Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya

[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 65

A Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya

Books Sdn Bhd & Ors

B COURT OF APPEAL (PUTRAJAYA) — CIVIL APPEAL NO

W-01–143–04 OF 2013
MAH WENG KWAI, ZAWAWI SALLEH AND UMI KALTHUM JJCA
30 DECEMBER 2014

C Administrative Law — Judicial review — Jurisdiction of High Court — Books

seized during raid — No prohibition order during raid — Prohibition order
came only three weeks after raid — Third respondent arrested and charged in
Shariah Court — Application for judicial review against decisions in raiding and
searching premises — Whether seizure of books lawful — Whether High Court
D has jurisdiction to hear application — Whether s 13 of the Syariah Criminal
Offences (Federal Territories) Act 1997 ultra vires of Federal Constitution
— Whether raid tainted with elements of mala fide

The first appellant had conducted a search at the Borders Bookstore (‘the
E bookstore’). Officers of the first appellant were accompanied by a group of
reporters and photographers. The first appellant seized several books under two
titles by an internationally known author, Irsyad Manji, entitled ‘Allah,
Kebebasan dan Cinta’ and ‘Allah, Liberty and Love’ (‘the books’) after checking
them at the bookstore. The first appellant then examined the second and the
F third respondents at the premises and issued orders compelling them to be
present at the first appellant’s office for further examination and investigation.
A prohibition order against the publication and sale of the books was issued by
the second appellant. The second and third respondents and another employee
attended the office of the first appellant for the purpose of being examined and
G investigated further by the first appellant under s 58 of the Syariah Criminal
Procedure (Federal Territories) Act 1997 (‘the SPO’). However, the third
respondent was arrested by the first appellant and was charged under s 13 of the
the SPO for the offence of ‘disseminating and distributing by way of selling the
Books deemed contrary to hukum syarak’. At the time of the search and seizure
H the books were not subject to any prohibition order issued by the second
appellant. The third respondent was not in any way responsible for the
selection of titles of books to be sold at the bookstore. There was also no fatwa,
declaration, announcement or circular issued by the first appellant or by any
other religious authority banning the publication and sale of the books on the
I ground that it was in breach of hukum syarak. No prior notice of any objections
was given by the first appellant and no search warrant was issued to the first
appellant to conduct the search and seizure of the books. The respondents filed
an application for leave for judicial review. Notice of the leave application and
cause papers were served on the appellants. Notwithstanding the pending
66 Malayan Law Journal [2015] 3 MLJ

hearing of the leave application, the first appellant charged the third A
respondent under s 13 of the SPO at the Shariah Court. The application was
heard inter partes and leave was granted to the respondents. At the hearing, the
appellants had argued that the High Court did not have the jurisdiction to hear
the judicial review application. However, the appellants did not file a notice of
appeal against the order of the judge granting leave for the judicial review B
application to be heard. The judge heard the respondents’ judicial review
application and allowed the same for, inter alia, certiorari orders to quash the
decision and actions of the appellants. After hearing the parties, the judge
allowed the respondents’ application. Dissatisfied with the decision of the
C
judge, the appellants’ filed the present appeal on the grounds, inter alia, that the
High Court had no jurisdiction to hear and determine the judicial review; and
the judge had erred in law and in fact in allowing the judicial review
application.
D
Held, dismissing the appeal with no order as to costs:
(1) Upon the issuance of the prohibition order, the first respondent withdrew
all the books from the bookstore and their other outlets. Without any
fatwa, public notification or prohibition order in place to alert the public
on the ‘unlawful’ status of the books, it offended the sense of fair play and E
justice to accuse the respondents for being in breach of s 13 of the SPO.
One cannot be charged with an offence unless there is a rule or law
prohibiting the conduct complained of. Insofar as the prohibition order
was concerned, it could not have been gazetted to take effect
F
retrospectively as this would be in conflict with art 7(1) of the Federal
Constitution. Since the books had been in circulation internationally and
locally, it would offend the sense of justice to charge a person for an
offence for acts being contrary to Islamic Law when there was no
reference point for members of the public to refer to in order to know the G
nature of the offence, such as if there had been a fatwa, prohibition order
or any other form of notification (see para 30(b)(i)–(iv)).
(2) It did not mean that every time there was a purported breach and an
alleged offence against the precepts of Islam, being a religious doctrine,
there was a criminal offence committed as well. In the instant case, as the H
offence was an offence against the precepts of Islam and there was no
similar offence in the federal law and the impugned offence specifically
covered Muslims only, clearly it could not be argued that it was a ‘criminal
law’ as envisaged by the Constitution (see para 30(b)(v)). I
(3) The hearing in the High Court was not for a judicial review of a criminal
case. No doubt the judicial review process was not suitable for criminal
cases, but what was evident in the judicial review proceedings was that the
respondents were challenging the action of the first appellant as being in
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 67

A breach of art 7 of the Constitution which is a provision on fundamental

liberties and was not a challenge on the provisions of s 13 of the SPO (see
para 30(b)(vi)).
(4) The fact that officers of the first appellant had proceeded to the bookstore
with a group of photographers and reporters showed their intent to
B
publicise the search and seizure and to ‘embarrass’ the respondents. Their
conduct was pre-planned and was not a raid spontaneously conducted on
receipt of a complaint. The first appellant did not obtain a search warrant
to conduct the raid. Given the time that the first appellant had in
preparing for the raid by inviting the photographers and reporters, we are
C
of the view that the first appellant would have had sufficient time to apply
for and obtain a search warrant (see para 30(b)(vii)–(viii)).
(5) Since the first and second respondents could not be subjected to s 13 of
the SPO, to take action against the third respondent for an infringement
D of the said s 13 in the same transaction just because she was a Muslim
would run counter to the principle of fairness and justice. The second
respondent had successfully shown the actions of the first appellant to be
illegal and irrational. It was an abuse and unreasonable exercise of
discretionary power, unconstitutional and procedurally improper (see
E paras 31(h)–(i)).

[Bahasa Malaysia summary

Perayu pertama telah menjalankan carian di Kedai Buku Borders (‘kedai buku
tersebut’). Pegawai-pegawai perayu pertama telah ditemani oleh sekumpulan
F wartawan dan jurugambar. Perayu pertama telah merampas beberapa buku di
bawah dua tajuk oleh penulis terkenal antarabangsa, Irsyad Manji, bertajuk
‘Allah, Kebebasan dan Cinta’ dan ‘Allah, Liberty and Love’ (‘buku tersebut’)
selepas memeriksanya di kedai buku tersebut. Perayu pertama kemudian
memeriksa responden-responden kedua dan ketiga di premis itu dan
G mengeluarkan perintah yang mewajibkan mereka hadir di pejabat perayu
pertama untuk pemeriksaan dan siasatan lanjut. Perintah larangan terhadap
penerbitan dan jualan buku tersebut telah dikeluarkan oleh perayu kedua.
Responden-responden kedua dan ketiga dan seorang pekerja lagi telah
menghadirkan diri di pejabat perayu pertama bagi tujuan diperiksa dan disiasat
H selanjutnya oleh perayu pertama di bawah s 58 Akta Prosedur Jenayah Syariah
(Wilayah-Wilayah Persekutuan) 1997 (‘AKJS’). Walau bagaimanapun,
responden ketiga telah ditangkap oleh perayu pertama dan dituduh di bawah
s 13 AKJS kerana kesalahan ‘disseminating and distributing by way of selling
the Books deemed contrary to hukum syarak’. Pada masa carian dan rampasan
I buku tersebut tidak tertakluk kepada apa-apa perintah larangan yang
dikeluarkan oleh perayu kedua. Responden ketiga tidak dalam apa cara
bertanggungjawab untuk pemilihan tajuk-tajuk buku yang akan dijual di kedai
buku tersebut. Tidak terdapat juga fatwa, deklarasi, pengumuman atau
pekeliling yang dikeluarkan oleh perayu pertama atau oleh mana-mana badan
68 Malayan Law Journal [2015] 3 MLJ

berkuasa agama lain yang mengharamkan penerbitan dan jualan buku tersebut A
atas alasan ia melanggar hukum syarak. Tiada notis terdahulu tentang apa-apa
bantahan telah diberikan oleh perayu pertama dan tiada waran carian
dikeluarkan kepada perayu pertama untuk menjalankan carian dan rampasan
buku tersebut. Responden-responden telah memfailkan permohonan untuk
kebenaran semakan kehakiman. Notis untuk permohonan kebenaran dan B
kertas-kertas kausa telah disampaikan ke atas perayu-perayu. Walaupun
perbicaraan untuk permohonan kebenaran masih belum selsesai, perayu
pertama telah menuduh responden ketiga di bawah s 13 AKJS di Mahkamah
Syariah. Permohonan itu telah didengar inter partes dan kebenaran diberikan
C
kepada responden-responden. Semasa perbicaraan, perayu-perayu telah
berhujah bahawa Mahkamah Tinggi tidak mempunyai bidang kuasa untuk
mendengar permohonan semakan kehakiman itu. Walau bagaimanapun,
perayu-perayu tidak memfailkan notis rayuan terhadap perintah hakim
memberikan kebenaran untuk permohonan semakan kehakiman didengar. D
Hakim telah mendengar permohonan semakan kehakiman
responden-responden dan membenarkan yang sama untuk, antara lain,
perintah certiorari untuk membatalkan keputusan dan tindakan
perayu-perayu. Selepas mendengar pihak-pihak, hakim membenarkan
permohonan responden-responden. Berasa tidak puas hati dengan keputusan E
hakim, perayu-perayu telah memfailkan rayuan ini atas alasan, antara lain,
bahawa Mahkamah Tinggi tiada bidang kuasa untuk mendengar dan
menentukan semakan kehakiman; dan hakim telah terkhilaf dari segi
undang-undang dan fakta dalam membenarkan permohonan semakan
kehakiman itu. F

Diputuskan, menolak rayuan tanpa perintah terhadap kos:

(1) Setelah perintah larangan dikeluarkan, responden pertama telah menarik
balik semua buku tersebut daripada kedai buku tersebut dan cawangan G
mereka yang lain. Tanpa apa-apa fatwa, pemberitahuan awam atau
perintah larangan sebagai amaran kepada pihak awam tentang status
‘unlawful’ buku tersebut, ia bertentangan dengan amalan saksama dan
adil untuk menuduh responden-responden telah melanggar s 13 AKJS.
Seseorang tidak boleh dituduh kerana kesalahan kecuali terdapat H
perturan atau undang-undang yang melarang perlakuan yang diadukan.
Setakat mana perintah larangan itu adalah berkaitan, ia tidak mungkin
telah diwartakan untuk memberi kesan kebelakangan kerana ini akan
bertentangan dengan perkara 7(1) Perlembagaan Persekutuan. Oleh
kerana buku tersebut telah berada dalam edaran antarabangsa dan I
tempatan, ia adalah bertentangan dengan keadilan untuk menuduh
seseorang untuk kesalahan kerana tindakan yang bercanggah dengan
undang-undang Islam walhal tidak ada sumber rujukan untuk pihak
awam merujuk bagi tujuan mengetahui sifat kesalahan itu, seperti jika
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 69

A terdapat fatwa, perintah larangan atau apa-apa bentuk pemberitahuan

lain (lihat perenggan 30(b)(i)–(iv)).
(2) Ia tidak bermaksud bahawa setiap kali terdapat pelanggaran yang
dimaksudkan dan kesalahan yang dikatakan terhadap ajaran Islam, yang
B merupakan doktrin agama, terdapat kesalahan jenayah yang dilakukan
juga. Dalam kes ini, oleh kerana kesalahan merupakan kesalahan
terhadap ajaran Islam dan tiada kesalahan yang serupa dalam
undang-undang persekutuan dan kesalahan yang dipersoalkan
khususnya meliputi umat Islam sahaja, adalah jelas ia tidak boleh
C dihujahkan bahawa ia adalah ‘criminal law’ sebagaimana yang termaktub
dalam Perlembagaan (lihat perenggan 30(b)(v)).
(3) Perbicaraan di Mahkamah Tinggi bukan semakan kehakiman untuk kes
jenayah. Tidak diragui proses semakan kehakiman tidak sesuai untuk
D
kes-kes jenayah, tetapi apa yang jelas dalam prosiding semakan
kehakiman adalah responden-responden mencabar tindakan perayu
pertama sebagai melanggar perkara 7 Perlembagaan yang merupakan
peruntukan tentang kebebasan asasi dan bukan suatu cabaran tentang
peruntukan s 13 AKJS (lihat perenggan 30(b)(vi)).
E (4) Fakta bahawa pegawai-pegawai perayu pertama telah ke kedai buku
tersebut dengan sekumpulan jurugambar dan wartawan menunjukkan
niat mereka untuk meuar-uarkan carian dan rampasan itu dan untuk
‘embarrass’ responden-responden. Tingkah laku mereka telah dirancang
sebelumnya dan bukan satu serbuan yang berlaku tiba-tiba setelah
F
menerima aduan. Perayu pertama tidak memperoleh waran carian untuk
menjalankan serbuan. Berdasarkan masa yang perayu pertama ada untuk
menyediakan serbuan itu dengan mempelawa jurugambar dan wartawan
itu, mahkamah berpendapat bahawa perayu pertama telah mempunyai
G
masa yang mencukupi untuk memohon untuk dan memperoleh waran
caraian (lihat perenggan 30(b)(vii)–(viii)).
(5) Oleh kerana responden-responden pertama dan kedua tidak tertakluk
kepada s 13 AKJS, untuk mengambil tindakan terhadap responden
ketiga kerana melanggar s 13 tersebut dalam transaksi yang sama hanya
H kerana dia seorang Muslim adalah bertentangan dengan prinsip keadilan.
Responden kedua telah berjaya menunjukkan tindakan perayu pertama
adalah menyalahi undang-undang dan tidak rasional. Ia adalah
penyalahgunaan dan pelaksanaan tidak munasabah berhubung kuasa
budi bicara, tidak berperlembagaan dan tidak mengikut prosedur yang
I sewajarnya (lihat perenggan 31(h)–(i)).]

Notes
For cases on jurisdiction of High Court, see 1(1) Mallal’s Digest (4th Ed, 2014
Reissue), paras 391–393.
70 Malayan Law Journal [2015] 3 MLJ

Cases referred to A
Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor (Kerajaan Malaysia,
intervener) & Anor [2008] 3 MLJ 617; [2008] 4 CLJ 309, FC (refd)
Abdul Rahman bin Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur &
Anor [2008] 6 MLJ 704, CA (folld)
B
Ali v Secretary of State for the Home Department [1984] 1 All ER 1009, CA
(refd)
Arnold and others respondents v National Westminster Bank Plc [1991] 2 AC 93,
HL (refd)
Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] C
1 KB 223, CA (refd)
Azizah bte Shaik Ismail & Anor v Fatimah bte Shaik Ismail & Anor [2004] 2
MLJ 529; [2003] 4 CLJ 281, FC (refd)
Carlow Kilkenny Radio Ltd v Broadcasting Commission of Ireland [2003] 3 IR
528, SC (folld) D
Council of Civil Service Unions and others appellants v Minister for the Civil
Service [1985] AC 374, HL (folld)
Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam and
Anor [1992] 1 MLJ 1, SC (refd)
Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991] E
1 MLJ 417, SC (refd)
Hj Raimi bin Abdullah v Siti Hasnah Vangarama bt Abdullah and another
appeal [2014] 3 MLJ 757; [2014] 4 CLJ 253, FC (refd)
Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs),
Malaysia [1969] 2 MLJ 129, FC (folld) F
Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors And Other
Appeals [1997] 3 MLJ 23; [1997] 4 CLJ 253, CA (refd)
Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101, FC
(refd)
Mohd Alias bin Ibrahim v RHB Bank Bhd & Anor [2011] 3 MLJ 26; [2011] 4 G
CLJ 654, HC (refd)
Multi-Purpose Holdings Bhd v Ketua Pengarah Hasil Dalam Negeri [2006] 2
MLJ 498; [2006] 1 CLJ 1121, CA (refd)
Nik Nazmi bin Nik Ahmad v PP [2014] 4 MLJ 157, CA (refd)
Nik Noorhafizi bin Nik Ibrahim & Ors v PP [2013] 6 MLJ 660; [2014] 2 CLJ H
273, CA (refd)
Potensi Bernas Sdn Bhd v Datu Badaruddin Datu Mustapha [2009] 8 CLJ 573,
HC (refd)
R v Secretary of State for the Environment, ex parte Hackney London Borough
Council and another [1983] 3 All ER 358, QBD (refd) I
Siti Hasnah Vangarama Abdullah v Tun Dr Mahathir Mohamad (as the Persident
of PERKIM) & Ors [2012] 7 CLJ 845, CA (refd)
Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals
[2008] 2 MLJ 147, FC (refd)
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 71

A Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor
[1999] 1 MLJ 266; [1999] 1 CLJ 481, CA (refd)
Sulaiman bin Takrib v Kerajaan Negeri Terengganu (Kerajaan Malaysia,
intervener) and other applications [2009] 6 MLJ 354, FC (refd)
B Legislation referred to
Administration of Islamic Law (Federal Territories) Act 1993
Companies Act 1965
Federal Constitution arts 4(4), 7, 7(1), 74, 121(1A), 128, Ninth Schedule,
List I, Federal List
C Printing Presses and Publications Act 1984 s 7
Printing Presses and Publications (Control of Undesirable Publications) (No 3)
Order 2012
Rules of Court 2012 O 53
D
Syariah Criminal Offences (Federal Territories) Act 1997 s 13, 13(1)
Syariah Criminal Procedure (Federal Territories) Act 1997 s 58
Noor Hisham Ismail (Mazlifah bt Ayob with him) (Senior Federal Counsel,
Attorney General’s Chambers) for the appellant.
Rosli bin Dahlan (Bahari Yeow Tien Hong, Ang Hean Leng and Abdullah
E
Khubayb bin Awaluddin with him) (Lee Hishammuddin Allen & Gledhill) for
the respondent.

Mah Weng Kwai JCA (delivering judgment of the court):

F
THE PARTIES

[1] The first appellant, Jabatan Agama Islam Wilayah Persekutuan

(‘JAWI’), is the department in charge of Islamic Affairs in the Federal Territory
G of Kuala Lumpur. The second appellant is the Minister of Home Affairs while
the third appellant is the Minister in the Prime Minister’s Department in
charge of Islamic Affairs.

[2] The first respondent, a duly incorporated company under the

H Companies Act 1965, is the owner of Borders Bookstore (‘the bookstore’).
Borders is an internationally renowned chain of bookshops. The second
respondent, Stephen Fung Wye Keong, a non-Muslim, was the general
manager of operations and merchandising of the first respondent and was fully
responsible for the selection of titles and stock of books and publications
I displayed and sold at the bookstore. The third respondent, Nik Raina bt Nik
Abdul Aziz was an employee of the first respondent. She was employed as the
store manager of the bookstore. The third respondent was junior to and
answerable to the second respondent.
72 Malayan Law Journal [2015] 3 MLJ

THE FACTS A

[3] On 23 May 2012, the first appellant conducted a search at the

bookstore at the Gardens, Mid Valley Mall, Jalan Syed Putra, Kuala Lumpur.
Officers of the first appellant were accompanied by a group of reporters and
photographers. B

[4] The first appellant seized several books under two titles by an
internationally known author, Irsyad Manji, entitled ‘Allah, Kebebasan dan
Cinta’ and ‘Allah, Liberty and Love’ (‘the books’) after checking them at the C
bookstore.

[5] The first appellant then examined the second and the third respondents
at the premises and issued orders compelling them to be present at the first
appellant’s office for further examination and investigation. D

[6] On 29 May 2012, a prohibition order against the publication and sale
of the books was issued by the second appellant. The prohibition order was
published vide Gazette Notification PU(A) 162 on 14 June 2012, known as the
Printing Presses and Publications (Control of Undesirable Publications) (No 3) E
Order 2012 under the Printing Presses and Publications Act 1984 (‘the PPP
Act’), banning the publication and sale of the books.

[7] The second and third respondents and another employee, Farihna bt
F
Mohamed Fadhlullah attended the office of the first appellant on 30 May 2012
for the purpose of being examined and investigated further by the first
appellant under the provisions of s 58 of the Syariah Criminal Procedure
(Federal Territories) Act 1997.
G
[8] The third respondent was arrested by the first appellant on 30 May
2012 and was charged under s 13 of the Syariah Criminal Offences (Federal
Territories) Act 1997 (‘the SCO Act’) for the offence of ‘disseminating and
distributing by way of selling the books deemed contrary to Hukum Syarak
(Islamic Law)’. H

[9] At the time of the search and seizure the books were not subject to any
prohibition order issued by the second appellant.

[10] The third respondent was not in any way responsible for the selection of I
titles of books to be sold at the bookstore.

[11] As at 23 May 2012, there was no fatwa, declaration, announcement or

circular issued by the first appellant or by any other religious authority banning
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 73

A the publication and sale of the books on the ground that it is in breach of
hukum syarak. No prior notice of any objections was given by the first appellant
and no search warrant was issued to the first appellant to conduct the search
and seizure of the books.
B THE PROCEEDINGS

[12] On 18 June 2012, the respondents filed an application for leave for
judicial review. Notice of the leave application and cause papers were served on
the appellants.
C
[13] Notwithstanding the pending hearing of the leave application, the first
appellant charged the third respondent under s 13 of the SCO Act at the
Shariah Court, Kuala Lumpur on 19 June 2012.
D
[14] On 25 June 2012, the application was heard inter partes and leave was
granted by the learned judge to the respondents. At the hearing, the senior
federal counsel for the appellants had argued that the High Court did not have
the jurisdiction to hear the judicial review application.
E
[15] However, the appellants did not file a notice of appeal against the order
of the learned judge granting leave for the judicial review application to be
heard.
F
[16] The learned judge heard the respondents’ judicial review application on
11 March 2013 and on 22 March 2013, allowed the respondents’ application
for, inter alia, certiorari orders to quash the decision and actions of the
appellants.
G
THE ORDER OF THE HIGH COURT OF 22 MARCH 2013

[17] After hearing the parties, the learned judge allowed the respondents’
application in encl 15. It will be useful to set out here in full the terms of the
H order against which the appellants are appealing:
(a) an order of Certiorari to quash the actions by the officers of JAWI in
raiding, searching, confiscating and seizing the published materials in the
premises of the 1st Applicant and investigating the 1st Applicant’s
employees on 23 May 2012, and the issuance of the Attendance Order
I (‘Perintah Hadir’) dated 23 May 2012 to the 1st Applicant’s employees
namely, Stephen Fung Wye Keong and Nik Raina binti Nik Abdul Aziz
being the 2nd Applicant and 3rd Applicant respectively (‘JAWI’s
Actions’), and an order of Mandamus that JAWI produce all records and
74 Malayan Law Journal [2015] 3 MLJ

documents concerning JAWI’s Actions before this Honourable Court and A

upon reviewing, an order that JAWI withdraw and cancel the said JAWI’s
Action;
(b) an Order of Certiorari to quash the decision to arrest, the Self-Bond (Bon
Diri) dated 30 May 2102 and the prosecution by JAWI against the 3rd
Applicant and subsequently, an Order of Mandamus that JAWI produce B
all records and documents concerning the arrest, the Self-Bond and the
prosecution papers against the 3rd Applicant before this Honourable
Court and upon reviewing, an order that JAWI withdraw and cancel the
arrest, the Self-Bond and the prosecution against the 3rd Applicant which
are inconsistent with Article 7 of the Federal Constitution; C
(c) a declaration that any enforcement action under section 13 Syariah
Criminal Offences (Federal Territories) Act 1997 (‘SCOA 1997’) is
subject to a prior Prohibition Order under section 7 of the Printing Presses
and Publications Act 1984 (‘PPPA1984’);
D
(d) a declaration that any provisions for offences involving matters relating to
‘newspaper, publication, publisher, printing and printing press’ are not
matters capable of being legislated under section 13 SCOA 1997;
(e) a declaration that the provision of section 13 SCOA 1997 to the extent it
purports to prescribe matters relating to ‘newspaper, publication, E
publisher, printing and printing press’ is inconsistent with section 7 of
Printing Presses and Publications Act 1984;
(f) a declaration that the provision of section 13 SCOA 1997 is in excess of
Article 74 and the Ninth Schedule, List II of the Federal Constitution to
the extent that it purports to prescribe offences relating to ‘printing, F
publishing, producing, recording, distributing or in any other manner
disseminating any book, pamphlet, documents or any form of recordings’,
which are not matters capable of being legislated thereunder;
(g) a declaration that the provision of section 13 SCOA 1997 as promulgated
is ultra vires of Article 74 and Ninth Schedule, List I of the Federal G
Constitution to the extent that it purports to prescribe matters relating to
‘newspaper, publishing, publisher, printing and printing press’ which are
expressly reserved to be legislated by the federal law within the jurisdiction
of the Civil Courts and not the Syariah Courts;
(h) a declaration that the 2nd Applicant and/or anyone who is a non-Muslim H
cannot be subject to and/or be the subject of enforcement actions under
the Syariah Criminal Procedure (Federal Territories) Act 1997 (‘Procedure
Act 1997’) when SCOA 1997 and the Syariah Court’s jurisdiction under
section 46 of the Administration of Islamic Law (Federal Territories) Act
1993 (‘Administration Act 1993’) is only applicable to Muslims; I
(i) a declaration that Berjaya Books Sdn Bhd (‘referred to as Borders’), which
is a company incorporated under the Companies Act 1965, cannot be
construed as a Muslim or an Islamic body and therefore cannot be the
subject of enforcement actions under the Procedure Act 1997 when
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 75

A SCOA 1997 and the Syariah Court’s jurisdiction under the

Administration Act 1993 is only applicable to Muslims; and
(j) upon the consent of the Applicants, there shall be no order as to costs.

THE APPEAL
B
[18] Being dissatisfied with the decision of the learned judge, the appellants’
filed their notice of appeal on 2 April 2013 to the Court of Appeal on the main
grounds, inter alia, that:
C (a) the High Court had no jurisdiction to hear and determine the judicial
review; and
(b) the learned judge had erred in law and in fact in allowing the judicial
review application.
D
THE DECISION OF THE COURT OF APPEAL

[19] Upon reading the written submissions of the senior federal counsel for
the appellants and counsel for the respondents and upon hearing oral
E submissions of the parties aforesaid on 21–22 August 2014, this court reserved
its decision to a date to be fixed by the registrar.

[20] We now deliver our decision and the grounds of our decision.

F [21] After a careful consideration of the written and oral submissions of the
parties to this appeal and upon a careful analysis of the law and evaluation of
the facts herein, we are of the unanimous view that there are no merits in the
appeal and accordingly the appeal is hereby dismissed subject to the
consequential orders as set out later in this judgment with no order as to costs.
G
GROUNDS OF JUDGMENT

[22] The appellants’ case:

H (a) central to the appellants’ argument was that the High Court did not
have the jurisdiction to hear the judicial review application as the
impugned actions of the first appellant dealt with Shariah Law and
therefore came within the jurisdiction of the Shariah Court;
(b) the senior federal counsel submitted that the learned judge should have
I adopted the ‘subject based approach’ and not the ‘remedy based
approach’ when considering and determining the issue of jurisdiction,
with the subject matter here being the alleged commission of an offence
by the third respondent under s 13 of the SCO Act. It was contended
that as the enforcement of the Shariah Law was by the first appellant,
76 Malayan Law Journal [2015] 3 MLJ

thus the subject matter ‘belonged’ to the Shariah Court; A

(c) in support of his argument, the senior federal counsel cited the case of Hj
Raimi bin Abdullah v Siti Hasnah Vangarama bt Abdullah and another
appeal [2014] 3 MLJ 757; [2014] 4 CLJ 253 which had recently
reversed the decision of the Court of Appeal in Siti Hasnah Vangarama B
Abdullah v Tun Dr Mahathir Mohamad (as the Persident of PERKIM) &
Ors [2012] 7 CLJ 845. The Federal Court in its decision, made after the
decision of the learned judge in this case, held that the court in Siti
Hasnah had to consider the subject matter of the case;
C
(d) the senior federal counsel further submitted that the learned judge had
ignored the subject matter approach when she did not fully consider the
Federal Court case of Sulaiman bin Takrib v Kerajaan Negeri Terengganu
(Kerajaan Malaysia, intervener) and other applications [2009] 6 MLJ
354, which had decided to adopt the subject matter approach; D
(e) the senior federal counsel also cited the cases of Azizah bte Shaik Ismail
& Anor v Fatimah bte Shaik Ismail & Anor [2004] 2 MLJ 529; [2003]
4 CLJ 281 and Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor
[2007] 5 MLJ 101 both of which seemed to decide that the correct
approach to be followed is the ‘subject based’ approach; E

(f) the appellants’ case was that if there was any complaint by the
respondents on the ground that the search and seizure of the books were
wrongful then the respondents’ cause of action would be in tort and by
way of a writ action and not by way of a judicial review. And although F
the first and second respondents being non-Muslims were not charged
in the Shariah Court, they could be called as witnesses in the case against
the third respondent;
(g) the second ground relied on by the senior federal counsel was that the G
learned judge had erred in holding that the actions of the first appellant
were unlawful and in excess of their powers. The senior federal counsel
submitted that the issue of ‘irrationality’ should be dealt with by a
Shariah Court as it encroached onto issues of fact and in any event the
judicial review jurisprudence is not suitable for criminal cases. The H
senior federal counsel contended that the offence under s 13 of the SCO
Act is very distinct from offences under the PPP Act and that
significantly, there is no requirement for a prohibition order before a
person can be charged for an offence under s 13 of the SCO Act; and
(h) the senior federal counsel submitted that there was no mala fides on the I
part of the first appellant when it conducted the search and seizure of the
books at the bookstore and that there was neither malicious intent nor
collateral purpose envisaged on the part of the officers of the first
appellant.
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 77

A [23] The respondents’ case:

(a) the response of the respondents’ counsel to the submission by the senior
federal counsel that the subject based approach ought to have been
followed by the learned judge was that the senior federal counsel had
B failed to consider instead the ‘pith and substance approach’ which was
the correct and proper approach to be adopted when dealing with this
case;
(b) the ‘pith and substance approach’ to the case according to counsel was
that any alleged offence against the precepts of Islamic law is not a
C criminal offence as was upheld in the case of Sulaiman bin Takrib. It was
argued by counsel that as Shariah Law is a personal law it should apply
to muslims only and not to non-Muslims such as the second respondent
in this instance when he was examined by officers of the first appellant
under the provisions of the SCO Act;
D
(c) the pith and substance approach would not be confined to Shariah issues
and to the sections of the law but importantly to consider the breach of
the constitutional rights of the respondents occasioned by the search and
seizure of the books and the examination of the second respondent in
E particular, at the office of the first appellant. It is not just about the
provisions of s 13 of the SCO Act per se but rather it was about the
powers of the first appellant and the conduct of its officers at the search
and seizure at the bookstore and the subsequent examination of
witnesses;
F (d) counsel relied on the Federal Court case of Latifah bte Mat Zin and
submitted that the Federal Court did not follow the subject based
approach;
(e) on the issue of jurisdiction, counsel for the respondents invoked the
G principle of res judicata and submitted that the appellants should be
estopped from revisiting the issue as the learned judge had already
determined that the High Court had the jurisdiction to hear the case
when leave to file the judicial review application was allowed and that
the appellants did not file a notice of appeal against the said order. The
H ex parte application was in fact heard inter partes and the issue of
jurisdiction had been fully ventilated before the learned judge; and
(f) the respondents in their O 53 of the Rules of Court 2012 application
was not challenging the validity of s 13 of the SCO Act or that the state
has no power to enact laws on Islamic matters but were maintaining that
I the state cannot enact laws on matters which come within the purview
of the federal government and that the application for declaratory reliefs
was not in violation of art 4(4) of the Federal Constitution. The
respondents merely sought the reliefs under O 53 to bind the parties
only.
78 Malayan Law Journal [2015] 3 MLJ

FINDINGS OF THE COURT A

[24] At the commencement of this appeal we saw it proper to remind

ourselves that the case before the learned judge was a judicial review application
and not an appeal against the actions and decisions of the respondents. In
doing so we had in mind what Lord Roskill said in the case of Council of Civil B
Service Unions and others appellants v Minister for the Civil Service [1985] AC
374 to wit:
… This appeal is concerned with and only with judicial review. Judicial review, as my
noble and learned friend Lord Brightman stated in Chief Constable of the North C
Wales Police v Evans [1982] 1 WLR 1155, 1174, ‘is not an appeal from a decision,
but a review of the manner in which the decision was made.’

[25] We were further mindful of what was said by the Federal Court of
Ireland in Carlow Kilkenny Radio Ltd v Broadcasting Commission of Ireland D
[2003] 3 IR 528 that a judicial review was not concerned about the correctness
of a decision but rather with the way that decision was arrived at (see also
Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991]
1 MLJ 417).
E
[26] Thus, the focus of these grounds of judgment, in the later part of the
judgment will be on the manner in which the decision was made by the
appellants.

[27] The res judicata and issue estoppel issue: F

(a) the issue of jurisdiction was seriously challenged by the appellants in the
High Court at the stage of hearing of the leave application.
Notwithstanding the strong objections of the appellants, the learned
judge ruled that the High Court had the jurisdiction to hear and grant G
the leave application. It is significant to note that the appellants did not
appeal against the decision of the learned judge on the grant of leave
thereby impliedly and/or expressly conceding that the High Court did
have jurisdiction in the matter and that the decision of the learned judge
was a final order in the circumstances; H
(b) it was argued by the senior federal counsel that in an application for
leave, the threshold applicable is a low threshold (see Abdul Rahman bin
Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor [2008] 6
MLJ 704). We agree generally with this proposition of law but we wish
to add that we take the view that while the threshold in an application I
for leave may be lower in terms of facts, the threshold on matters of law
would be the same as in the hearing of the judicial review itself. This is
because the issue of jurisdiction of the court goes to the root of the
matter before the court. It is a fundamental issue and it cannot be that a
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 79

A question of law will be decided on a lower standard in a leave application

and the same question of law will be decided on a higher standard in the
full hearing of the judicial review application;
(c) examining the same objection by the senior federal counsel from a
B different perspective, the following question may be asked and that is,
can the learned judge change her mind and overrule her own decision
and hold that the High Court did not have the jurisdiction to hear the
judicial review application after having in the first instance granted leave
on the basis that the High Court was seized with jurisdiction? The
C answer to the question in our view must surely be a resounding no;
(d) during the hearing of the appeal, it was submitted by the senior federal
counsel that the doctrine of issue estoppel cannot be relied on in an
application for judicial review. The senior federal counsel referred to the
D
Court of Appeal decision in Abdul Rahman bin Abdullah Munir in
support of his proposition where Abdull Hamid Embong JCA (as he
then was) speaking for the court held that the doctrine of issue estoppel
had no application in the appeal. The court had agreed with the
submission of counsel for the appellants in Abdul Rahman bin Abdullah
E Munir. There, counsel had merely referred to a line in the judgment of
Sir John Donaldson MR who stated that the doctrine of issue estoppel
‘has no place in public law and judicial review in the case of R v Secretary
of State for the Environment, ex parte Hackney London Borough Council
and another [1983] 3 ALL ER 358 (see also Ali v Secretary of State for the
F Home Department [1984] 1 ALL ER 1009)’;
(e) while we agree issue estoppel is not absolute and there may be special
circumstances (eg change in material facts or law) which may allow a
court to reopen the issue in a subsequent proceeding, (see Arnold and
others respondents v National Westminster Bank Plc [1991] 2 AC 93), we
G are clearly of the view that there are no prevailing circumstances in this
case to justify the reopening of the issue of jurisdiction in this appeal
given that the issue had been fully canvassed before the learned judge
and that the appellants had chosen not to appeal against the said
decision;
H
(f) we are thus of the view that the appellants cannot now raise the issue of
lack of jurisdiction. They are estopped from pursuing this point further
in the hearing of this appeal;
(g) however, in the event we are wrong to hold that res judicata and issue
I estoppel do apply in the circumstances of this case and that the
appellants should not be estopped from further raising the issue of
jurisdiction of the High Court in this appeal, we are nonetheless, of the
view that the High Court did possess the jurisdiction to adjudicate in the
judicial review application; and
80 Malayan Law Journal [2015] 3 MLJ

(h) we say the High Court has the jurisdiction to hear the judicial review A
application for the following reasons:
(i) the first appellant by its actions was enforcing Shariah Law
against the respondents namely, the search and seizure of the
books at the bookstore; the examination of the witnesses at B
the office of the first appellant and the eventual prosecution of
the third respondent in the Shariah Court;
(ii) there is no dispute that the appellants are public
authorities performing a public duty and further there is no
dispute that the respondents are aggrieved parties; C

(iii) the application by the respondents related to purported

breaches of fundamental and constitutional rights of the
respondents;
(iv) while the personal law of the third respondent is Shariah D
Law, the personal law of the second respondent is not Shariah
Law as he is a non-Muslim. There is no ‘personal’ law of the
first respondent as it is a creature of statute and does not
profess any religion. Only a natural person can profess a
religion (see Potensi Bernas Sdn Bhd v Datu Badaruddin Datu E
Mustapha [2009] 8 CLJ 573);
(v) the court recognises that there can be two jurisdictions on
the same subject matter existing side by side namely, the
secular law of the Federation and Shariah Law (see Sukma F
Darmawan Sasmitaat Madja v Ketua Pengarah Penjara
Malaysia & Anor [1999] 1 MLJ 266; [1999] 1 CLJ 481);
(vi) In Sukma Darmawan, Gopal Sri Ram JCA (as he then
was) when considering art 121(1A) of the Federal
Constitution and the SCO Act speaking on behalf of the G
Court of Appeal, said:
ln our view, this part of the appeal turns upon the true interpretation
that art 121(1A) is to receive. Does cl (1A) to art 121 mean that the
ordinary courts are to have no jurisdiction over all matters, including H
offences under the Penal Code committed by persons professing the
religion of Islam, which are also within the jurisdiction of the Syariah
Court? Or, does it mean that the former are not to have jurisdiction
over only those matters which are within the exclusive jurisdiction of
the latter?
I

And after considering the history of art 121(1A) and various

authorities, the learned judge concluded at p 280(MLJ);
p 497(CLJ) as follows:
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 81

A Accordingly, in the light of the authorities we have referred to earlier in

this judgment, we have come to the conclusion that the expression
‘jurisdiction of the Syariah Courts’ refers to ‘the exclusive jurisdiction’
of those courts. In other words, if a person professing the religion of
Islam does a proscribed act which is an offence both under the Penal
B Code and the Act, then the courts referred to in art 121(1) will have
jurisdiction to try such an offence. It is only in respect of offences under
the Act that a Syariah Court may have exclusive jurisdiction. For
example, the offence of adultery which is prescribed as an offence under
the Act has no equivalent in the Penal Code or other Federal criminal
statute. So, if a person professing the religion of Islam commits
C
adultery, then, he or she may be tried only in a Syariah court.

And in Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor

(Kerajaan Malaysia, intervener) & Anor [2008] 3 MLJ 617;
D
[2008] 4 CLJ 309 the Federal Court held:
Nowhere in the Constitution is there a provision that the
determination of Islamic Law for the purpose of interpreting the
Federal Constitution is a matter for the State Legislature to make law to
E grant such jurisdiction to the syariah court. Hence, there is no such
provision in the State Enactments to grant such jurisdiction to syariah
courts. In fact, it cannot be done. On the other hand, item 4(k) of List
I, Federal List of the Ninth Schedule goes further to provide that:-
(k) Ascertainment of Islamic Law and other personal laws for purposes of
F federal law is a federal matter.
[18] Reliance was made on the provision of art 121(1A) of the
Constitution. With respect, this article does not confer jurisdiction on
Syariah Courts to interpret the Constitution to the exclusion of this
court.
G [19] As I have said a number of times, ending with Latifah, that
provision was inserted to avoid a situation as in Myriam v Ariff [1971]
1 MLJ 265; [1971] 3 LNS 1, not to oust the jurisdiction of this court in
matters that rightly belong to it. Before the jurisdiction of this court is
excluded, it must be shown that the Syariah Court has jurisdiction over
H the matter first. That is not the case here. In fact, the Constitution
provides to the contrary. Article 128(1) of the Federal Constitution
provides:
128(1) The Federal Court shall, to the exclusion of any other court,
have jurisdiction to determine in accordance with any rules of court
I regulating the exercise of such jurisdiction.
(i) any question whether a law made by Parliament or by the Legislature
of a State is invalid on the ground that it makes provision with
respect to a matter with respect to which Parliament or, as the case
may be, the Legislature of the State has no power to make laws; and
82 Malayan Law Journal [2015] 3 MLJ

[20] That, in effect, is what the Majlis Agama Islam is saying that A
Syariah High Court should determine. That is a matter for this court to
decide, not the Syariah High Court. Whether the impugned provisions
are within the scope that the State Legislature has jurisdiction to make
or not and whether they are valid or not, will be decided when we hear
the petition. B
(vii) while it is not disputed that the SCO Act is a law for Muslims,
it cannot be disputed that the Act does not take away the
jurisdiction of the civil court to interpret it. In the Supreme Court
decision of Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, C
Bukit Mertajam and Anor [1992] 1 MLJ 1 it was held:
We are of the view that clear provisions should be incorporated in all the
state Enactments to avoid difficulties of interpretation by the civil
courts. This is particularly important in view of the amendment to art
121 of the Federal Constitution made by Act A704 of 1988. The new cl D
1A of art 121 of the Constitution effective from 10 June 1988 has taken
away the jurisdiction of the civil courts in respect of matters within the
jurisdiction of the Syariah Courts. But that clause does not take away the
jurisdiction of the civil court to interpret any written laws of the states
enacted for the administration of Muslim law. (Emphasis added.) E
(viii) it is a fallacy to think that generally a High Court exercising
civil jurisdiction cannot review the prosecution of cases under the
criminal law;
(ix) on whether it can be argued that an offence against the precepts F
of Islam, where there is no similar offence in the federal law and the
alleged offence specifically covers Muslims and pertain to Islam
only, is a ‘criminal law’ as envisaged by the Constitution, it was held
by the Federal Court in Sulaiman bin Takrib that:
… it is not easy to draw the dividing line between ‘criminal law’ and the G
offences that may be created by the State Legislature. Every offence has
a punishment attached to it. In that sense, it is ‘criminal law’. However,
if every offence is ‘criminal law’ then, no offence may be created by the
State Legislatures pursuant to item 1, List ll of the Ninth Schedule. To
give effect to the provision of the Constitution a distinction has to be H
made between the two categories of offences and a line has to be drawn
somewhere. The dividing line seems to be that if the offence is an offence
against the precept of Islam, then it should not be treated as ‘criminal law'.
That too seems to be the approach taken by the Supreme Court
judgment in Mamat bin Daud & Ors v Government of Malaysia [1988]
I
1 MLJ 119. In that case the issue was whether s 298A of the Penal Code
was invalid on the ground that it made provisions with respect to a
matter with respect to which Parliament had no power to make. It was
argued that the section was ultra vires the Constitution because, having
regard to the pith and substance of the section, it was a law which ought
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 83

A to be passed NOT by Parliament but by the State Legislative

Assemblies, it being a legislation on Islamic religion, according to art
11(4) and item 1 of the List II, Ninth Schedule of the Federal
Constitution. On the other hand, it was contended by the respondent
that the section was valid because it was a law passed by Parliament on
B the basis of public order, internal security and also criminal law
according to art 11(5) and items (3) and (4) of List I of the Ninth
Schedule of the Federal Constitution.
Salleh Abas LP who delivered one of the majority judgments said:
…
C
‘Surely, a legislation to deny a Muslim from holding a certain view or to
prevent him from adopting a practice consistent with that view is
legislation upon religious doctrine. In its applicability to the religion of
Islam, the impugned section must, in my view, be within the
competence of State Legislative Assemblies only. See item 1 (of ) List ll
D of the Ninth Schedule to the Constitution.’
…
In the instant case, as the offences are offences against the precept of Islam,
as there are no similar offences in the federal law and the impugned offences
E specifically cover Muslims only and pertaining to Islam only, clearly it
cannot be argued that they are ‘criminal law’ as envisaged by the
Constitution. (Emphasis added.)
(x) it is trite that in matters relating to fundamental and
F constitutional rights, the High Court exercises a supervisory role. It
is the duty of the court to interpret the civil law and Shariah Law
harmoniously (see Ketua Pengarah Jabatan Alam Sekitar & Anor v
Kajing Tubek & Ors And Other Appeals [1997] 3 MLJ 23; [1997]
4 CLJ 253 and Mohd Alias bin Ibrahim v RHB Bank Bhd & Anor
G [2011] 3 MLJ 26; [2011] 4 CLJ 654);
(xi) in Multi-Purpose Holdings Bhd v Ketua Pengarah Hasil Dalam
Negeri [2006] 2 MLJ 498; [2006] 1 CLJ 1121, the Court of
Appeal held that a statute must be read harmoniously with the
Federal Constitution so as to avoid any conflict between them that
H could render a statute being declared void. In the present case, at
the time of the search and seizure by the first appellant there was no
prohibition order issued by the second appellant. Neither was there
any fatwa nor any form of public notification pronouncing on the
prohibition to print, publish, produce, record, distribute or
I disseminate the books which is contrary to Islamic Law in
Malaysia. In as much as we agree that s 13 of the SCO Act does not
require a fatwa to be issued first before a person can be charged for
an offence under the said section, but in view of the fact that the
impugned books had been sold internationally and locally before
84 Malayan Law Journal [2015] 3 MLJ

the raid by the first appellant and there being no prohibition order A
issued by the second appellant to alert the public, it would be a
travesty of justice to find that in the said circumstances the spirit
and intent of section 13 of the SCO Act had been fulfilled so as to
justify the search and seizure of the books at the bookstore;
B
(xii) we cannot agree with the appellants’ argument that the
complaint by the respondents against the conduct of the first
appellant was essentially one of wrongful search and seizure and
arrest and that the cause of action should therefore be in tort for a
claim of damages by writ action and not by way of a judicial review. C
We are of this view simply because the actions of the first appellant
had gone beyond mere tortious liability and had instead breached
the fundamental and constitutional rights of the respondents; and
(xiii) in the final analysis, we are of the view that the proper D
approach to be taken in adjudicating the matter would be the pith
and substance approach as contended by the respondents. We are of
the view that a holistic approach must be taken in the
circumstances and the court should not consider just the subject
based approach versus the remedy based approach argument. We E
are of the view that the pith and substance approach is the correct
approach as it will be wide enough to include the consideration of
both the subject matter of the case and the reliefs sought. It is vital
that the appellants fully understand and appreciate the provisions
of s 13 of the SCO Act before it is submitted that the subject based F
approach is the correct approach. For ease of consideration, s 13(1)
of the SCO Act is reproduced in full below:
(1) Any person who —
(a) prints, publishes, produces, records, distributes or in any other manner G
disseminates any book, pamphlet, document or any form of recording
containing anything which is contrary to Islamic Law; or
(b) has in his possession any such book, pamphlet, document or
recording, shall be guilty of an offence and shall on conviction be liable to
a fine not exceeding three thousand ringgit or to imprisonment for a term H
not exceeding two years or to both.

[28] The art 128 of the Federal Constitution issue:

(a) at the outset of his submission, the senior federal counsel informed the I
court that he would not be taking the art 128 argument on the
jurisdiction of the Federal Court although he had submitted on it in his
written submissions. Thus this issue will not be dealt with in these
grounds.
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
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A [29] Paragraphs (f ) and (g) of the order of the High Court of 22 March 2013
issue:
(a) the senior federal counsel informed the court that if the court was not
with him in the appeal, counsel for the respondents had agreed to strike
B out paras (f ) and (g) from the order of the High Court of 22 March
2013, by consent; and
(b) hence, in view of our decision in this appeal we will not be discussing on
whether the provisions of s 13 of the SCO Act are in excess of art 74 and
the Ninth Schedule, List I of the Federal List to the extent ‘that it
C
purports to prescribe offences relating to ‘printing, publishing,
producing, recording, distributing or in any other manner
disseminating any book, pamphlet, documents or any form of
recordings’, which are not matters capable of being legislated
D thereunder’ and whether the provisions of s 13 of the SCO Act are ultra
vires art 74 and the Ninth Schedule List I of the Federal List to the extent
‘that it purports to prescribe matters relating to ‘newspaper, publishing,
publisher, printing and printing press’ which are expressly reserved to be
legislated by the federal law to be within the jurisdiction of the Civil
E Courts and not the Syariah Courts’.

[30] The Wednesbury principle:

(a) In so far as the second main ground of appeal by the appellants is
F concerned, we are of the view that the learned judge was correct in her
finding that the appellants had acted in excess of their powers and that
their conduct was unreasonable and unlawful in the circumstances
within what is commonly understood as the limits of the Wednesbury
principle.
G In Associated Provincial Picture Houses, Limited v Wednesbury Corporation
[1948] 1 KB 223, the English Court of Appeal held:
In considering whether an authority having so unlimited a power has acted
unreasonably, the court is only entitled to investigate the action of the
H authority with a view to seeing if it has taken into account any matters that
ought not to be or disregarded matters that ought to be taken into account.
The court cannot interfere as an appellate authority to override a decision of
such an authority, but only as a judicial authority concerned to see whether it
has contravened the law by acting in excess of its power,
I (b) the circumstances in the present case in which the court was entitled to
investigate the actions of the appellants with a view to seeing if they had
taken into account any matters that ought not to be taken into account
or disregarded matters that ought to be taken into account were, inter
alia:
86 Malayan Law Journal [2015] 3 MLJ

(i) as at 23 May 2012, the date of the search and seizure, there A
was no fatwa, declaration, announcement or circular issued
by the first appellant or by any other religious authority
banning the publication and sale of the books by the
respondents or by anyone else, for being in breach of the
hukum syarak; B
(ii) also, as at 23 May 2012 there was no prohibition order issued
under s 7 of the PPP Act by the second respondent against the
publication and sale of the books. The prohibition order was
only issued by the second appellant on 29 May 2012 and C
published in the gazette on 14 June 2012, that is, some six
days and 22 days respectively after the search and seizure.
It will be useful to read s 7 of the PPP Act in full at this
juncture. Section 7 of the PPP Act provides as follows:
D
7(1) If the Minister is satisfied that any publication contains any article,
caricature, photograph, report, notes, writing, sound, music, statement
or any other thing which is in any manner prejudicial to or likely to be
prejudicial to public order, morality, security, or which is likely to alarm
public opinion, or which is or is likely to be contrary to any law or is
otherwise prejudicial to or is likely to be prejudicial to public interest or E
national interest, he may in his absolute discretion by order published
in the Gazette prohibit, either absolutely or subject to such conditions
as may be prescribed, the printing, importation, production,
reproduction, publishing, sale, issue, circulation, distribution or
possession of that publication and future publications of the publisher F
concerned.
(2) In the case of a publication originating in any country outside
Malaysia, an order under subsection (1) may, if the order so provides —
(a) prohibit the importation of any or all publications whether before or
after the date of the order, subject to such conditions as may be G
prescribed therein;
(b) in the case of a periodical publication, prohibit the importation of any
past or future issue thereof;
(c) in the case of a publication which has been issued or appears or H
purports to have been issued from any publishing house, agency or
other source specified in the order, prohibit the importation of any
other publication which may at any time whether before or after the
date of the order has been, or appears or purports to have been, issued
from the specified publishing house, agency or other source;
I
(d) require the publisher thereof to make such deposits of such amount
and in such manner as may be prescribed therein before any such
publication may be imported.
(3) Where the Minister is satisfied that the publisher of any publication
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 87

A has acted in contravention of the Act or any rules or order made

thereunder or any condition of the licence or permit or any law relating
to sedition or defamation, he may after giving such publisher an
opportunity to show cause why the deposit made under paragraph 2(d)
should not be forfeited, order the deposit or part thereof to be forfeited.
B (4) Whether or not an order has been made under subsection (3) the
court may order the deposit or any balance thereof, if any —
(a) to be forfeited where the publisher fails to appear in court to answer
any criminal charge or civil action relating to any matter in connection
C with such publication; or
(b) to be paid out in settlement of any judgment obtained against the
publisher arising out of any proceeding in connection with such
publication.
(5) Where a deposit made under paragraph 2(d) is ordered to be
D forfeited or utilized in settlement of any damages under subsection (3)
or (4), the order of prohibition under subsection (1) shall become
absolute unless the publisher makes a further deposit as may be required
by the Minister.

E (6) A local or foreign publisher shall be responsible and liable for any
action in respect of any material published in his publication.
It will be noted that upon the issuance of the prohibition order, the
first respondent withdrew all the books from the bookstore and
their other outlets;
F
(iii) without any fatwa, public notification or prohibition order in place
on 23 May 2012, to alert the public on the ‘unlawful’ status of the
books, it offends the sense of fair play and justice in our view to
accuse the respondents for being in breach of s 13 of the SCO Act.
G After all it is basic criminal jurisprudence that one cannot be
charged with an offence unless there is a rule or law prohibiting the
conduct complained of. And it will be trite to say that insofar as the
prohibition order is concerned it could not have been gazetted to
take effect retrospectively as this would be in conflict with art 7(1)
H of the Federal Constitution which provides:
(1) No person shall be punished for an act or omission which was not
punishable by law when it was done or made, …
(2) …
I (iv) it was contended by the senior federal counsel that there was no
requirement for a fatwa to be issued before there can be a
prosecution under s 13 of the SCO Act. In other words, the offence
under s 13 is not contingent on a fatwa. The senior federal counsel
further submitted that the court cannot ‘inject a requirement to the
88 Malayan Law Journal [2015] 3 MLJ

legislation’ when there is none. We agree with the submission of the A

senior federal counsel. In fact we would go further and state that an
offence under s 13 of the SCO Act is not contingent on a fatwa or
even a prohibitory order as s 13 itself creates the offence envisaged.
We, however, are of the view that since the books had been in
circulation internationally and locally, it would offend the sense of B
justice to charge a person for an offence for acts being contrary to
Islamic Law when there is no reference point for members of the
public to refer to in order to know the nature of the offence, such as
if there had been a fatwa, prohibition order or any other form of
C
notification;
(v) we agree that it does not mean that every time there is a purported
breach and an alleged offence against the precepts of Islam, being a
religious doctrine, there is a criminal offence committed as well. In
the instant case, as the offence is an offence against the precepts of D
Islam and there is no similar offence in the federal law and the
impugned offence specifically covers Muslims only, clearly it
cannot be argued that it is a ‘criminal law’ as envisaged by the
Constitution (see Sulaiman bin Takrib);
E
(vi) it must be made abundantly clear here that the hearing in the High
Court was not for a judicial review of a criminal case. No doubt the
judicial review process is not suitable for criminal cases, but what
was evident in the judicial review proceedings was that the
respondents were challenging the action of the first appellant as F
being in breach of art 7 of the Federal Constitution which is a
provision on fundamental liberties and was not a challenge on the
provisions of s 13 of the SCO Act;
(vii) the fact that officers of the first appellant had proceeded to the
bookstore with a group of photographers and reporters showed G
their intent to publicise the search and seizure and to ‘embarrass’
the respondents. Their conduct was pre-planned and was not a raid
spontaneously conducted on receipt of a complaint;
(viii) the facts disclosed that the first appellant did not obtain a search H
warrant to conduct the raid. Given the time that the first appellant
had in preparing for the raid by inviting the photographers and
reporters, we are of the view that the first appellant would have had
sufficient time to apply for and obtain a search warrant;
(ix) it was contended by the appellants that if the learned judge was I
right to hold that the search and seizure of the books by the first
appellant were in excess of their powers and therefore unlawful, this
approach would cause absurd results and consequences to
enforcement officers in their discharge of their duties under Syariah
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 89

A Law. For instance, it was argued that enforcement officers would

not be able to enter a pub to arrest a Muslim for illegally drinking
alcohol. However we are of the view that this argument is illusory
simply because the consumption of alcohol by a Muslim is a
forbidden act and an offence under Syariah Law and hence
B enforcement officers will be legally entitled to enter a pub to make
an arrest. Contrast that scenario to the present case where the
officers of the first appellant had wrongly searched and seized the
books when it was not illegal to publish and/or sell them in the first
instance viz the prohibition order; and
C
(x) it is equally important for the court to consider the fact that the
English edition of the books had been published internationally
and were available in the international market for some time before
the search and seizure at the first respondent’s bookstore. The
D Bahasa Malaysia version of the books was published for the
Malaysian market not too long before the search and seizure.

CONCLUSION

E [31] Having evaluated the evidence and considered the law pertaining to this
case, we are of the view that the following conclusions may be stated or restated,
as the case may be, namely:
(a) the High Court exercising its supervisory civil jurisdiction is at liberty to
interpret laws on fundamental liberties and to adjudicate on
F unconstitutional conduct by public authorities;
(b) the civil court has the jurisdiction and power to judicially review the
improper institution of criminal proceedings when the impugned
conduct is in fact not criminal in nature (see Sulaiman bin Takrib);
G (c) the respondents are entitled to their legitimate expectation that the
actions of the first appellant shall be carried out properly and lawfully;
(d) the civil court has the jurisdiction to adjudicate on the legal status of the
third respondent as it is a matter within the province of administrative
H law. The case does not cease to be within the jurisdiction of the civil
court just because it has an Islamic Law element in it (see Siti Hasnah
Vangarama bt Abdullah);
(e) the second respondent who is a non-Muslim cannot be subject to and/or
be the subject of enforcement actions by the first appellant under the
I Syariah Criminal Procedure (Federal Territories) Act 1997 as the SCO
Act applies to Muslims only, as defined in the Administration of Islamic
Law (Federal Territories) Act 1993. By virtue of Item 1 of the State List
of the Ninth Schedule of the Constitution it is beyond doubt that
non-Muslims cannot be subjected to Islamic Law. They cannot be
90 Malayan Law Journal [2015] 3 MLJ

compelled to appear before the Syariah Court. Even if they consent, the A
Syariah Court has no jurisdiction over them. Jurisdiction is a matter of
law, not of consent, acquiescence or convenience. Therefore, the power
to punish transgressors of the precepts of islam such as an offence under
s 13 of the SCO Act, applies only to persons professing the religion of
Islam (see Subashini a/p Rajasingam v Saravanan a/l Thangathoray and B
other appeals [2008] 2 MLJ 147 FC);
(f) no action whatsoever can be taken against the first respondent as it is a
corporate entity and incapable of professing a religion. The action taken
against the first respondent was unlawful;
C
(g) it is the duty of the court to ‘uphold, protect and to ensure that justice is
administered in a regular and effective manner according to law’;
(h) in so far as the third respondent is concerned we are of the view that the
appellant’s actions were unreasonable and irrational and tainted with
D
mala fides within the meaning of Karam Singh v Menteri Hal Ehwal
Dalam Negeri (Minister of Home Affairs), Malaysia [1969] 2 MLJ 129
FC per Ong Hock Thye CJ (Malaya) that is, there was ‘an absence of
care, caution and a proper sense of responsibility’ as the officers of the
first appellant well knew that the third respondent was subject to the
E
directions of the second respondent. Since the first respondent and
second respondent cannot be subjected to s 13 of the SCO Act, to take
action against the third respondent for an infringement of the said s 13
in the same transaction just because she is a Muslim would run counter
to the principle of fairness and justice. In a multi-racial and
F
multi-religious country like Malaysia, it is imperative that law
enforcement agencies, like the first appellant, be sensitive to the
ramification of its actions lest it may lead to an unwelcomed perception
that to employ any Muslims within any organisation in Malaysia would
invite unwanted adverse enforcement on that organisation by the likes
G
of the first appellant; and
(i) in so far as the second respondent is concerned we are of the view that
the second respondent has successfully shown the actions of the first
appellant to be illegal and irrational. It was an abuse and unreasonable
exercise of discretionary power, unconstitutional and procedurally H
improper.

[32] On a final note we would like to emphasise that Malaysia has subscribed
to the doctrine of constitutional supremacy and all judges have taken the oath
to preserve, protect and defend the Constitution. Any law whether it is Federal I
or State Law which is in breach of the Federal Constitution must be struck
down when challenged and the federal or any state government and/or its
agencies which apply the law wrongfully must be corrected through the judicial
review process. In consequence and in addition to the Wednesbury principle
 Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya
[2015] 3 MLJ Books Sdn Bhd & Ors (Mah Weng Kwai JCA) 91

A which relates to administrative action, the court is obliged to provide relief

when the fundamental guarantee provisions are breached.

[33] For reasons stated above we maintain that the High Court is
constitutionally duty bound and seized with jurisdiction to hear and determine
B the issues and to grant the reliefs prayed for (see Nik Noorhafizi bin Nik Ibrahim
& Ors v Public Prosecutor [2013] 6 MLJ 660; [2014] 2 CLJ 273 and Nik
Nazmi bin Nik Ahmad v Public Prosecutor [2014] 4 MLJ 157).

[34] In the result, the appeal is dismissed with no order as to costs. The order
C of the High Court is affirmed save that:
(a) in view of our ruling on the provisions of s 13 of the SCO Act as stated
in paras 27(h)(xi) and 30(b)(iv) above, we consequentially order the
deletion of paras (c), (d), (e) and (f ) and the phrase ‘which are
D inconsistent with art 7 of the Federal Constitution’ found in para (b) of
the said order; and
(b) by consent, paras (g) and (h) therein are deleted.

Appeal dismissed with no order as to costs.

E
Reported by Afiq Mohamad Noor