Borders files judicial review bid, citing constitutional issue

The action taken by the Federal Territory Islamic Affairs Department (Jawi) against a Borders employee would be a test case on whether Section 13 (1) of the Federal Territory Syariah Offences Act (FTSOA), is constitutional under Article 121 (1) (a) regarding the division of civil and syariah law.

This is because the FTSOA does not have any power to ban a book as such power lies with the Publication and Printing Presses Act 1984 (PPPA).

To make matters worse for Jawi, they seized copies of Irshad Manji’s controversial book ‘Allah, Liberty and Love’ at Borders on May 23, six days before the Home Ministry gazetted its ban.

Despite this, Jawi hauled store manager Nik Raina Nik Abdul Aziz to court on Tuesday and charged her under Section 13 (1) with distributing the book at Borders The Gardens, Mid-Valley between 8.41pm and 9.45pm on that day. She faces a sentence of a RM3,000 fine and two years jail or both, upon conviction.

Such is the complex scenario of the latest highly charged court case faced by Borders, owned by Vincent Tan’s Berjaya Books Sdn Bhd, in the Syariah Court and also in the civil court.

Berjaya Books has filed a judicial review challenging the legality of Jawi’s actions in hauling up Nik Raina and non-Muslim staff to be faced with such a predicament, whereas there had been no indication by Jawi or the authorities that the book will be banned.

Berjaya Books had also sent letters dated June 5 to both Home Minister Hishammuddin Hussein and Minister in the Prime Minister’s Department in charge of Islamic affairs Johari Bahrom. They claimed that both have reneged on their duty and pointed out this discrepancy, whereas such action can only be taken after the book is banned.

Malaysiakini has gained sight of the judicial review papers which were filed on Monday, stating the constitutional challenge against the powers-that-be.

Unfortunately this case would further put Islam and Muslims in a bad light, following the overzealous action by Jawi.

Berjaya Books, along with the assistant general manager (operations and merchandising) of Borders Stephen Fung Wye Keong and Nik Raina named Jawi, the home minister and the minister in the Prime Minister's Department in charge of Islamic affairs as respondents. 

‘Quash Jawi’s actions’

In the application, they are seeking a certiorari (to quash) order against the Jawi officers’ action of raiding, searching and seizing copies of the books at its premises and inspecting its workers, including Fung and Nik Raina, and to compel them to produce records of their actions.

Besides this, they want a declaration that the FTSCO does not have provisions to prevent or ban a publication as such provisions are in the PPPA.  

They also questioned why the home minister and minister in the Prime Minister’s Department did not intervene in the May 23 incident when there was no ban imposed and this, they claimed, showed the irresponsibility of the ministers in not dealing with the issue which falls under their jurisdiction.

The three applicants are also seeking a declaration to quash the arrest and bond dated May 30 issued on Fung and Nik Raina. The applicants are also seeking a declaration that only Muslims are bound under the FTSOA. 

Fung, in his supporting affidavit, claimed that as a result of Jawi’s actions, they have to seek relief in the civil courts. He also said that Jawi or other state religious authorities never informed Borders that possession of the book is against the law.

He claimed that Jawi also inspected non-Muslim staff including him. Syariah laws only apply to Muslims. Hence there is a question of law whether FTSOA is applicable to non-Muslims as well. Borders had also dispatched letters to Jawi seeking cooperation on the matter but was told at this stage they do not deal with any lawyers.

Fung and Nik Raina were then called to Jawi on May 30 and claimed they were not treated well as they were denied legal representation. Being represented with a counsel of your choice is protected under the federal constitution.

Fung said he is the person responsible and with authority on the books sold and displayed in Borders. He cannot face action under FTSOA as the law does not apply to non-Muslims. 

He claimed that Nik Raina was just a subordinate who does not have control or ownership in Borders, and that she was not authorised to select the books to be sold and does not have any knowledge over the books’ contents. Fung also claimed that they sent a letter of representation for consideration to Jawi’s head of prosecution, but there had been no reply.

‘Malicious prosecution’

On June 14, Fung received a call from Jawi’s head of prosecution that they are continuing with the prosecution.

In his affidavit Fung claimed that there was malicious prosecution which saw a Muslim being wrongly prosecuted while there were attempts to scare non-Muslims. He claimed that the action against Nik Raina were mala fide as Jawi could not take action on the company and him.

In court documents, the applicants also claimed that such action by Jawi resulted in non-Muslims being fearful of Muslims as they acted very rough and were not respecting non-Muslims’ human rights.

They claimed that Borders also employ Malays and Muslims in the selling of their book chain and such action would result in Muslim workers being discriminated as action is being taken on them under FTSOA, which is applicable to Muslims but is not applied to non-Muslims.

Borders also issued a press statement on Tuesday nightdenouncing the prosecution. 

The case is fixed for hearing of leave application on Monday before Justice Rohana Yusof.