Free Nik Raina in the name of Justice

It has been 3 years since JAWI raided the Borders Bookstore at Mid-Valley, Kuala Lumpur. I have been writing since it first came to light in 2012 about the plight of Nik Raina who was accused of selling Irshad Manji’s book,”Allah, Liberty and Love”

I wanted to tell the Malaysian public that Nik Raina was denied her freedom to get on with her life and work by overzealous religious functionaries despite the fact that both the High Court and the Court of Appeal had ruled that the raid on Borders Bookstore was wrongful and illegal.

There is, therefore, no justification to charge Nik Raina Section 13 (1) of the Shariah Criminal Offences (Federal Territories) Act. Instead, the Shariah Court should exercise its judicial discretion under Section 96 (g)‎ of the Shariah Criminal Procedure (Federal Territories) Act 1997 to discharge her.

Lawyer Rosli with the Borders Team

I wish to congratulate Borders Malaysia for standing up for its employee and thank Lawyer Rosli Dahlan (above) for doing an excellent job on behalf of Nik Raina and her employer. Let us hope that good sense and justice will prevail on February 26, 2015. –Din Merican

Stop persecuting store manager, Borders tells JAWI

by The Malaysian Insider

http://www.themalaysianinsider.com/malaysia/article/stop-persecuting-store-manager-borders-tells-jawi

Borders Malaysia today demanded that store manager Nik Raina Nik Abdul Aziz (above)  be freed from further persecution by religious authorities, two days before she is to appear in the Shariah Court for allegedly selling and distributing a book contrary to Islamic laws.

In a statement, Borders Malaysia said that the charge was groundless as both the High Court and the Court of Appeal ruled that the 2012 raid on the bookstore had been wrongful and illegal.

“The management of Berjaya Books Sdn Bhd, as the owner of Borders Bookstores, calls for an end and a closure to the criminal proceedings against Nik Raina. It has been three years‎ since Nik Raina lost her absolute freedom to become a person who is currently under bail. It has been three years that Nik Raina has had to endure adversity in her life including being looked upon with suspicion by Muslims.”

The Shariah Court fixed the criminal proceeding for mention on February 26. Nik Raina was charged under Section 13 (1) of the Shariah Criminal Offences (Federal Territories) Act and if convicted could be fined up to RM3,000 or jailed up to two years, or both.

Borders Malaysia said the Shariah Court should exercise its judicial discretion under Section 96 (g)‎ of the Shariah Criminal Procedure (Federal Territories) Act 1997 to discharge her.

It said ‎the Federal Territories Islamic ‎Religious Department‎ (JAWI) had not filed a motion for leave to appeal to the Federal Court the decision made by the Court of Appeal last year.

“Even if Jawi wishes to preserve its position, there‎ is no basis either for JAWI or the Shariah Court to postpone this matter any further.

“At the very least, Nik Raina should be released by way of a discharge not amounting to an acquittal. In that matter, Nik Raina’s freedom and personal liberty can be duly restored and neither Jawi nor anyone will suffer any prejudice.”

On December 30, the Court of Appeal decided that JAWI ‎was wrong in raiding and seizing copies the controversial book “Allah, Liberty and Love” by Irshad Manji‎ from a Borders bookstore, upholding a lower court’s decision.

The book was seized before an edict banning it was issued and Jawi’s actions were deemed illegal and unconstitutional.

A three-man bench, led by Datuk Mah Weng Kwai, also held that JAWI’s actions against Nik Raina was unconstitutional and illegal and said her arrest and prosecution must be quashed.

This case has also shone a spotlight on the country’s parallel systems of civil law and shariah law, with the majority Malay-Muslim population being bound by the shariah.

The three respondents in the case were Berjaya Books Sdn Bhd, Borders assistant general-manager of operations and merchandising Stephen Fung, and Nik Raina.

The appeal was filed by JAWI, the Home Minister and the Minister in the Prime Minister’s Department in charge of Islamic religious affairs, Datuk Seri Jamil Khir Baharom.

The parties were appealing against the Kuala Lumpur High Court’s decision to allow Berjaya Books’s judicial review to quash JAWI’s actions in seizing Irshad Manji’s book from the bookstore.

On May 23, 2012, Jawi had conducted a raid at the bookstore and subsequently Nik Raina was accused by the religious authority of breaching the hukum syarak by distributing or selling the book “Allah, Liberty and Love”.

When JAWI conducted the raid, the book had not been banned and Nik Raina was not responsible for the buying and stocking of books and merchandise in Borders stores.

Despite a number of representations made by her lawyers on Nik Raina’s behalf, JAWI insisted on prosecuting her.

On June 18, 2012, Borders filed for leave to commence a judicial review on the legality of the raid, the process and prosecution of Nik Raina at a time when there was no ban of the publication.

The High Court subsequently granted leave for Borders to commence judicial review proceedings against JAWI for raiding, searching, seizing of publications and subjecting to examination and investigation Borders’s Muslim and non-Muslim employees.

They also sought legal clarification on the arrest and prosecution of Nik Raina for distributing by way of selling Irshad Manji’s book (in English) and the Malay translation “Allah, Kebebasan dan Cinta” which is said to be against Section 13 of the Shariah Criminal Offences (Federal Territories) Act 1997.

The Home Ministry banned the book on May 29, and the ban only came into effect on June 14, three weeks after the raid.

The then Home Minister Datuk Seri Hishammuddin Hussein, in his affidavit filed in the High Court, stated that JAWI had powers to seize books that are in violation of Islamic law even if they are not banned by the ministry.‎

“Although there had been no Prohibition Order on the date on which the book was confiscated by JAWI, the department is empowered to seize the book because the book had contravened Section 13 of the Shariah Criminal Offences (Federal Territories) Act 1997,” he wrote in his affidavit at the time.

On March 23 last year, the High Court in Kuala Lumpur ruled that Jawi had acted illegally in raiding the Borders bookstore at the Gardens Mall in Kuala Lumpur and seizing the book.

Justice Datuk Zaleha Yusof said in her judgment that JAWI had also acted illegally in charging store manager Nik Raina, a Muslim employee, at the shariah court in Kuala Lumpur. Following the judgment, Jawi filed an appeal against the High Court’s decision.