December 30, 2014
Appellate court bins JAWI’s appeal, Nik Raina now closer to freedom
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.
The 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.
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.