PUTRAJAYA: The Court of Appeal yesterday held that actions by the Federal Territory Islamic Department (Jawi) and two others in raiding a Borders bookstore and seizing Irshad Manji’s controversial books two years ago as unlawful.
A three-member panel led by Justice Datuk Mah Weng Kwai also concluded that the actions by Jawi and two other appellants in conducting the raid in the bookstore and investigating the case against Berjaya Books Sdn Bhd, which owns Borders bookstores, and its two employees were unreasonable and irrational.
The two employees were Borders’ operations and merchandising general manager Stephen Fung Wye Keong and Nik Raina Nik Abdul Aziz, store manager for Borders bookstore at The Gardens in Mid Valley City.
The two appellants were Home Minister and Minister in the Prime Minister’s Department in charge of Islamic religious affairs.
Justice Mah, who presided over the appeal with Justices Datuk Mohd Zawawi Salleh and Datuk Umi Kalthum Abdul Majid, said no action whatsoever could be taken against the first respondent, Berjaya Books, as it was a corporate entity and incapable of professing a religion.
The panel therefore unanimously dismissed the appeal by Jawi and two other appellants to set aside the High Court’s ruling on March 22, last year which allowed a judicial review application brought by Berjaya Books, Fung and Nik Raina to quash Jawi’s action in raiding the store and seizing several of Irshad Manji’s books titled “Allah, Liberty and Love” on May 23, 2012 at the bookstore at the Gardens mall.
Justice Mah, in his 44-page judgment, also held that Jawi’s actions in conducting the case against Nik Raina were unreasonable and tainted with mala fide.
The judge said in a multi-religious country like Malaysia, Jawi should be sensitive to the ramifications of its actions lest it may lead to an unwelcomed perception that to employ any Muslims within any organisation in Malaysia would invite unwanted adverse enforcement on that organisation by the likes of Jawi.
He further said Fung had successfully shown that the actions by Jawi when it examined and investigated him over the books to be illegal and irrational, an abuse and unreasonable exercise of discretionary power, unconstitutional and procedurally improper.
Nik Raina was arrested by Jawi on May 30, 2012 and was charged under Section 13 of the Syariah Criminal Offences (Federal Territories) Act 1997 for the offence of disseminating and distributing by way of selling the books deemed contrary to Hukum Syarak (Islamic Law).
“We are of the view that since the books had been in circulation internationally and locally, it would offend the sense of justice to charge a person with an offence for acts being contrary to Islamic Law when there is no reference point for members of the public to refer to in order to know the nature of the offence, such as if there had been fatwa, prohibition order or any other form of notification,” said Justice Mah.
Justice Mah said the panel noted that as at May 23, 2012, the date of the search and seizure of the books, there was no fatwa, declaration or circular issued by Jawi or by any other religious authority banning the publication and sale of the books by the respondents or by anyone else, for being in breach of Hukum Syarak.
The panel also said the prohibition order was only issued by the Home Minister on May 29, 2012 – six days after the seizure and published in the Gazette on June 14, 2012.
“Without any fatwa, public notification or prohibition order in place on May 23, 2012, to alert the public on the ‘unlawful’ status of the books, it offends the sense of fair play and justice in our view to accuse the respondents for being breach of Section 13 of the act,” he said.
On the issue of jurisdiction, Justice Mah held that the High Court had jurisdiction to hear the judicial review application filed by Berjaya Books, Fung and Nik Raina as the High Court exercising its supervisory civil jurisdiction was at liberty to interpret laws on fundamental liberties and to adjudicate on unconstitutional conduct by public authorities.
The judge said it was the duty of the court to uphold, protect and to ensure that justice was administered in a regular and effective manner according to the law.
“As a result, the appeal is dismissed with no order as to costs. The order of the High Court is affirmed,” said Justice Mah.
Outside the court, when approached by reporters, Nik Raina said she was grateful with today’s ruling and it (ruling) was good for future reference for Muslims working in a bookstore. — Bernama