We deplore Jawi’s action – G25

We, the G25, view with great concern the action by the Ketua Pendakwa Syarie (KPS) Jabatan Agama Islam Wilayah Persekutuan (Jawi) in filing an appeal to the Shariah Court of Appeal in the case of Ketua Pendakwa Syarie (KPS) lwn Nik Raina Nik Abdul Aziz. We say this based on the following facts:

a) When Jawi, accompanied by media representatives, raided the 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 in the hope it would refrain from further action;

d) Instead, having realised that Jawi could not act against Borders and the merchandising general manager who were non-Muslims, Jawi chose to institute criminal proceedings against Nik Raina. On June 19, 2012, Nik Raina was charged under Section 13 of the Shariah Criminal Offences (Federal Territories) Act 1997 at the Federal Territories Shariah 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 Shariah prosecution against Nik Raina to be illegal and void. Jawi, represented by the Attorney-General Chambers, appealed to the civil Court of Appeal against that decision;

g) On December 30, 2014, the Court of Appeal unanimously dismissed Jawi’s appeal and upheld the High Court’s judgment that its 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 December 30, 2014, Jawi was required to withdraw the Shariah criminal prosecution against Nik Raina;

i)  On February 26, 2015, the Shariah criminal prosecution came before the Shariah High Court presided by Syarie judge Tuan Mohd Amran Mat Zain. It was reported in the press that Jawi had left it to the Syarie judge on the proper order to be made in view of the order dated December 30, 2014 by the Court of Appeal;

j) In the circumstances, Tuan Amran 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 judge made an order of discharge not amounting to acquittal (“DNAA”).

2. The appeal by Jawi to the Shariah Court of Appeal may well have the effect of bringing the Shariah and civil courts into a collision course, and manifest a conflict of laws and conflict of jurisdiction issues. The action of the KPS in disregarding the two court orders will put him at risk of committal proceeding being instituted against him.

3. 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 KPS, 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.

4.  In this regard, we urge our public authorities to abide by the rule of law and to uphold the supremacy of the Federal Constitution.

5.  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".

6. It is difficult to reconcile such unreasonable and unjust conduct on the part of Jawi with the command of Allah in the 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…”

7. In conclusion, we, the G25, implore the federal and state governments, their departments and agencies, Parliament and parliamentarians, the Attorney-General 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 Quran and enshrined in the Federal Constitution.

* G25 consists of former high-ranking civil servants.