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Friday, March 22, 2013

High Court: JAWI wrong in seizing book and prosecuting Borders


File photo of Manji speaking about her book when she was in Kuala Lumpur last year.KUALA LUMPUR, March 22 — The Federal Territory Islamic Affairs Department (JAWI) acted illegally in raiding the Borders bookstore at the Gardens Mall here and seizing Irshad Manji’s book “Allah, Liberty and Love” in May last year, the High Court ruled today.
Subsequently, it also acted illegally in charging the store manager, Nik Raina Nik Abdul Aziz, a Muslim employee, in the syariah court here, Justice Datuk Zaleha Yusof said in her judgment today.
Rosli Dahlan, lead counsel for Berjaya Books, told reporters outside the court today that JAWI should now drop the prosecution against Nik Raina in the syariah court.
“That will be the correct and honourable thing to do,” he said.
Berjaya Books, which owns Borders, had won leave in the civil courts last June for a judicial review against JAWI for the “procedural impropriety” of its actions.
JAWI had deemed the book to be contrary to syariah law (hukum syarak), but Berjaya Books had claimed that it was not aware that it was an offence to sell or distribute Manji’s book at the time of the raid as the book had not yet been banned.
The Home Ministry banned the book on May 29, and the ban only came into effect on June 14, three weeks after the raid.
“At the time it was not an offence, therefore to charge Nik Raina would be a violation of Article 7 of the Federal Constitution, making it ultra vires,” Rosli said.
Article 7 of the Federal Constitution prohibits the application of retrospective criminal laws. 
Rosli (right) with (from left) Fung, Nik Raina and Berjaya COO Yau Su Peng outside the High Court today.The judge ruled that any time state law – in this case, section 13(1) of the Syariah Criminal Offences (Federal Territories) Act 1997 – conflicts with federal law, the latter will prevail.
This case has also shone a spotlight on the country’s parallel systems of civil law and syariah law, with the majority Malay-Muslim population also being bound by the latter.
After Nik Raina had been charged in the syariah court, Berjaya Books successfully obtained an order from the Court of Appeal in August last year to stay any further action by JAWI, including prosecution proceedings in the syariah court against her, pending judicial review in the High Court.
Home Minister Datuk Seri Hishammuddin Hussein, in his affidavit filed on September 5 in the High Court, stated that JAWI has powers to seize books that are in violation of Islamic law even if they are not banned by the Home Ministry.
“Although there had been no Prohibition Order on the date on which the book was confiscated by JAWI, JAWI is empowered to seize the book because the book had contravened section 13 of the Syariah Criminal Offences (Federal Territories) Act 1997,” he wrote in his affidavit at the time.
Pointing to the retroactive ban of Manji’s book, however, Rosli said: “That’s why the judge says even if you say it (the book) is against the precepts of Islam, people must know about it first. The public must know what is right and what is wrong.”
He also said: “Please be very clear what the court was criticising is the public authority, JAWI, and the Ketua Pendakwa Syarie. The court at no point challenged or criticised the syariah court.”
The judge did not order any costs or damages.
The three applicants in this case were Berjaya Books, Borders assistant general manager of operations and merchandising Stephen Fung and Nik Raina. 
The respondents were JAWI, Hishammuddin and the Minister in the Prime Minister’s Department in charge of Islamic religious affairs, Datuk Seri Jamil Khir Baharom.
Rosli also said outside the court that Effandi Nazila, the lawyer for JAWI, had told him they would appeal the decision.

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