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Borders vs. Jawi: How it affects us

IT’S been almost a year since Federal Territory Islamic Religious Department (Jawi) officers raided the Borders bookstore at The Gardens, Mid Valley on 23 May 2012. Accompanied by the media, officers seized copies of Irshad Manji’s Allah, Liberty and Love and its Malay translation. The bookstore’s Muslim and non-Muslim employees were questioned and some were required to go to the Jawi office for further examination, including a non-Muslim general manager. The outlet’s store manager, Nik Raina Nik Abdul Aziz, a Muslim, 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.

Borders then sought a judicial review of Jawi’s actions, and recently, the High Court on 22 Mar 2013 held that Jawi had acted illegally. What are the implications of this decision for Malaysians, both Muslims and non-Muslims?

How is a company subject to the Syariah court?

Hands off non-Muslims

The High Court has made it crystal clear that Islamic authorities have no power to act against non-Muslims. Jawi’s raid was under the Syariah Criminal Offences Act, which judge Datuk Zaleha Yusof said clearly applies only to Muslims. She also agreed with Borders’ counsel that a company, being a creature of statute, does not profess any religion, and the Act also cannot apply to it.

“Since the Syariah law is only applicable to Muslims therefore the actions taken by [Jawi] against [Borders] and [the non-Muslim general manager] in my opinion were clearly illegal,” the judge had said.

The rule of law

Even if Jawi acts against Muslims, its actions must be in accordance with the law.

The Constitution gives the state legislature certain powers to create and punish offences by persons professing Islam. However, the court noted, the state cannot enact laws which are under federal jurisdiction, as stated in the Federal List. Item 21 on this list states “…publications, publishers, printing and printing presses” as being under federal jurisdiction.

This makes the validity of Section 13 of the Syariah Criminal Offences Act questionable as the offence it cites — of printing, publishing or disseminating any book contrary to Islamic law — comes under the Federal List.

But even if Section 13 were valid, the High Court judge added, the public first had to be informed about the publication that was contrary to Islamic law. She agreed with Borders’ counsel that to hold otherwise would mean that any Muslim employee working in a bookstore selling Christian Bibles or books on Hinduism or Buddhism could potentially be committing an offence.

No retrospective punishment

The judge also held that Section 13 of the Act had to be read in conjunction with federal law, and books had to be banned by the Home Ministry before they could be deemed contrary to Islamic Law.

Hishammuddin

This contradicted Home Minister Datuk Seri Hishammuddin Hussein who had stated in an affidavit that Jawi could seize books even before the Home Ministry had banned them.

The judge quoted Article 7 of the Federal Constitution: “No person shall be punished for an act…which was not punishable by law when [the act] was done… .”

As there was no prohibition order against the book when Jawi raided Borders, the criminal charge against Nik Raina was held to be contravening Article 7, as the dissemination of Manji’s book could not have been an offence at the time.

Freedom of expression

freedom-of-expression

Jawi’s actions also infringe the freedom of expression, guaranteed by Article 10 of the Federal Constitution. This point was raised by Manji’s publisher, ZI Publications, in its judicial review application over a similar seizure of books by the Selangor Islamic Affairs Department (Jais), which is still pending.

ezra-zaid

Ezra Zaid

Freedom of expression is a fundamental requirement of any genuine democracy. It is vital for keeping state power in check and ensuring other human rights are respected. A state should therefore be very slow to curb freedom of expression. Restrictions are allowed when faced with clear threats to national security, public order or morality; or to prevent incitement of an offence — such as people encouraging others to commit violence. It is still unclear how Manji’s book, whose subtitle reads “The courage to reconcile faith and freedom”, poses this kind of threat. This is especially so as according to ZI Publications director Ezra Zaid, the English version was available since June 2011. This means the book was available for 11 months with no apparent threat to security or public order before Jawi descended on Borders in May 2012.

Jamil Khir Baharom (jawi.gov.my)

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

It’s an unfounded statement, but even if it were so, it is no automatic justification to ban her book, or to deny her an audience in Malaysia. As US Supreme Court Justice Oliver Wendell Holmes once said, “…the best test of truth is the power of the thought to get itself accepted in the competition of the market.” If Manji’s book is indeed as offensive as Jamil claims, it is better to let it be read, ridiculed and reviled; rather than seized and banned, which only makes it more tantalising to the curious bystander.

What now?

We can only hope that our next government, be it Barisan Nasional or Pakatan Rakyat, will have increased respect for the rule of law and the Federal Constitution. It is up to us to be aware of how our laws work and of our fundamental rights to keep the government in check. Imagine if Borders had chosen to keep quiet. It was only through the company’s defence of itself and its staff that led to the High Court judgment declaring Jawi’s actions as illegal. The Nut Graph


Ding Jo-Ann is looking forward to finally being able to vote in the 13th General Election.

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5 Responses to “Borders vs. Jawi: How it affects us”

  1. Azli Jamil says:

    JAWI should stop wasting time and money but then do they really understand that concept.
    They obviously do not understand the law.
    Nor logic either.

  2. andre das says:

    The appeal (and reason for it) against this judgement is probably more ridiculous than the original actions and looks like the matter is not coming to an end yet.
    There is some similarity to the ban on a children’s book of sex education some time ago despite being in the market for so many years because some politician made a big statement in the press claiming such educational book to be immoral.
    These actions seem to serve the ego of some people rather than the interest of the majority.

  3. Sunna Sutta says:

    Irshad Manji’s real crime is her exhortation to Muslims all over the world that they have the right to contribute to reform in their own communities. I suppose this sounds too much like Reformasi, UBAH and INI KALI LAH!

    Rather than take the straightforward path of banning the book and risk being accused of stifling democratic freedom of expression, both ministers in the BN-led government took the easier path of getting JAWI to do the dirty job for them by claiming that Irshad Manji’s book had insulted Islam.

    In future, JAWI should restrict themselves to Valentine Day’s raids!

  4. faraabdul says:

    This is what we get when Muslims themselves forget to uphold the spirit of the Quran. As you may see, the Quran claimed no such thing about banning or prohibiting whatever religion, beliefs, rituals on earth. It’s up to the individual to make an informed choice about what he/she believes is right.

    Depriving humans of that choice is like playing God. JAWI is so good at this, I shudder what would happen if these kind of people implement hudud. Probably not much difference from Taliban/Al-Qaeda-led countries.

  5. Cy Lai says:

    Translated editions of Irshad Manji’s book ‘The Trouble With Islam Today: A Muslim’s Call for Reform in Her Faith’ is downloadable for FREE (translated into 6 languages) on her official blog/website: http://ec2-50-17-220-42.compute-1.amazonaws.com/Translations

    To download the Malay edition, go straight to: http://ec2-50-17-220-42.compute-1.amazonaws.com/malay-edition

    English editions of all her publications are also available for purchase online from various Amazon sites. Also, ZI Publications has stated that: As for ‘Allah, Liberty & Love’ or ‘Allah, Kebebasan & Cinta’ — you can head to Borders, The Gardens mall to purchase either the English/BM versions.

    If you would like to purchase a signed copy of the BM version, you can mail us at [email protected]
    FB page: https://www.facebook.com/zipublications?fref=ts
    ———————————————————————

    Buku Irshad Manji berjudul ‘Harapan Untuk Islam Hari Ini: Seruan Seorang Muslim Untuk Mereformasi Diri Kita’ boleh dimuat turun secara PERCUMA (diterjemah kepada 6 bahasa) dari blog/laman web rasmi beliau di sini: http://ec2-50-17-220-42.compute-1.amazonaws.com/Translations

    Untuk edisi Melayu, muat turun terus dari sini: http://ec2-50-17-220-42.compute-1.amazonaws.com/malay-edition

    Semua publikasi beliau (edisi Inggeris) juga boleh dibeli secara online dari berbagai laman Amazon. Tentang publikasi beliau yang lain, ZI Publications berkata: Untuk buku ‘Allah, Liberty & Love’ or ‘Allah, Kebebasan & Cinta’ — sila kunjungi Borders, The Gardens mall untuk membeli edisi Inggeris/BM. Untuk membeli salinan BM yang diautograf, sila e-mel kami di: [email protected]
    Laman FB: https://www.facebook.com/zipublications?fref=ts


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