The Nik Raina Sandiwara continues

by Hafiz Yatim@www.malaysiakini.com

Borders Gardens store manager Nik Raina Nik Abdul Aziz (left with Dr.Kamsiah at Syariah High Court, Kuala Lumpur today), who is embroiled in a case over the distribution of the controversial Allah, Liberty and Love book, has sought to seek a suspension of the prosecution by the Federal Territory Islamic Department (JAWI) on her at the Syariah High Court.

This is despite Borders and her having obtained an order from the civil court’s Court of Appeal for a suspension of the proceedings until the disposal of its judicial review application.

Counsel Rosli Dahlan said he is seeking a suspension of the prosecution following the JAWI Chief Prosecutor Ibrahim Deris having commented to the media that he was not bound by the Civil Court’s proceeding. “Hence, this led to the application which we have submitted on Monday,” he said.

Nik Raina in her application sought the stay on the prosecution’s action on the grounds that her and Border’s judicial review application would now be scheduled to be heard on Oct 22, awaiting the affidavits from the Home Minister which had not been submitted then.

Furthermore, she was concerned over the Syariah Chief Prosecutor’s statement that theCourt of Appeal decision on August 6, was not binding on him.

Nik Raina and Berjaya Books Sdn Bhd, which operates the Borders chain, had also filed another application to strike out the prosecution’s action, as it claimed that the prosecutor can only take such action under Section 13 of the Syariah Offences Act 1997, under which Nik Raina was charged, after the book has been declared banned under Section 7 of the Printing Presses and Publications Act 1984.

JAWI prosecutor Che Sauki Che Husin said they will need time to reply to the affidavit and sought an adjournment, as they claimed they had not received the documents.

Following this, Syariah High Court judge Abdul Walid Abu Hassan has fixed November 19 to hear submissions and January 23, 2013 for decision on the application.

Abdul Walid also told the court there is no need for him to hear the striking-out application as this is pending to the decision of the judicial review application.

Hisham: Jawi can seize books

Nik Raina was charged by JAWI with the distribution of the book at the Borders Gardens book store on May 23 this year. She was accompanied by Berjaya Books Assistant General Manager (Operations) Stephen Fung in today’s proceedings.

However, the Home Ministry only declared a ban of the book written by author Irshad Manji six days later, resulting in this protracted battle in the civil and Syariah courts.

Yesterday it was reported that Home Minister Hishammuddin Hussein (above) had affirmed in his affidavit in reply to the judicial review application that Jawi has the authority to seize books and take such action without his ministry having declared the book as banned.

Hishammuddin  further 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,” the Minister said in his affidavit

Speaking to reporters after proceedings, Rosli told reporters that there was a conflict of law between the Section 13 of the Syariah Offences Act and Section 7 of the PPPA and this would put a strain on the court, and hence Berjaya Books resorted to the judicial review application.

He said Borders carries more than 200,000 titles at any point of time and it was also the duty of the Home Ministry to act should it decide to ban the book.

“There was no fatwa (religious edict) declared to ban the book and the Home Ministry only declared it banned on May 29, after JAWI had already raided Borders resulting in the predicament and the charge faced by Nik Raina,” said Rosli.

Nik Raina is charged by JAWI by virtue of being the most senior Muslim individual at Borders Gardens. The Syariah Court has no jurisdiction on non-Muslims and companies.