Borders granted leave to challenge Jawi raid

Berjaya Books Sdn Bhd, which operates the Borders bookstore chain, has been granted leave (permission) to challenge a raid on its Mid-Valley outlet and seizure of copies of the book 'Allah, Liberty and Love’.

Justice Rohana Yusof of the Kuala Lumpur High Court (Appellate and Special Powers Division) made the decision this morning in chambers.

She said there are merits to the application, that it is not premature and that the civil court has jurisdiction over the matter.
                          
She also fixed the judicial review proceedings for Sept 15.

A judicial review application has a two-step process as leave has to be first granted to make sure the application is not frivolous.

Berjaya Books Sdn Bhd last Monday filed the judicial review application where it questioned the constitutionality of Section 13 of the Syariah Criminal Offences (Federal Territories) Act 1997 (FTSCO) as the power to ban the book lies with the Home Minister under the Publications and Printing Presses Act 1984 (PPPA).

Borders assistant general manager (operations and merchandising) Stephen Fung Wye Keong, and Mid-Valley Borders store manager Nik Raina Nik Abdul Aziz, were also named as applicants.

Nik Raina had been charged on June 19 in the KL Syariah High Court under Section 13 of the Syariah Criminal Offences (Federal Territories) Act 1997 (FTSCOA), with distributing publications that are contrary to Islam.

If convicted, she is liable to a jail term of up to two years, a fine of not more than RM3,000 or both.

The raid on May 24 was conducted by the Federal Territory Islamic Affairs Department (Jawi), at least five days before the Home Ministry gazetted the ban on the book by Ugandan-born Canadian author Irshad Manji.

Borders' lead counsel Rosli Dahlan said despite the ex-parte application, the Attorney-General's Chambers had asked for an adjournment.

It cited that the judicial review was premature as there was an ongoing charge against Nik Raina in the Syariah courts and that the civil courts had no jurisdiction. It had also sought an adjournment as they wanted to object to the application for leave.

"Jawi is in a rush to charge the girl and the Attorney-General's Chambers wants us to hold back all our actions but they don't want to hold back Jawi... but thankfully leave was granted," he said when met outside the court room.

Stay of proceedings sought

In the submission, the three applicants had also requested for a stay of proceedings on Jawi including its prosecution of Nik Raina.

It stated that this was to maintain the status quo, and to prevent further "irreparable loss and detriment" to the applicants and Nik Raina in particular "in a manner that cannot be remedied".

"But the court said that we will have to file it formally. Today was an ex-parte application and the court has told us to file another inter-parte application as the Attorney-General Chambers wants to contest it," he said.

He added that the formal application will be filed within this week.

Also present to lend support was Berjaya Books Sdn Bhd chief operating officer Yau Su Peng (left).

"We want to be here every step of the way, we are very concerned about the implications of this and the wider implications on the well-being of my staff," she said when met outside the court room.

The other lawyers acting for for the bookstore chain are Azri Malek Wan Haron and Ho Ai Ting.

Borders had slammed the prosecution as victimisation of its Muslim staff as Nik Raina did not have influence or control over the selection of books in the store and that she was targeted because other staff were non-Muslims and thus beyond the jurisdiction of Jawi.

Roughly treated 

In the suit, the three applicants are seeking a certiorari order against Jawi officers' of raiding, searching and seizing copies of the books at its premises and inspecting its workers, including Fung and Nik Raina, and to compel them to produce records of their actions.

They also want the arrests and bonds dated May 30 issued on Fung and Nik Raina to be quashed and a declaration that only Muslims are bound by the FTSCOA.

The orders claimed that Nik Raina and her non-Muslim colleague had assisted in Jawi's investigation on May 30 but were treated roughly by Jawi personnel and were issued arrest warrants.

Fung (left) in his affidavit claimed that Jawi also inspected non-Muslim staff including him during the raid. As Syariah laws only apply to Muslims, hence there is a question of law whether FTSCOA is applicable to non-Muslims as well.

The affidavit added that Fung is the person responsible and with authority on the books sold and displayed in Borders while Nik Raina was a subordinate and did not have such authority.

The suit is also looking for a declaration that the FTSCOA does not have provisions to prevent or ban a publication as such provisions are in the Printing Presses and Publications Act 1984 (PPPA).

The challenge is expected to be a test case on whether Section 13 (1) of the FTSCOA, is constitutional under Article 121 (1) (a) regarding the division of civil and Syariah law.