PUTRAJAYA: The Federal Territory Islamic Religious Department (Jawi) was wrong in raiding and seizing copies of a controversial book from a Borders bookstore, the Court of Appeal decided yesterday, upholding a lower court’s decision.

The book, Allah, Liberty and Love by Irshad Manji, was seized before a fatwa banning it was issued and as such Jawi’s actions were deemed illegal and unconstitutional.

A three-man bench, led by Justice Datuk Mah Weng Kwai, also held that Jawi’s actions against Borders store manager, Nik Raina Nik Abdul Aziz, was unconstitutional and illegal and said her arrest and prosecution must be quashed.

“Jawi had acted beyond their powers against Nik Raina (third respondent) and the bookstore, “ Mah said.

This case has also shone a spotlight on the country’s parallel systems of civil law and syariah law for Muslims. The three respondents in the case were Berjaya Books Sdn Bhd, Borders assistant general manager of operations and merchandising Stephen Fung and Nik Raina.

The appeal was filed by Jawi, the Home Minister and the Minister in the Prime Minister’s Department in charge of Islamic religious affairs, Datuk Seri Jamil Khir Baharom.The parties were appealing against the Kuala Lumpur High Court’s decision to allow Berjaya Books’ judicial review to quash Jawi’s actions in seizing Manji’s book from the the bookshop.

On May 23, 2012, Jawi raided the bookshop and subsequently Nik Raina was accused by the religious authority of breaching the “hukum syarak” by distributing or selling the book Allah, Liberty and Love.

When Jawi conducted the raid, the book had not been banned and Nik Raina was not responsible for the buying and stocking of books and merchandise in Borders stores.

Despite a number of representations made by her lawyers on Nik Raina’s behalf, Jawi insisted on prosecuting her.

On June 18, 2012, Borders filed for leave to commence a judicial review on the legality of the raid and prosecution of Nik Raina at a time when there was no ban of the publication.

The High Court granted leave for Borders to commence judicial review proceedings against Jawi for raiding the bookshop, seizing publications, and investigating Borders’ Muslim and non-Muslim employees. They also sought legal clarification on the arrest and prosecution of Nik Raina for selling Manji’s book (in English) and the Malay translation Allah, Kebebasan dan Cinta which is said to be against Section 13 of the Syariah Criminal Offences (Federal Territories) Act 1997.

The Home Ministry banned the book on May 29, and the ban only came into effect on June 14, three weeks after the raid. On March 23 last year, the High Court in Kuala Lumpur ruled that Jawi had acted illegally in raiding the Borders bookshop at the Gardens Mall in Kuala Lumpur and seizing the book.

Justice Datuk Zaleha Yusof said in her judgment that Jawi had also acted illegally in charging store manager Nik Raina, a Muslim employee, in the Syariah Court in Kuala Lumpur.

Following the judgement, Jawi filed an appeal against the High Court’s decision.

Jawi has yet to drop the prosecution against Nik Raina as it is waiting for the outcome of the appeal.

In an immediate response, Nik Raina said she was relieved following yesterday’s ruling.

“I thought the appellate court decision could have gone either way but am glad the judges were unanimous in their strong pronouncement,” she said.

Borders chief operating officer Yau Su Ping expressed hope Jawi and the chief syariah prosecutor would abide by the decision and find the compassion to immediately drop the charges against Nik Raina.

“This effort to maintain Nik Raina’s mere right to work as a bookstore manager should not have come this far. We need to remember that there is a human being at the end of this, and she has had to endure intense public scrutiny and questioning over her religious faith while continuing to work,” she said.

Yau also thanked all Malaysians for supporting Nik Raina and Borders for defending  employees’ rights to earn a livelihood without being subjected to adverse consequences.

“Today (yesterday) justice has prevailed and today is a win for the supremacy of the constitution,” she added.

Senior Federal Counsel Shamsul Bolhassan, who represented the appellants, said the authorities had 30 days to decide whether to obtain leave from the Federal Court to appeal yesterday’s ruling.

In a reaction to the Court of Appeal’s decision, Human Rights Watch’s Asia division said Jawi had acted in an “outrageous and abusive way” through the episode which showed how “badly eroded the rule of law has become in Malaysia”.— The Malaysian Insider

This article first appeared in The Edge Financial Daily, on December 31, 2014.