SHAH ALAM, Dec 10 ― Mohd Ezra Mohd Zaid’s Shariah trial is expected to have a final outcome next week, as the Shariah court will be deciding whether to release him fully from the trial over a book published by his company in 2012, or discharge him conditionally.

The Shariah prosecutors today asked the court to release Ezra without acquitting him, and effectively applied for an order for the books to not be returned to his company and to block Ezra from talking about the case.

Ezra’s case has long been in the Shariah courts since he was charged in March 2013, while the Shariah trial started in February 2018 amid Ezra’s challenges in the civil court against the legality and constitutionality of the Shariah prosecution.

What the Shariah prosecutors want

When the case came up before Petaling Shariah subordinate court judge Shukran Yusof today, Syarie prosecutor Atras Mohamad Zin conveyed the three applications as instructed by the Selangor chief Syarie prosecutor.

"We apply for the accused today to be discharged without amounting to an acquittal from the prosecution under Section 16(1) of the Syariah Criminal Offences (Selangor) Enactment 1995,” Atras said when presenting the three applications, referring to the Section 16(1)(a) offence that Ezra was charged under.

Under Section 16(1)(a), 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.

This first application is based on Section 103(1) of the Syariah Criminal Procedure (State of Selangor) Enactment 2003, where the Syarie prosecutor may inform the court of the intention to discontinue prosecution, and which would then result in an accused from being discharged from the charge. Section 103(2) also allows the court to direct for the discharge to also amount to an acquittal.

The second application sought by Atras was for the books previously seized by Selangor’s Islamic religious enforcement officers to be forfeited and to be given to the Selangor Islamic Religious Affairs Department (Jais) for further action according to Section 16(2) of the same 1995 Selangor state law, asserting that this was due to the need to preserve the sanctity of the religion of Islam in Selangor especially in relation to the book’s content.

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.

As for the third application which was equivalent to a gag order on Ezra, Atras said: "To respect the integrity between the two systems of the civil judiciary and the Shariah judiciary, we apply for an additional order for the accused or his agent to be prohibited from commenting on this case in any form of media or orally, in writing, visually or in any other methods.”

Atras based his third application on Section 230 of the same 2003 Selangor state enactment, which states that any provisions or interpretation of provisions under the 2003 law which is inconsistent with the hukum syarak (Islamic laws) shall be void to the extent it is inconsistent, and that the court shall apply hukum syarak in the event of a lacuna (gap) or where any matter is not expressly provided by the 2003 law.

When asked by the judge for further clarification and the reason for the third application, Atras said the only instructions given by the chief syarie prosecutor to Syarie prosecutors was to "respect the integrity between the civil judiciary and Shariah judiciary systems”.

Atras did not elaborate on what were the purported inconsistencies which would allow Section 230 to be applied to this case.

Ezra Zaid's lawyer Zulkifli Che Yong speaks to reporters at the Petaling Shariah Subordinate Court December 10, 2020. — Picture by Yusof Mat Isa

Ezra’s lawyer Zulkifli Che Yong however objected to the Shariah prosecution’s application for a discharge not amounting to acquittal, arguing that Ezra should be both discharged and acquitted of the Shariah charge.

Zulkifli highlighted that the Court of Appeal had already gave court orders and declared that the prosecution of Ezra in the Shariah court is unconstitutional and invalid in law, before going on to read from the Court of Appeal’s September 25, 2019 judgment, including a certiorari order to quash the arrest, bail and attendance bond dated May 29, 2012 as well as the Selangor chief Syarie prosecutor’s decision to prosecute Ezra.

Jais had in September 2020 failed at the Federal Court to obtain leave to appeal the Court of Appeal’s decision. Today, both Atras and Zulkifli confirmed the contents of a copy of the Court of Appeal judgment that was presented to the Shariah judge.

"So here I refer to the certiorari order to quash the arrest, bail, attendance bond and the decision to prosecute by the fourth respondent (Selangor chief Syarie prosecutor). So the decision to prosecute has already been declared to be quashed. That’s why, to me, to apply for the accused to be discharged without amounting to an acquittal has no basis. But the accused should be discharged and acquitted, not without being acquitted. Because there is no basis for the Syarie prosecutor to conduct any prosecution here,” Zulkifli argued.

"In this case, the prosecution cannot arrest or prosecute again on the same premises, so on the application for the accused to be discharged not amounting to acquittal, I only agree for a discharge and acquittal,” he argued.

Zulkifli also objected to the Shariah prosecution’s application on the forfeiture of rights to the books, highlighting that the books are actually owned by a company instead of Ezra himself.

"For us, the books are owned by ZI Publications... I think it is not suitable in the context of this case, because ZI Publications is not a party to this case. So for the court to make an order towards ZI Publications to forfeit the rights to this book would be more appropriate, not against the accused personally. 

"The accused is one of the directors, but to ZI Publications, I think it is the ownership right of ZI Publications. So in this case, it’s a personal case by the prosecution towards the accused personally, not due to his position,” he argued.

Zulkifli also objected to the use of Section 230 to apply for what would effectively amount to a gag order on Ezra about the case, as this provision was only regarding inconsistency issues, saying: "This is not a gag order provision.”

"It should also be given attention that the society has to know, the right to media freedom such as in the case of khalwat (close proximity), cases that involve dignity, although involving dignity, but the issue is public interest, the public has to know,” he said, highlighting that the public has the right to know what are their rights and limits in law.

"So I believe this application by my learned friend to apply for a gag order on this issue, I feel that it should not be allowed as this is the right of the society to know what are the considerations and what are their rights and limits in law.”

"Therefore, based on that, I apply for the accused to be discharged and acquitted, and for any further orders to not be allowed,” he said.

In response, Atras said the second application was due to certain content in the book allegedly contravening Islam, while saying the third application only referred to Ezra and his agents and not to anyone else.

The Shariah judge, Shukran, said he did not intend to prolong the matter, but would need time to decide on the applications sought by the Syarie prosecutor.

"I will resolve this case this year itself,” the judge said, before then fixing December 17 to deliver his decision on the three applications.

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 & Love, with the 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. 

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 the Petaling Shariah Subordinate Court in Shah Alam started 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.

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. Ezra confirmed to Malay Mail that at least nine prosecution witnesses had previously testified in the Shariah trial.

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.