In persistently pursuing the Borders case, Jawi is doing a great disservice to Islam.
Islam, as understood by many, is just and fair. It does not judge others unfairly and does not deny the just dues of others.
Jawi’s action in this case is contrary to Islamic justice and virtues. Its action is un-Islamic and goes against the common perception of what justice is all about.
It is hell-bent on criminalising an action that was not criminal. It is determined to punish someone who has not committed any wrong.
Its tenacious legal pursuit to punish Nik Raina Nik Abdul Aziz, the Borders bookstore manager, borders on obsession to hound her for no justifiable reason at all. She had committed no crime and her action has in no way violated the tenets of Islam. And yet, Jawi is intent on vilifying her.
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Jawi has been at it for nearly three years without let up. It raided the Borders outlet in Mid Valley on 23 May 2012 and seized copies of Canadian author Irshad Manji’s book Allah, Liberty and Love and its Bahasa version Allah, Kebebasan dan Cinta.
At that material point in time, this book had not been banned. Therefore, it wasn’t wrong to buy, sell and read this book. As such, it was an illegal raid to confiscate these books on the part of Jawi. Its action was wrong in law and could not be sustained on any legal basis.
It was only on 29 May 2012, six days later, that the Home Ministry issued a prohibition order banning the book. The book ban came into effect on 14 June 2012 – three weeks later – with the publication of the prohibition order.
Raina was arrested on 30 May by Jawi and charged on 19 June under Section 13 (1) of the Federal Territory Syariah Offences Act 1997 for selling a publication deemed against the religion.
Her arrest and subsequent charge were illegal because on 23 May 2012 she had not committed any crime – but that was made a crime only on 14 June 2012. The contrary argument would allow the law of crime to have a retrospective effect, a rule that almost all lawyers consider repugnant. The sale of book on that day was permissible because it had not been banned, the ban taking place only three weeks later!
The Kuala Lumpur High Court ruled on 22 March 2013 that Jawi had acted illegally in raiding Borders and seizing the books as well as in charging Nik Raina. Jawi was then ordered to withdraw its charges against Nik Raina in the Syariah court.
The Court of Appeal also “ruled in favour of Nik Raina on 30 December 2014 and said the prosecution against her was ‘unreasonable, irrational’ and done in bad faith, and that it was against the ‘principle of fairness and justice’ for Jawi to charge Nik Raina for an offence in the Shariah court simply because she was a Muslim and because it could not charge the company and her non-Muslim supervisor”.
“On 26 February, Syariah High Court judge Mohd Aman Mat Zain granted a discharge not amounting to an acquittal when he ruled the court took into consideration the appeal by the syariah prosecutor to the Federal Court has not proceeded in getting leave to appeal.”
Following the Syariah High Court decision, “Nik Raina’s lawyer Rosli Dahlan said the decision today was ‘unexpected’ as there had been ‘many disappointments’ in this case but he said the Sharia Court today showed a ‘full understanding of constitutional principles’.”
In the face of such judicial decisions, it doesn’t make sense for Jawi’s chief prosecutor to file its appeal at the Syariah Court of Appeal on 9 March. Strangely the notice was served on Raina at her place of work instead of addressing it, as required by procedure, to her lawyer Rosli Dahlan.
It appears that they want to hound and harass Raina. It is legitimate for Raina to ask, “I continuously kept asking myself, why do they have to do this to me? What are they trying to prove?”
She finds herself in a harrowing situation which affects her and her family.
“It is not easy for me to keep calming my parents every time this case is mentioned.
“They are too old to keep thinking about my safety and future. This indirectly makes me feel guilty and uneasy every time they see me in court, as they would become worried.”
Nik Raina’s lawyer Rosli meanwhile slammed Jawi’s chief prosecutor for going against procedure by serving the notice of appeal at Borders Gardens bookstore, ignoring the fact that his firm Lee Hishammuddin Allen and Gledhill are the solicitors on record.
“The chief prosecutor breached the rule that they should not communicate with my clients directly.
“But more importantly, they displayed arrogance and deliberately want to inflict fear and oppression on Nik Raina by serving directly on her instead of on my firm,” he said.
Thinking Malaysians are fundamentally upset at this harassment of an innocent woman who is unjustly subjected to so much pressure. They are justified in asking, “Is this Islamic justice? Where is the fairness?”
Aristotle put it correctly, “All virtue is summed up in dealing justly”
Aliran Exco Member
16 March 2015