Gani's decision to close the case, and claimed his decision would cause confusion among Muslims.
Mais had also said that the seized Bibles should not be returned to BSM and believed there was a case against BSM under the enactment.
It further stated that the Selangor government had no authority to instruct Jais to return the seized books.
Mais chairman Datuk Mohamad Adzib Mohd Isa (pic) had also said that both Mais and Jais had a responsibility to protect the sanctity of Islam, especially in Selangor.
Lawyer Nizam Bashir said there existed a chief Shariah prosecutor in Selangor under the Administration of Islamic Enactment 1989, who has similar powers to the A-G.
"However, the chief Shariah prosecutor can only act if the offender is a Muslim who has to face charges in a religious court in the state."
He said it was for the A-G to decide if the BSM had committed an offence under the 1988 enactment or the Penal Code.
Nizam said the traditional legal position in Malaysia, as sourced from English decisions, was that the discretionary power of the A-G was not subject to a legal challenge.
However, he said courts in England have now departed from that position and held that the A-G's decision could be scrutinised.
"Any person who is adversely affected by Gani's decision, action or omission could file a judicial review in a High Court," he said.
Nizam said this meant the A-G could be held accountable and would have to explain why he decided not to file charges against BSM or its office-bearers.
Lawyers for Liberty executive director Eric Paulsen urged the BSM to file a civil suit against Jais for the seizure of the Bibles and get a court order for the return the holy books.
"Gani's decision not to prosecute BSM will work in their favour," he said.
- TMI
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