Jawi delays withdrawal of charge against Borders

The withdrawal of a criminal charge against Borders book store manager Nik Raina Nik Abdul Aziz in the Kuala Lumpur Syariah High Court - anticipated today - has been called off.

This has led to Borders' chief operating officer Yau Su Peng (left in picture) alleging that the Federal Territory Islamic Affairs Department (Jawi) could be stalling.

"We have the civil High Court judgment (delivered) last March, which allowed our application (to contend that the charge was illegal),” Yau said.

"Borders' had applied for the matter to be heard before Hari Raya so that Nik Raina can get on with her life and not be bogged down by this. We were told by Jawi that the judge (would only be) free today.

"Last night, we received a call informing us of the postponement. I am told the withdrawal of the charge can be heard by any judge. Hence, I think they are stalling," Yau told Malaysiakini.

Declaring her disappointment with the postponement, she added, “Now it looks like Nik Raina will not have her 'merdeka' before Merdeka Day. ”

Nik Raina is accused of distributing Canadian author Irshad Manji's banned book, 'Allah, Liberty and Love'.  

This came after a raid conducted by Jawi's enforcement officers on the bookstore on March 23 last year. However, the banning of the book was only gazetted on June 14 that year.

High Court decision

On March 22, Kuala Lumpur High Court judge Zaleha Yusof agreedthat the Jawi raid predated the ban order and that the prosecution of Nik Raina amounted to retrospective enforcement. 

Justice Zaleha then granted a judicial review application by Borders bookstore, which sought to quash the prosecution against Nik Raina (left), the manager at Borders' MidValley Megamall outlet, for selling the book, 'Allah, Liberty and Love' 

She therefore ruled Jawi's action to be in violation of Article 7 of the federal constitution, which states that no citizen can be punished under a law before it is enacted.

On June 26, the Attorney-General's Chambers failed in its bid to obtain a stay of the Justice Zaleha's ruling.

Following that, the Borders lawyer wrote to Jawi to withdraw the charge or they would initiate contempt action against the Minister in the Prime Minister's Department for not abiding by the court order.

Last month, Yau said the charge against Nik Raina would bewithdrawn, as recommended by the AGC.  

Borders' lawyers ask for no more postponement

Lawyers representing Borders wrote to the Kuala Lumpur Syariah High Court deputy registrar Hafiz Othman yesterday evening, seeking assurance that there would no more postponement of the case that has now been fixed for Tuesday, Sept 3. 

Rosli Dahlan, who is one of the lawyers, said he was taken aback by today's postponement, with a mere phone call yesterday evening, since the presiding judge, Abdul Walid Abu Hassan, who was recently  transferred to Penang, had said that today was his free day. 

Rosli (right) said it was the court and Jawi that informed them last month, after Borders asked sought an early date for the hearing, that it could not be done and the case was fixed for today as it was the only free day for the judge to come to Kuala Lumpur.  

“If this judge is not free, the withdrawal of the charge can be done before any other judge. I am disturbed by this, especially when you add up all the past events. 

“The Kuala Lumpur High Court declared the charge as ultra vires the federal constitution. It has been five months since. Is this a delaying tactic?” Rosli asked.

“Is it right that Nik Raina should continue to suffer, extending beyond Ramadan and Hari Raya Aidilfitri? She will not be a free person even on Merdeka Day.” 

Rosli further asked who would respect the court's order if government agencies such as Jawi did not.

He added that Justice Zaleha in her grounds of judgment had also made comments against the then Home Minister Hishammuddin Hussein for abdicating his duties in this matter by supporting Jawi.

“No wonder,” Rosli added, “we are suffering from a breakdown of law and order.”