The JAWI officers proceeded to examine the Muslim and non-Muslim employees of Borders, and issued orders compelling them to be subject to further investigation and examination.The next day, a similar raid was conducted at another Borders store.It is vital that the history of how religion came to be inserted in the Federal Constitution be first examined, objectively and dispassionately, given that the subject is fraught with difficulty.Federation of Malaya The Federal Constitution has its roots in the Federation of Malaya Agreement 1948 (“the FMA 1948”) which established a federation known as the Federation of Malaya or comprising the nine Malay states[ii] and the Settlements[iii] of Penang and Malacca.[iv] It was envisaged that the Federation, while remaining under British rule for the time being, would progress towards eventual self-government.[v] Historically, British rule in the Malay States eschewed interference with the powers of the Malay Rulers on matters relating to Islam and Malay customs.In the now infamous ,[xxxiii] in 2012, officers of JAWI,[xxxiv] accompanied by the media, raided the Borders Bookstore at The Gardens, Mid Valley City in Kuala Lumpur.During the raid, the JAWI officers seized several books by international author Irshad Manji, titled which was also seized on the grounds that the books were prohibited.[xxxv] At the material time, the publications were, in fact, not subject to any prohibition order by the Minister of Home Affairs.Public and private aspects of Islam in Malaysia In 1988, a full bench of five in the Supreme Court (as the Federal Court was then known) had occasion to consider Article 3 in an appeal against a mandatory death sentence for drug trafficking and possession of firearms.It was contended on behalf of the accused that Islam being the religion of the Federation, as declared in the Federal Constitution, and the Federal Constitution being the supreme law of the Federation, the imposition of the death penalty was unconstitutional, being contrary to Islamic injunction.[xxiv] Although the Supreme Court acknowledged that Islam was not just a mere collection of dogmas and rituals but a complete way of life covering all fields of human activities, be they private or public, legal, political, economic, social, cultural, moral or judicial,[xxv] it held that this was not the meaning intended by the framers of the Constitution.
Both the High Court[xxxvi] and the Court of Appeal[xxxvii] held that the act of enforcement by JAWI was unlawful and illegal, primarily on the grounds that the books were in fact not subject to any prohibition order at the material time.
The State List stipulates that the Shariah court is to have jurisdiction only over persons professing the religion of Islam and in respect only of the above matters.