Nik Raina Case: JAWI goes to Federal Court

by Hafiz Yatim@www.malaysiakini.com

The government seems hell-bent on bringing Borders store manager Nik Raina Nik Abdul Aziz to book for selling a publication deemed controversial by religious authorities.

On Wednesday, two days before the expiration date, the Federal Territory Islamic Department (JAWI), the Home Minister, and the Minister in the Prime Minister’s Department, filed a leave application to take the matter all the way to the Federal Court.

All three parties are appealing against the Court of Appeal’s decision which dismissed JAWI’s challenge of a High Court ruling declaring its raid on the bookstore as unlawful.

JAWI had raided the bookstore in a shopping mall in Kuala Lumpur on May 23, 2012 and seized copies of the Bahasa Malaysia translation of ‘Allah, Liberty and Love’ by Muslim Canadian author Irshad Manji.

At the time of the raid, the book has not been banned, but a prohibition on its sale was gazetted six days later on May 29.

On December 30, the Appeals Court, in a unanimous decision, dismissed the appeal by the three parties.

Nik Raina and Borders had filed a judicial review to challenge the raid and seizure in the Kuala Lumpur High Court.

Justice Zaleha Yusof ruled JAWI was wrong in seizing the book and taking action on Nik Raina, and ordered it to drop the charge against Nik Raina.

Nik Raina was charged under Section 13(1) of the Federal Territories Syariah Offences Act for distributing the book at Borders at The Gardens mall in Kuala Lumpur between 8.41pm and 9.45pm on March 23, 2013.

If found guilty, she faces a sentence of a RM3,000 fine and two years’ jail, or both, upon conviction.

Legal questions posed

In order to obtain leave, JAWI and the two ministers will have to pose questions of law that is to be decided by the highest court in the country.

In documents sighted by Malaysiakini, it is understood three questions are posed, namely:-

–Whether the court in exercising its civil jurisdiction can review the prosecution of criminal cases especially when the offence is against the precepts of Islam.

–whether no enforcement action can be taken against a corporate entity incapable of professing a religion for an offence under the Syariah law; and most importantly,

–whether an action by the religious authority which subsequently leads to a prosecution in the Syariah Court can be challenged and reviewed in the civil court.

No dates has been fixed yet by the Federal Court to hear the leave application.

In civil and judicial cases before the Federal Court, permission has to be obtained before the substantive part of the appeal process can be heard.

Despite the High Court decision which has been upheld by the Court of Appeal, JAWI has not withdrawn the charge against Nik Raina, resulting in this application.

‘Plea for compassion fell on deaf ears’

In an immediate reaction, Berjaya Books Sdn Bhd expressed disappointment over the government decision to appeal.

“At Berjaya Books, we are so very disappointed that our plea for JAWI to find the compassion to drop the charges against Nik Raina appear to have fallen on deaf ears,” said its chief operating officer Yau Su Peng .

Yau (right), who is also the General Manager of special projects at Berjaya Corporation Bhd, said 32 months have lapsed since the raid on their store and the susequent charge against Nik Raina at the Syariah Court.

“Both the High Court and the Court of Appeal have handed down decisions in our favour.What else do we need to do in order to defend our employee’s right to work?” asked Yau.