Seizure of ‘Allah, Kebebasan dan Cinta’ books illegal, court told

The seizure of 180 copies of “Allah, Kebebasan dan Cinta” five years ago by the Selangor Islamic Department (Jais) is illegal as it was done without a proper warrant, the High Court in Kuala Lumpur was told today.

Lawyer K Shanmuga, appearing for ZI Publications Sdn Bhd and its director Ezra Zaid, argued that there was no fatwa in place relating to the book, which is the Bahasa Malaysia translation of Irshad Manji’s “Allah, Liberty and Love.”

Shanmuga noted that in Section 16 of the Syariah Criminal Enactment (Selangor) 1995 one cannot be charged with an offence when it had not been gazetted.

The seizure also went against Article 7, which protects an individual from retroactive criminal laws, the lawyer added.

Shanmuga also claimed that the prosecution of Ezra by Selangor syariah authorities was carried out because they were powerless take action against ZI Publications directly.

“The Syariah authorities cannot take action on a company in seizing the books which are illegal.

“Here the syariah authorities acted illegally as it not only seized but also prosecuted my client Ezra, who is the director (of the company),” he said, adding that there would have had to have been a provision in the Syariah Criminal Enactment at the time to allow religious authorities to go after companies and not individuals.

Shanmuga also pointed out that the court was bound by the decisions in two previous cases, namely those of Nik Raina Nik Abdul Aziz and the late Kassim Ahmad – particularly the former, as it involves the same book.

In both cases, it was ruled that the civil court has jurisdiction to act on religious authorities if it found that they acted outside their jurisdiction.

The lawyer also said that the banning of “Allah, Liberty, and Love” has been challenged before, with the High Court declared the banning of the book was improper as it had already been in publication for years.

In today’s case, Shanmuga pointed out the original English version had been in circulation for over a year before the translated version was published, and that it was only declared banned after the seizure was made.

In the constitutional challenge of Section 16 of the Syariah Criminal Enactment, the raid and Ezra’s prosecution, the respondents named were Jais, the Selangor Islamic enforcement officer who carried out the seizure, and the syariah chief prosecutor.

Senior lawyer Sulaiman Abdullah, representing the above, said that a company can operate through a human personality via the controlling mind of the company, and that furthermore, Shanmuga’s argument that companies do not have religions misses the main issue.

“The person is the mind and the muscle of the company,” he argued.

Sulaiman said Article 3 of the Federal Constitution stipulates Islam is the religion of the federation, and therefore any entity, including larger corporate entities, are equally subject to that provision.

As such, he believed, the case should be taken to the Syariah Court, which has jurisdiction over such issues.

“This is an argument to be taken in the Syariah Court, where the constitution under Article 121 (1A) stipulates the dominant authority on Islamic law should be the Syariah Court,” said the senior lawyer.

Sulaiman also questioned Shanmuga’s argument that a notice should be served before a ban. He pointed out that this would be unfeasible in khalwat (close proximity) raids, for instance, to give offending couples notices beforehand.

He added that based on the case law of the Mohamad Ibrahim case from 1963, one cannot expect the Home Ministry to read each and every book before deciding on a book ban.

“The argument that notice must be given had been rejected since 1963,” he said, adding it was wrong to use the Nik Raina and Kassim cases to bind the court.

Senior federal counsel Shamsul Bolhassan, appearing for the Attorney-General’s Chambers chimed in, saying that the company is not the entity being charged.

“There is no need for a fatwa be issued. This court should accept the decision of the Federal Court in the Empire Canggih case that they are not amenable to judicial review,” he said.

Justice Kamaludin Md Said fixed Jan 17 to deliver his decision.- Mkini