KUALA LUMPUR, Dec 5 — The Selangor Shariah prosecutors acted unfairly by charging Mohd Ezra Mohd Zaid over a book deemed unIslamic just because they have no powers to act against his publishing firm, the High Court was told today.
Ezra’s lawyer K. Shanmuga noted that Shariah authorities have no jurisdiction over companies who cannot profess religion, noting that his client was charged in the Shariah court because he is a director of the publisher ZI Publications Sdn Bhd.
“Under our constitutional system, the Shariah authorities only have authority over individuals who profess the religion of Islam,” he told the court.
“I also say that it is trite that a company is incapable of professing religion, only natural persons is capable of that,” he later added.
While noting that most Shariah enforcement and Shariah court cases involved straightforward matters, Shanmuga said Ezra’s case falls within the exceptional situation where the actions of public officers should be challenged in and decided by the civil courts.
“But in this rare instance, exceptional circumstance where Shariah enforcement officers overstepped their boundaries, it’s to this court (civil courts) we come. That’s what happened in Berjaya Books and Kassim Ahmad,” he said.
“Exceptional circumstances is Shariah authorities acted illegally and irrationally within the meaning of those terms in administrative law by acting against principles of fairness and justice by targeting a director since they cannot charge a company; by criminalising the possession, distribution and publication of these books without prior notice that these books are unlawful,” he later added when describing the situation faced by Ezra and ZI Publications.
Today was the High Court’s hearing of a lawsuit filed by Ezra and his publishing firm to challenge the Selangor Islamic Religious Department’s (Jais) arrest and prosecution of him over the Bahasa Malaysia version of Canadian writer Irshad Manji’s Allah, Liberty and Love book, as well as a raid and seizure of 180 copies of the book.
The judicial review filed by ZI Publications and Ezra in July 2012 is against six parties ― Jais, Jais director, Selangor chief religious enforcement officer, Selangor’s chief Syarie prosecutor, the Selangor government and the Malaysian government.
Lawyer Sulaiman Abdullah, who represented both Selangor’s chief religious enforcer and chief Syarie prosecutor, argued that a company can be considered to profess religion.
Citing the Federal Constitution’s Article 3 which states that Islam is the religion of the federation of Malaysia, Sulaiman said: “So there’s a deeming provision. It deems that corporate personalities in the shape of a country can have a religion, and therefore any lesser entities within that larger corporate personality are equally subject to that provision.”
Sulaiman argued that Ezra should go to the Shariah court --- where Ezra is facing a trial --- to raise his arguments that a company and its director are separate legal personalities.
Sulaiman also asserted that Ezra and ZI are “interchangeable” as he was in charge of the company, contrasting it with the Berjaya Books case which involved a bookstore employee which he said was not the decision-making individual.
“The other one is Ezra, the applicant here. He is the shareholder, director, the mind of the company. If you are not happy with that, go to the Shariah court and prove he is not the mind of the company,” he said.
In his arguments that a company and its director are separate legal personalities, Shanmuga however highlighted that a company director should only be charged over an offence by a company if it is stated in the law.
He cited Malaysia’s laws on companies, income tax deductions and retirement savings deductions under the Employees’ Provident Fund (EPF) as examples where legislation carries provisions that specifically and expressly say individual directors are equally liable for offences by a company.
“There is no such provision in the Shariah enactment criminalising directors for offences by companies,” he said of the law used to charge Ezra in the Shariah court over a book published by ZI Publications.
Shanmuga also said there are Federal Court decisions that say matters involving company law -— such as the attempt to “pierce the corporate veil” by making company directors liable for offences by companies — should be decided in the civil courts instead of the Shariah courts.
“This affects the administration of the entire business world in Malaysia. If one were to say just because you are controlling mind, you can be prosecuted without specific provisions, it would cause chaos,” he said.
Earlier when asked by the High Court judge regarding Malay reserve land which can be sold to “Malay” companies but not non-Malays, Shanmuga explained that this was due to the legislation on such land being specifically amended to define “Malay” as including companies and banks.
Among other things, Shanmuga said the warrant used by the Selangor religious authorities to raid ZI Publications in 2012 did not empower them to also seize books, noting: “So they took 180 books belonging to the applicant without a proper warrant.”
High Court judge Datuk Kamaludin Md Said today fixed January 17 for the delivery of his decision.
On November 23, the Petaling Jaya Shariah Subordinate Court decided that Ezra’s trial over the book will proceed on February 22 next year, despite an application by his lawyers to stay the Shariah trial until the conclusion of this case at the civil courts challenging his Shariah prosecution.
On March 7, 2013, Ezra was charged as ZI Publications’ director under Section 16(1)(a) of the Syariah Criminal Offences (Selangor) Enactment 1995 with two alternative counts of publishing and distributing the Allah, Kebebasan dan Cinta book, as well as a third alternative count under Section 16(1)(b) for possession of 180 copies of the book.
Anyone convicted under Section 16(1) — which makes it an offence to print, publish, disseminate, or possessing for sale or for dissemination books “contrary to Islamic law” — is liable to a maximum RM3,000 fine or maximum two-year jail or both.