Brave New World (The Star)
28 June 2012
Can someone be charged for an offence when at the material time there was no offence?
NIK Raina Nik Abdul Aziz is accused of committing a crime, the “crime” being the distribution of a book which the Federal Territory Islamic Religious Department (Jawi) does not like.
If the sentence above sounds a bit odd, that is because it is.
Nik Raina is a manager in a bookstore. She is not an owner of a bookstore, she is an employee.
Therefore, she does not have any say with regard to what book is being sold. She just manages the shop, as her job title entails.
Now she is being charged in the Syariah Court for distributing a banned book.
But it is a book, it must be said here, that at the time of the supposed offence was not actually banned.
Therefore, it was not illegal to sell the book at the time.
Jawi raided the shop she was working in on May 23. Copies of the book were confiscated during the raid. The book was effectively deemed illegal on June 14.
So, on what grounds was Jawi confiscating the books? It is not based on the law, that is for sure, because no law was passed banning it until 22 days after the raid.
The only reason that can exist is that Jawi disapproved of this book and took it upon itself to take action even though there was no legal ground upon which it could do so. In other words, they didn’t like the book so they decided to raid a shop and take the book.
Does this sound odd to you? Does it sound like the action of a despotic state? It does to me.
How can a person be charged for an offence when at the time of the so-called wrongful act, there was no offence? You can’t possibly do that to a person.
There are constitutional provisions against such things. It is known as protection from retrospective legislation.
In other words, if you decide to make it illegal to wear yellow today, you can’t charge someone for wearing yellow yesterday. To do so would lead to an incredible injustice and the complete breakdown of the rule of law.
Now, because Jawi is an Islamic body, there are some who believe they are above criticism. I beg to differ; it is because they are a religious entity that they must be open to criticism, especially if they behave in a way that is unjust.
This is because as a religious agency they have an even greater responsibility to not tarnish their actions with acts of cruelty, meanness and vindictiveness. For by doing so they demean the very faith that they are supposed to be upholding.
But that is by the by. Any agency, be it religious or secular, has no right to treat people in this way.
They have no right to seize private property on their whim, and they have no right to charge someone for a crime that does not exist.
That is the bottom line. If we allow anyone to do so, we are simply throwing away our democracy and the protection that the rule of law provides us.