In Borders case, common sense triumphs over bad faith

by Debra Chong
The Malay Mail Online
August 20, 2013

KUALA LUMPUR, Aug 20 — In the face of Malaysia’s rising religious conservatism, a civil court judge has boldly ruled on reason and common sense to uphold a Muslim storekeeper’s constitutional right to sell a book Islam’s gatekeepers here found offensive.

The court case involving the local Borders’ sale of Canadian author Irshad Manji’s book “Allah, Liberty and Love” has been closely-watched since it hit national headlines last year after Islamic enforcement officials seized the stock and charged the store manager Nik Raina Nik Abdul Aziz with violating publication and distribution laws.

Five months after pronouncing the Federal Territories Islamic Religious Department (JAWI), the home minister and the minister in the Prime Minister’s Department in charge of Islamic affairs guilty of abusing their powers to illegally prosecute the bookstore’s Muslim manager, Datuk Zaleha Yusof of the Kuala Lumpur High Court has finally released her grounds of judgment.

Though couched in the language of the court, the judge’s strongly-worded explanation kept to a strict interpretation of the law that has given hope to Malaysians that their civil liberties as laid down in the country’s founding document remain as robust as the day they were conceived half a century ago.

“I am satisfied that the applicants have shown existence of illegality, abuse of discretionary powers, irrationality, unreasonable exercise of power, unconstitutionally and that there exists procedural impropriety on the part of the respondents,” Zaleha wrote in her grounds of judgment released last week.

“Looking at the whole scenario of the case, it is hard not to agree with the applicants that there are elements of mala fide in the handling and carrying out of the actions of the respondents,” she added.

Mala fide, meaning bad faith in Latin, carries a heavy meaning in law, as the judge noted.

“In law, mala fide can be inferred when there was absence of care, caution and a proper sense of responsibility.”

She observed that JAWI — named the first respondent in the bookstore’s suit — had acted in bad faith “when they exercised their dominant position and enforcement powers for a collateral purpose by:

(i) prosecuting the 3rd applicant, who is a Muslim, when they could not do so against the 1st applicant (as the corporate owner of Borders bookstore) or the 2nd applicant (as the person responsible over the display and sale of the Publications, and who as a non-Muslim could not be prosecuted under the Act 559”.

Nik Raina was the third applicant, while Borders’ assistant general manager in charge of merchandising Stephen Fung Wye Keong was the second applicant. The bookstore, which is licensed under the name Berjaya Books Sdn Bhd, was the first applicant.

The home minister and the Islamic affairs minister were named the second and third respondents respectively in Borders’ suit.

The religious enforcers had also acted in bad faith, the judge said, when it raided the bookstore in popular shopping mall Mid Valley Megamall on May 23, 2012 to seize copies of Manji’s books despite the Home Ministry only banning them over a week later on May 29.

JAWI’s arrest and prosecution of Nik Raina was also carried out in bad faith, the judge said, “for what was a non-offence at the time of the raid”.

“It can also be inferred when the 3rd applicant was deprived of her liberty without due care, caution and responsibility, when the 1st respondent arresting and prosecuting her despite knowing that she was neither the owner of the bookstore; nor had control over the selection of publications therein,” the judge wrote.

The home minister — then Datuk Seri Hishammuddin Hussein — had acted in bad faith when he made an order in a “casual or cavalier fashion, in rushing the Prohibition Order to prohibit the publications, almost as an afterthought”, the judgment read.

Other highlights from the grounds of judgment:

On a state’s right to act against a Muslim, under state law:

“However, I must again emphasize, clear reading of item 1 of List II of the Ninth Schedule as I mention just now, shows that the state cannot enact laws in regard to matters included in the Federal List.

“Since matters pertaining to publications, printing and printing presses fall within List I i.e. the Federal List, validity of section 13 of Act 559 is questionable as it seems to be ultra vires the Act 301 and the Federal Constitution.

“Even if it is a valid law, what amounts to ‘contrary to Islamic Law’ as provided by that provision is also questionable as it is too wide. Members of public must be made known what publication is contrary to Islam law or precept of Islam.

“Otherwise, as the learned counsel for the applicants has submitted, a Muslim employee who works in a bookstore that also sells Christianity bibles, books on Buddhism or Hinduism or any other religion besides other books, we do have many such bookstores now, would be committing an offence.”

On the state’s discretion to ban books:

“Further there is nothing in the said Act 559 which provides for any state religious bodies to prohibit any publication. It only creates an offence of publication. In order to follow and adopt a harmonious interpretation of the laws, the only logical approach is for section 7 of the Act 301 to support section 13 of the Act 559 i.e. notification to the public first than only the enforcement action.

“We live in a multireligious and multiracial society. Such approach, in my opinion, would be harmonious and avoids any tension, controversy and conflict in our society and law.”

On JAWI’s action against Nik Raina because she is a Muslim:

“Applying that principle, as it stands now, I am of the opinion that the criminal charge against the 3rd applicant in the Syariah High Court is an infringement of Article 7 which is a provision concerning fundamental liberties, guaranteed by our Federal Constitution.”

On the home minister’s dereliction of duty by passing his job to JAWI without checking:

“I also must state here that I agree with the learned counsel for the applicant when he submits that the 2nd respondent, by the averments in his affidavit, has abdicated his duties when he stated that the 1st respondent can perform seizures without any prohibition order from the KDN, as section 7 of Act 301 clearly states that the powers of prohibition with respect to publication lies with the Honourable Minister of Home Ministry. Hence, there is a procedural impropriety here which warrants a judicial review.”

Next, the Syariah Court hurdle

Yau Su Peng, the chief operating officer for Berjaya, voiced her relief that the civil chapter of the court case involving the store and its employees was nearing an end, but held reservations that the book on the legal saga could finally be closed.

“We are very appreciative of the commonsense approach taken by the Court but personally I question why it has taken so long (the raid by JAWI on our Borders outlet in Gardens occurred in May 2012) for justice to be pronounced,” Yau told The Malay Mail Online in a recent email interview.

The syariah charge against Nik Raina has yet to be withdrawn, she observed, even as the Attorney-General’s Chambers had last month confirmed it had asked the Federal Territory Syarie chief prosecutor and JAWI to do so.

“We are still waiting though, since the decision was given in March 2013, for JAWI to formally withdraw the charges in the Syariah Court against Nik Raina,” Yau said.

She said Borders, through its lawyers, had appealed to JAWI drop its prosecution against Borders’ Muslim manager in the Islamic court before the end of Ramadan so that Nik Raina could have a happy celebration with her family without the charge hanging over her.

“Sadly, this was not to be and we have been given the date of 28 August as the date on which the parties are to return to the Syariah Court to have the charges withdrawn formally,” Yau said.

Malaysia practises a dual-track justice system where Muslims are bound by both secular and Islamic laws but non-Muslims have legal recourse only in the civil court.