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Friday, January 30, 2015

FT religious department appeals Borders verdict

Jawi is appealing against a court ruling that says the religious authority was wrong to conduct a raid and book seizure at a Borders bookstore. – The Malaysian Insider pic, January 30, 2015.Jawi is appealing against a court ruling that says the religious authority was wrong to conduct a raid and book seizure at a Borders bookstore. – The Malaysian Insider pic, January 30, 2015.As expected, the Federal Territory Islamic Religious Department (Jawi) has filed a leave application to appeal against a Court of Appeal ruling, which held that the agency was wrong in raiding and seizing copies of a controversial book from the Borders bookstore.
Jawi has filed three legal questions for the Federal Court to deliberate before it decides to grant leave to the Islamic agency.
The applicant, Jawi must convince the bench that novel questions were raised for the first time or were of public importance as required under Section 96 (a) of the Courts of Judicature Act 1964.
"They have filed the court papers just before the 30-day deadline. We will take instruction before deciding the next course of action," he told The Malaysian Insider.
He appeared for Berjaya Books, assistant general manager Stephen Fung and store manager, Nik Raina Nik Abdul Aziz.
A three-man bench led by Datuk Mah Weng Kwai on December 30 ruled that copies of the book, "Allah, Liberty and Love" by Irshad Manji, were seized before a fatwa banning it was issued and as such Jawi's actions were deemed illegal and unconstitutional.
The panel also held that Jawi's actions against Nik Raina was also unconstitutional and illegal and as such her arrest and prosecution must be quashed.
"Jawi had acted beyond their powers against Nik Raina and the bookstore," Mah had said.
This case has also shone a spotlight on the country’s parallel systems of civil law and Shariah law, with the majority Malay-Muslim population being bound by the latter.
Jawi, home minister, and Minister in the Prime Minister’s Department in charge of Islamic religious affairs Datuk Seri Jamil Khir Baharom, had come to the Court of Appeal to reverse the findings of a Kuala Lumpur High Court.
On May 23, 2012, Jawi had conducted a raid at the bookstore and subsequently Nik Raina was accused by the religious authority of breaching the hukum syarak by distributing or selling the book.
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, the process and prosecution of Nik Raina at a time when there was no ban of the publication.
The High Court subsequently granted leave for Borders to commence judicial review proceedings against Jawi for raiding, searching, seizing of publications and subjecting to examination and investigation Borders's Muslim and non-Muslim employees.
They also sought legal clarification on the arrest and prosecution of Nik Raina for distributing by way of selling Irshad Manji's book (in English) and the Malay translation Allah, Kebebasan dan Cinta which is said to be against section 13 of the Shariah 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.
Then home minister Datuk Seri Hishammuddin Hussein, in his affidavit filed in the High Court, stated that Jawi had powers to seize books that were in violation of Islamic law even if they were not banned by the ministry.
“Although there had been no Prohibition Order on the date on which the book was confiscated by Jawi, the department is empowered to seize the book because the book had contravened section 13 of the Shariah Criminal Offences (Federal Territories) Act 1997,” he wrote in his affidavit at the time.
However, in March last year, the High Court ruled that Jawi had acted illegally in raiding the Borders bookstore 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 the store manager, Nik Raina, a Muslim employee, in the Shariah court in Kuala Lumpur.
Jawi has yet to drop the prosecution against Nik Raina.

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