Friday 10 August 2012

Peddling books and a rape

Azrul Mohd Khalib

AUG 10 ― These past few days have seen two cases being brought forward before the courts. One, concerning the prosecution of an individual for an alleged offence which was not an offence at that point of occurrence. And the other, regarding statutory rape. Both have led me to wonder about the state of justice in Malaysia.

The ongoing Jawi–Borders saga

Earlier this week, I sat in one of the courtrooms of the Kuala Lumpur Syariah High Court listening to the case brought forward by the Federal Territories Islamic Department (Jawi) against Berjaya Books staff Nik Raina Nik Aziz over the distribution and selling of Irshad Manji’s book “Allah, Liberty and Love”.

I listened as the Syarie chief prosecutor of the Federal Territory, Ibrahim Deris, stated the reason why everyone was there in court that day instead of on September 19 as the mention was originally scheduled.

The case had become an issue of public interest, he said. He complained (honestly, it sounded like whining) that the religious department was getting bad press in the media and among internet bloggers, and that Jawi wasn’t given an opportunity or platform to explain or defend itself from tohmahan or accusations.

Syariah judge Abdul Walid Abu Hassan was informed by Rosli Dahlan, the counsel representing Nik Raina and Berjaya Books, that the Court of Appeal had just the day before allowed an application by Berjaya Books and two of its employees for a stay of action.

The stay stops Jawi from taking any further action, including prosecution proceedings in the Syariah Court against Nik Raina.

Ibrahim Deris then submitted that “in the interest of justice”, he requested the court to postpone the date of mention and give the defence 14 days after the disposing of a judicial review by the High Court on September 5. Basically, pushing the case mention back to the original date.

Suddenly it seemed that the problem of bad press from the media and bloggers was no longer an issue for Jawi. The court agreed to the rescheduling. Honestly, I felt that the judge should have thrashed and skewered the chief prosecutor like a kebab for wasting the court’s time and causing undue stress and anxiety to those involved.

Outside the courtroom, counsel Rosli expressed his dismay and was perplexed that Jawi was continuing this course of action. He stated that he felt that the religious department was being unnecessarily stubborn and obstinate.

It almost seemed that everyone in the room, except for the chief prosecutor, was aware that the case is fundamentally flawed to begin with as the charge is defective. A Muslim woman is being charged for the offence of distributing and selling a supposedly banned book that had not yet been banned by the Home Ministry at the date of the charge. Also, rather than this being a case for the civil courts, Jawi strangely has gone all Rambo in going after this woman.

It dawned on me while I was sitting there in court that morning that due to Jawi’s dogged persistence and unfortunate attitude in this case, it had become something far bigger than even the religious department had intended.

Suddenly, Constitutional jurisdiction issues between the civil and syariah systems were being brought up. It is also becoming increasingly clear to me that Muslims themselves need to be protected from abuse of the syariah system.

It is possible that Jawi doesn’t know how to stop without a massive loss of face and its pride and ego getting a severe beating. I wondered about the endgame or objective of this entire prosecution. It is also doubtful that Jawi themselves know.

Statutory rape is rape

Meanwhile, it has been disappointing to hear of the Court of Appeal’s decision to set aside the five-year jail term imposed on national tenpin bowler Noor Afizal Azizan.

Noor Afizal, who had pleaded guilty to statutory rape of a 13-year-old girl, had been given the jail term by the Malacca High Court on September 2 last year, following a successful appeal by the prosecution against a session court’s more lenient sentence.

The rationale of the Court of Appeal for its decision included, among other considerations, the fact that Noor Afizal is a national bowler meant public interest would not be served if he was sent to jail as he had a bright future ahead of him.

The court also determined that there was a consensual sexual relationship between him and the young girl and included that in its considerations.

Let’s get this straight. A 13-year-old girl is a child. This is not a case of two consenting adults. Noor Afizal who was 18 at the time of the rape, had sex with a child. Period.

Statutory rape laws are put into place with the intention of protecting young girls from falling prey to older men. These laws are meant to protect children.  They were not intended to absolve men from blame of having sexual intercourse with underage girls.

Imagine if this 13-year-old child were your daughter, grandchild or a member of your family.

The fact that Noor Afizal is a national bowler only serves to stress the need for public role models such as athletes to maintain a code of conduct that includes not only the respect of the law but also having moral integrity.

Noor Afizal Azizan, in this case, demonstrated neither and, yet, has now escaped a jail term simply because the judges in question felt that he had a bright future ahead of him as a national bowler. How about the future of the girl in question? Most likely her immediate future over the past few years involved incarceration in a girls’ moral rehabilitation centre.

What is the point of having statutory rape laws when they can be lenient or bent for politicians, public personalities and in this case, athletes? Or when some older man casts his eye on his Form 1 students (who are generally 13 years old) and sees a future wife.

In 2010, Jakim celebrated the marriage of a 14-year-old girl to her religious teacher who was 24 years old. The law states that a Syariah judge must give his permission before such a marriage is allowed to proceed. This law was meant to give pause and protect the child.

Yet Syariah judges in recent years have granted more permissions rather than prohibitions for child marriages (where the girl is underage) to be carried out in the different states. The reasoning: better nikah daripada maksiat or zina.

Excuse me. What about protecting the children? These are girls below the age of 15. Doesn’t this creep you out? Are not such people considered to be paedophiles and perverts?
What message does it send that our society condones such behaviour?

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