Borders case highlights clash of legal systems, lawyers say

The Malaysian Insider 
by Ida Lim

KUALA LUMPUR, Sept 19 ― The competition between Malaysia’s dual legal systems is again under the spotlight with the civil courts’ review of the Federal Territories Islamic Department’s (JAWI) seizure of books from a Borders bookstore without a ban from the Home Ministry, lawyers have said.

Malaysia has two legal systems that exist in parallel, civil laws and Islamic laws, with the large Malay-Muslim population in the country also being bound by the former.

But there have been clashes in the courts over which set of laws prevail, particularly in matters affecting both Muslims and non-Muslims, such as freedom of religion and conversion of faith.

On June 25, Borders’ owner Berjaya Books together with two Borders employees won leave for judicial review of the actions of JAWI, the home minister and another minister, for the seizure of books by liberal Muslim author Irshad Manji, among others.

In the home minister’s affidavit filed on September 5, he stated that JAWI has powers to seize books that are not banned by the Home Ministry but are in violation of “hukum syarak (Islamic laws)”.

He also wrote that “although there had been no Prohibition Order on the date on which the book was confiscated by JAWI, JAWI is empowered to seize the book because the book had 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 KDN (Home Ministry).”

Civil liberties lawyer Syahredzan Johan said that the home minister’s affidavit is “actually the correct position in terms of the law”.

He said that in this case, the home minister and JAWI derive their powers from different legal jurisdictions, but yet share some overlaps of power.

“The jurisdiction to declare a publication as ‘undesirable’ and thus ‘banning’ a publication given to the home minister is different from the jurisdiction of JAWI under those Syariah provisions.”

“JAWI, from the reports, acted based on those Syariah provisions even when there is no order by the home minister, of any sort, upon the book.”

“Clearly, there is an overlap between what the home minister can do and what JAWI can do. This is not new. Only recently the spotlight is cast upon this and it is under scrutiny.”

Andrew Khoo, a lawyer and human rights activist, agreed with Syahredzan. “This issue highlights the challenges that our society faces when two different legal systems interconnect.”

“Our society can no longer be easily pigeon-holed or compartmentalised such that laws exclusive to one community have no impact or consequence for other communities.”

He said that under the Federal Constitution, the country’s supreme law, “Islamic enactments can only apply to those professing the religion of Islam”.

“But it has never been the case in this country that only Muslims are interested in Islam. Non-Muslims also want to read about Islam.”

“So what happens when a company that runs a bookshop offers for sale a book on Islam that the public may want to read, but that does not meet the approval of the religious authorities?”

“So do those religious authorities have a right to enter the company’s premises and seize the offending publications? What is the extent of their power and jurisdiction?” he asked.

Both Khoo and Syahredzan said that religious bodies such as JAWI only have control over individuals who profess the religion of Islam, and this did not include companies.

Khoo also said that “all Malaysians deserve to enjoy” the “fundamental freedom of thought, conscience and belief.”

“We should not have to subscribe or conform to the official views of authorities, be they civil or religious,” he said.

Khoo added that “contestations” between the two legal jurisdictions in Malaysia “have become increasingly more frequent” as “Islamic religious authorities... attempt to expand and enlarge the writ of their powers and jurisdiction in the public sphere.”

He said that “this is not the only area of contestation”, saying it also happened in other areas of the law such as family law, as well as in schools and educational institutions.

“We need to come up with a comprehensive solution if both these two systems of law are to co-exist amicably,” Khoo said, adding that this can only happen if “all stakeholders are prepared to sit down as equals to discuss the issues.”