Federal Court rejects Jais’ bid to appeal against quashing of Shariah charges against Ezra Zaid

Ezra Zaid (left) and his lawyer Fahri Azzat are pictured at the Federal Court in Putrajaya September 29, 2020. — Picture by Ida LIM
Ezra Zaid (left) and his lawyer Fahri Azzat are pictured at the Federal Court in Putrajaya September 29, 2020. — Picture by Ida LIM

PUTRAJAYA, Sept 29 — The Federal Court today rejected the Selangor Islamic Religious Affairs Department’s (Jais) attempt to appeal against the Court of Appeal’s decision in favour of publishing company ZI Publications Sdn Bhd’s director Mohd Ezra Mohd Zaid over a book published in 2012.

Today was the hearing of an application for leave to appeal by Jais, the Selangor state government and three others from the Selangor Islamic authorities against a previous court ruling that had quashed the Shariah trial against Ezra for a Shariah offence purportedly committed by his company ZI Publications.

After hearing arguments from both sides, Federal Court judge Datuk Zaleha Yusof said the three-man bench that she chaired had decided not to accept the arguments by Jais’ lawyers and accept the arguments by Ezra’s lawyers instead.

“This is our unanimous decision. Sorry Puan Fatimah, we are not with you, we are with Encik Fahri. Application is dismissed and costs to be paid to the first and second respondent,” she said, before then ordering Jais and the five others to pay a total of RM10,000 in costs to both ZI Publications and Ezra.

The other Federal Court judges on the panel today are Datuk Zabariah Mohd Yusof and Datuk Harmindar Singh Dhaliwal.

Can a company be charged with Shariah offences?

Earlier, Selangor state assistant legal adviser Siti Fatimah Talib, who represented Jais and the others from the Selangor Islamic bodies, had presented six questions of law to the Federal Court, which she said were novel legal questions that should be heard and decided by the court as she argued that they had not been decided previously.

Siti Fatimah then argued that the Shariah offence in a Selangor state law should apply to both Ezra who is the director of ZI Publications and the company.

Under Section 16 of the Syariah Criminal Offences (Selangor) Enactment 1995 which was used to charge Ezra, it was stated that “any person” who among other things prints or publishes any book with contents contrary to Islamic law shall be guilty of an offence.

Siti Fatimah noted that this Selangor state law did not define what a “person” means, but said that the Interpretation Act’s Section 3 which gives the definition of “person” as including “a body of persons, corporate or unincorporate” could be used to interpret the Selangor state law.

Citing the Section 3 definition which defines “person” as also covering artificial legal persons such as companies, Siti Fatimah then argued that this meant that both the company ZI Publications and its director Ezra could be charged in the Shariah court for offences under the Syariah Criminal Offences (Selangor) Enactment.

The decision that states a company cannot profess a religion

Fahri Azzat, one of the lawyers representing Ezra and ZI Publications, said that the legal questions put forward by Jais’ lawyers could be summed up as revolving around two issues.

“The first is can a company be charged in Shariah court. The other one, can a director be held personally liable for acts committed by a company that purportedly committed Shariah offences.

“There is no controversy over these questions, and it actually stems from a misunderstanding of who these Shariah laws apply to. So My Lady, we say at the outset all these questions have already been dealt with and already answered in a previous Federal Court case,” he told the Federal Court.

Fahri also highlighted that Section 1(2) of the Syariah Criminal Offences (Selangor) Enactment 1995 — the state law which was used to charge Ezra — states that “this Enactment shall apply to Muslims only”.

Fahri pointed out that this meant that this Selangor state law does not apply simply to “persons”, but applies specifically to “persons professing the religion of Islam”.

Fahri then quoted the Court of Appeal’s September 2019 decision in Ezra’s case, where the court had said that it is well established in law that a company is a separate legal entity from its shareholders and that a company cannot assume the religion of shareholders.

The Court of Appeal had also then emphasised that a company as an artificial legal person is incapable of practising or professing a religion, unlike individuals or natural persons who can profess a religion.

Fahri then read out the Federal Court’s 1998 decision in the case of Kesultanan Pahang v Sathask Realty Sdn Bhd, where the court had examined a Pahang state law and whether it applied to a company and said: “Therefore, in the context of Section 2, an artificial legal person, as opposed to a natural person, cannot be a ‘Malay’ and become a subject of the Ruler of Pahang. This is because a corporation cannot speak Malay or any Malayan language and cannot profess Islam.” 

“So there we have it. That’s the answer to all these questions and there is no need for this application to go any further,” Fahri said when arguing why the Federal Court should dismiss Jais’ application for leave to appeal.

This same Federal Court ruling in 1998 was also cited by the Court of Appeal when it had in September 2019 ruled in favour of Ezra and quashed the Shariah trial against him.

When met outside the courtroom, Fahri told reporters that the legal questions before the Federal Court were straightforward, before concluding that a company cannot be charged in Shariah court and that a director cannot be charged in the Shariah court for Shariah offences allegedly committed by a company.

The leave application that was dismissed today was brought by Jais, the Jais director-general, the Selangor chief religious enforcement officer, the Selangor chief syarie prosecutor, and the Selangor state government.

Jais and the four others had named ZI Publications, Ezra and the Malaysian government as respondents.

ZI Publications and Ezra were also represented today by lawyers K. Shanmuga and Nizam Bashir, while Jais and the others from Selangor were also represented by Selangor legal officer Muhammad Haziq Hashim.

Senior federal counsel Maisarah Juhari told the Federal Court today that the Malaysian government would not be taking a position in the matter before the court as it is only a nominal respondent, and also asked for no costs to be awarded to the federal government.

When met by reporters, Maisarah explained that the matter today was between Jais and the other respondents, as the federal government was only nominally included as a respondent as it had been one of the parties at the High Court level.

Ezra later told reporters that he hoped that his Shariah trial — which had been put on hold while waiting for the Federal Court’s decision today — would be dropped following the court’s decision today.

The next scheduled mention date for Ezra’s Shariah trial is November 5. Ezra is expected to notify the Shariah court of the Federal Court’s decision today, which he hopes would lead to his Shariah trial being discontinued.

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