Nik Raina now closer to freedom

December 30, 2014

Appellate court bins JAWI’s appeal, Nik Raina now closer to freedom

By Ida

 The Court of Appeal today dismissed the Federal Territory Islamic Affairs Department‘s (JAWI) contest against a High Court ruling that found its premature raid of a bookstore to be illegal and procedurally improper.

Justice Datuk Mah Weng Kwai, who headed a three-man panel, said in a unanimous decision that JAWI had acted unconstitutionally when it seized a book three weeks before it was officially banned.

He said the department also acted in bad faith and unconstitutionally by prosecuting the manager of the Borders bookstore branch it raided simply because she was Muslim.

Nik Raina 2014The Muslim manager of the Borders bookstore branch, Nik Raina Nik Abdul Aziz, was arrested by JAWI a week after the raid and later charged in the Federal Territory Shariah High Court on June 19, 2012 for allegedly distributing and selling a book that was against Islamic laws.

If convicted under Section 13 (1) of the Syariah Criminal Offences (Federal Territory) Act, Nik Raina will be liable to a maximum fine of RM3,000, a maximum two years’ jail term or both.

On March 22 last year, Borders’ owner Berjaya Books, Borders assistant general manager of operations and merchandising manager Stephen Fung and Nik Raina won a judicial review in the High Court against JAWI, the home minister and the Islamic affairs minister.

In the same judicial review decision in favour of Nik Raina last March 22, the civil court ordered JAWI to withdraw its charge against Nik Raina in the Shariah court.

But on October 7 last year, the Shariah court dismissed JAWI’s application to withdraw the charge and decided that it should be maintained until the Court of Appeal decides on today’s case.

Today, Shamsul Bolhassan represented all three appellants, while Rosli Dahlan was the lead counsel for the three respondents.

During the appeal hearing, Rosli said that the public and therosli-dahlan2 bookstore were never notified that the book was banned prior to the sudden raid and book seizure in May 23, 2012.

He also said the Home Ministry’s ban on Canadian author Irshad Manji’s book, “Allah, Liberty and Love”, was gazetted almost three weeks later, while there was no fatwa (religious decree) issued against the book that religious enforcers claim are contrary to Islamic laws.

Justice Datuk Mohd Zawawi Salleh and Justice Datuk Umi Kalthum Abdul Majid were also on the panel of judges today.

Today, Mah also noted that no action can be taken against the bookstore’s owner, Berjaya Books, as it is “a corporate entity and incapable of professing a religion”, saying the actions against it was “unlawful”.

Mah also said JAWI — which had questioned Nik Raina’s colleague, Fung — had acted illegally and irrationally against the non-Muslim senior Borders employee, saying: “It is an abuse and unreasonable exercise of discretionary power, unconstitutional and procedurally improper.”

Among other things today, the Court of Appeal also upheld the High Court’s powers to carry out judicial review, saying that the Shariah Criminal Offences Act does not remove the civil court’s jurisdiction to interpret the Shariah Criminal Offences Act even though it is a law for Muslims.

While agreeing that the offence Nik Raina is accused of does not require a fatwa to be issued, the court said, however, that it would “offend the sense of justice” to prosecute an individual when the public did not know the book was illegal.

Highlighting that JAWI did not have a search warrant, the court said the presence of a group of reporters and photographers during the raid showed that the religious department had pre-planned the visit and would have had time to first obtain a warrant.

JAWI’s appeal was struck out as it was without merits. It was dismissed without costs. When approached after the ruling, Shamsul said the three appellants had yet to decide if they will be filing for appeal at the Federal Court — the country’s highest court.

12 thoughts on “Nik Raina now closer to freedom

  1. JAWI should stop wasting the court’s time and taxpayers’ money by going to the Federal Court. Set Nik Raina free and let us all get on with other more important national matters. –Din Merican

  2. They dont care, they have time and money and resources. What else is there for them to do? Furthermore this case has been an embarrassment to them big time.mits time the 1PM put this department out of its misery.

  3. Somehow JAWI does not or refused to understand that no law was broken as the book was not declared as illegal during the said raid, illegal raid or not, period!

  4. The Court of Appeal’s decisions ” of without merits ” are unanimous .
    The chances of even getting leave for the appeal from the Federal Courts is almost nil.

    The case is now clearly looks frivolous.
    JAWI’s 3 appellants should pay out from their own pockets first , if they still stubbornly insist on appealing further. To be fair,the Rakyat (government fund) would then reimburse only should they have succeeded.

  5. So now will Perkasa, ISMA JAWI and all the other rotten peas in the same pod organise a butt-demonstration outside Mr Mah’s house for interfering with the Islamic faith? How can a pork-defiled person rule on such a sensitive issue. Maybe they should appeal on those grounds, that a Chinese cannot be appreciative of Muslim sensitivities and hence ruled against them. Maybe also demonstrate against the government for appointing a non-Muslim to head the panel. I am sure, as a kafir bent on bringing down Islam, he must have overridden the objections of the other two panelists.

    In a related note, sane Malaysians must be happy that the Eminent 25 insist that they will only meet with the PM and not the rabid fringe groups bent on a Crusade against non-Muslims.

    Not that I think much will come out of it. The white-haired PM, tired from the golfing and wading in murky flood waters will just lower his head, pretend to listen and then fly off to meet FLOM to usher in another Christian New Year.

    Anyways, HNY all.

  6. Like Malala Yusaffazai, Irshad Manji was also trying to ‘ liberate ‘ people from the clutches of ignorance & rigidity, and both won the acclaim of the West ! The Title of the Book itself is very telling “…..Liberty & Love…..” , there is nothing about ‘ hate ‘ , but people who oppress them do not understand the power of Love……

  7. This is about all these religious bigots are capable of doing – imposing their will by force. When it comes to academic discussion and discourse they will shy away as they don’t have the brains to do so.

    To the so called pious and holier-than-thou Malay Muslims everything and anything is related to religion, including the floods and the economic woes the country is undergoing.

    The country is going the dogs yet Jibby prefers to remain non-committal and silent.

  8. The really scary thing is PAS THINK THEY CAN DO HUDUD WHEN JAWI CAN’T EVEN DO THESE SIMPLE THINGS CORRECTLY – and if they say JAWI is not them, the conservatives are not fooling anyone that its not their preference to merge with UMNO than to have DAP in power to block Islamic state and Hudud.

  9. Good one bigjoe99…….’ they can’t do even these small things correctly ….’ Sad !
    Pihak saya teruja hendak membuat Rayuan kepada Umat Muslim Sejagat seluroh Dunia…… : Tolong….Tolong…..tolong lah , membuat Fikiran yang matang, bersih serta Kesuchian murni Ugama…. Lebih-lebih lagi MEMBEZA kan antara perkara2 yang TERSIRAT , dengan yang TERSURAT…….
    Yang Tersirat mengandongi perkara2 berkait dengan Mutashabbih, Kiasan2 , hatta dengan perkara2 Ghaib dan ‘ tersembunyi ‘ – Sebab apa ?
    Sebab , KeUgama’an ada-lah BERKAIT dengan perjalanan ROHANIAT ( Spiritual )…….Lain Ugama, lain perjalanan ‘spiritual’ nya, di-situ lah terletak nya perbeza’an……

    Pada hal-hal dan perjalanan hidup dalam Dunia yang Nyata ( material or physical universe ), SEMUA MANUSIA SEJAGAT, tidak kira perbeza’an Agama masing2 , terikat atau pun TERTAKLOK kepada Perkara sechara SAINTIFIK ( Ilmu Science ), oleh sebab penghidupan Manusia a’am nya berhubong-kait kerana Jisim Manusia yang ‘ Berlabas ‘ ( matter & organism ) – Pohon, jangan di-campur=aduk kan…..

    Okay, Ulama Islam sendiri membut Fatwa, yang saya masih Ingat :

    ” Tidak sempurna Iman se-saorang, jika dalam dia mengkehendaki perkara-perkara dunia, dia mengguna ‘ Ilmu Akhirat ‘ – DAN, sebalik nya, dalam dia mengkehendaki perkara-perkara Akhirat pula, se-saorang itu mengguna kan ‘ Ilmu Dunia ‘…..” –

    Saya pohon, dapat kah cendikiawan Musilimin menafi kan Fatwa berkena’an……?

  10. Abnizar, I agree with your thoughts, but I’d say that it’s “OUR people who oppress them that do not understand the MEANING of love”. Their very actions thus far seem to illustrate this very clearly.

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