The Kuala Lumpur High Court today allowed the judicial review application of Borders bookstore to challenge the Federal Territory Islamic Affairs Department’s (Jawi) prosecution of its store manager.

NONE Jawi had charged Nik Raina Nik Abdul Aziz in May last year, even before the book by controversial Canadian author Irshad Manji, Allah, Liberty and Love , was banned by the authorities.

It also ruled that Jawi was wrong in seizing the books from the Borders store in MidValley Megamall on March 23, since the book was only banned six days later.

The decision today was handed down by Justice Zaleha Yusof, in which she allowed all the prayers that was sought.

Borders, a bookstore chain operated by Berjaya Books Sdn Bhd, and its operations manager Stephen Fung filed the judicial review application last June, after Jawi decided to prosecute Nik Raina, the manager at its MidValley Megamall outlet.

They named Jawi, the home minister and the minister in the Prime Minister's Department in charge of Islamic affairs as respondents.

In the application, they are seeking an order of certiorari (quash order) on the Jawi officers’ action of raiding, searching and seizing copies of the books at its premises and inspecting its workers, including Fung and Nik Raina, and to compel Jawi to produce records of its actions.

'Jawi action violated Nik Raina's constitutional right'

Besides this, they want a declaration that the Federal Territory Syariah Offences Act (FTSOA) does not have provisions to prevent or ban a publication as such provisions come under the Printing Presses and Publications Act (PPPA).

The three applicants are also seeking a declaration to quash the arrest and bond, dated May 30, issued against Fung and Nik Raina, as well as a declaration that only Muslims are bound under the FTSOA.

In arriving at her decision, Justice Zaleha agreed with Borders' counsel Rosli Dahlan and Ang Hean Leng that Jawi's action of raiding, seizing copies of the book and charging Nik Raina predated its banning and this constituted retrospective enforcement.

The judge ruled Jawi's action to be in violation of Article 7 of the federal constitution, that no citizen can be punished under a law before it is enacted.

“The book was banned on March 29 and the order to ban was gazetted on June 14. The raid and prosecution of  Nik Raina was on March 23,” Justice Zaleha said.

She also noted that Section 13(1) of the FTSOA, which is considered a state law, conflicted with a federal law (the PPPA) and in such an instance, federal law would take precedence.

The court made no order on costs. It is learned that the respondents are likely to appeal in the case.

Nik Raina was charged in the Kuala Lumpur Syariah High Court, under the FTSOA, with distributing the book at the bookstore between 8.41pm and 9.45pm on May 23, 2012.

NONE She faces a fine of RM3,000 or a maximum of two years' jail, or both, upon conviction.

With this decision, Rosli ( right ) said, the lawyers would write to the Syariah High Court seeking its acceptance of today's decision when the proceedings in that court come up.

Throughout proceedings, Borders tried to have Home Minister Hishammuddin Hussein called to court to answer to the action, but it was not allowed by the court.

The lawyers for Borders have last August obtained a stay of the Syariah High Court prosecution from the Court of Appeal.