Shariah court frees and acquits Ezra Zaid from trial, orders books’ forfeiture and rejects gag order (VIDEO)

Ezra Zaid is pictured at the Petaling Shariah Subordinate Court in Shah Alam December 17, 2020. — Picture by Miera Zulyana
Ezra Zaid is pictured at the Petaling Shariah Subordinate Court in Shah Alam December 17, 2020. — Picture by Miera Zulyana

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SHAH ALAM, Dec 17 — The Shariah court today decided to release and acquit Mohd Ezra Mohd Zaid from a trial over a Bahasa Malaysia book published in 2012 by his company, which means the Shariah proceedings he had faced since his arrest and the book seizures about eight years ago have fully ended.

Last week, the Shariah prosecution applied to the Shariah court for three court orders, namely to partially release Ezra without acquitting him via a discharge not amounting to an acquittal (DNAA) order, and for the books to effectively not be returned to his company ZI Publications but to be forfeited and destroyed, and to block Ezra from talking about the case.

Petaling Shariah subordinate court judge Shukran Yusof today rejected the prosecution’s application for a DNAA on Ezra, but instead ordered that he be both discharged and acquitted of the offence under Section 16(1)(a) of the Syariah Criminal Offences (Selangor) Enactment 1995.

Under the Shariah offence of Section 16(1)(a) that Ezra was charged in 2013, any person who — among other things — publishes any book containing anything contrary to Islamic law commits an offence, with such an offence punishable by a maximum fine of RM3,000 or a maximum two-year jail term or both.

The Shariah prosecutors had in its written submission claimed that its DNAA application was not due to a lack of facts to push for Ezra’s conviction, and also said he should not be acquitted.

The DNAA sought by the Shariah prosecution would have enabled them to charge Ezra again in the future on the same offence if they wanted to, but the judge today agreed that Ezra should be fully released from the Shariah charge due to final decisions made by the civil courts via the Court of Appeal and Federal Court to quash the Shariah trial.

“Because if here, the court discharges without acquittal, it will become an academic issue, nothing can be done by the prosecution for investigations and so on, because this case is not valid starting from the arrest and the fourth respondent’s (Selangor chief Syarie prosecutor) decision to prosecute were all quashed by the Court of Appeal and any appeal to the Federal Court is no longer allowed.

“So if I continue what was applied for, then it will be sia-sia sahaja (pointless),” he said when agreeing with Ezra’s lawyer’s arguments on why he should be fully released from the Shariah charge.

The judge allowed the second order sought by the Shariah prosecution, which was for the books seized from ZI Publications to be forfeited and destroyed.

“The court orders all copies of the translation of the Allah, Love and Liberty book written by Irshad Manji to be forfeited from the accused (Ezra) or related parties and to be surrendered to Islamic religious enforcers to be destroyed according to Section 16(2) of the Syariah Criminal Offences (Selangor) Enactment 1995,” the judge said.

Under Section 16(2), the court can order any book or document referred to in Section 16(1) to be “forfeited and destroyed” even if no one has been convicted of any offence in relation to such books or documents.

Before voicing his agreement for the books to be forfeited and destroyed, the judge noted that the prosecution had submitted arguments that the contents of the book was against Islamic law in terms of faith and which could allegedly lead to the deviation in the thoughts of Muslims espeically those who lack understanding towards Sunni Islam.

The judge took note of their arguments that Muslims in Selangor may become lax in their religious practice by reading the book; the prosecution had suggested that blocking distribution of the book as well as its forfeiture and destruction were ways to control Selangor Muslims from liberal thinking, which would then protect the sanctity of Islam.

Ezra's lawyer had last week objected to the Shariah prosecution's bid to have the books forfeited for destruction only to retract today since the books are owned by the company ZI Publications instead of Ezra.

Ezra’s lawyer said he had no instruction to present arguments on behalf of the company and left it to the court to decide.

The judge then explained his decision to forfeit and destroy the books.

He said that while he could not deny anyone the right to own the books, anything that may possibly bring harm to Muslims should be denied.

The judge also said that he did not deny that the book had yet to be banned by the Home Ministry when Ezra was arrested, but noted that the book was banned regardless of the point of timing.

The judge went on to cite the testimony of a prosecution witness during the Shariah trial on the book's content, which was asserted to contain views such as elements that could allegedly lead to harm to Muslims in Selangor.

The judge also noted that the Court of Appeal judgment in September 2019 -- which had quashed the arrest and Shariah prosecution of Ezra as invalid in law -- did not gave clear or detailed orders about the books that were seized in May 2012, before going on to say he agreed for an order for the seized books to be destroyed.

As for the final court order sought by the Shariah prosecution, the judge rejected the application for what would have been effectively a gag order on Ezra or his agent to stop them from issuing any media statement or talking about the Shariah case in any way.

To justify the gag order application on Ezra, the Shariah prosecution had in its written submission among other things said that it would not be appropriate for him to issue any statement in the media that would prevent the Shariah courts or the Islamic religious authorities from being an independent and exclusive body to carry out judicial matters without “interference” from the civil courts, while also arguing that this was intended to respect the integrity between the two systems of the civil and Shariah judiciary.

The Shariah prosecution had in its written submission also claimed that the Shariah judiciary may be shown to be “second class” in society if Ezra was allowed to speak about the case, and had further argued that reports on court proceedings should only published in law journals and not in social media, newspapers or other media that can be accessed by the public who would allegedly not have the professional training to fairly evaluate the reports which would purportedly lead to inappropriate speculation.

Ezra’s lawyer Zulkifli Che Yong had in his written submissions however highlighted the need for press freedom in public interest cases to enable the public to know about their rights and limits in law, and that such a gag order should not be allowed.

In considering the arguments from both sides, the judge said the Shariah prosecution did not produce any evidence to back up their claims and said their arguments amounted to just “assumptions” or predictions of what could happen.

The judge highlighted the constitutional right to freedom of expression under Article 10 of the Federal Constitution as long as no defamation is involved, and said that generally, court proceedings in either the civil courts or Shariah courts are open for the public and reporters to attend, but noted that comments or news reports will have to be based on facts.

The judge also pointed out that there are laws on defamation and contempt of court that could be used if necessary.

 

 

Earlier, the judge detailed the chronology of events in relation to the Shariah trial, including how the Shariah prosecution had previously withdrawn two other separate charges under Section 16(1)(a) and Section 16(1)(b) of the 1995 law against Ezra, and how Shariah proceedings had been deferred and put on hold at times while waiting for court proceedings in the civil court and to enable Ezra to exercise his legal rights.

The judge also said that court dates for the Shariah trial had been affected amid movement control orders during the Covid-19 pandemic.

“This case took years, but the time that was taken is due to the court giving time for the accused’s rights,” the judge said.

Syarie prosecutors Zamniazura Mohd Sarin and Khafizah Ahmat Khairi appeared on behalf of the Shariah prosecution today.

What happened in the last eight years

In May 2012, ZI Publications had published the Malay-language translation of Irshad Manji’s book titled Allah, Liberty and Love, with Jais then on May 29, 2012 raiding and searching ZI Publications’ office and seizing 180 copies of the translated book Allah, Kebebasan dan Cinta from the office.

On the same day of the raid of the company, Jais had also arrested Ezra.

Ezra was then charged in the Shariah court on March 7, 2013 in his capacity as ZI Publications’ director and shareholder with the Shariah offence under Section 16(1)(a) of Syariah Criminal Offences (Selangor) Enactment 1995.

Under the Shariah offence of Section 16(1)(a) that Ezra was charged in 2013, any person who — among other things — publishes any book containing anything contrary to Islamic law commits an offence, with such an offence punishable by a maximum fine of RM3,000 or a maximum two-year jail term or both.

Over the years, Ezra had in the civil courts mounted several court challenges related to the seizure of the books from his company and also his arrest and the Shariah trial against him.

Just weeks before the High Court was due to deliver a decision in Ezra’s judicial review application or challenge against his arrest and Shariah prosecution, the Shariah trial against him at the Petaling Shariah Subordinate Court in Shah Alam started on February 22, 2018.

Subsequently, the High Court on March 7, 2018 dismissed Ezra’s challenge against his arrest and prosecution in the Shariah court, which then led to Ezra filing an appeal at the Court of Appeal.

On September 25, 2019, the Court of Appeal’s three-man panel had unanimously decided to grant a court order to quash Jais’ arrest of Ezra as well as the Shariah prosecution against him.

The Court of Appeal had also unanimously ordered that damages or compensation to be assessed for the “mental distress, agony and torture” faced and experienced by Ezra as a result of Jais’ wrongful action against both ZI Publications and himself, and to have the High Court assess the damages that should be paid to Ezra.

When asked about the assessment of damages, Ezra today confirmed that the matter of the amount of compensation to be paid to him had yet to be determined by the courts and is expected to come up in the High Court in the near future.

Jais and the Selangor state Islamic authorities had on February 13, 2020 obtained a stay from the Court of Appeal on the September 2019 decision as they wanted to pursue an appeal at the Federal Court, and had also agreed to defer the Shariah trial until the Federal Court decides the matter.

The Shariah trial was later put on hold as Jais and the others sought leave to appeal at the Federal Court against the Court of Appeal’s decision. Previously, eight prosecution witnesses had been called to testify in Ezra’s Shariah trial, and it is understood that there were more prosecution witnesses that had yet to testify.

According to the prosecution’s written submissions, seven witnesses testified for the prosecution. It had prepared an eighth witness who was to testify in October last year, but the Shariah trial at that time was deferred until the Federal Court’s full resolution of the matter.

On September 29, 2020, the Federal Court dismissed Jais’ bid for leave to appeal, which meant that the Court of Appeal’s September 2019 decision to quash both the arrest and Shariah prosecution of Ezra still stands.

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