No appeal allowed in Borders case

> Three-judge panel dismisses application by Jawi and govt over seizure of books

PUTRAJAYA: The Federal Territory Islamic Religious Department (Jawi) and two others cannot appeal to the Federal Court on a ruling which declared unlawful its action in raiding a Borders bookstore and seizing the controversial Irshad Manji’s books three years ago.

This followed a decision by a three-member panel chaired by Chief Justice Tun Arifin Zakaria which dismissed the application for leave to appeal by Jawi, the home minister and minister in the Prime Minister’s Department in charge of Islamic religious affairs.

The application was dismissed on grounds that the three legal questions posed by the appellants did not fulfil the threshold requirement under Section 96(a) of the Courts of Judicature Act 1964 to be given leave.

That section states an appellant must show that the legal questions posed for the Federal Court to determine, are novel.

“The decision of the High Court and Court of Appeal raises an important issue of law. We are not saying the decision was right or wrong,” said Arifin, who sat on the panel with Federal Court judges Tan Sri Suriyadi Halim Omar and Tan Sri Ahmad Maarop.

Earlier, Arifin questioned how the court could proceed to determine the questions of law since there were no charges against Berjaya Books Sdn Bhd merchandising general manager Stephen Fung Wye Keong and Nik Raina Nik Abdul Aziz ( pix), the store manager for Borders bookstore at The Gardens in Mid Valley City.

Senior Federal Counsel Shamsul Bolhassan submitted that Nik Raina was ordered to be discharged not amounting to acquittal.

“As of now, we are not sure whether she would be charged (again),” said Shamsul.

However, the judges said that there is no charge against anyone.

“Nobody has a charge hanging over their heads (now),” said Suriyadi.

Nik Raina was given a discharge not amounting to an acquittal by the Syariah Court last Feb 26 on a charge of disseminating and distributing, by way of selling, Irshad Manji’s book Allah, Liberty and Love, which was deemed un-Islamic.

Jawi appealed against the decision, but subsequently withdrew its appeal last June 23.

Jawi conducted a raid at the bookstore on May 23, 2012, and subsequently Nik Raina was arrested and charged at the syariah court.

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 on the publication.

The High Court subsequently granted leave for Borders to commence judicial review proceedings against Jawi’s action in raiding the store and seizing several of Irshad Manji's book at the bookstore at The Gardens.

On March 22 last year, the High Court allowed the judicial review to quash Jawi’s action.

The appeals court on Dec 30 last year upheld the High Court’s decision. It had said there was no fatwa (edict), declaration or circular issued by Jawi or by any other religious authority banning the publication and sale of the book at the time the department conducted the raid. – Bernama