Nik Raina’s case: When two streams of justice collide

Will the civil and syariah legal systems ever be reconciled?

COMMENT

When then Prime Minister Dr Mahathir Mohamad announced that Malaysia was already an Islamic state, alarm bells immediately sounded, yet no one could have imagined the consequences of such a declaration.

It was September 29, 2001, at Gerakan’s 30th national delegates conference, when he boldly said -

“UMNO wishes to state loudly that Malaysia is an Islamic country. This is based on the opinion ofulamaks who had clarified what constituted as an Islamic country. If Malaysia is not an Islamic country because it does not implement the hudud, then there are no Islamic countries in the world.

“If UMNO says that Malaysia is an Islamic country, it is because in an Islamic country non-Muslims have specific rights. This is in line with the teachings of Islam. There is no compulsion in Islam. And Islam does not like chaos that may come about if Islamic laws are enforced on non-Muslims.”

Almost immediately, Nik Aziz Nik Mat, the then spiritual leader of PAS, issued the following riposte –

“You can talk all you want. You can declare a piece of wood to be gold, or a wheelbarrow as a Mercedes, but in reality, nothing has changed.

For us, an Islamic country is one which is governed according to the tenets of the Quran and Hadith. Malaysia is a secular State. If the present Malaysia is already an Islamic state, then what do you call the state ruled by Prophet Muhammed and his friends?”

In a nutshell, Mahathir was arguing that Malaysia could interweave Islamic principles into the fabric of Malaysian life without the need to introduce hudud law, and without enforcing such laws on non-Muslims. Or in more current terminology, in moderation. Nik Aziz, however, took the opposite view.

Over the course of time the ever increasing infusion of Islamic principles into the public sphere led to two judicial systems taking root in the country, one governing civil law, and the other, syariah.

Those two streams of justice were never intended to meet, with syariah meant to only cover personal law relating to Muslims – until, of course, the Kelantan State Assembly passed its hudud enactment in March this year. But that is a discussion for another occasion.

Even in the sphere of personal law, these streams could not be kept apart. Until today, conversion and renunciation cases and inter-religious divorce and custody battles rage on unabated.

Muslim civil judges appear sometimes in a quandary when confronted with issues affecting the tenets of their own faith.

In the ‘Allah’ case, for example, the train of thought of some of the judges appeared to begin from the premise of their personal faith, rather than the Federal Constitution.

In other cases, judges have been known to shy away from exercising civil jurisdiction if the cases before them showed any hint of Islamic law, often leaving disputing parties without proper resolution.

The latest manifestation of the two streams of justice mingling with unfortunate consequences has been in the case of the Federal Territories Islamic Religious Department’s (JAWI) pursuit of Borders Bookstore manager Nik Raina Nik Abdul Aziz.

In May 2012, Nik Raina was charged by JAWI under Section 13(1) of the Syariah Criminal Offences (Federal Territory) Act for allegedly selling a book that defiled Islam.

Absurdly, the facts showed that the book in question, Irshad Manji’s “Allah, Liberty and Love,” had not been banned or prohibited by the Ministry of Home Affairs or by any other religious authority at the time she was charged.

That ban only came three weeks later, presumably to justify her prosecution.

Concluding that she was charged simply because she was a Muslim and because JAWI could neither exercise jurisdiction over her employer nor her non-Muslim supervisor, the civil Court of Appeal found that the proceedings against her were “unreasonable”, “irrational” and offended “the principle of fairness and justice.”

Taking the cue from that decision, the Shariah High Court discharged Nik Raina.

One would have thought that the matter would end there, but JAWI was unrelenting. It pursued an appeal to the Shariah Appeals Court against the Shariah High Court’s decision!

It seems that it was only after her counsel Rosli Dahlan threatened contempt proceedings against JAWI that they relented and filed a notice to withdraw the appeal.

Elation and relief which followed, however, were short-lived and quickly replaced by anxiety and despair when the Shariah Court Registry fixed the withdrawal application for hearing on June 23.

To add unnecessary drama, Nik Raina’s lawyer was informed on the morning of the hearing that he would not be permitted to appear on her behalf unless he filed a fresh certificate of legal representation (wakalah). He eventually did, at the eleventh hour!

Thankfully, in the end, sanity was restored when the Federal Territory Shariah Court of Appeal, comprising Syariah Judges Yusup Che Teh, Hussin Harun and Aidi Mokhtar endorsed JAWI’s withdrawal of the criminal appeal and struck out the charge against her.

Yet, all is not well just because it ends well.

A teary-eyed Nik Raina lamented the three years of victimization she suffered at the hands of over-zealous officers from the religious department.

“Every time I was asked to sit in the dock, I felt like a common criminal. I felt so sad. I could not understand what wrong I had done. My family also suffered much shame and humiliation,” she sobbed.

She was grateful, though, for the outpouring of support she received.

“I am proud that right thinking Malaysians, Muslims and non-Muslims, rallied behind me,” she said. “Malaysians have not lost their sense of right and wrong. They knew JAWI did me wrong.”

“JAWI’s actions give Islam a bad name not only here but internationally,” she goes on to say.

“Borders Bookstore provides a wholesome career to those who love books and knowledge. We even take interns during holidays.

“If this can happen parents will be afraid, and employers will be reluctant to hire Muslims.”

“What good does that do for Malays,” she asks.

“I appeal to JAWI not to proceed with their leave application to appeal to the Federal Court. Please let this be the last time that I have to come to court, please, I beg you,” she pleads to listening reporters.

“JAWI cannot act arbitrarily and violate the Federal Constitution and the Rule of Law,” Rosli says.

“Religious agencies should not do anything that will disrupt our multiracial, multi-religious and multicultural society.

“Civil and syariah laws can co-exist if interpreted harmoniously and by the authorities ensuring that they do not deliberately take advantage of any conflict of laws or other kinds of conflicts that may come into play,” he adds.

Malaysia’s laws must be interpreted justly, harmoniously and with absolute clarity.

The simple argument is that the Federal Constitution is the supreme law, and laws passed by Parliament and state assemblies are subordinate to it.

“Syariah courts cannot be ranked the same as the civil court as (these) religious courts are established by state laws,” retired Federal Court Judge Gopal Sri Ram was quoted as saying last year, adding that Parliament and the State Assemblies have no power to enact laws which are in conflict with the Federal Constitution.

The principle appears simple, clear and correct.

Yet, are our judges brave enough to uphold it?

They would do well to heed the words of former Lord President Salleh Abas, who once wrote, “[W]e have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.”

Nik Raina’s ordeal is not yet over.

The Federal Court is due to hear JAWI’s application for leave to appeal from the decision of the civil Court of Appeal.

Common sense dictates that they will withdraw it. But will common sense prevail?