'Jawi can seize books without ministry decree'

The Federal Territory Islamic Affairs Department (Jawi) can seize controversial books on Islam, even without the Home Ministry having banned such books.

This is the reply Home Minister Hishammuddin Hussein has filed on the judicial review application made to the High Court by bookstore Borders on Jawi's seizure of books penned by Canadian author Irshad Manji (photo above).

This means, according to those in the legal fraternity, Jawi can usurp the powers of the home minister and seize any book without a directive from the ministry's Publications and Quranic Division.

Such an assertion by the home minister in his affidavit to the court raises concern that instead of his ministry playing the check-and-balance role over possible abuse of power by Jawi, the minister and Jawi can possibly collude to protect each other.

Hishammuddin in his Sept 5 affidavit that was sighted byMalaysiakini states that although there is no prohibition order on the day the book was confiscated, Jawi is empowered to do so as the book contravened Section 13 of the Syariah Criminal Offences (Federal Territories) Act 1997.

"Seizure can be done by Jawi under the applicable laws, without any prohibition order from the ministry," he states in the affidavit.

The home minister had been directed to reply to the judicial review application filed by Berjaya Books Sdn Bhd, which operates the Borders bookstore, together with its assistant general manager Stephen Fung and Borders' Gardens Mall store manager, Nik Raina Nik Abdul Aziz.

Nik Raina (left) was chargedin the Syariah High Court in June with the distribution of the controversial book, Allah, Liberty and Love, by Manji.

Berjaya Books has challenged the case in the High Court and named Jawi, the Home Ministry and the minister in charge of Islamic affairs in the Prime Minister's Department as respondents.

The book was seized from Borders at the Gardens Mall on May 23 by Jawi, while the Home Ministry only declared a ban on the book six days later - on May 29.

Fung, in his affidavit under the judicial review application, states that matters pertaining to publication and control of publications come under the jurisdiction of the Home Ministry, not Jawi.

Therefore, the Syariah Court has no jurisdiction to charge Nik Raina, argued the Borders' representative.

Borders' lawyer Rosli Dahlan told reporters after the last hearing at the High Court in Kuala Lumpur that there was no fatwa (religious edict) declaring the book illegal, and that this had been agreed to by Jawi.

Furthermore, there was no ban on the book when the seizure was made by Jawi - the ban was only gazetted on May 29.

Hisham: Syariah court has jurisdiction 

However, Hishammuddin in his reply said Nik Raina could be charged under Section 13 of the Syariah Criminal Offences Act as the matter was within the jurisdiction of the syariah court, not the civil court.

"I have been advised by the senior federal counsel and I verily believe and state that any objection as to whether the book is contrary to hukum syarak or otherwise is a matter that ought to be determined by the Syariah Court and not this court (the High Court), in accordance with the provisions of Article 121 (1A) of the Federal Constitution.

"I verily state that Jawi's actions are based on the provisions of law under the Syariah Criminal Offences (Federal Territories) Act 1997, the Syariah Criminal Procedure (Federal Territories) Act 1997, the Syariah Court Evidence (Federal Territories) Act 1997 and the Administration of Islamic Law (Federal Territories) Act 1993," said Hishammuddin (right).

Hence, the home minister argued, his ministry need not inform Borders about the prohibition of the said book if Jawi intended to act based on those provisions.

During the last session in court, even though the home minister had not filed his affidavit within the stipulated time, he was granted an extension by the presiding High Court judge Rohana Yusof, who subsequently fixed Oct 22 to hear the judicial review application.

The case against Borders and the publisher of the book, ZI Publications, has put a spotlight on the jurisdiction between syariah and civil court on such matters, as well as the government procedures in seizing controversial books and its action against bookstores and their staff for selling them.