KUALA LUMPUR, March 7 ― The High Court dismissed today Mohd Ezra Mohd Zaid's challenge of the Selangor Islamic authorities’ Shariah prosecution against him over the publication of the Bahasa Malaysia translation of Allah, Liberty and Love by Canadian writer Irshad Manji.
Judge Datuk Kamaludin Md Said also found that the Selangor Islamic Religious Department’s (Jais) 2012 raid and seizure of books from Ezra's publishing firm was valid.
He said the constitutionality and validity of the Shariah offence that Ezra was charged with can be reviewed by the courts, but concluded that the Shariah provision used to prosecute Ezra was constitutional.
Ezra had asked for Section 16 of the Syariah Criminal Offences (Selangor) Enactment 1995 ― which criminalises the publishing of books deemed unIslamic ― to be declared unconstitutional for going against the Federal Constitution's Article 10(1)(a) and Article 8(1) which guaranteed the right to freedom of expression and equality before the law.
But Kamaludin said both Article 8(1) and Article 10 should be read together with various constitutional provisions including Article 3 and Article 11 which respectively touches on Islam as the country's religion and religious freedom, concluding that Section 16 was “within the constitutional framework of the Federal Constitution and consistent with the Federal Constitution”.
Kamaludin said the Section 16 offence is not dependent on there being a fatwa or prior prohibition order, saying that Section 16 itself creates the offence.
The judge also said the raid and book seizure that Ezra was challenging involves the exercise of powers during investigations, which he said was not for the High Court to review.
“The search warrant and the seizure of copies of the book was made in the course of criminal investigations of an offence under the Syariah Criminal Offences (Selangor) Enactment 1995 pursuant to powers under the Enactment, therefore issues related to the search warrant and seizure is outside of the scope of judicial review,” he said.
Kamaludin said the search warrant which Jais relied on to raid Ezra's publishing company had followed the format in the 1995 Enactment.
“There is nothing wrong with the search warrant because it follows the statutory form provided under the Enactment,” he said.
He said the 1995 Enactment's Section 46 already provides for the power to seize anything as evidence, and said the raid was done under a search warrant that was validly issued under Section 46.
Kamaludin said that it was "premature" to say that Ezra's publishing company ZI Publications Sdn Bhd is non-Muslim as Ezra and the company had not been charged in the Shariah courts, also saying that the investigations were still ongoing and therefore cannot be reviewed.
Ezra's lawyer K. Shanmuga had previously argued that the Selangor Islamic authorities had targeted and taken action against his client as they could not charge the company, highlighting that Shariah authorities only have jurisdiction over individuals professing the religion of Islam.
The judge fixed a total of RM10,000 as costs to be paid by Ezra, with RM5,000 each to be paid to the Selangor legal adviser's office and the Attorney-General's Chamber.
Mohd Syahrizal Syah from the Selangor legal adviser's office had initially asked for costs of RM50,000, while Shanmuga had asked the judge to fix a nominal sum as the case involved public interests.
The decision today is on the judicial review application filed by Ezra and his publishing firm ZI Publications Sdn Bhd to challenge the Selangor Islamic Religious Department’s (Jais) arrest and prosecution of him over Manji’s book titled in Bahasa Malaysia Allah, Kebebasan dan Cinta, as well as a raid and seizure of 180 copies of the book.
ZI Publications and Ezra had filed the judicial review on July 9, 2012 against six parties ― Jais, its director, Selangor chief religious enforcement officer, Selangor’s chief Syarie prosecutor, the Selangor government and the Malaysian government.
In the legal challenge, Ezra sought various court orders, including to quash the Selangor Islamic authorities' raid and seizure of 180 copies of the book; to quash his arrest and Shariah prosecution by Jais; as well as to seek compensation for the mental distress, agony and torture that he suffered as a result of Jais's actions.
Ezra also wanted the courts to declare that the search warrant was null and void, and to order the return of the seized 180 copies of the book.
When met outside the courtroom, Ezra's lawyer K. Shanmuga told reporters that he will seek instructions from his client on whether to appeal today's decision.
Even before today's decision on Ezra's challenge of the Shariah prosecution, the Petaling Jaya Shariah Subordinate Court had decided to go ahead with his Shariah trial over the book, with February 22 being the first day of trial.
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 publishing the Allah, Kebebasan dan Cinta 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.
Ezra's trial before Petaling Jaya Shariah Subordinate Court judge Shukran Yusof is set to resume on April 19 and June 28.