PETALING JAYA - The Court of Appeal will deliver its decision on Tuesday, on whether to uphold the KL High Court's judgment that the Federal Territory Islamic Religious Department's (Jawi) actions against a manager at Borders bookstore in The Gardens Mall is "unconstitutional and illegal".
KL High Court presiding judge Datuk Zaleha Yusof in her written judgment dated March 23, 2013, called Jawi's actions mala fide (bad faith) saying: "I have perused the cause papers and scrutinised submissions made by the parties.
I am satisfied that the applicants have shown existence of illegality, abuse of discretionary powers, irrationality, unreasonable exercise of power unconstitutionally and that there exists procedural impropriety on the part of the respondents. Looking at the whole scenario of the case, it is hard not to agree with the applicants that there are elements of mala fide in the handling and carrying out of the actions of the respondents. ln law, mala fide can be inferred when there was absence of care, caution and a proper sense of responsibility."
Following the judgment, Jawi filed an appeal against the High Court decision and instead of withdrawing the prosecution of Borders store manager Nik Raina Nik Abdul Aziz, which had been declared as illegal, Jawi caused the syariah court to keep the prosecution alive until the appeal.
On Aug 21, this year, Jawi's appeal was heard at the Court of Appeal in Putrajaya and judgment was reserved.
On May 23, 2012, Jawi conducted a raid at the bookstore and subsequently on June 19, 2012, Nik Raina was accused by Jawi of contravening the hukum syarak by distributing or selling a book authored by Irshad Manji titled Allah, Liberty and Love.
At the time of 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 these known and acknowledged facts and numerous representations made on Nik Raina's behalf, Jawi insisted on prosecuting her.
Berjaya Books Sdn Bhd took the decision to protect its employee from being victimised for merely performing her duties.
On June 18, 2012, Borders filed for leave to commence a judicial review on the legality of the raid, the process and prosecution of Nik Raina at a time when there was no ban of the publication.
Nik Raina Nik Abdul Aziz
On June 26, 2012, the High Court granted leave for Borders to commence judicial review proceedings against the following actions of Jawi: in raiding, searching, seizing of publications and subjecting to examination and investigation Borders' Muslim and non-Muslim employees on May 23, 2012; and in subsequently arresting and prosecuting its Muslim employee Nik Raina for distributing by way of selling Irshad Manji's book titled Allah, Liberty and Love and its Malay translation Allah, Kebebasan dan Cinta on May 23, 2012 which were deemed to be contrary to Islamic Law pursuant to section 13 of the Syariah Criminal Offences (Federal Territories) Act 1997.
The said publications were in fact not banned on May 23, 2012 and a gazette banning the publication was only published three weeks later.
The COO of Berjaya Books Sdn Bhd Yau S. Peng said: "When we set out to defend our employee's rights, we did not envisage that it would come this far.
It has been a long and painful journey with a substantial amount of time, energy and personal, emotional and financial resources expended in the process."
In seeking reconciliation at the High Court, she said they did not ask for costs against Jawi and made a plea to them to immediately drop the charges against Nik Raina.
"It was to our great disappointment that Jawi decided to appeal against the High Court decision and used that to perpetuate the prosecution against her.
We are extremely thankful for the support shown by the public, especially for Nik Raina who has been a most unfortunate victim throughout the case. We must commend the strength and bravery she has demonstrated, holding her head up high despite criticisms and doubts as to her Islamic faith. Nik has continued to work with us and steadfastly carried out her duties as store manager of our outlet in the The Gardens Mall," said Yau.
She said if the Court of Appeal rules in Jawi's favour, then it will proceed with the charge against Nik Raina in the syariah court and she can be punished with a RM3,000 fine or two years' jail, or both, if she is convicted, for just doing her job as a store manager.
"Our stand has always been to protect the rights of our employees to work without fear or favour. It is our hope and wish that the law will uphold that which is right. In the spirit of Malaysian unity, we seek your continued support and prayers that justice will prevail for Nik Raina," said Yau. - Sundaily
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.