THE BORDERS/IRSHAD MANJI BOOK CASE: SENSE AND SENSIBILITY PREVAILED!

March 22,2013

by Din Merican

I have become friends with Nik Raina Nik Abdul Aziz, the poor Malay Borders Bookstore

manager who, on  May 30, 2012, was charged with much fanfare in the Syariah Court for purportedly distributing anti-Islam books. The book in question was by a Canadian writer Irshad Manji titled “Allah Liberty and Love”.

That immediately made Nik Raina an enemy of Islam. In Malaysia, nobody wants to be an enemy of Islam. It did not matter that Nik had not read the book nor understood what it is about. It did not matter that she was a mere employee and had no control over the books sold in the Borders Bookstore. It did not matter that nobody knew that the book was against Islam. It did not matter that nobody knew about any ban on the book, because it was not banned at that time.

Once the Jabatan Agama, in this case Jabatan Agama Wilayah Persekutuan (JAWI), charged her in the Syariah Court, she became Islam’s No.1 Enemy. That was what happened to Nik Raina since May 2012 until this morning when I received the good news that Borders Bookstore, Stephen Fung and Nik Raina have been vindicated by High Court Judge Dato’ Zaleha Yusuf. News spread very fast that Judge Zaleha had chastised JAWI for displaying religious madness in their action against Borders, Stephen and Nik Raina.

Nik Raina and her lawyer, En. Rosli Dahlan

Immediately I was impressed because I have seen this judge. Dato’ Zaleha wears the tudung. This must be one brave Malay lady tudung Judge to vindicate the enemies of Islam in her court of law.

More than that, she dared to chastise JAWI and two Ministers namely the Home Minister, Hishammuddin Hussein, and the Agama Minister, Jamil Khir Baharom for not correcting JAWI. But why was this judge so brave to vindicate people branded by JAWI as the enemies of Islam? And why vindicate? For what? What wrong have they done? So, let’s understand the facts a bit.

Apparently, some time before the incident, JAWI and Islamic scholars from JAKIM had reviewed the Irshad Manji book and prepared a thick report counting out 1001 reasons why Irshad Manji is an enemy of Islam and thus all her writings are blasphemous. If JAWI had their way they would burn Irshad Manji on the stake and make her books a bonfire.

Anyway, JAWI then approached the Minister of Home Affairs to ban the book because under the Printing and Presses Act, only the Home Minister can ban books. For some reason, the Home Minister slept on it like how he slept on the job when more than 100 Filipino terrorists took over Lahad Datu.

In Lahad Datu, the Home Minister justified the continued presence of these terrorists on Malaysian soil by saying that they are harmless toothless sarong clad old men, that is, until our security forces men were brutally killed and mutilated. In the end, we had to call on jet fighters and the army to bomb the three villages to get rid of these harmless toothless old men.

The inaction of Home minister Hishamuddin Hussein in this case is almost similar to his late action  to table a white paper on the Lahad Datu episode. It should have been done during the early stage of intrusion. The matter has prolonged long enough and many security personnel had lost their lives. The people had also waited too long for answers, but in the end they were disappointed as none had been forthcoming.

So, JAWI being irritated with the inaction by the Home Minister decided to take things into their own hands and orchestrated a dramatic raid on Borders Bookstore at the Gardens Mid Valley Mall. Just like the siege of Bahgdad when the Mongolian horde stormed a Muslim city, the JAWI commandos stormed Borders Bookstore with a horde of photographers and reporters as if it was a fortress of anti-Islam books. Like in a Jihad (Holy War), JAWI needed to capture some POWs (Prisoners of War), otherwise it would not be a successful war campaign.

But JAWI had a problem because Borders is owned by a company, Berjaya, and they dare not arrest the owners of Borders because that would be Tan Sri Vincent Tan. So they went after the General Manager who is Stephen Fung. Again, that was a problem because Stephen is a Christian and JAWI has no powers over non-Muslims. So, JAWI went down the chain of command and to their delight found that the store manager is a Muslim. So that’s how Nik Raina got embroiled.

But that was not the end of JAWI’s problem. After interviewing Nik Raina, JAWI discovered that Nik Raina had neither power over nor knowledge about the book. You see, at that time JAWI had not announced to the public of the findings of their thick report that the book is anti-Islam because that report was official secret meant only for the eyes of the Home Minister. And the Home Minister had forgotten to gazette a ban on the book as anti-Islam. So, on the day of the raid and Nik Raina’s arrest, nobody knew that the book was banned. But JAWI didn’t care. JAWI was in a rush to announce the success of their raid, so they needed to charge someone, anyone. JAWI refused to listen to reason and even refused legal representation to Nik Raina. So that’s why Nik Raina was charged, because it was convenient to do so.

But JAWI underestimated that Berjaya is now under a new leadership, Dato Robin Tan. Robin Tan may be Vincent Tan’s son, but he is a man of the brave new world and could not stand to see his company and his employees being bullied and kicked around. Also, Borders’ COO is a feisty Australian trained lawyer, Yau Su Peng. So, between them, they decided to look around for a lawyer who is qualified to appear in the Syariah Courts and the Civil Courts; who will not be cowed to appear against the bullying and intimidating tactics of the Ketua Pendakwa Syarie; a lawyer who is not afraid of the establishment. Enter my young friend, Lawyer Rosli Dahlan!

No one can be perfectly free till all are free; no one can be perfectly moral till all are moral; no one can be perfectly happy till all are happy.

To give support to Nik Raina, my wife and I have attended the court sessions in the Syariah Courts and the Civil Courts. I have seen how committed and passionate Rosli is in defending Nik Raina. I have heard him articulating why JAWI’s action was misguided and the madness of JAWI and the Ketua Pendakwa Syarie in pursuing the matter. I have heard him imploring the Civil Courts not to be intimidated by the Syariah authorities and persuading them not to abdicate their constitutional duty.

Thus, I was most happy today that Judge Dato Zaleha was moved by Rosli’s closing Submissions that JAWI’s actions set a dangerous precedent that any state religious body can simply deem a publication to be contrary to hukum syarak without the public being aware of it. And that was what that had stirred controversy, created a conflict of laws situation and gave Malaysia unnecessary international acclaim for illogical religious enforcement action.

From my sources in Borders, I have obtained a copy of Rosli’s Submission in which he implored the Judge “to reinstate reason into this already tumultuous situation so that some sense and sensibility can prevail to calm our multi-racial and multi-religious Malaysian society which has been disturbed by an unwarranted fear stirred by JAWI and the lack of moral courage and political will by the Minister of KDN and Minister Agama to correct the obvious wrongs committed by JAWI.”

I salute Tudung Judge Dato’ Zaleha for her moral courage in making this bold Judgment. More than that, Malaysians now can have more confidence in the new Judiciary where Judges are not afraid to restore sense and sensibility which is much needed in our government’s administration!

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DECISION FOR JUDICIAL REVIEW APPLICATION: KUALA LUMPUR HIGH COURT CIVIL NO. R2-25-137-06/2012

Brief Grounds by Yang Arif Dato’ Zaleha Binti Yusof on 22.02.2013, 9:37 a.m.:

“This is going to be the gist of my decision.

This case involves the review of the Respondents’ action in raiding and searching the premises of the 1st Applicant and seizing publication therein and examining the Applicants and subsequently arresting and prosecuting the 3rd Applicant.

The Respondents here are public authorities and the Applicants are aggrieved and have been already affected by the Respondents’ action. Hence, this Court is of the opinion that this Court has a supervisory jurisdiction over the decision and acts of these bodies. This application also involves the interpretation of law that relates to fundamental liberties thus it is clear to me that the Applicants are entitled to file this application under Order 53 of the Rules of Court and this Court has jurisdiction to hear it. To me the question of this Court encroaching into the jurisdiction of the Syariah Court does not arise as it is the Civil Court that has jurisdiction to review.

Well the actions of the Respondents affect the Applicants who are a company, a non-Muslim and a Muslim respectively. Section 1 subsection (2) of Syariah Offences Act clearly provides that the Act shall apply to persons professing the religion of Islam and corporation is not included in the definition of Muslim under the Syariah Administration Act.

As submitted by the learned counsel for the Applicants, the High Court in Potensi Bernas Sdn Bhd v. Datuk Badaruddin Datuk Mustapha had decided that Syariah Court has no jurisdiction over a non-muslim and that a company being a creature of the statute does not profess any religion. Similary in Latifah Mat Zin v. Rosmawati Sharibun & Anor, the Federal Court had held that an application to the Syariah Court can only be made if both parties are Muslim. Since the Syariah law is only applicable to Muslim therefore the actions taken by the 1st Respondent against the 1st and 2nd Applicants in my opinion were clearly illegal.

On action against the 3rd Applicant, no doubt she is a Muslim, however does that alone justify the 1st Respondent’s action against her? She is a merely a Store Manager and the person who is responsible for the collection of titles and range of stock of books and publications displayed and sold in the 1st Applicant’s Bookstore is the 2nd Applicant and not her, and this has not been disputed.

 Matters pertaining to publication, printing and printing presses fall within item 21, List I of the Ninth Schedule read together with Article 74 of the Federal Constitution. If we look at item 1 of List II of the Ninth Schedule, the State is given power to create and punish offences by persons professing the religion of Islam against precepts of Islam except in regards to matters included in the Federal List. No doubt the creation of punishment of offences against the precepts of Islam can be enacted by the State Legislature. However clear reading of Item 1 of List II of the Ninth Schedule as I mentioned just now shows that the State cannot enact laws in regards to matters included in the Federal List. Since matters pertaining to publication, printing and printing presses fall within List I ie. The Federal List, the validity of section 13 of the Syariah Offences Act is questionable as it is ultra vires the Printing Act and the Federal Constitution. Even if it is a valid law what amounts to contrary to Islamic Law is also questionable as it is too wide. Members of the public must be made known what publication is contrary to Islamic Law or precepts of Islam. Otherwise as the Learned Counsel for the Applicants have submitted, a Muslim employee who works in a bookstore that also sells Christianity Bible, books on Buddhism or Hinduism or any other religion besides other books which as we know now they are many such bookstore would be committing an offence. Hence there need to be notification by the Respondents as to what books and publication are contrary to Islamic Law.

It must be noted that at the material time the publications or books in question was not subject to any Prohibition Order by KDN. The Prosecution Order was only issued 3 weeks after the raid. Bear in mind the provision of Article 7 of Federal Constitution which provides that no person shall be punishable for an act or omission which was not punishable by law when it was done or made.

Section 13 of the Syariah Offences Act must be in conformity with the Federal Constitution especially the said Article 7. The Court of Appeal in Multi-Purpose Holdings Berhad v. Ketua Pengarah Hasil Dalam Negeri the Parliament does not intend its act to violate the Constitution. Hence, a statute must be read harmoniously with the Constitution to avoid any conflict between them which will result in the statute becoming void. Adopting that approach, the Act must, in my judgment be read prospectively to prevent the appellant in that case and those similarly circumstanced from becoming retrospectively criminally liable. Applying that principle I am of the opinion that the criminal charge against the 3rd Applicant in the Syariah High Court is an infringement of Article 7. Further there is nothing in the Syariah Offences Act which provide for any State Religious Body to prohibit any publication. It only creates an offence to publication. As submitted both by the Respondents and Applicants, whenever there is a conflict between a law enacted by the Parliament and a law enacted by the State Legislature, the Court has to follow and adopt a harmonious interpretation of the law. The only logical approach is for Section 7 of the Printing Act to support Section 13 of the Syariah Offences Act ie. notification to the public first, then only the enforcement action.

We live in multi-religious and multi-racial society, such approach would be harmonious and avoid any tension, controversy and conflict into the society and law.

To conclude, I agree with the submission of the Applicants and therefore allow this Application in Prayer (a) to (i) of Enclosure 6.”

“No order as to costs.”

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