A case of a compromise judgement in Borders VS Jawi?

By Pauline Wong

Nearly three years ago, officers from the Federal Territories Islamic Religious Department (Jawi) raided the Borders bookstore in Midvalley and seized copies of controversial book, ‘Allah, Liberty and Love’ by Irshad Manji.

They stormed the premises on 23 May 2012 on pretext of taking those offending books of the shelves, and while they were at it, brought the store’s manager, Nik Raina Nik Abdul Aziz, in for questioning. They also questioned other staff of the store, and all this while accompanied by the media. 

A Muslim, Nik Raina was accused of distributing the books, which were deemed unsuitable and contrary to Islamic law. She was later charged in the Syariah Court under Section 13 of the Syariah Criminal Offences (Federal Territories) Act for selling a publication deemed contrary to Islamic law.

However, the book itself was not banned by the Home Ministry until three weeks after the raid and questioning of the Borders store and staff.

After a long battle — in which the first victory was won by Borders bookstores by way of a March 2013 High Court order declaring the raid of the store as illegal — the relentless persecution of Nik Raina by Jawi in the Syariah Courts seems to have ended as of last week. 

Nik Raina was dismissed but not acquitted (Pic from Free Malaysia Today)

Nik Raina was dismissed but not acquitted (Pic from Free Malaysia Today)

But has it really?

A judgement of dismissal not amounting to acquittal from the KL Syariah High Court has set Nik Raina free for now, but the door is unfortunately still open for further action from Jawi.

Although Jawi has lost its case in the civil courts against Borders bookstores, it continued to pursue Nik Raina. The question now is: Will they continue to do so, since the door was not slammed shut? Should the judge have simply acquitted her outright?

Human rights lawyer Nizam Bashir said that unfortunately, the verdict means the prosecution can raise the matter again, but whether they ought to is a different matter altogether.

“I personally feel they shouldn’t. To have kept her (Nik Raina) in suspended animation for three years is punitive and unfair, especially with the outcomes of the civil proceedings,” he said.

Jawi had on December last year lost also their appeal at the Court of Appeals against the High Court ruling; Court of Appeal judge Justice Mah Weng Kwai held there were no merits in the appeal by Jawi, the Home Minister and Minister in the Prime Minister’s Department (Islamic affairs) against the High Court decision.

Although it is clear to the civil proceedings that Jawi had no legal standing, the matter was far more unclear when it came to the Syariah courts, largely due to the sensitivity of the issue at hand.

The book is written by Irshad, an openly gay woman, who courted much controversy with her book.

Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom had even said the book had elements that insulted Islam and that Manji’s ideology could have “negative implications on Muslims in Malaysia”.

Interestingly enough, the Malay translation of the book had been available in stores for almost a year before the English version was banned.

Nevertheless, even as the court finally frees Nik Raina, the question arises is if the judgement was simply a ‘compromise’ judgement, where convicting Nik Raina would be an aberration of the law but acquitting her would enrage the Islamic authorities.

However, Nizam said the decision to dismiss but not acquit Nik Raina of the charges against her was probably the only judgement available to the judge.

“I don’t think there was any other outcome available to the judge. The prosecution had no legal standing in this case, but because a trial did not take place, she cannot technically be acquitted,” he said.

For now, Nik Raina can breathe easy, but one suspects that Jawi would not let this matter go quietly into the night.

– The Rocket

This article was written by on Friday, February 27, 2015 at 9:00 pm. You can follow any responses to this entry through the RSS feed. You can leave a response, or trackback from your own site.

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