Nik Raina’s nightmare finally over as Federal Court dismisses JAWI’s prosecution bid in Borders case

Nik Raina Nik Abdul Aziz speaks to members of the media at the Shariah court in Kuala Lumpur, in this file picture dated June 23, 2015. ― Picture by Yusof Mat Isa
Nik Raina Nik Abdul Aziz speaks to members of the media at the Shariah court in Kuala Lumpur, in this file picture dated June 23, 2015. ― Picture by Yusof Mat Isa

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PUTRAJAYA, Aug 25 — After three tumultuous years of fighting the religious authorities who had prosecuted her over selling a book they considered to be un-Islamic, Nik Raina Nik Abdul Aziz emerged today victorious in her legal battle after the Federal Court dismissed the Federal Territories Islamic Religious Department’s (JAWI) bid to appeal a lower court ruling favouring the Borders bookstore manager.  

The panel of three judges led by Chief Justice Tun Arifin Zakaria at the country’s highest court also unanimously agreed that the Court of Appeal’s decision declaring as illegal the Muslim authorities’ raid on the Borders bookstore over the sale of Irshad Manji’s “Allah, Kebebasan dan Cinta” book, stood.

Arifin ruled that JAWI had failed to satisfy the thresholds set by the Federal Court under Section 96 of the Court of Judicature Act 1964 to obtain leave to appeal the Court of Appeal ruling that found the Muslim authority had acted illegally and unconstitutionally by prosecuting the Muslim bookstore manager.

Arifin pointed out that Manji’s book had yet to be banned when the raid was conducted at Borders, which made JAWI’s preemptive strike illegal.

“When the raid was carried out on the bookstore, the book was not banned, then the bookstore cannot be committing any crime… then the raid is illegal,” he said.

In its application submission earlier, JAWI had asked the Federal Court to answer three questions: if the court has the right to review criminal cases against Islam; if Muslim enforcers can’t take action against companies when an offence has been committed under Shariah laws; and if an action by religious authorities can be challenged in the civil court.

In his turn, Nik Raina’s lawyer Rosli Dahlan argued that the government lawyer was being selective with questions to take before the Federal Court, adding that the second question had been raised “many times by the Court of Appeal” which had ruled that a corporate entity, being inanimate, cannot profess any religion.

In his ruling, the top judge said the questions were “hypothetical”, adding that it is not the duty of the Federal Court to address academic questions.

“We won’t judge ourselves. You can’t just come here and ask questions.

“You must have a substructure… how do we move from here?” Arifin told JAWI’s lawyer Shamsul Bolhassan.

He also added that Shariah law is “personal law” and that the prosecutor cannot go against a corporate body to bind it under the said law.

Last May, JAWI dropped its bid at the Shariah courts to continue its prosecution against Nik Raina, which means that today’s Federal Court decision has marked the end of the bookstore manager’s legal battle.

JAWI had arrested Nik Raina in 2012 well before Irshad Manji’s “Allah, Kebebasan dan Cinta” book was banned, later charging her over the selling of the Malay translation that the Islamic authority considered to be against Islamic laws.

Charged under Section 13 (1) of the Shariah Criminal Offences (Federal Territory) Act, Nik Raina could have landed in jail for up to two years or be fined RM3,000 if convicted.

Last December, the Court of Appeal ruled in favour of Nik Raina, stating that JAWI’s prosecution against her simply because she was a Muslim and because it could not charge the company and her non-Muslim supervisor was “unreasonable, irrational” and against the “principle of fairness and justice”.

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